MARKS v. SOLES Et Al.

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, 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

November 10, 2016

In the Court of Appeals of Georgia
A16A0723. MARKS v. SOLES et al.

BRANCH, Judge.

In March 2013, three children were removed from their mother’s custody and

placed with their fathers after the children were found living with the mother, Audrea

Marks, in filthy conditions. More than a year later, the trial court granted joint legal

custody in the first and second of Marks’s children to those children’s father, appellee

Jason Soles, as well as to Marks, with Soles receiving primary physical custody. The

trial court also awarded joint legal custody of Marks’s third child to that child’s

father, appellee Brad Lane, as well as to Marks and the child’s paternal grandparents,

with the paternal grandparents receiving primary physical custody. On appeal from

these orders, Marks asserts inter alia that the trial court erred when it awarded joint

custody of the third child to its paternal grandparents and when it imposed retroactive
child support payments on Marks. We reverse the grant of joint legal and primary

physical custody in the third child to the paternal grandparents and the imposition of

retroactive child support payments on Marks, vacate the remainder of the trial court’s

judgment, and remand for further proceedings.

“A trial court faced with a petition for modification of child custody is charged

with exercising its discretion to determine what is in the child’s best interest.” Viskup

v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012) (citations omitted). “A trial

court’s decision regarding a change in custody / visitation will be upheld on appeal

unless it is shown that the court clearly abused its discretion.” Vines v. Vines, 292 Ga.

550, 552 (2) (739 SE2d 374) (2013) (citation omitted). “Where there is any evidence

to support the trial court’s ruling [on custody or visitation], a reviewing court cannot

say there was an abuse of discretion.” Id.

Thus viewed in favor of the trial court’s judgment, the record shows that Marks

and Soles had two children, born in June 2000 and March 2003. Marks and Soles

were divorced in 2005, and their divorce decree awarded child support from Soles to

Marks in the amount of $100 per week. Marks and Lane’s child was born in March

2007.

2
 In March 2012, Marks filed a garnishment action against Soles for failure to

pay child support. On May 30, 2012, the trial court issued a summons of continuing

garnishment to Soles’s employer (the garnishee). On August 21, 2012, Soles filed a

traverse to the garnishment.

As of October 2012, Marks and Soles had joint legal custody of the first and

second children, with the mother having primary physical custody. As of the same

date, Marks and Lane had joint legal custody of the third child, with Marks having

primary physical custody. On March 9, 2013, Marks was arrested for criminal

offenses including cruelty to children, disorderly conduct, and failure to keep animals

in sanitary conditions. These charges were filed after officers from the Bulloch

County Sheriff’s Office, who were called to Marks’s home, found the three children

at issue living in a home with dog feces throughout, including on the clothes, shoes,

and bedding of the children. Rat droppings were found on the kitchen counter, and

one of the children told an aunt that she had not eaten anything since her lunch at

school the previous day.

On March 11, 2013, the trial court granted Lane’s ex parte petition for

temporary custody of the third child. On March 19, 2013, the trial court granted

Soles’s ex parte petition for temporary custody of the first and second children. On

3
April 12, 2013, the trial court entered a temporary order in which it consolidated

Marks’s garnishment and the fathers’ custody modification actions; confirmed its

transfer of physical custody of the first and second children to Soles and of the third

child to Lane; suspended the child support payments of both fathers; and placed the

proceeds of Marks’s garnishment action in the court registry.

Marks testified at a hearing held on May 7, 2013,1 that the filthy conditions in

the house from which the children were taken were created by unknown persons who

broke in while she and the children were asleep. Marks also testified that after the

children were removed from her custody, she moved to Florida, where she lived with

Soles’s mother while Lane was serving time for methamphetamine possession. The

paternal grandmother of the third child testified that she had assisted with care for

that child throughout his life and that, while the child had repeated kindergarten while

in Marks’s custody, he was now excelling in school. After hearing testimony from

thirteen witnesses, the trial court continued custody in the fathers, with “assistance

from both grandparents”; granted Marks supervised visitation; and ordered

counseling for the children.

