Selvage v. Franklin.

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

June 4, 2019

In the Court of Appeals of Georgia
A19A0730. SELVAGE v. FRANKLIN.

BROWN, Judge.

Franklin Selvage (“the father”) appeals the trial court’s order denying his

petition to modify custody, child support, and visitation. He contends that the trial

court erred in (1) denying him any visitation; (2) refusing to adopt less extreme

visitation provisions pursuant to OCGA § 19-9-7; (3) failing to enter a child support

award pursuant to OCGA § 19-6-15 and to incorporate a child support worksheet or

addendum into the final order; and (4) failing to incorporate a permanent parenting

plan into the final order. For the reasons that follow, we vacate the order and remand

the case with direction.

The record shows that the father was involved in a romantic relationship with

Latrina Franklin (“the mother”) when she became pregnant. The father did not want
the child and was not present for the birth in 2008. The father had no contact with

either the mother or the child until the mother contacted him in 2009, needing a place

to stay after a disagreement with her mother. The mother, the child, and the mother’s

older child from a different relationship stayed with the father for a week until an

incident occurred, leading to the arrest of the father. The father pleaded guilty to

family violence battery and third degree cruelty to children for committing acts of

domestic violence against the mother in the presence of both of her minor children.1

As a condition of his probation, the father was ordered to have no contact with the

mother or her minor children.

In 2011, the father violated the no-contact condition of his probation by leaving

a letter in the mother’s mailbox, and as a result, the mother was granted a twelve-

month family violence protective order on February 14, 2012. The protective order

prohibited the father from having any contact with the mother and her two children.

On September 21, 2012, the father was charged with violating the family violence

protective order, and his probation stemming from the 2010 charges was revoked

1
Throughout the trial, the pleadings, and the parties’ briefs on appeal, both
parties have stated that the father entered a guilty plea to the charges. However, the
final disposition indicates that a bench trial was held and the father was found guilty
by verdict.

2
because the father had contacted the mother. The father entered a plea of nolo

contendere and was sentenced to twelve months of probation. A condition of his

probation was no violent contact with the mother. In 2013, the mother sought a

permanent protective order against the father, which was denied.

From October 2009 until 2013, the father had no contact with the child. In

2013, the father filed a petition to legitimate the child, seeking to obtain joint legal

custody of the child, to establish visitation rights, and to have child support

established. In its final order, entered nunc pro tunc May 29, 2013, the trial court

granted the legitimation, declaring the father to be the legal father of the child, but

found that it was not in the best interest of the child to have any visitation or contact

with the child “[d]ue to the [the father]’s criminal history and family violence.”2 The

court awarded sole physical and legal custody to the mother and ordered that no child

support be paid due to the court’s finding that the father lacked the means to pay.

Finally, the trial court included a no-contact provision in the order:

[The father] is ordered not to go to the minor child’s school and to have
no direct or indirect contact with the minor child.

2
During the instant modification action, the mother presented evidence of the
father’s extensive criminal history, including convictions for burglary and theft by
taking. The most recent conviction was for a misdemeanor in 2014.

3
 The Court also Orders that [the father] is to have no direct or indirect
contact with the minor child’s mother . . . nor is [the father] to have any
direct or indirect contact with [the mother]’s other minor child. . . .3

In 2015, after the child began exhibiting behavioral problems at school, the

mother reached out to the father. The mother began allowing contact between the

father and the child, leading to the mother supervising visits between the father and

the child. Both the mother and the father testified that the father picked the child up

from summer daycare more than once and that the father had unsupervised visits with

the child without incident. Sometime in the fall of 2015, the mother cut off all contact

after an unspecified disagreement between the parents.

In 2016, the father filed a petition for modification of custody, child support,

and visitation. The petition was dismissed for want of prosecution on March 16,

2016, after the father failed to appear at a scheduled hearing on his petition.

On March 14, 2017, the father filed another petition for modification of

custody, child support, and visitation, seeking to obtain joint physical and legal

custody of the child, to establish visitation rights, and to have child support

3
While the father filed a motion for reconsideration of the 2013 order, which
was denied, the father did not timely appeal the order.

