John A. Beckman v. Keely B. Beckman

• Court: Court of Appeals of Georgia
• Decided: February 23, 2022
• Docket: A21A1575
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and MARKLE, 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. https://www.gaappeals.us/rules

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February 23, 2022

In the Court of Appeals of Georgia A21A1575. BECKMAN v. BECKMAN.

BARNES, Presiding Judge.

Keely B. Beckman (“mother”) and John A. Beckman (“father”) are the

divorced parents of one minor child. This appeal arises out of the trial court’s final

order modifying the father’s visitation to prohibit any contact between the child and

the father’s new wife. The father contends that the trial court abused its discretion by

imposing an absolute prohibition on all contact between his child and his new wife

when there was no evidence that exposure to her would adversely affect the child’s

best interests. For the reasons discussed more fully below, we agree with the father

that the trial court abused its discretion in placing a blanket prohibition on any

contact, and we vacate the final order and remand for further action consistent with

this opinion. Construed in the light most favorable to the trial court’s decision,1 the record

reflects that the mother and father were married in 2011 and had a son, J. H. B., who

was born in 2018. In 2019, the father began having an extramarital affair with his

sister-in-law, Lauren Bethune, who was married to the mother’s brother. The mother

learned of the affair in 2020, and she and the father decided to divorce. On April 8,

2020, the mother and father met at the office of the mother’s attorney2 and executed

a settlement agreement that incorporated by reference a parenting plan agreed to by

the parties. The parties agreed that they would have joint legal custody of J. H. B.,

that the mother would have primary physical custody, and that the father would be

entitled to certain visitation. The parties also agreed to a restrictive prohibition in the

parenting plan that addressed contact between Bethune and J. H. B.:

The parties agree that the female person known as [Bethune] shall never be in the presence of the minor child unless one of the parties is physically present, or unless an adult designated by the parties (such as a grandparent) is physically present. Under no circumstances may [Bethune] be alone with the child. (“Visitation Restriction”)

1 See Mashburn v. Mashburn, 353 Ga. App. 31, 32 (836 SE2d 131) (2019). 2 The father was not represented by counsel in the settlement negotiations.

2 On May 20, 2020, the trial court entered a final judgment and decree of divorce that

adopted and incorporated by reference the settlement agreement and parenting plan

consented to by the parties.

At the time of the settlement, the father and Bethune were no longer involved

in a relationship, and the father informed the mother that the affair was over.

However, shortly thereafter, the father and Bethune resumed their relationship, and

then, after breaking up again for a short period, they ultimately reunited and stayed

together.

Bethune and her husband, who had three minor daughters, divorced in June

2020. Initially, Bethune had primary physical custody of her daughters, but she and

her ex-husband later agreed to a shared custody arrangement that was approved by

the trial court.

After the divorces, Bethune learned that she was pregnant with the father’s

child, and the father and Bethune decided to get married. In July 2020, the mother

filed a complaint to modify visitation.3 In her complaint, as amended, the mother

3 See generally OCGA § 19-9-3 (b) (“In any case in which a judgment awarding the custody of a child has been entered, on the motion of any party or on the motion of the judge, that portion of the judgment effecting visitation rights between the parties and their child or parenting time may be subject to review and modification or alteration without the necessity of any showing of a change in any

3 sought to have the Visitation Restriction expanded to prohibit all contact between

Bethune and J. H. B. The father answered and filed a counterclaim seeking to have

visitation modified to allow for unsupervised contact between Bethune and J. H. B.

In September 2020, the trial court entered a temporary order prohibiting all

contact between Bethune and J. H. B. Later that month, the mother’s attorney sent a

letter to counsel for the father and Bethune warning that if they got married, it would

exacerbate the visitation issues and would cause them to “run the risk of losing rights

to their children.”

Shortly before the final hearing on the requests for modification, the father and

Bethune got married and moved in together. Based on the custody arrangement

between Bethune and her ex-husband, her three daughters began living with Bethune

and the father for three days each week. Bethune’s pregnancy due date was a few

weeks away at the time of the final hearing.

At the final hearing conducted in February 2021, the trial court heard testimony

from the mother, father, and Bethune regarding the affair and the facts leading up to

and after the mother and father’s execution of the settlement agreement and divorce.

material conditions and circumstances of either party or the child, provided that the review and modification or alteration shall not be had more often than once in each two-year period following the date of entry of the judgment. . . .”).

4 Among other exhibits, the mother also introduced into evidence a profile that Bethune

posted on a dating app during the brief time period when Bethune and the father had

broken off their relationship. The dating profile included a photograph of Bethune

with her three minor daughters and a caption that read, “Lauren, 32, I am an active

mom to 3 sweet girls who can also be handfuls (I’m not going to sugar coat it, so

swipe accordingly).”

On March 11, 2021, the trial court entered its final order modifying and

expanding the Visitation Restriction to prohibit any contact between Bethune and J.