1
A transcript of this hearing is not included in the appellate record.

4
 On August 2, 2013, the trial court denied Marks’s motion to dismiss Soles’s

traverse to the garnishment action. At a hearing on September 10, 2013, Marks

testified that she had returned to Georgia, where she was living with her parents; that

her father was a convicted child molester; and that she could receive the children for

visitation at a house she was planning to rent from her employer. The trial court

maintained supervised visitation with Marks and counseling for Marks and the

children. The trial court also ordered the parties to submit combined child support

worksheets and noted that it was considering awarding Marks up to $12,000 in child

support arrears from Soles. On March 27, 2014, the trial court ordered that Soles pay

an arrearage of $5000 at the rate of $597 per month. The court also ordered, however,

that Marks pay Soles $597 per month and Lane $523 per month in child support, with

both awards retroactive to March 1, 2013.2

On September 16, 2014, the paternal grandparents of the third child moved to

intervene. Shortly afterward, on October 3, 2014, the trial court held a hearing on

2
The garnishment of $200 a month from Soles’s earnings was to be credited
to his amount due, and Lane’s payments were to be credited to his child support
arrearage of $3,806.83. The amount of Lane’s former monthly child support payments
does not appear in the record. Neither Lane nor his parents (the third child’s
grandparents) has filed an appellee’s brief.

5
Marks’s ex parte petition for modification of custody.3 This hearing included

appearances from counsel for both fathers and Marks, and with testimony from the

children’s two counselors, the children’s guardian ad litem, the third child’s paternal

grandmother, and Marks herself. At the outset of the hearing, counsel for Lane noted

that whether the court conducted a final hearing or not, “whatever the court decides,

it’s all going to be the same evidence regardless,” and the court agreed that it

“[couldn’t] imagine the evidence not bleeding over into everything that we’re

involved with here.” Marks made no objection to this characterization.

During the hearing, Marks admitted that her home was undergoing renovation

and that she was undergoing medication for her anxiety, which sometimes resulted

in panic attacks. Marks also testified that her income had decreased since the filing

of her last financial affidavit in September 2013 and that she did not receive regular

paychecks from her new job. Marks asserted in closing argument that she was not

unfit and that she should receive primary physical custody of all three children. After

the conclusion of the witnesses’s testimony and argument, the trial court met with all

three children in chambers.

3
Marks’s ex parte petition has not been included in the appellate record.

6
 On October 14, 2014, the trial court dismissed Marks’s garnishment on the

ground that any child support Soles had owed her was eliminated by the child support

Marks now owed to Soles.

On December 12, 2014, the trial court entered two orders. The first included

findings of fact that (1) the cruelty-to-children charges against Marks were still

pending; (2) her job had “undefined duties” for an employer who had refused to obey

a subpoena; (3) Marks had found a suitable home in Savannah and had done

“substantial improvements” on it, but “claims that she has limited funds”; (4) Marks

“continues to attempt to manipulate the children by discussing pending litigation and

trying to impose guilt on them for her present situation”; (5) the third child was being

cared for by his paternal grandparents, an arrangement which had “provided stability

for” him; and (6) the counselors and the guardian ad litem had “expressed their belief

that the current custody arrangement is beneficial to the children.” The Court then

concluded “by clear and convincing evidence that custody in [Marks] would be

emotionally harmful to the children.” Attached to this first order was a parenting plan

as to the third child only, which awarded joint legal custody in that child to Marks,

Lane, and the child’s paternal grandparents, with primary physical custody awarded

to the grandparents; a completed child support worksheet establishing presumptive

7
amounts of child support at $354.10 for Marks and $292.90 for Lane; and a child

support order addendum finding that Lane had no arrears due and that Marks and

Lane were each responsible for $250 a month in child support.

