Driver v. Sene

758 S.E.2d 613, 327 Ga. App. 275, 2014 Fulton County D. Rep. 1317, 2014 WL 1778042, 2014 Ga. App. LEXIS 318
CourtCourt of Appeals of Georgia
DecidedMay 6, 2014
DocketA14A0303
StatusPublished
Cited by13 cases

This text of 758 S.E.2d 613 (Driver v. Sene) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Driver v. Sene, 758 S.E.2d 613, 327 Ga. App. 275, 2014 Fulton County D. Rep. 1317, 2014 WL 1778042, 2014 Ga. App. LEXIS 318 (Ga. Ct. App. 2014).

Opinion

Barnes, Presiding Judge.

Charles R. Driver petitioned the superior court to modify the custody, support, and visitation of his three children, of which Holly E. Sene, his ex-wife, had primary physical custody pursuant to a 2009 final divorce decree. The superior court granted the change of custody as to the oldest child, then 17, based on his election to live with Driver, but denied the petition to change custody of the two younger children, who were 15 and 12 as of the final order. The court also granted attorney fees to Sene. Driver appeals, contending that the superior court erred in not granting him custody based on the election of the 15-year-old to live with his father and on the best interest of the child, in finding he had not carried his burden of proving a material change in the children’s condition warranting a custody change, and in awarding attorney fees to Sene. For the reasons that follow, we affirm [276]*276the trial court’s custody decision, but reverse the attorney fee award and remand for further proceedings.

From a review of the ten-volume record, including more than 700 pages of transcripts from five days of a final hearing that took place over five-and-a-half months, it is clear that the parties hotly disputed the facts about the children’s welfare. On the day the father filed his petition to modify custody, he also filed a motion for temporary custody, alleging that the children’s stepfather was abusive and they were neglected. The superior court issued an immediate ex parte order transferring the children to the father’s custody, but after a two-day hearing three weeks later the court appointed a guardian ad litem (“GAL”) to represent the two younger boys and transferred them back to the mother’s temporary custody. The court held several hearings and issued interim orders during the ensuing litigation, and then heard five days of testimony.

The petition to modify custody included affidavits from both boys stating that they elected to live with their father, and on the last day of the final hearing, the father submitted additional documents from both boys again stating they elected to live with their father. However, the GAL concluded that it was in the children’s best interest to remain with their mother, as she had historically been the one who had been more involved in their schools and medical care. After hearing evidence and talking to the children after the final hearing, the trial court agreed with the GAL’s assessment and determined that primary physical custody would remain with the mother. The court also ordered the father to pay the mother’s attorney $5,000.

When considering the appeal of a child custody decision, we view the evidence in the light most favorable to the trial court’s decision. Gibson v. Pierce, 176 Ga. App. 287, 288 (335 SE2d 658) (1985).

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child. See OCGA § 19-9-3 (b).

(Citations and punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). “The law thus recognizes that because children are not immutable objects but living beings who mature and [277]*277develop in unforeseeable directions, the initial award of custody may not always remain the selection that promotes the best interests of the child.” Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). We review a trial court’s decision for abuse of discretion. Viskup, 291 Ga. at 105 (2).

1. The father argues that the superior court erred in failing to grant him custody of his 15-year-old son, M. D., based on the boy’s election. Before the statute was amended effective January 2008, the right of a child 14 or older to select the parent with whom he wanted to live was controlling “unless the parent so selected [was] determined not to be a fit and proper person to have the custody of the child.” OCGA § 19-9-3 (a) (4) (2007). Under the current version of the statute, however, the election of a child 14 or older to live with one parent over the other is presumptive, but the superior court may override the election if it determines that placing the child in the custody of the selected parent is not in the child’s best interest. OCGA § 19-9-3 (a) (5). See Murillo v. Murillo, 300 Ga. App. 61, 64 (684 SE2d 126) (2009).

The record shows that M. D. was diagnosed at a young age with a developmental disorder that is treated with a complicated regimen of medication, specialized education, therapy, and counseling. The parents disagreed about certain aspects of his care and testified extensively on the issue. After a hearing, the superior court granted the father’s motion for the court to conduct an in camera inspection of M. D.’s psychiatric records, and as noted earlier, the trial court also spoke with M. D. The court noted in its final order that neither party requested that it make findings of fact, and therefore the court simply concluded that it was in M. D.’s best interest that his mother be awarded primary physical custody.

The father argues on appeal that while the child’s election is no longer controlling under OCGA § 19-9-3 (a) (5), it is “presumptive,” which he contends is defined by Black’s Law Dictionary as “evidence which must be received and treated as true and sufficient until and unless rebutted by other evidence.” The trial court erred, he contends, in failing to make findings as to the father’s fitness. We disagree.

First, the trial court specifically noted in its temporary and final orders that neither party asked it to make findings of fact. Under OCGA § 19-9-3 (a) (8),

[i]f requested by any party on or before the close of evidence in a contested hearing, the permanent court order awarding child custody 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.

[278]*278The father did not ask the trial court to make findings of fact, and therefore cannot object to their omission in the final order.

Further, the cases cited by the father for the proposition that the parent resisting a child’s election must prove that the other parent is unfit were all decided under the former version of the statute. See, e.g., Weaver v. Jones, 260 Ga. 493, 494 (3) (396 SE2d 890) (1990); Harbin v. Harbin, 238 Ga. 109, 110 (230 SE2d 889) (1976) (“Without a finding of unfitness the child’s selection must be recognized and the court has no discretion to act otherwise.”).

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Bluebook (online)
758 S.E.2d 613, 327 Ga. App. 275, 2014 Fulton County D. Rep. 1317, 2014 WL 1778042, 2014 Ga. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/driver-v-sene-gactapp-2014.