THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, 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
October 28, 2015
In the Court of Appeals of Georgia A15A2319. EZUNU v. MOULTRIE.
ELLINGTON, Presiding Judge.
Ndoumbe Moultrie (“the mother”) filed this action in the Superior Court of
Fulton County against Ifeanyi Ezunu (“the father”) for modification of custody of the
parties’ two minor children, U. M. E. and A. J. E. After a bench trial, the trial court
awarded the mother sole legal and physical custody of the children. The judgment
provided no visitation for the father, but provided that visitation would be phased in
as deemed appropriate by the children’s therapist. The father appeals, contending that
the trial court erred in adopting the recommendations of the court-appointed guardian
ad litem. In addition, the father contends that the visitation provisions of the judgment
constitute a self-executing change of visitation which impermissibly abdicates the
trial court’s duty to determine the best interests of the children. For the reasons explained below, we reverse in part and remand the case to the trial court with
direction that the court strike the portion of the judgment that provides for changes
in the father’s visitation privileges without judicial scrutiny into the children’s best
interests.
The record shows the following. U. M. E. was born on August 29, 2002, and
A. J. E. was born on December 26, 2004. The father filed a petition in the Superior
Court of Muscogee County to legitimate the children, which was granted. In an order
entered November 6, 2012, the Muscogee court awarded the parents joint legal
custody, awarded physical custody to the father, and provided visitation for the
mother.
In May 2013, the children reported to school personnel that the father had
physically abused them. The children were placed in foster care. The mother filed the
instant petition for modification of custody on July 9, 2013. On August 16, 2013, the
trial court issued a temporary order, giving the mother sole legal and physical custody
and ordering no visitation for the father, and issued a one-year family violence
protective order. The trial court appointed a guardian ad litem to investigate and
provide recommendations for the care and custody of the children going forward.
2 The trial court held a hearing on the mother’s petition on August 20, 2014. The
mother testified that the father had hit her and U. M. E. when they lived together and
that, when she had the children for visitation, they regularly complained to her about
being caned by the father and she saw bruises on them. At the hearing, the father
admitted that corporal punishment, using a switch, had “always been part of [his]
parenting,” and he considered it to be appropriate.
Based on a year-long investigation, including conversations with the children,
the guardian ad litem found that the children were very afraid of the father and feared
that he would mistreat them as punishment for “telling on him.” They wanted to stay
with the mother and were reluctant even to begin having telephone visitation with the
father. The guardian ad litem testified that, because of the protective order, she never
had the opportunity during her investigation to observe the father interact with the
children and consequently her report was not complete in that respect. The father’s
counsel made an oral motion for the court to suspend the trial to allow the guardian
ad litem additional time to complete her investigation. The trial court denied the
request.
The court awarded sole legal and physical custody of the children to the
mother. The order provides:
3 There will be no visitation for the father, Mr. Ezunu, at this time based on the recommendations of the Guardian ad Litem and the children’s therapist. Telephone calls between the children and Mr. Ezunu shall be supervised by the children’s therapist. Visitation will be implemented with the assistance of the child’s therapist, beginning with supervised visitation for up to four hours, when the therapist finds the children are ready for such visits. Visitation will then be increased as deemed appropriate by the children’s therapist in order to ultimately achieve a standard visitation schedule for Mr. Ezunu of ever other weekend.
1. The father contends that, because the guardian ad litem’s investigation was
incomplete, the trial court erred in adopting the guardian’s recommendations
regarding visitation.
“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.”
(Punctuation and footnote omitted.) Jackson v. Sanders, - Ga. App. -, - (5) (773 SE2d
835) (2015). Although a trial court may consider the recommendations of a guardian
ad litem,1 such recommendations “are not a substitute for the [trial] court’s
independent discretion and judgment.” (Citation and punctuation omitted.) King v.
1 OCGA § 19-9-3 (a) (3) (O) (In determining the best interests of the child in any case in which custody or visitation is at issue between the parents, the judge may consider any relevant factor, including any “recommendation by a court appointed custody evaluator or guardian ad litem.”).
4 King, 284 Ga. 364, 365 (667 SE2d 30) (2008). “[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. . . . And where there is any evidence to support the
trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.”
Jackson v. Sanders, - Ga. App. at - (5).
A review of the trial transcript and the trial court’s judgment show that the trial
court was aware of the limitations in the thoroughness of the guardian ad litem’s
investigation and report. The record shows that the trial court considered other
evidence regarding the father’s relationship with the children, including evidence that
the children had been traumatized by the unreasonable, excessive corporal
punishment the father administered and were fearful of him. The trial court was
particularly disturbed by the father’s failure to understand the children’s fear of him.
