Margo Elizabeth Byrne v. Robert Byrne

• Court: Court of Appeals of Georgia
• Decided: September 1, 2022
• Docket: A22A1080
• Status: Published

Opinion

THIRD DIVISION DOYLE, P. J., REESE, J., and SENIOR APPELLATE JUDGE PHIPPS

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

September 1, 2022

In the Court of Appeals of Georgia A22A1080. BYRNE v. BYRNE.

PHIPPS, Senior Appellate Judge.

Following our grant of her application for discretionary review, plaintiff Margo

Byrne (the “mother”) appeals from the trial court’s final judgment and decree of

divorce awarding Robert Byrne (the “father”) primary physical custody of their

children and equitably dividing the parties’ assets and debts. The mother asserts that

the trial court (1) abused its discretion in granting primary physical custody of the

children to the father, (2) failed to consider an award of joint physical custody, (3)

erroneously relied on evidence from a temporary hearing in making its final child

custody determination, (4) improperly included in its award a provision limiting

overnight guests of a custodial parent to family members, and (5) failed to adhere to the parties’ purported agreement regarding the sale of the marital residence. For the

reasons that follow, we affirm.

The record shows that in October 2020, the mother filed an action for divorce

against the father, seeking temporary and permanent legal and physical custody of the

parties’ twin children, who were five years old at the time, as well as financial support

and property. The father answered and counterclaimed for joint legal and physical

custody of the children, as well as an equitable division of property, debt, and

expenses. Following a temporary hearing, at which both parties appeared, the court

awarded primary physical custody of the children to the mother and visitation to the

father. Approximately eight months later, the court held a bench trial, during which

both parties testified. The court thereafter entered a final judgment and decree of

divorce granting the parties joint legal custody of the children, but awarding

permanent physical custody to the father and visitation to the mother. The court

further equitably divided the parties’ assets and debts. The mother appeals from this

final judgment.

1. In a broad enumeration of error, the mother asserts that the trial court

“committed harmful error in abusing its discretion as its decision was based upon

2 erroneous reasoning and an incorrect application of established Georgia law.”1 We

find no error.

(a) The mother contends that the trial court abused its discretion in granting

primary physical custody of the children to the father. However, a trial court in a

divorce case has broad discretion in determining which parent is entitled to custody

of the children. See Newman v. Newman, 223 Ga. 278, 281 (4) (154 SE2d 581)

(1967). Although the mother argues in passing that the father did not request primary

physical custody, a trial court — in exercising its discretion in what it determines to

be the best interest of the children — may award custody to either parent. Id. In

addition, while the mother generally asserts that “other evidence presented supports

a conclusion that she was at least as fit to serve as a custodial parent as [the father],

such evidence only presents a question of fact requiring the trial court’s resolution

under the proper standard,” Hadden v. Hadden, 283 Ga. 424, 425 (2) (659 SE2d 353)

(2008), and “it is the duty of the trial judge to resolve the conflicts in the evidence,”

King v. King, 284 Ga. 364, 365 (667 SE2d 30) (2008) (citation and punctuation

omitted).

1 “For convenience of discussion, we have taken the enumerated errors out of the order in which [the mother] has listed them. . . .” Foster v. Morrison, 177 Ga. App. 250, 250 (1) (339 SE2d 307) (1985).

3 Where, as here, the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, [an appellate court] will not interfere with that decision unless the evidence shows the trial court clearly abused its discretion. Where there is any evidence to support the decision of the trial court, [an appellate court] cannot say there was an abuse of discretion.

Haskell v. Haskell, 286 Ga. 112, 112 (1) (686 SE2d 102) (2009) (citations and

punctuation omitted); accord King, 284 Ga. at 365.

The trial court in this case heard testimony at the final hearing from the father,

mother, and maternal grandmother and concluded that although the parents were both

very capable, the children would incur “stability and [the] least amount of conflict”

if the court awarded primary physical custody to the father. The court specifically

noted that the father is more cooperative and would allow the mother more access to

the children than the mother would allow the father, and therefore concluded that “the

better opportunity for co-parenting would be achieved by naming the father as

primary physical custodian.”

In making a custody award, a trial court “may properly consider each parent’s

fitness for custody, his character, his personality, and his general health.” Weaver v.

