Margaret Hether v. Justin Tyler Campbell

• Court: Court of Appeals of Georgia
• Decided: February 10, 2025
• Docket: A24A1842
• Status: Published

Opinion

SECOND DIVISION MARKLE, LAND and DAVIS, 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

February 10, 2025

In the Court of Appeals of Georgia A24A1842. HETHER v. CAMPBELL.

LAND, Judge.

In this child custody case, the mother of a minor child, R. H., appeals from the

trial court’s May 16, 2024 modification order. Mother argues that the trial court erred

in (1) changing legal custody of R. H. despite a finding that there was no material

change in circumstances to justify modifying custody; (2) including a self-executing

change of custody without any consideration of R. H.’s best interests; (3) failing to

provide appropriate weight to the Father’s drug tests; and (4) admitting testimony and

other evidence that predated the parties’ initial custody order. For the reasons that

follow, we reverse. When reviewing an order in a child custody case, we view the evidence in the

light most favorable to the trial court’s decision. Strickland v. Strickland, 298 Ga. 630,

633 (1) (783 SE2d 606) (2016). We are “mindful that the Solomonic task of assigning

the custody of children lies squarely upon the shoulders of the judge who can see and

hear the parties and their witnesses, observe their demeanor and attitudes, and assess

their credibility.” (Citation and punctuation omitted.) Gordy v. Gordy, 246 Ga. App.

802, 803 (1) (542 SE2d 536) (2000). Accordingly, we will not set aside the trial court’s

factual findings if there is any evidence to support them, and we defer to the trial

court’s credibility determinations. Saravia v. Mendoza, 303 Ga. App. 758, 758 (695

SE2d 47) (2010). We review de novo, however, the legal conclusions the trial court

draws from the facts. Id.

So viewed, the record shows that the parties, who never married, have one

minor child together, R. H., who was born in 2018. At the time of R. H.’s birth, Father

lived in Alabama. In December 2018, a trial court in Tennessee entered an initial

custody order (“Initial Order”) granting primary physical custody to Mother,

adopting a parenting plan proposed by Mother that provided some visitation to

Father, and ordering Father to pay $885.00 per month in child support and attorney

2 fees to Mother. As part of the Initial Order, Mother was entitled to make educational

decisions for R. H. On December 4, 2020, the parties entered a mediation agreement

(“Mediated Order”) that allowed Mother to relocate from Tennessee to Georgia,

modified some of the visitation terms of the Initial Order and stated that “Mother

shall retain decision making authority but agreed to consult with Father regarding any

significant decision effecting the welfare of [R. H.]”. According to the Mediated

Order, “[a]ll other provisions of the original plan that are not inconsistent with this

agreement shall remain in full force and effect.”

After Mother moved from Tennessee to Georgia, Father remained in Alabama.

Father’s job requires him to work a non-regular schedule of three weeks on and two

weeks off. As a result, Father did not exercise all of the parenting time allotted to him

in the Initial and Mediated Orders.

In December 2021, Mother married Daniel Lynch. Mother and Lynch have two

minor children together: one born in 2021 and one born in 2023. R. H. is very close to

her half-siblings. In October 2023, Lynch obtained a job in Vernal, Utah as a truck

driver. Lynch testified that he expects to earn approximately $125,000 per year in this

new position and that he previously earned $40,000 while working as an electrician

3 in Georgia. Mother decided to relocate the entire family to Utah, including R. H., and

on November 27, 2023, Mother sent notice to Father of her intent to relocate,

including a proposed visitation schedule.

Father then filed a petition for domestication and enforcement of foreign

decree, for modification of custody, visitation, and child support in Catoosa County

Superior Court, requesting that his visitation schedule be modified and that Mother

be prohibited from relocating to Utah. Mother filed an answer and counterclaim

requesting permission to relocate to Utah and for contempt. Father subsequently

amended his petition to request a modification of custody. A guardian ad litem

(“GAL”) was appointed. The GAL completed a report in which she noted that both

parties completed a hair follicle drug test. Although the results of the testing were not

available at the time the GAL issued a report, Father’s test results were positive for

amphetamine and methamphetamine. In her written report, the GAL recommended

that R. H. remain in Mother’s primary physical custody, that Mother be permitted to

relocate to Utah, and that Father’s visitation be modified to account for the relocation.