Although the parenting plan, the child support worksheet, and the addendum

attached to this first order referred only to the third child, the trial court’s second

order of December 12, 2014 held that “[t]he parties shall have joint legal custody of

the [first and second children], with [their] father being the primary physical

custodian.” The second order also held that the parenting plan submitted as to the

third child “is approved for [the first and second] children and is incorporated herein

in its entirety,” and that Marks owed Soles $495 in child support “to begin

immediately.” This order did not refer to or vacate the trial court’s March 2014 order

imposing retroactive child support payments on Marks.

Marks moved for a new trial and for reconsideration. In an extensive order

entered on July 10, 2015, the trial court represented that it had granted the third

child’s grandparents’ motion to intervene “orally” on October 3, 2014.4 The court

then made findings of fact as to Marks’s unfitness for custody and concluded that

4
The record of the hearing held on that day does not support this
determination. On May 11, 2015, however, the trial court entered an order granting
the motion to intervene nunc pro tunc to October 3, 2014.

8
“ample evidence” supported that finding. The court also concluded that the fathers

and grandparents “had shown a material change in circumstances [a]ffecting the

welfare of all of the children as required by law”; that “clear and convincing”

evidence showed that the third child’s best interests would be served by “remaining

with his [paternal] grandparents”; and that it was “in the best interest of [the first and

second children] to remain in the primary custody of their father, considering all the

factors in OCGA § 19-9-3.” The court therefore denied the motion for reconsideration

and for new trial.

On appeal from these rulings,5 Marks asserts that the trial court erred in

considering evidence from the hearing on temporary custody during the final hearing,

in granting joint physical custody in the third child to its paternal grandparents, and

in adopting only one parenting plan (as to the third child) in orders modifying custody

as to all three children. Marks also argues that the court erred in considering Soles’s

traverse to Marks’s garnishment action, in imposing child support payments on Marks

retroactive to March 2013, in failing to consider the statutory Child Support

Guidelines before awarding child support from Marks to Soles, and in reducing

Soles’s child support arrearage amount from $12,000 to $5,000.

5
See OCGA § 5-6-34 (a) (11). Soles has filed a pro se appellee’s brief.

9
 1. Marks does not challenge the sufficiency of the evidence supporting the trial

court’s finding that she had become unfit such that custody in the three children was

properly modified. Instead, Marks asserts that the trial court relied on evidence

introduced at the temporary custody hearing without giving the mother sufficient

notice. See Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010). We disagree.

“[T]he nature and quality of the evidence presented at a temporary hearing is

likely to be different than that which is ultimately presented at the final hearing[.]”

Pace, 287 Ga. at 901. “[P]arties should ordinarily expect that only that evidence

which their opponent sees fit to offer at the final, more formal hearing will be relied

on to support the permanent custody award.” Id. (citations omitted). Thus, “absent

express notice to the parties, it is error for a trial court to rely on evidence from the

temporary hearing in making its final custody determination.” Id. But “we will not

assume that the judge considered anything outside of the evidence in rendering his

judgment.” Carroll v. Carroll, 307 Ga. App. 143, 144 (704 SE2d 450) (2010)

(punctuation and footnote omitted).

As a preliminary matter, Marks’s assertion that “very little if anything was

discussed at the final hearing” is not supported by the record, which includes a

transcript of 228 pages (excluding exhibits) showing testimony from Marks, the

10
children’s two counselors, the guardian ad litem, and the third child’s paternal

grandmother. The record also shows that although the trial court commented in the

middle of the proceedings that “I don’t think we’re ready for a final hearing,” the

court gave Marks notice of its intention to consider all the evidence before it at the

outset of the hearing, and also noted without objection that “we’ll go as far as we

need to go today.” Moreover, at no time during this hearing were the conditions in the

Marks home that led to the grant of primary physical custody to the fathers in dispute;

indeed, the exhibits at the final hearing included news reports and photographs as to

those conditions. Marks has thus shown neither that the court “relied [on evidence

from any of the temporary hearings] nor that the testimony of the numerous witnesses

presented at the final hearing was insufficient to support the trial court’s findings[.]”

Carroll, 307 Ga. App. at 144.