Although the trial court decided to follow the guardian ad litem’s recommendation,
nothing in the record suggests that the trial court failed to exercise its own judgment
regarding what was in the best interests of the children. Because there is evidence to
support the trial court’s ruling (with the exception of the provision addressed in
Division 2, infra), the father has not shown any abuse of the trial court’s discretion.
5 Salmon-Davis v. Davis, 286 Ga. 456, 458 (1) (689 SE2d 303) (2010); King v. King,
284 Ga. at 365; Taylor v. Taylor, 282 Ga. 113, 114 (2) (646 SE2d 238) (2007).
2. The father contends that the visitation provisions of the judgment constitute
an impermissible self-executing change of visitation which abdicates the trial court’s
duty to determine the best interests of the children, citing Johnson v. Johnson, 290
Ga. 359 (721 SE2d 92) (2012), among other cases. In Johnson, the Supreme Court
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THIRD DIVISION ELLINGTON, P. J., DILLARD and MCFADDEN, 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
October 28, 2015
In the Court of Appeals of Georgia A15A2319. EZUNU v. MOULTRIE.
ELLINGTON, Presiding Judge.
Ndoumbe Moultrie (“the mother”) filed this action in the Superior Court of
Fulton County against Ifeanyi Ezunu (“the father”) for modification of custody of the
parties’ two minor children, U. M. E. and A. J. E. After a bench trial, the trial court
awarded the mother sole legal and physical custody of the children. The judgment
provided no visitation for the father, but provided that visitation would be phased in
as deemed appropriate by the children’s therapist. The father appeals, contending that
the trial court erred in adopting the recommendations of the court-appointed guardian
ad litem. In addition, the father contends that the visitation provisions of the judgment
constitute a self-executing change of visitation which impermissibly abdicates the
trial court’s duty to determine the best interests of the children. For the reasons explained below, we reverse in part and remand the case to the trial court with
direction that the court strike the portion of the judgment that provides for changes
in the father’s visitation privileges without judicial scrutiny into the children’s best
interests.
The record shows the following. U. M. E. was born on August 29, 2002, and
A. J. E. was born on December 26, 2004. The father filed a petition in the Superior
Court of Muscogee County to legitimate the children, which was granted. In an order
entered November 6, 2012, the Muscogee court awarded the parents joint legal
custody, awarded physical custody to the father, and provided visitation for the
mother.
In May 2013, the children reported to school personnel that the father had
physically abused them. The children were placed in foster care. The mother filed the
instant petition for modification of custody on July 9, 2013. On August 16, 2013, the
trial court issued a temporary order, giving the mother sole legal and physical custody
and ordering no visitation for the father, and issued a one-year family violence
protective order. The trial court appointed a guardian ad litem to investigate and
provide recommendations for the care and custody of the children going forward.
2 The trial court held a hearing on the mother’s petition on August 20, 2014. The
mother testified that the father had hit her and U. M. E. when they lived together and
that, when she had the children for visitation, they regularly complained to her about
being caned by the father and she saw bruises on them. At the hearing, the father
admitted that corporal punishment, using a switch, had “always been part of [his]
parenting,” and he considered it to be appropriate.
Based on a year-long investigation, including conversations with the children,
the guardian ad litem found that the children were very afraid of the father and feared
that he would mistreat them as punishment for “telling on him.” They wanted to stay
with the mother and were reluctant even to begin having telephone visitation with the
father. The guardian ad litem testified that, because of the protective order, she never
had the opportunity during her investigation to observe the father interact with the
children and consequently her report was not complete in that respect. The father’s
counsel made an oral motion for the court to suspend the trial to allow the guardian
ad litem additional time to complete her investigation. The trial court denied the
request.
The court awarded sole legal and physical custody of the children to the
mother. The order provides:
3 There will be no visitation for the father, Mr. Ezunu, at this time based on the recommendations of the Guardian ad Litem and the children’s therapist. Telephone calls between the children and Mr. Ezunu shall be supervised by the children’s therapist. Visitation will be implemented with the assistance of the child’s therapist, beginning with supervised visitation for up to four hours, when the therapist finds the children are ready for such visits. Visitation will then be increased as deemed appropriate by the children’s therapist in order to ultimately achieve a standard visitation schedule for Mr. Ezunu of ever other weekend.
1. The father contends that, because the guardian ad litem’s investigation was
incomplete, the trial court erred in adopting the guardian’s recommendations
regarding visitation.
“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.”
(Punctuation and footnote omitted.) Jackson v. Sanders, - Ga. App. -, - (5) (773 SE2d
835) (2015). Although a trial court may consider the recommendations of a guardian
ad litem,1 such recommendations “are not a substitute for the [trial] court’s
independent discretion and judgment.” (Citation and punctuation omitted.) King v.