H. B. In its order, the trial court found that the father “engaged in a long-term

adulterous relationship with his sister-in-law,” and that despite having

full knowledge that any romantic relationship with [Bethune] in the future would complicate his custodial and visitation rights, especially in light of the [Visitation Restriction] . . . , he willfully chose to renew that relationship shortly after signing the settlement agreement, and willfully impregnated [Bethune] thereafter. He then willfully chose to marry [Bethune], despite his full knowledge of the statistical likelihood of the failure of that marriage, and more importantly the complications this would impose upon the issues being litigated herein.

The trial court further found that these choices demonstrated “deep character flaws”

and a “lack of insight and judgment” by Bethune and the father, and the court

5 determined that “[t]hey have both chosen self-gratification over the needs of their

children, and have demonstrated a lack of insight and judgment regarding the

potential effects of their actions on others, including their own children.” The trial

court also found that Bethune exhibited “profoundly poor judgment” when she

“posted a picture on a sex site of herself and her three minor daughters.”4 Based on

its findings, the trial court concluded that Bethune was “not to be trusted” and that

exposure of J. H. B. to Bethune would not serve the child’s best interest.

Additionally, the trial court found that the “likely instability and chaos that the

relationship between [the father and Bethune] will spawn” justified expanding the

Visitation Restriction, and that such an expansion was “narrowly tailored to protect

the minor child from the emotional and moral harm risk that [Bethune] poses.”

Finally, the trial court found that even if there had been no showing that exposure to

Bethune would harm J. H. B., the mother was not required to show such harm because

the court was expanding upon the Visitation Restriction that had been consented to

by the father “to assure it’s intent” was fulfilled.

1. On appeal, the father contends that the trial court abused its discretion by

expanding the Visitation Restriction to prohibit any contact whatsoever between

4 See footnote 4, infra.

6 Bethune and J. H. B. because there was no evidence that such contact would have an

adverse effect on the child. We agree.

“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. A trial

court’s decision regarding a change in . . . visitation will be upheld on appeal unless

it is shown that the court clearly abused its discretion.” (Citation and punctuation

omitted.) Coppedge v. Coppedge, 298 Ga. 494, 499 (3) (783 SE2d 94) (2016). But a

trial court’s discretion in this regard is not unlimited. “It is the express policy of this

state . . . 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.”

OCGA § 19-9-3 (d). To that end, our Supreme Court has held that “a trial court

abuses its discretion when it places an unnecessarily burdensome limitation on the

exercise of a parent’s right of visitation.” Brandenburg v. Brandenburg, 274 Ga. 183,

184 (1) (551 SE2d 721) (2001). And with respect to a child’s exposure to a third party

during visitation with a non-custodial parent,

a trial court has discretion to prohibit the exercise of visitation rights by . . . [the] parent in the presence of certain people [only] if the evidence demonstrates the children have been exposed to inappropriate conduct

7 involving the specified persons or that exposure to the prohibited persons would adversely affect the children.

Mongerson v. Mongerson, 285 Ga. 554, 555 (2) (678 SE2d 891) (2009), disapproved

in part on other grounds by Simmons v. Simmons, 288 Ga. 670, 672 (3), n. 4 (706

SE2d 456) (2011). See Arnold v. Arnold, 275 Ga. 354, 354 (566 SE2d 679) (2002);

Brandenburg, 274 Ga. at 184 (1). “In the absence of any evidence that exposure to

a third party will have an adverse effect on the best interests of the children, a trial

court abuses its discretion by prohibiting a parent from exercising his or her custodial

rights in that person’s presence.” Arnold, 275 Ga. at 354.

In the present case, there was no evidence that Bethune and the father engaged

in any inappropriate conduct in the presence of J. H. B. Rather, the trial court clearly

based its determination that J. H. B. would be adversely affected by exposure to

Bethune on the fact that Bethune and the father’s relationship began as an

extramarital affair; that they were previously related by marriage; that they renewed

their relationship after the divorce settlement agreement was executed and then

conceived a child; and that they married in the midst of the litigation over modifying

8 visitation.5 But “the primary consideration in determining . . . visitation issues is not

the sexual mores or behavior of the parent, but whether the child will somehow be

harmed by the conduct of the parent.” In the Interest of R. E. W., 220 Ga. App. 861,

863 (471 SE2d 6) (1996). The focus must be on the needs of the child, not the faults

of the parents. Id. at 864. “[I]n some instances a parent’s ‘immoral conduct’ might

warrant limitations on the contact between parent and child; but only if it is shown

that the child is exposed to the parent’s undesirable conduct in such a way that it has

or would likely adversely affect the child.” Id. at 863. And any alleged “deleterious

effect on the child[ ] [must be] beyond that normally associated with divorce and

remarriage.” Brandenburg, 274 Ga. at 184 (1).

Here, there was no evidence in the record that mere exposure to Bethune would

harm J. H. B. Indeed, the mother admitted at the final hearing that J. H. B. had contact

with Bethune before the extramarital affair and that she had no concerns with such

contact prior to learning about the affair. Moreover, Bethune had been granted shared

5 The trial court also found that Bethune used a photograph that included her daughters for her profile on a “sex site.” However, there was no evidence presented at the hearing to support the trial court’s finding that the dating app on which the photograph was placed was a “sex site.” Nor was there any evidence that the posting of the profile, which occurred during the short time period when Bethune and the father had broken up, had or will have any adverse affect on J. H. B.