2. Marks argues that the trial court erred when it granted joint legal custody in

the third child to her, Lane, and the child’s paternal grandparents, and when it granted

joint physical custody to the grandparents. We agree.

OCGA § 19-9-6 defines the terms “joint custody,” “joint legal custody,” and

“joint physical custody” as follows:

11
 (4) “Joint custody” means joint legal custody, joint physical
custody, or both joint legal custody and joint physical custody. In
making an order for joint custody, the judge may order joint legal
custody without ordering joint physical custody.
(5) “Joint legal custody” means both parents have equal rights
and responsibilities for major decisions concerning the child, including
the child’s education, health care, extracurricular activities, and religious
training; provided, however, that the judge may designate one parent to
have sole power to make certain decisions while both parents retain
equal rights and responsibilities for other decisions.
(6) “Joint physical custody” means that physical custody is shared
by the parents in such a way as to assure the child of substantially equal
time and contact with both parents.

(Emphasis supplied.) On their face, subsections (5) and (6) of OCGA § 19-9-6 give

the right of joint legal or physical custody only to “parents.”

In June 2015, moreover, shortly before the trial court denied Marks’s motion

for new trial, the Supreme Court of Georgia emphasized that “joint custody

arrangements do not include third parties when one or both parents are suitable

custodians.” Stone v. Stone, 297 Ga. 451 (774 SE2d 681) (2015) (footnote omitted).

The Court quoted OCGA § 19-9-3 (a) (1), which provides that when custody is an

issue between a child’s parents, “there shall be no prima-facie right to the custody of

12
the child in the father or the mother,” as well as OCGA § 19-9-3 (d), which provides

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.

As the Court explained, OCGA § 19-9-3 (d) “includes grandparents with parents for

purposes of contact (visitation) with the minor child, but, when rights and

responsibilities (custody) are in consideration, the statute excludes grandparents and

encourages sharing between the parents only.” Stone, 297 Ga. at 453. The Court

found further support for its holding in OCGA § 19-9-6 (5) and (11),6 which “exclude

grandparents from sharing joint custody with a parent” such that “persons may have

sole legal custody of a child when no parent is suitable for custody, but only parents

may have joint legal custody.” Id. at 454.

Here, the trial court awarded joint legal custody in the third child to the father,

Marks, and the paternal grandparents, and joint physical custody in that child to the

6
OCGA § 19-9-6 (11) defines “sole custody” as meaning that “a person,
including, but not limited to, a parent, has been awarded permanent custody of a child
by a court order.”

13
paternal grandparents alone. We also note that the trial court did not distinguish

between legal and physical custody in its order on reconsideration, and thus did not

explain how it could have awarded the mother joint legal custody having found her

unfit for what it called “primary custody.” Absent a finding that both parents were

unfit, the trial court was not authorized to award any legal or physical custody to the

third child’s paternal grandparents. OCGA § 19-9-6 (4), (5); Stone, 297 Ga. at 454.

Because the trial court abused its discretion when it awarded joint legal custody of

the third child to Marks, Lane, and the paternal grandparents and joint physical

custody of that child to the grandparents, and because the trial court maintained its

grant of joint legal custody of all three children to Marks in the face of its own

finding that she was unfit for “custody,” we vacate the trial court’s order and remand

the case for further proceedings consistent with this opinion. Id. at 455 (vacating

award of joint legal custody to child’s father and maternal grandmother).

3. Marks also asserts that the trial court erred when it adopted a parenting plan

only as to the third child and then, in a second order filed the same day, applied that

plan “in its entirety” to the first and second children. Again, we agree.

OCGA § 19-9-1 (a) provides in relevant part that “[t]he final order in any legal

action involving the custody of a child, including modification actions, shall

14
incorporate a permanent parenting plan.” The statute does not require a trial court “to

incorporate a particular party’s parenting plan” or to make explicit findings of fact

and conclusions of law “as to why it accepted or failed to accept a particular parenting

plan.” Moore v. Moore-McKinney, 297 Ga. App. 703, 710-711 (3) (678 SE2d 152)

(2009).