1 OCGA § 19-9-3 (a) (3) (O) (In determining the best interests of the child in any case in which custody or visitation is at issue between the parents, the judge may consider any relevant factor, including any “recommendation by a court appointed custody evaluator or guardian ad litem.”).
4 King, 284 Ga. 364, 365 (667 SE2d 30) (2008). “[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. . . . And where there is any evidence to support the
trial court’s ruling, a reviewing court cannot say there was an abuse of discretion.”
Jackson v. Sanders, - Ga. App. at - (5).
A review of the trial transcript and the trial court’s judgment show that the trial
court was aware of the limitations in the thoroughness of the guardian ad litem’s
investigation and report. The record shows that the trial court considered other
evidence regarding the father’s relationship with the children, including evidence that
the children had been traumatized by the unreasonable, excessive corporal
punishment the father administered and were fearful of him. The trial court was
particularly disturbed by the father’s failure to understand the children’s fear of him.
Although the trial court decided to follow the guardian ad litem’s recommendation,
nothing in the record suggests that the trial court failed to exercise its own judgment
regarding what was in the best interests of the children. Because there is evidence to
support the trial court’s ruling (with the exception of the provision addressed in
Division 2, infra), the father has not shown any abuse of the trial court’s discretion.
5 Salmon-Davis v. Davis, 286 Ga. 456, 458 (1) (689 SE2d 303) (2010); King v. King,
284 Ga. at 365; Taylor v. Taylor, 282 Ga. 113, 114 (2) (646 SE2d 238) (2007).
2. The father contends that the visitation provisions of the judgment constitute
an impermissible self-executing change of visitation which abdicates the trial court’s
duty to determine the best interests of the children, citing Johnson v. Johnson, 290
Ga. 359 (721 SE2d 92) (2012), among other cases. In Johnson, the Supreme Court
of Georgia considered a visitation order similar to the one at issue in this case that
allowed for an automatic change in a father’s visitation, from supervised to
unsupervised visitation, based on a future event, specifically the determination of the
therapist, “without any additional judicial scrutiny.” Id. at 360. The Court explained
that
[a] self-executing change of custody/visitation is acceptable as long as it poses no conflict with our law’s emphasis on the best interests of the child. However, a self-executing change in custody/visitation that constitutes a material change, i.e., is one that is allowable only upon a determination that it is in the best interests of the child at the time of the change, generally violates Georgia’s public policy founded on the best interests of the child. A requirement that a parent’s visitation be supervised is a provision expressly meant for the child’s best welfare, and it is the trial court’s responsibility to determine whether the evidence is such that a modification of custody/visitation privileges is
6 warranted, and the responsibility for making that decision cannot be delegated to another, no matter the degree of the delegatee’s expertise or familiarity with the case. While the expert’s opinion may serve as evidence supporting the trial court’s decision to modify visitation, the decision must be made by the trial court, not the expert.
(Citations and punctuation omitted.) Id.2
We agree with the father that the visitation provision in this case would allow
material changes in visitation, from no visitation to limited supervised visitation to
nonsupervised overnight visitation, to occur without any judicial consideration of the
children’s best interests. Id. As such, it is an invalid self-executing change of
visitation that impermissibly delegates to the children’s therapist the determination
if and when future modifications of the father’s visitation privileges are warranted.
Id. As in Johnson, the self-executing change of visitation provision should not have
been included in the judgment. It does not follow, however, that the entire judgment
must be reversed and the case remanded for a rehearing. As in Johnson, we reverse
the judgment in part only and remand the case to the trial court with direction that the
2 See also Rumley-Miawama v. Miawama, 284 Ga. 811, 814 (2) (671 SE2d 827) (2009) (accord); Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004) (accord); Scott v. Scott, 276 Ga. 372, 377 (578 SE2d 876) (2003) (accord); Bankston v. Warbington, 332 Ga. App. 29, 35 (2) (771 SE2d 726) (2015) (accord).
7 self-executing change of visitation provision of the judgment be stricken. Id. See also
Rumley-Miawama v. Miawama, 284 Ga. 811, 814 (2) (671 SE2d 827) (2009);
Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004); Scott v. Scott,
276 Ga. 372, 377 (578 SE2d 876) (2003). The judgment is otherwise affirmed. Any
future change in the father’s visitation privileges (from no visitation as currently
ordered) will be subject to judicial scrutiny into the children’s best interests as
provided by law.
Judgment affirmed in part and reversed in part, and case remanded with
direction. Dillard and McFadden, JJ., concur.