Taira Duncan v. Ovie Mughelli

• Court: Court of Appeals of Georgia
• Decided: November 5, 2013
• Docket: A13A0890
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, 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/

November 5, 2013

In the Court of Appeals of Georgia A13A0890. DUNCAN v. MUGHELLI.

BOGGS, Judge.

In this child visitation action, Taira Duncan and Ovie Mughelli filed cross-

motions for contempt of a final judgment following a guardian ad litem’s arbitration

award involving their minor daughter. The trial court issued an order on the motions

that, among other things, required the appointment of a parenting coordinator and

ordered all forfeiture language stricken from the arbitration award. Duncan appeals,

contending that the trial court was without authority to modify the terms of a custody

order in a contempt proceeding. For the following reasons, we affirm.

The relevant facts here are as follows. The child, O. M., was born on February

28, 2009. The mother, Duncan, filed a complaint to establish paternity and child

support. Duncan and Mughelli subsequently entered into a consent order on December 23, 2009, in which Mughelli was declared to be O. M.’s legitimate father.

The parties were awarded joint legal custody, Duncan was awarded primary physical

custody, and the parties agreed to the terms of child support and visitation.

In August 2010, Mughelli filed a “Petition for Modification of Custody and

Visitation and Petition for Citation of Contempt.” He filed a separate motion on the

same day for the appointment of a guardian ad litem. On September 20, 2010, the

parties agreed to the appointment of a guardian ad litem, with Mughelli to be

responsible for the payment of the guardian ad litem’s fees. After continued disputes

between the parties and the filing of several discovery requests, the parties entered

into another consent order agreeing to allow the guardian ad litem to arbitrate their

disputes. The order provided: “[The guardian ad litem]’s ruling shall be binding on

the parties, and shall be incorporated by him into a proposed final order that either

side or [the guardian ad litem] may submit to the Court as a final order in this case.”

The guardian ad litem arbitrated the parties’ disputes and submitted an

“arbitration award” to the superior court. The guardian ad litem did not modify

custody as previously determined in the 2009 consent order, but did modify

“parenting time and conditions of visitation.” The award contained the following

provision: “If Mr. Mughelli returns the child to Ms. Duncan on a Tuesday later than

2 the grace period provided . . . , then he shall forfeit his next Tuesday visitation.” The

award also provided: “The parties are encouraged but not mandated to seek co-

parenting counseling or assistance to facilitate their communication and parenting of

their child.” On June 16, 2011, the superior court approved the arbitration award and

incorporated it into a final order.

On August 2, 2011, Duncan filed a motion for contempt alleging that Mughelli

violated certain visitation terms of the “Consent Final Order.” On April 11, 2012,

Mughelli filed a motion for contempt alleging that Duncan had prevented him from

seeing O. M. in violation of the June 16 final order. Mughelli filed an amended

motion for contempt and complaint for modification of custody on April 30, 2012,

alleging that Duncan abused the forfeiture provision of the arbitration award.1 Duncan

then filed a second motion for contempt on June 12, 2012, and a third motion on July

23.

On August 3, 2012, following a hearing on the cross-motions for contempt, the

trial court issued a ruling that among other things, ordered that “all forfeiture

1 While partially titled “complaint for modification of custody,” Mughelli sought only to remove the forfeiture provision from the arbitration award.

3 language is stricken from the Arbitration Award,” and granted Mughelli’s request for

the appointment of a parenting coordinator.2 Duncan now appeals from this order.

In two enumerations, Duncan argues that the trial court “improperly modified

the terms of the prior judgment on custody.” She contends that the court was without

authority to modify the terms of a custody order in a contempt proceeding. It is true

that “[i]n a contempt proceeding, the trial court does not have authority to modify a

final order of custody, which must be brought as a separate action.” (Citation and

punctuation omitted.) Coker v. Moemeka, 311 Ga. App. 105, 107 (1) (714 SE2d 642)

(2011). But here, the court made no modification to custody. Compare id. The court

determined that the visitation forfeiture provision was not in the best interest of the

child because it had the effect of causing “the child to go for extended periods of time

without seeing her father.” By striking this provision of the arbitration award, the

court effectively modified visitation, which it had the authority to do in a contempt

proceeding. Bowerman v. Bowerman, 314 Ga. App. 487, 490 (3) (a) (724 SE2d 481)

(2012); Gildar v. Gildar, 309 Ga. App. 730, 731 (710 SE2d 913) (2011). The

appointment of a parenting coordinator likewise did not affect custody. See

2 As noted by the trial court, it had previously ordered the parties to choose a parenting coordinator in July 2012.

4 Bowerman, supra, 314 Ga. App. at 490-491 (3) (b) (order for counseling does not

alter legal custody). The trial court has the authority to make such rulings in a

contempt action following the entry of a final order of a custody agreement. See id.

at 490 (3) (a). And we find no authority to suggest, or any other reason to conclude,

that the court would not have the same authority following the entry of a final order

of an arbitration award. Compare, e.g., OCGA § 19-9-5 (b) (court shall ratify custody

agreement and make part of its final judgment unless such agreement would not be

in best interests of the child) with OCGA § 19-9-1.1 (court shall incorporate arbiter’s

decision on custody into final judgment unless award would not be in best interests

of the child). We therefore affirm the trial court’s order.

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