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established. The mother opposed the petition, including the request to establish child

support. After a hearing, the trial court denied the father’s petition in its entirety,

finding that “it still is not in this child’s best interests to have contact with the

[father].” The father now appeals the trial court’s final order.

1. The father first contends that the trial court erred in denying him any

visitation rights with his child.

In deciding visitation, the trial court has very broad discretion, looking
always to the best interest of the child. When the trial court has
exercised that discretion, this [C]ourt will not interfere unless the
evidence shows a clear abuse of discretion, and where there is any
evidence to support the trial court’s finding, this [C]ourt will not find
there was an abuse of discretion.

(Citation and punctuation omitted.) Williams v. Williams, 301 Ga. 218, 220 (1) (800

SE2d 282) (2017). We must also bear in mind that

[i]t is the express policy of this state to encourage that a child has
continuing contact with parents and grandparents who have shown the
ability to act in the best interest of the child and to encourage parents to
share in the rights and responsibilities of raising their child after such
parents have separated or dissolved their marriage or relationship.

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OCGA § 19-9-3 (d). To that end, “only in exceptional circumstances should the non-

custodial parent be denied the right of access to his child.” (Citation omitted.)

Woodruff v. Woodruff, 272 Ga. 485, 485-486 (1) (531 SE2d 714) (2000).

In explaining its decision to deny the father any contact with the child, the trial

court provides only a short recitation of facts and of the legal proceedings in its order

before concluding that “it still is not in this child’s best interests to have contact with

the [father].” The rest of the three-page order addresses the mother’s counterclaim for

contempt.4

Pursuant to Chapter 9 of Title 19 of the Official Code of Georgia which

governs child custody proceedings, where the custody of any child is at issue between

the parents,5 the following applies:

If requested by any party on or before the close of evidence in a
contested hearing, the permanent court order awarding child custody

4
In the modification action, the mother counterclaimed for contempt, stemming
from three incidents of the father having contact with the mother and her children.
The trial court declined to find the father in contempt for two of the incidents, but
found the father willfully violated the 2013 order’s no-contact provision with regard
to an incident in which the father initiated contact with the mother’s older child in a
public place.
5
While the father does not appeal the trial court’s order to the extent it awards
sole physical and legal custody to the mother, OCGA § 19-9-22 (1) defines “custody”
as including visitation rights.

6
 shall set forth specific findings of fact as to the basis for the judge’s
decision in making an award of custody including any relevant factor
relied upon by the judge as set forth in paragraph (3) of this subsection.
Such order shall set forth in detail why the court awarded custody in the
manner set forth in the order. . . .

(Emphasis supplied.) OCGA § 19-9-3 (a) (8). Furthermore, OCGA § 9-11-52 (a)

provides that “in all nonjury trials in courts of record, the court shall upon request of

any party made prior to such ruling, find the facts specially and shall state separately

its conclusions of law.” See Warren v. Smith, 336 Ga. App. 342, 344-345 (785 SE2d

25) (2016). Here, because the record clearly reflects that the father requested the trial

court make findings of fact and conclusions of law prior to the hearing, he was

entitled to them. This is particularly true given the gravity of the court’s decision to

deny the father any visitation or contact with the child. See, e.g., Chandler v.

Chandler, 261 Ga. 598, 599 (1) (409 SE2d 203) (1991) (trial court’s effective denial

of any visitation with child was abuse of trial court’s discretion where “[l]ess extreme

arrangements, including limited and supervised visitation, could be instituted to

satisfy the trial court’s concerns that appellant might abduct the child if granted

visitation”); Taylor v. Taylor, 282 Ga. 113, 116 (646 SE2d 238) (2007) (Sears, J.,

dissenting) (trial court’s order denying all visitation and prohibiting any contact with

7
child is “a de facto termination order” which sidesteps the clear and convincing

evidence standard of proof constitutionally mandated in termination of parental rights

proceeding). Accordingly, we vacate the portion of the trial court’s order to the extent

it denied the father’s request for a modification of visitation, and we remand the case

with instructions for the trial court to enter an order providing findings of fact and

conclusions of law. See Warren, 336 Ga. App. at 344-345 (vacating trial court’s

custody order and remanding case where father requested findings of fact and

conclusions of law and order failed to provide such).