Weaver, 238 Ga. 101, 103 (2) (230 SE2d 886) (1976). In fact, OCGA § 19-9-3 (a) (3)

4 (N) specifically provides that in determining the best interest of the child for a

custody award, a trial court may consider “[t]he willingness and ability of each of the

parents to facilitate and encourage a close and continuing parent-child relationship

between the child and the other parent, consistent with the best interest of the

child[.]” And OCGA § 19-9-3 (a) (3) (G) & (H) provide that a trial court may

consider the desirability of maintaining continuity and stability in the child’s life

when determining the best interest of the child. Because there is evidence to support

the trial court’s conclusion that an award of primary physical custody to the father is

in the best interest of the children in this case, we will not disturb that ruling. See

OCGA § 19-9-3 (a) (3) (G), (H), (N); Weaver, 238 Ga. at 103 (2).

(b) The mother also argues that the trial court failed to include written findings

of fact to support its conclusion that awarding physical custody of the children to the

father provided the better opportunity for co-parenting. However, a trial court is not

required to include in the final decree specific written findings of fact regarding the

basis for the judge’s decision unless a party requested such on or before the close of

evidence. See OCGA § 19-9-3 (a) (8) (“If 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

5 in making an award of custody . . . .”); see also OCGA § 9-11-52 (a) (“In ruling . . .

in all nonjury trials in courts of record, the court shall upon request of any party made

prior to such ruling, find the facts specially and shall state separately its conclusions

of law.”). Because the record is devoid of any request by either party that specific

written findings of fact be included in the final judgment, none were required. See

Hadden, 283 Ga. at 424 (1).

Moreover, the decisions relied upon by the mother for the principle that a trial

court errs when it modifies a former custody arrangement but fails to provide insight

at the hearing or in the record as to why it did so are inapposite because those

decisions address modification or change of custody proceedings rather than an initial

award of custody. See Longino v. Longino, 352 Ga. App. 263 (834 SE2d 355) (2019);

Johnson v. Hubert, 175 Ga. App. 169 (333 SE2d 21) (1985); Howard v. Fincher, 161

Ga. App. 411 (288 SE2d 338) (1982). Under the statute governing an initial

determination of custody there is no requirement for the court to find a change in

circumstances and detail those findings in writing before deciding custody based on

the best interest of the children. See OCGA § 19-9-3. In fact, the Supreme Court of

Georgia has specifically held that a trial court may alter a temporary custody

determination without a demonstrated change in material condition. See Hadden, 283

6 Ga. at 425 (3). Accordingly, contrary to the mother’s assertion, the trial court did not

err by failing to include written findings of fact to explain its conclusion that

awarding primary physical custody to the father provided the better opportunity for

co-parenting.

2. In a related enumeration of error, the mother contends that the trial court

erred by failing to consider the feasibility of a joint physical custody arrangement

despite finding that she had been the primary caregiver until the final hearing and was

“very capable.” This argument lacks merit.

In Baldwin v. Baldwin, 265 Ga. 465, 465 (458 SE2d 126) (1995), the Supreme

Court of Georgia held that “where . . . the trial court determines that both parents are

fit and equally capable of caring for the child, the court must consider joint custody

but is not required to enter such an order unless it specifically finds that to do so

would be in the best interest of the child.” 265 Ga. at 465 (emphasis in original).

Here, the mother does not point to any language in the record substantiating her bare

allegation that the trial court neglected to consider the feasibility of a joint physical

custody arrangement. In fact, the trial court’s comments at the final hearing appear

to indicate that the court did consider joint physical custody. As indicated in Division

1 (a) of this opinion, the court concluded that the children would incur “stability and

7 [the] least amount of conflict” by awarding primary physical custody to the father

because, according to the court, although both parents are very capable, the father “is

more stable and is more cooperative and . . . will allow [the mother] to have more

access than [the mother] would allow [the father.]” The court further stated in its final

judgment that “[i]t appears the better opportunity for co-parenting would be achieved

by naming the father as primary physical custodian.” Because the record indicates

that the trial court considered the best interest of the children, as discussed above in

Division 1 (a), and considered, but rejected, the feasibility of a joint physical custody

arrangement on that basis, this enumeration of error fails.

3. The mother contends that the trial court erred by relying on evidence from

the temporary hearing in making its final custody determination without giving notice

to the parties that it would do so. We find no error.

In Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), the Supreme Court

of Georgia held that “absent express notice to the parties, it is error for a trial court

to rely on evidence from [a] temporary hearing in making its final custody

determination.” In reversing the lower court’s decision and remanding the case to the

trial court, the Supreme Court noted that “the trial court relied substantially on

8 testimony adduced at the temporary hearing in making its determination on permanent

custody” and explained:

Because of its interim nature and the need to expedite the temporary custody determination to minimize disruption to the children involved, the temporary order is not governed by the same rules of law as the permanent custody order . . . [and] the 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[.]

Id. at 900-901 (citation and punctuation omitted). Therefore, “parties 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. at 901.