The trial court held a hearing on the petition, at which the parties, the GAL,

and other relatives of the parties testified. After the hearing, the Father submitted to

4 a second hair follicle test, and the results were positive for methamphetamine. On

May 16, 2024, the trial court issued an order (the “Modification Order”) in which he

found that the Mother’s move to Utah was “not enough for the court to find that

there has been a material change in circumstances.” The trial court also found that

Mother had made “several poor decisions relating to school issues,” including

allowing unexcused absences, withdrawing R. H. so that she could be home schooled,

failing to consult with Father, enrolling R. H. in school in Utah, and claiming that pre-

K was not mandatory and instead “using it. . . as a babysitter.” Despite its finding that

there was no material change in circumstances to warrant a change in custody, the trial

court found that it was not in the best interest of R. H. to move to Utah. The trial

court then ordered that Father “shall be the primary parent in making educational

decisions regarding the minor child”; that if Mother “moves to Utah, primary

custody of the child vests to the [Father],” but if Mother “stays in Georgia, primary

custody shall remain with [Mother]”; and that Father “shall be evaluated for drug

use/addiction and shall follow any course of treatment advised.” This appeal

followed.

5 1. The mother argues that the trial court erred in changing legal custody of R.

H. despite a finding that there was no material change in circumstances to justify

modifying custody. Specifically, Mother argues that the trial court’s order that Father

shall be the primary parent in making educational decisions was an improper

modification of the Initial Order. We agree.

In Georgia, there is a well established two-part test [that] the trial court must employ before instituting a change of custody. The trial court must determine whether there has been a material change in circumstances affecting the welfare of the child since the last custody award. If so, the trial court then determines whether the child’s best interests will be served by a change in custody.

(Citations and punctuation omitted.) Wiggins v. Rogers, 367 Ga. App. 315, 317 (1) (885

SE2d 823) (2023).

“Where a child goes to school is a parental decision,” Daniel v. Daniel, 250 Ga.

App. 482, 485 (2) (552 SE2d 479) (2001), and this court has previously held that “a

change regarding which parent has primary decision-making authority over education

is a change in custody.” Borgers v. Borgers, 347 Ga. App. 640, 644 (1) (a) (820 SE2d

474) (2018). See also Daniel, 250 Ga. App. at 483 (2) (mother’s petition for change

of custody asking that she be designated as primary decision maker on her daughter’s

6 education required a finding of a material change in condition). “A disagreement

regarding a child’s education may constitute a material change in circumstances

sufficient to justify a custody modification if there is evidence of a material change in

circumstances that adversely affects the child.” Borgers, 347 Ga. App. at 644 (1) (a).

Here, the Initial Order and Mediated Order entitled Mother to make

educational decisions for R. H. In its Modification Order, the trial court expressly

found that Mother’s impending move to Utah did not constitute a material change in

circumstances. Moreover, although the trial court characterized Mother’s decisions

regarding R. H.’s education as “poor”, it did not find that these decisions constituted

a material change in circumstances or that they had adversely affected the minor child.

Compare Fox v. Korucu, 315 Ga. App. 851, 855 (729 SE2d 16) (2012) (affirming denial

of motion for summary judgment when parent “submitted an affidavit stating that [the

child’s] grades had ‘begun to dramatically drop’ and that she was unhappy and

stressed about attending her current school” because this was “some evidence of a

material change in circumstances that adversely affected the child”). The trial court

was therefore not authorized to modify which parent had primary decision making

authority over R. H.’s education, and we reverse the trial court’s judgment in this

7 respect. See Odum v. Russell, 342 Ga. App. 390, 393 (1) (802 SE2d 829) (2017)

(“[b]ecause the trial court expressly found that there had been no material change in

circumstances, the trial court was not authorized to modify the original custody order

by altering parental custody arrangements, which included arrangements over which

parent would have final authority over certain decisions relating to the child”).

2. Mother argues that the trial court erred in including a self-executing change

of custody in the Modification Order that vested primary physical custody of R. H.

with Father in the event that Mother relocated to Utah. We agree.

“Self-executing change of custody provisions allow for an ‘automatic’ change

in custody based on a future event without any additional judicial scrutiny.” Scott v.

Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). “Provisions that do not take account

of the best interests of the child at the time of a triggering event are utterly devoid of

the flexibility necessary to adapt to the unique variables that arise in every case,

variables that must be assessed in order to determine what serves the best interests and

welfare of a child.” (Citation and punctuation omitted.) Bankston v. Warbington, 332

Ga. App. 29, 34 (2) (771 SE2d 726) (2015). Our Supreme Court has held that “any

self-executing change of custody provision that fails to give paramount import to the

8 child’s best interests in a change of custody as between parents must be stricken as

violative of Georgia public policy.” (Punctuation and footnote omitted.) Lester v.

Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (citing Dellinger v. Dellinger, 278

Ga. 732, 733 (1) (609 SE2d 331) (2004)).

Our Supreme Court has rejected self-executing provisions that create an

automatic change of custody based solely on a custodial parent’s relocation without

regard to the best interests of the child. See Dellinger, 278 Ga. at 734-736 (1) (reversing

trial court judgment with direction that the trial court strike the self-executing

provision of the decree that altered custody if the mother moved). This is because

“[i]t is well established that Georgia law does not permit a modification of custody

based solely on a custodial parent’s relocation to another home, city or state[.]”

(Citation and punctuation omitted.) Scott, 276 Ga. at 374. Instead, “[w]hen exercising

its discretion in relocation cases, as in all child custody cases, the trial court must

consider the best interests of the child and cannot apply a bright-line test.” Bodne v.

Bodne, 277 Ga. 445, 446 (588 SE2d 728) (2003). “This analysis forbids the

presumption that a relocating custodial parent will always lose custody and,

conversely, forbids any presumption in favor of relocation.” Id.

9 Here, Father’s petition to modify custody was prompted by Mother’s

notification that she and R. H. would be moving to Utah. The trial court engaged in

a best-interests analysis, determined that a move to Utah would not be in R. H.’s best

interests, and ordered that primary physical custody of R. H. would vest in Father if

Mother relocated to Utah, but would remain with Mother if she stayed in Georgia.

Importantly, however, the trial court was still required to find that Mother’s move to

Utah was a material change in circumstances before engaging in a best interests

analysis. “In other words, the best interests of the child should be utilized in deciding

the case once a change in condition has been established.” (Citation and punctuation

omitted; emphasis supplied.) Brazil v. Williams, 359 Ga. App. 487, 488-489 (1) (a),

(859 SE2d 490) (2021). Because the trial court explicitly found that Mother’s move

to Utah was not a material change in circumstances and because its order has an

invalid self-executing provision, it was without authority to vest Father with primary

physical custody in the event Mother indeed relocated to Utah. Compare Bodne, 277

Ga. at 446-447 (trial court did not abuse its discretion in changing primary physical

custody of children due to relocation of primary parent where trial court found a

material change in circumstances affecting the children’s welfare and engaged in best

10 interests analysis). Accordingly, the trial court’s self-executing provision modifying

custody in the event Mother moves to Utah is likewise reversed. See Odum, 342 Ga.

App. at 393 (1).

3. The mother argues that the trial court erred in failing to modify Father’s

visitation rights in light of Father’s positive drug tests for methamphetamine. We

disagree.

Under Georgia law, “visitation rights are a part of custody.” Vines v. Vines, 292

Ga. 550, 551 (2) (739 SE2d 374) (2013). “Visitation rights of non-custodial parents are

subject to review and modification upon the motion of either parent every two years

without the necessity of showing a material change in circumstances.” (Citation and

punctuation omitted.) Park-Poaps v. Poaps, 351 Ga. App. 856, 863 (3) (833 SE2d 554)

(2019). OCGA § 19-9-23 governs actions to obtain a change of legal or physical

custody, and OCGA § 19-9-23 (d) permits a party to bring “a counterclaim for

modification of legal custody or physical custody in response to a complaint” for

modification of the same. In this case, Father initiated a complaint seeking

modification of custody, visitation, and child support. Mother’s answer and

counterclaim, however, did not seek modification of Father’s visitation rights.

11 Consequently, Mother was precluded from obtaining a modification of Father’s

visitation rights. See Pascal v. Pino, 361 Ga. App. 212, 214-215 (1) (863 SE2d 694)

(2021) (father precluded from seeking to modify custody where he did not initiate a

complaint or bring a counterclaim to modify custody).

4. In light of our holding in Divisions 1 through 3, we need not address

Mother’s remaining enumeration of error. .

Judgment reversed. Markle and Davis, JJ, concur.