2. The father next contends that to the extent the trial court had any valid basis

for considering acts of family violence, the trial court erred in not adopting less

extreme visitation provisions pursuant to OCGA § 19-9-7. In determining the best

interest of the child during a custody proceeding, the judge may consider any relevant

factor including “[a]ny evidence of family violence.” (Emphasis supplied.) OCGA §

19-9-3 (a) (3) (P). During the hearing, the mother provided testimony concerning the

incident which prompted the family violence protective order against the father.

Furthermore, the trial court was presented with evidence, including the father’s own

testimony, of the father’s guilty plea to family violence battery and third degree

8
cruelty to children. Thus, we cannot agree that the trial court had no valid basis for

considering acts of family violence in this case.

OCGA § 19-9-7 allows a judge to award visitation or parenting time to a parent

who committed one or more acts involving family violence provided the judge finds

that adequate provision for the safety of the child and the parent who is a victim of

family violence can be made. OCGA § 19-9-7 (a). If the judge makes such a finding,

the judge may:

(1) Order an exchange of a child to occur in a protected setting;

(2) Order visitation or parenting time supervised by another person or
agency;

(3) Order the perpetrator of family violence to attend and complete, to
the satisfaction of the judge, a certified family violence intervention
program for perpetrators as defined in Article 1A of Chapter 13 of this
title as a condition of the visitation or parenting time;

(4) Order the perpetrator of family violence to abstain from possession
or consumption of alcohol, marijuana, or any Schedule I controlled
substance listed in Code Section 16-13-25 during the visitation or
parenting time and for 24 hours preceding the visitation or parenting
time;

(5) Order the perpetrator of family violence to pay a fee to defray the
costs of supervised visitation or parenting time;

(6) Prohibit overnight visitation or parenting time;

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 (7) Require a bond from the perpetrator of family violence for the return
and safety of the child; and

(8) Impose any other condition that is deemed necessary to provide for
the safety of the child, the victim of family violence, or another family
or household member.

OCGA § 19-9-7 (a). In his modification petition, the father requested “reasonable

visitation” with the child. At the hearing, the father’s attorney proposed a “graduated

plan” to ease the child into visitation with the father. The mother testified that if the

court were inclined to grant visitation to the father, she would prefer supervised

visits.

In light of our holding in Division 1, we remand to give the trial court the

opportunity to consider the applicability of OCGA § 19-9-7, and to enter the

appropriate findings thereunder if the trial court is inclined to impose any of the

conditions set forth therein, including supervised visitation.

3. The father next argues that the trial court erred in failing to enter a child

support award and in failing to incorporate a child support worksheet or child support

addendum into its final order. We agree.

OCGA § 19-6-15 (c) (1) pertinently provides:

The child support guidelines contained in this Code section are a
minimum basis for determining the amount of child support and shall

10
 apply as a rebuttable presumption in all legal proceedings involving the
child support responsibility of a parent. This Code section shall be used
when the court enters a temporary or permanent child support order in
a contested or noncontested hearing or order in a civil action filed
pursuant to Code Section 19-13-4.

(Emphasis supplied.) As previously explained by the Supreme Court of Georgia, “the

child support guidelines apply not only to initial determinations of child support, but

also to modification actions, and are the expression of the legislative will regarding

the calculation of child support and must be considered by any court setting child

support.” (Citations and punctuation omitted.) Wetherington v. Wetherington, 291 Ga.

722, 726 (2) (a) (732 SE2d 433) (2012).

In a modification action, “the showing of a change in the parent’s financial

status or a change in the needs of the child is a threshold requirement. . . .” (Citation

and punctuation omitted.) Moore v. Moore, 346 Ga. App. 58, 60 (3) (815 SE2d 242)

(2018). “After the trial court finds satisfactory proof of a change in financial status,

it must reconsider the amount of child support under the guidelines of OCGA §

19-6-15 (b).” Wingard v. Paris, 270 Ga. 439, 440 (511 SE2d 167) (1999). See also

Wetherington, 291 Ga. at 725 (2) (a).