In this case, the mother has pointed to no specific temporary hearing testimony

or evidence used by the trial court in rendering its final custody determination.

Rather, she maintains — without citing any authority in support of her assertion —

that the trial court violated the Pace directive by improperly considering the parties’

demeanor and cooperativeness during the course of the pending litigation without

notifying the parties that it would do so. Indeed, the trial court’s final judgment

indicates as follows: “Through the various hearings and course of [these] proceedings

9 the court has had multiple opportunities to assess the cooperativeness and demeanor

of the parties and the directness of their communications.” However, contrary to the

mother’s argument, a trial court’s assessment of the parties’ demeanor and

cooperativeness throughout the proceedings does not constitute consideration of

evidence “presented” at a temporary hearing, and a recitation in the trial court’s final

order that the court was aware of the parties’ history does not trigger a violation of

Pace. See generally New v. Goss, 327 Ga. App. 413, 414 (2) (759 SE2d 266) (2014)

(“We review the evidence in a custody case in the light most favorable to upholding

the trial court’s determination, because the trial court had the opportunity to observe

the demeanor and attitude of the parties and their witnesses and assess their

credibility.”); see also Danforth v. Apple Inc., 294 Ga. 890, 895-896 (1) (c) (757

SE2d 96) (2014) (finding clear and convincing evidence to support the award of an

injunction based, in part, on trial court’s observation of the party’s demeanor in the

courtroom); In the Interest of K. C. W., 297 Ga. App. 714, 719 (2) (b) (678 SE2d 343)

(2009) (affirming termination of parental rights based, in part, on juvenile court’s

observations of the father’s testimony and demeanor at the termination hearing);

Smalls v. State, 242 Ga. App. 39, 40 (1) (528 SE2d 560) (2000) (finding no abuse of

10 discretion in trial court’s denial of motion for continuance based, in part, on trial

court’s ability to observe party’s demeanor in court).

Moreover, following the presentation of evidence at the final hearing, the trial

court specifically noted that the father is more cooperative and that the children

would incur the least amount of conflict if the father were awarded primary physical

custody. The mother does not assert any error with regard to these rulings or identify

any evidence demonstrating that the testimony or evidence presented at the final

hearing did not support these rulings. Given the mother’s failure to show that the trial

court relied on testimony or evidence presented at the temporary hearing or that the

testimony or evidence presented at the final hearing was insufficient to support the

trial court’s custody award, this enumeration fails.

4. The mother maintains that the trial court erred by including in the final

judgment a provision limiting overnight guests to family members when the children

are in a parent’s custody. According to the mother, “[t]his condition of visitation . .

. is not allowed under Georgia law.” However, the mother’s reliance on Gordon v.

Abrahams, 330 Ga. App. 795, 797 (1) (769 SE2d 544) (2015) (physical precedent

only), to support this proposition is misplaced because Gordon is not factually or

legally on point. Gordon involved a modification — rather than an initial

11 determination — of custody, where this Court held that “a parent’s cohabitation is not

a basis for a change in custody absent some evidence of harm to the child.” Id. As

stated previously, under the statute governing an initial determination of custody

there is no requirement for the court to find a change in circumstances or harm before

deciding custody based on the best interest of the children. See OCGA § 19-9-3.

Moreover, the overnight-guest provision is neither overly broad nor unduly

burdensome, as it applies to both parties and only prohibits overnight stays by

unrelated guests. See Norman v. Norman, 329 Ga. App. 502, 505 (765 SE2d 677)

(2014) (affirming an overnight-guest provision because it was not overly broad or

unduly burdensome). Accordingly, this enumeration of error lacks merit.

5. Finally, the mother contends, without citing any authority, that the trial

court’s final judgment does not require that the marital home be sold for its appraised

value, as the parties purportedly agreed to do at the final hearing. First of all, the

hearing transcript indicates that the parties agreed to have an appraisal of the home

completed; an appraisal had not yet been done at the time of the hearing. Second, the

transcript does not support the mother’s argument that the parties “stipulated” to any

specific amount or agreed that any such “stipulation” should be included in the trial

court’s final order.

12 The final decree states that the mother will return the marital home key to the

father, that the father will list the marital home on the housing market, and that, once

the house is sold, he must equally split the equity with the mother. The mother has not

demonstrated that the trial court’s provision regarding the sale of the marital home

conflicts with any agreement by the parties, nor has she cited any legal authority to

support her position that a court commits reversible error by not including in the final

decree the method by which the property’s value will be determined.

Judgment affirmed. Doyle, P. J., and Reese, J., concur.