Here, the trial court’s second order of December 12, 2014 adopted a parenting

plan that named only the third child and that granted custody of that child to the

mother, Lane, and the paternal grandparents “in its entirety” as to the first and second

children. The court’s second order also granted joint custody in the first and second

children to “the parties” listed on that order, which includes not only Marks and Soles

but also Lane, who is not the father of the first and second children. As we have held

in Division 2, the parenting plan incorporated into the second order was erroneous on

its face in awarding joint legal custody in the third child to his paternal grandparents,

with the result that the trial court also erred when it incorporated that parenting plan

as to the first and second children. We therefore remand with direction that any future

modification of custody should include at least two new and discrete parenting plans,

one for the third child and one for the first and second children. See McKinney, 297

15
Ga. App. at 711 (3) (remanding for entry of a parenting plan when the trial court’s

order failed to incorporate one into its final order).

4. Marks also argues that the court erred in (a) considering Soles’s traverse to

the garnishment, (b) imposing child support payments on Marks retroactive to March

2013, (c) failing to consider the statutory Child Support Guidelines before awarding

child support from Marks to Soles, and (d) reducing Soles’s child support arrearage

amount from $12,000 to $5,000. We agree in part.

(a) A judgment for child support, such as that imposed by the 2005 divorce

decree on Soles, is “a money judgment subject to collection by postjudgment

garnishment.” Stoker v. Severin, 292 Ga. App. 870, 872 (1) (a) (665 SE2d 913)

(2008) (citations omitted). A new statutory scheme concerning garnishments, OCGA

§ 18-4-1 et seq., became effective on May 12, 2016.7 Although OCGA § 18-4-10 now

provides that a garnishment defendant’s “answer shall be filed . . . not sooner than 30

days and not later than 45 days after the service of the summons” to the garnishment

action, former OCGA § 18-4-65 provided that “when garnishment proceedings are

based upon a judgment, the defendant, by traverse of the plaintiff’s affidavit, may

7
See 2016 Ga. L., p. 8, § 1 (SB 255).

16
challenge the existence of the judgment or the amount claimed due thereon.”8 Here,

Soles filed his defendant’s traverse to Marks’s garnishment action some months after

that action was filed. The trial court did not err when it considered the traverse,

however, because a garnishment defendant is not barred under former OCGA § 18-4-

65 from filing a traverse after any specific time.

(b) The trial court erred as a matter of law, however, when it imposed

retroactive child support payments on Marks.

A permanent child support judgment is res judicata and enforceable until
modified, vacated or set aside. Until a final decree amending the child
support is properly entered in the modification proceeding the
permanent judgment stands.

Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989) (citations and

punctuation omitted). A modification of a child support award requires “a substantial

8
See also former OCGA § 18-4-93 (a defendant to a garnishment action may,
“at any time before a judgment is entered on the garnishee’s answer,” “become a party
to the garnishment by filing a traverse to the plaintiff’s affidavit stating that the
affidavit is untrue or legally insufficient”). At least one court has noted that former
OCGA § 18-4-65, which was in effect when this garnishment action was filed (March
2012), did not specify any deadline by which a defendant’s traverse must be filed
after the filing of a garnishment action. See In re Thompson, 2013 WL 8214644
(Bankr. N. D. Ga., April 30, 2013) (former OCGA § 18-4-65 “does not set a deadline
by which a traverse must be filed and does not state or imply that the failure to file
a traverse divests the defendant of any interest in garnished property”). Id. at *7 (c).

17
change in either parent’s income and financial status or the needs of the child.”

OCGA § 19-6-15 (k) (1). The same statute also provides that a trial court

may modify and revise the previous judgment, in accordance with the
changed circumstances, income and financial status of either parent, or
in the needs of the child, if such change or changes are satisfactorily
proven so as to warrant the modification and revision and such
modification and revisions are in the child’s best interest.

OCGA § 19-6-15 (k) (4).