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 Here, the trial court did not address whether there had been a change in the

financial circumstances of the father or the needs of the child since the 2013 order

denying any child support.6 Instead, the trial court again summarily denied the

father’s request to pay child support because the court found that “it still is not in this

child’s best interests to have contact with [the father].” Accordingly, we reverse the

child support award made in the final order and remand the case for the trial court to

determine whether there has been a substantial change in circumstances meriting a

modification and, if so, what child support award is appropriate under the guidelines,

6
We recognize that the 2013 order is not before us, but we note that it did not
include a child support worksheet or addendum. The only specific findings included
in the 2013 order to support the court’s decision to award zero child support was that
the father had been unemployed since 2006, and did not have the means to pay child
support “even though he is not disabled.”

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with any deviations supported by the required written findings.7 See Wetherington,

291 Ga. at 728 (2) (c).

We also take this opportunity to remind the trial court that “[c]hild support is

the right of the child and not of its custodian. . . . The conduct of the custodian cannot

deprive the child of this right to support, any more than the custodian can waive it for

the child or contract it away.” (Citations and punctuation omitted.) Dept. of Human

Resources v. Prince, 198 Ga. App. 329, 331 (2) (401 SE2d 342) (1991).

4. Finally, the father argues that the trial court erred in failing to incorporate

a parenting plan into its order. Again, we agree. OCGA § 19-9-1 (a) provides, in part,

that “[t]he final order in any legal action involving the custody of a child, including

7
The mother contends that no modification in child support was warranted
because there was no substantial change in the father’s financial position. This
argument overlooks the fact that the trial court never addressed whether a substantial
change in the father’s financial position warranted a modification. The mother also
argues that even if his financial position has changed since the legitimation order, the
father still does not have the means to pay child support based on his submitted
documentation. However, it is not for this Court to determine in the first instance
whether the father has the means to pay child support. That is an issue for the trial
court, following the child support guidelines, to determine. See, e.g., Black v.
Ferlingere, 333 Ga. App. 789, 791-792 (2) (777 SE2d 268) (2015) (reversing trial
court’s order that no child support owed by either parent where order failed to include
a child support worksheet or addendum, and specific findings of fact to support
deviation from presumptive amount as required by OCGA § 19-6-15).

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modification actions, shall incorporate a permanent parenting plan as further set forth

in this Code section[.]” (Emphasis supplied.)

[T]he parenting plan must include several details beyond custody and
visitation, including, among many things, the rights of both parents to
access the child’s records and information related to education, health,
health insurance, extracurricular activities, and religious
communications. OCGA § 19-9-1 (b) (1) (D).

(Citation and punctuation omitted.) Moore, 346 Ga. App. at 60. In this case, the trial

court failed to incorporate a parenting plan into its final order. The mother argues that

to the extent any parenting plan was warranted in this case, it was included in the trial

court’s order. While we agree that “a separate court order exclusively devoted to a

parenting plan [is] not . . . required,” the statute clearly requires that the order include

more “details beyond custody and visitation.” OCGA § 19-9-1 (a), (b) (1) (D). See

Moore, 346 Ga. App. at 59-60 (2). The trial court’s order, here, merely states that the

mother shall have sole legal and physical custody of the child and that the father shall

have no visitation. The trial court’s reference to the 2013 order does not remedy the

issue as that order also failed to include a parenting plan. See McFarlane v.

McFarlane, 298 Ga. 361, 362 (2) (782 SE2d 29) (2016) (rejecting argument that trial

court’s denial of a modification request left the previous parenting plan in place and

14
made new parenting plan unnecessary where prior order also failed to include

parenting plan). Because the trial court did not enter a parenting plan with its order,

we vacate the judgment and remand this case for compliance with the requirements

of OCGA § 19-9-1. See Moore, 346 Ga. App. at 59-60 (2). See also Williams, 301 Ga.

at 223-224 (3).

Judgment vacated and case remanded with direction. Barnes, P. J., and

Mercier, J., concur.

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