October 20, 2014
Domestic relations. Houston Superior Court. Before Judge Nunn.
Tamar O. Faulhaber, for appellant.
Christopher Carr, pro se.
HINES, Presiding Justice. All the Justices concur.
Hines, Presiding Justice.
Annie Carr-MacArthur (" Mother" ) appeals from the superior court's grant of a change
in child custody and child support in regard to her minor child. For the reasons that follow, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings.
Mother and Christopher Carr (" Father" ) were married in 2004; the only child of the marriage was born in 2005. The couple were divorced on June 2, 2009, and the incorporated settlement agreement gave the parties joint legal custody of the child, with primary physical custody to Mother, who had just moved to Florida; Father, who is in the Air Force, remained in Georgia, where he is currently based. At the time of the divorce, Mother had certain physical and mental health issues, of which Father was aware, and that he believed to be manageable.
On February 6, 2010, Mother surrendered physical custody of the child to Father after the Florida Department of Family and Children Services determined that her home was unsafe, due to conditions such as moldy food, trash on the floor with barely room to walk, empty prescription bottles found throughout the home, and cat food on the floor and kitchen table. In February 2010, in the juvenile court in Georgia, Father filed a petition for deprivation after Mother requested the child be returned to her; in October 2010, Father filed a petition for modification of custody, child support, and alimony. In a final order entered September 13, 2013, the trial court modified [296 Ga. 31] custody, named Father the primary physical custodian, and made associated changes in child support.
1. Mother contends that the evidence did not support the trial court's finding that a change in material conditions had occurred that adversely affected the child, as required by OCGA § 19-9-3.
" 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." Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 S.E.2d 97) (2012). See OCGA § 19-9-3 (a) (2). 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. Haskell v. Haskell, 286 Ga. 112 (1) (686 S.E.2d 102) (2009). Where there is any evidence to support the trial court's ruling, a reviewing court cannot say there was an abuse of discretion. Id.
[296 Ga. 32] Vines v. Vines, 292 Ga. 550, 552 (2) (739 S.E.2d 374) (2013).
Mother specifically contends that Father knew of her various psychological and
physical conditions in 2009 when he agreed for her to act as primary physical custodian of their child, that these conditions were the same in 2009 as they were at the time of the trial court's 2013 change of custody order, and thus there was no " change in any material conditions and circumstances of either party or the child" as set forth in OCGA § 19-9-3 (b).
Certainly, there was evidence that, before the divorce, Mother had dealt with an obsessive compulsive disorder, depression, and pain associated with rheumatoid arthritis. However, there was also evidence that she was dealing with post-traumatic stress disorder and adjustment disorder, conditions which were not known to Father at the time of the divorce. Moreover, there was also evidence that psychological and physical conditions that were present and manageable at the time of the divorce subsequently became unmanageable, even if at the time of the court's order they might again be considered manageable.
Further, it is undisputed that Mother voluntarily surrendered the child to Father in February 2010; the trial court noted that, at that time, she was caring for only one child, while at the time of the order, there were at least two other children in her home. " Our courts have held that the voluntary surrender of physical custody over a child by the custodial parent can constitute a material change of condition. [Cits.]" Smith v. Curtis, 316 Ga.App. 890, 893 (730 S.E.2d 604) (2012). See also Lodge v. Lodge, 230 Ga. 652 (198 S.E.2d 861) (1973); Wilt v. Wilt, 229 Ga. 658 (193 S.E.2d 833) (1972). Accordingly, it was not error to find that there had been a material change in conditions warranting a change of custody.
2. The final hearing on the petition for a change in custody was held on February 22, 2012, and the court stated that it would issue a final order after it read two depositions; the court did not make any oral pronouncement as to a ruling at that time. The next day, February 23, 2012, the court sent a letter to counsel for the parties stating that it had determined that the best interest of the child was that Father serve as primary physical custodian, and requesting that Father's counsel prepare an order in accordance with the court's [296 Ga. 33] letter. On July 25, 2012, apparently before the final order the court had requested was prepared, Mother filed a " Motion for Reconsideration," in which she stated that while the court " announced its ruling from the bench [on February 22, 2012], there has been no final order entered." In her motion, Mother sought to introduce a July 12, 2012 report of a psychologist who had originally presented a psychological evaluation dated July 15, 2011, which had been before the court at the final hearing on February 22, 2012. On September 6, 2012, a hearing was held on Mother's motion, but no witness was sworn or evidence received; during the hearing, Mother requested that the court include findings of fact in the final order, which was not issued until September 13, 2013.