9 custody of her own daughters without any restrictions. And while the trial court found

that Bethune’s relationship with the father would likely lead to “instability and chaos”

from which J. H. B. needed to protected by expanding the Visitation Restriction, a

court cannot place restrictions on visitation based on mere speculation as to what

might occur in the future. See Williams v. Williams, 295 Ga. 113, 114 (1) (757 SE2d

859) (2014) (trial court abused its discretion by placing limitation on the ability of the

father’s new wife to drive his child, where the mother’s testimony “that she had heard

that [the father’s] new wife was taking medication and worried about her ability to

drive” was speculation). Accordingly, given that there was no evidence that contact

with Bethune would adversely affect J. H. B., the trial court abused its discretion in

imposing a blanket prohibition on such contact, which placed an unnecessary burden

on the father’s exercise of his visitation rights.6 See Arnold, 275 Ga. at 354

(concluding that trial court erred in prohibiting children from having any exposure

to the mother’s friend, where there was no evidence that the relationship between the

mother and her friend “was or will be harmful to the children, or that they ever

6 As noted by the father, if the blanket prohibition were to remain in effect, the father or Bethune would have to stay at a hotel or other separate location whenever the father had overnight weekend, summer, or holiday visitations with J. H. B. The prohibition also clearly would make it much more difficult to have family gatherings involving J. H. B. and all of his young step-siblings.

10 engaged in any inappropriate conduct in the presence of the children”); Brandenburg,

274 Ga. at 184 (1) (concluding that trial court erred in prohibiting contact between

children and their father’s live-in girlfriend, given that there was no evidence that

such contact would adversely affect the best interests of the children); In the Interest

of R. E. W., 220 Ga. App. at 863-864 (concluding that trial court erred in restricting

father’s visitation based on his alleged “immoral conduct,” where there was no

evidence of any harm to the child); Hayes v. Hayes, 199 Ga. App. 132, 133 (404

SE2d 276) (1991) (concluding that trial acted within its discretion in declining to

modify custody, where “[t]here was evidence that both parties were involved in

meretricious relationships in the presence of the child, but no evidence that either

party committed sexual acts in the presence of the child”). Cf. Mongerson, 285 Ga.

at 556 (2) (upholding trial court’s prohibition on contact between the children and

their paternal grandparents during the father’s visitation, where “[t]here was evidence

the grandparents had been physically and emotionally abusive of the children, and

[the father] acknowledged he had not fulfilled his promise to never leave his children

alone with his parents”).

In modifying the Visitation Restriction to prohibit all contact with Bethune, the

trial court also concluded in the alternative that the mother was not required to show

11 that exposure to Bethune would harm J. H. B. because the father consented to the

Visitation Restriction as part of the divorce settlement agreement and the court was

fulfilling the intent of that restriction by expanding it. It is true that a trial court may

enforce a visitation restriction even when there is no showing of harm justifying such

a restriction, where the parties consented to inclusion of the restriction in the divorce

decree. See Norman v. Norman, 329 Ga. App. 502, 506 (765 SE2d 677) (2014). See

also Burns v. Burns, 253 Ga. App. 600, 602 (560 SE2d 47) (2002) (concluding that

the mother waived her challenge to the visitation restriction on the ground that it

violated her right to privacy of intimacy, where the mother agreed to the consent

degree that included the restriction). But that is not the situation here, where the trial

court modified and expanded the Visitation Restriction consented to by the parties,

and there is no evidence that the father ever would have agreed to such an expansion.

See Norman, 329 Ga. App. at 506 (distinguishing cases in which the restrictive

visitation provision “was entered into by consent of the parties prior to the trial

court’s entry of its final order” from “cases in which the trial court modifies an

existing agreement” between the parties) (emphasis omitted). See also Ward v. Ward,

289 Ga. 250, 251 (1) (710 SE2d 555) (2011) (requiring a showing of harmful effect

on the children where trial court amended the visitation provision in the divorce

12 decree to prohibit exposure of the children to certain third parties). Consequently, the

trial court erred in concluding that no showing of harm was required to justify

expansion of the Visitation Restriction.

In sum, we conclude that the trial court abused its discretion in modifying the

Visitation Provision to prohibit all contact between Bethune and J. H. B. As a result

of that error, the trial court did not separately consider the father’s counterclaim

seeking to modify the Visitation Provision to allow for unsupervised contact between

Bethune and J. H. B. We therefore vacate the trial court’s order and remand the case

to the trial court with instructions to deny the mother’s request to modify the

Visitation Provision and to rule on the father’s counterclaim seeking modification of

the Visitation Provision.

2. We need not address the father’s remaining enumeration of error in light of

our decision in Division 1.

Judgment vacated and case remanded with direction. Gobeil and Markle, JJ.,

concur.