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Bankston v. Warbington

Court of Appeals of Georgia

April 13, 2015

WARBINGTON; and vice versa

Page 727

Custody. Fulton Superior Court. Before Judge Goger.

Moss & Rothenberg, Robert A. Moss; Miles Patterson Hansford Tallant, Jennifer D. Patterson; The West Firm, Lisa Y. S. West, for appellant.

Kupferman & Golden, Gregory D. Golden, for appellee.


Page 728

Branch, Judge.

These companion appeals are the second and third arising from a custody dispute that went to trial in September 2012. In October 2012, the trial court issued an order modifying primary physical custody of the ten-year-old child at issue in favor of the father as of January 2013, but also including a self-executing provision that the mother would regain custody after 18 months (in the summer of 2014). In November 2013, the trial court ruled on the mother's post-trial motions and the father's request for attorney fees. On appeal in Case No. A14A1514, the mother argues that the trial court abused its discretion when it modified custody in favor of the father. On cross-appeal in Case No. A14A1515, the father argues that the trial court erred when it ordered the self-executing change of custody in the summer of 2014, when it increased his child support obligation as of that time, and when it failed to rule on the father's request for fees first made shortly after trial. We affirm the initial modification of custody as supported by the evidence, but we reverse those portions of the order implementing the self-executing return of custody and awarding child support to the mother. We also vacate the judgment as to fees and remand for further proceedings consistent with this opinion.

On appeal from a trial court's determination in a custody dispute, we defer to that court in all matters of fact:

When considering a dispute regarding the custody of a child, a trial court has very broad discretion, looking always to the best interest of the child. This Court will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court's finding, we will not find there was an abuse of discretion.

Williams v. Williams, 295 Ga. 113 (1) (757 S.E.2d 859) (2014) (citations and punctuation omitted). " We are mindful that the Solomonic task [332 Ga.App. 30] of making [custody] decisions 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." Smith v. Curtis, 316 Ga.App. 890, 892 (730 S.E.2d 604) (2012) (citations and punctuation omitted).

Viewed in favor of the trial court's judgment, the record shows that the child at issue, a girl, was born on January 26, 2004. In a November 2004 consent order, the parties agreed that the mother would have primary physical custody of the child. In February 2006, after the mother moved out of Georgia, the father sought and obtained

Page 729

more visitation time. On February 9, 2011, the father filed the instant petition for a change in custody and child support, alleging inter alia that the mother had not provided a stable environment for the child and had alienated the child from the father.

In July 2011, the mother refused to pick up the daughter at Los Angeles International Airport (LAX) at a scheduled custody transfer such that the daughter was forced to return to Atlanta with her father before flying back to her mother in California.[1] On July 26, 2011, the mother filed an emergency motion for contempt against the father as to the airport incident, which the trial court characterized as a " honest disagreement" between the two parents. In April 2012, the trial court found that the mother and her counsel had thus " unnecessarily expanded the proceeding by improper conduct," including the filing and defense of pleadings and motions " that lacked substantial justification or [were] interposed for delay or harassment," and awarded the father $4,300 in attorney fees and expenses. In the case's first appearance on appeal, we affirmed the trial court's authority to award the father attorney fees, reversed the award of the father's air expenses as not authorized by OCGA § 9-15-14 (b), and remanded for further proceedings as to the proper amount of the fee award. Bankston v. Warbington, 319 Ga.App. 821, 822-823 (2) (738 S.E.2d 656) (2013).

At the September 2012 trial on the father's petition to change custody, the trial court heard testimony from witnesses, including the child's guardian ad litem, that the mother had moved four or more times after leaving Georgia, each requiring a change in schooling arrangements and one occurring during the daughter's summer visitation with her father, and that the mother had failed to give the father sufficient notice of these relocations. Evidence at the hearing described the July 2011 mishap at LAX and showed that the mother [332 Ga.App. 31] discouraged the daughter from making friends in her neighborhood, deprived the father of meaningful telephone or teleconferencing contact, and disrupted therapy sessions by discouraging the daughter from acknowledging her father and not allowing the daughter to speak for herself. Evidence also showed that the mother's disdain for the father was damaging the daughter's relationship with him. On October 11, 2012, and citing OCGA § 19-9-3 (a) (3) (N),[2] the trial court held that because " the only antidote to the alienating behaviors of the [m]other is to allow the child to be immersed in the [f]ather's [household] for a period of time," it was " in the best interest of the child to award primary physical custody of the child to the [f]ather for a period of 18 months, to commence at the end of her scheduled winter vacation time with the [m]other in 2012," until one week before the start of the child's 2014-2015 school year, when the mother would regain primary ...

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