“A child support judgment cannot be modified retroactively,” however. Jarrett,

259 Ga. at 561 (1) (citation omitted); see also OCGA § 19-6-17 (e) (“Any payment

or installment of support under any child support order is, on and after the date due[,]

[n]ot subject to retroactive modification.”) Rather, “‘[a]n order modifying child

support may operate only prospectively.’” Wright v. Burch, 331 Ga. App. 839, 843

(1) (c) (771 SE2d 490) (2015) (punctuation omitted), quoting Robertson v. Robertson,

266 Ga. 516, 518 (1) (467 SE2d 556) (1996). Thus although a trial court is authorized

to “‘modify child support obligations and enter orders regarding repayment of

past-due amounts . . . , it cannot simply forgive or reduce the past-due amount owed

under a valid child support order.’” Wright, 331 Ga. App. at 883-844 (1) (c), quoting

Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900, 903 (2) (630 SE2d 145)

18
(2006). Likewise, a trial court is not authorized to modify a child support obligation

“on a retroactive basis [by] increasing past payments on a monthly basis.” Rose v.

Thorpe, 240 Ga. App. 834, 835 (525 SE2d 381) (1999).

Although the trial court’s second order of December 2014 sets a new and

apparently prospective child support award from Marks to Soles, that order did not

vacate the court’s March 2014 imposition of child support on Marks retroactive to

March 2013. We also note that the record does not include any evidence that Marks

owed child support before March 27, 2014. In the absence of evidence that Marks

owed any child support payments before March 2014, we must reverse the trial

court’s March 2014 imposition of such payments on Marks retroactively to March

2013. Wright, 331 Ga. App. at 844 (1) (c) (trial court erred when it enforced a

settlement reducing a party’s arrearage as to child support payments past due); Rose,

240 Ga. App. at 835 (reversing trial court’s use of modification action to recoup past

child support on the basis of a party’s past under-reporting of income because a child

support judgment “may be modified on a prospective basis only”).

(c) The record also shows that the trial court used Uniform Child Support

Guidelines only as to the third child, but entered child support awards as to the first

and second children nonetheless. This was also legal error.

19
 OCGA § 19-6-15 (k) (4) provides that a court modifying custody “shall enter

a written order specifying the basis for the modification, if any, and shall include all

of the information set forth in paragraph (2) of subsection (c) of this Code section,”

which provides in turn that the court “[s]hall (A) [s]pecify in what sum certain

amount and from which parent the child is entitled to permanent support as

determined by use of the worksheet” prepared by the parties or child support

services.9 The Child Support Guidelines of OCGA § 19-6-15 “‘are mandatory and

must be considered by a trier of fact setting the amount of child support.’” Evans v.

Evans, 285 Ga. 319 (1) (676 SE2d 180) (2009), quoting Swanson v. Swanson, 276

Ga. 566, 567 (1) (580 SE2d 526) (2003). Thus the trial court erred when it entered a

child support award as to the first and second children without using the Child

Support Guidelines set out in OCGA § 19-6-15 to calculate that award. Evans, 285

Ga. at 320 (reversing child support order that failed to calculate a party’s gross

income as required by OCGA § 19-6-15 (f) (1) (D)).

9
See OCGA § 19-6-15 (m) (1) (“Schedules and worksheets shall be prepared
by the parties for purposes of calculating the amount of child support. In child support
services cases in which neither parent prepared a worksheet, the court may rely on the
worksheet prepared by child support services as a basis for its order. Information
from the schedules shall be entered on the child support worksheet.”).

20
 (d) In light of our vacatur and remand for reconsideration of the amount of

child support due from Marks to Soles, Marks’s contention as to the trial court’s

erroneous reduction of Soles’s child support arrearage from $12,000 to $5,000

remains for those proceedings.

In sum, we reverse the trial court’s award of joint custody of the third child to

the paternal grandparents and its imposition of retroactive child support payments on

Marks, vacate the remainder of the trial court’s judgment, and remand for further

proceedings consistent with this opinion.

Judgment reversed in part and vacated in part, and case remanded with

direction. Ellington, P. J., and Mercier, J., concur.

21