Mother contends that delaying the issuance of the final order until September 13, 2013 violated the requirement of OCGA § 19-9-3 (a) (8) that a final order be issued within 30 days of the final hearing. However, OCGA § 19-9-3 (a) (8) explicitly states
that the provision applies if specific findings of fact are " requested by any party on or before the close of evidence in a contested hearing," and it does not appear that such occurred here. Further, while the delay before the court's final order was entered is far from ideal, nothing in OCGA § 19-9-3 (a) (8) suggests that, after a delay of 30 days, the trial court loses jurisdiction or must grant a motion for reconsideration such as that filed by Mother, and we will not engraft such a provision onto the statute.
In response to the court's final order, on October 11, 2013, Mother filed a motion for new trial based on new evidence, and contends that [296 Ga. 34] the delay before the issuance of the final order should have prompted the court to grant it. Under OCGA § 5-5-23,
[a] new trial may be granted in any case where any material evidence, not merely cumulative or impeaching in its character but relating to new and material facts, is discovered by the applicant after the rendition of a verdict against him and is brought to the notice of the court within the time allowed by law for entertaining a motion for a new trial.
[g]rants of new trial on the ground of newly discovered evidence are not favored and are addressed to the sound discretion of the trial court. The trial court's decision will not be disturbed absent a manifest abuse of discretion. To obtain a new trial based on newly discovered evidence, the evidence supporting the motion must satisfy six criteria: (1) it must have been discovered after the trial or hearing; (2) its late discovery was not due to lack of diligence; (3) it is so material that its introduction in evidence would probably produce a different result; (4) it is not merely cumulative; (5) the affidavit of the witness must be attached to the motion (or its absence accounted for); and (6) it does not operate only to impeach a witness. All six criteria must be satisfied for a new trial to be warranted.
Hopper v. M & B Builders, 261 Ga.App. 702, 704 (1) (b) (583 S.E.2d 533) (2003) (Footnotes omitted.) Mother notes that, in its final order, the trial court cited the concerns of the psychologist who prepared the July 15, 2011 report about the effect of the stress on Mother of another child in her home, and that in the updated July 12, 2012 psychological evaluation, the same psychologist stated that Mother " certainly appears to be capable of parenting three children" ; she also cites her averment that Father had been on military deployment for six months beginning in December 2012 as new evidence warranting a new trial.
The proffered evidence does not demonstrate a manifest abuse of the trial court's discretion in denying the motion for new trial. There was no affidavit of the potential witness-psychologist attached to the [296 Ga. 35] motion, nor does the court's final order rely solely upon the single psychologist, and the contention that Mother's condition had improved since the July 15, 2011 report was the subject of evidence and argument at the final hearing. Further, the fact that Father could be deployed for an extensive period was clearly contemplated in the court's final order and incorporated parenting plan, and there is no probability that evidence of its occurrence would produce a different result.
3. In its September 13, 2013 order modifying child custody, the trial court also modified child support, and Mother contends that the support award is in error. She was unemployed at the time of the final hearing and the court imputed income to her for purposes of calculating child support. She contends imputing income to her was an abuse of discretion as her health issues and
role as a caretaker for the other young children in her home precluded such. See OCGA § 19-6-15 (f) (4) (D) (v), (vi). However, the statutory provision upon which she [296 Ga. 36] relies specifically states that a determination of willful unemployment " can be based on any intentional choice or act that affects a parent's income." OCGA § 19-6-15 (f) (4) (D). There was evidence that Mother and her new husband had determined that it was to the advantage of their children that Mother not work outside the home " until the kids are in school," and it was not error to impute income to Mother.
Mother also notes that under the court's final order, if Father is ordered by the Air Force to deploy for more than 30 days, she is awarded temporary custody of the child during the period of deployment,
and that Father is then responsible for $500 a month child support, despite the fact that his presumptive amount of child [296 Ga. 37] support is $725 a month. While the trial court can certainly deviate from the presumptive amount of child support in a modification action, if it does so, it must " enter a written order specifying the basis for the modification ... and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section." OCGA § 19-6-15 (k) (4). And, as this Court has previously noted, OCGA § 19-6-15 (c) (2) (E)
requires written findings of fact that a deviation applies and the reasons for the deviation, the amount of child support that would have been required if the deviation were not granted, how the application of the child support guidelines " would be unjust or inappropriate considering the relative ability of each parent to provide support," and how the deviation serves the best interest of the child. [Cit.]
Strunk v. Strunk, 294 Ga. 280, 282 (2) (754 S.E.2d 1) (2013). The failure of the trial court to include such findings as to this deviation from the presumptive amount of child support requires that we reverse the judgment as to this issue and remand the case to the trial court for the mandatory written findings.
[296 Ga. 38] Judgment affirmed in part and reversed in part, and case remanded with direction. All the Justices concur.