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Odum v. Russell

Court of Appeals of Georgia, First Division

June 20, 2017

ODUM
v.
RUSSELL.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Steven Douglas Odum appeals from several orders of the trial court, including an order denying his petition to modify custody and motion for contempt, an order awarding his ex-wife attorney fees and litigation expenses, and an order dismissing his initial notice of appeal. Following our review, we reverse the provisions in the final order modifying child custody. We affirm the trial court's award of attorney fees under OCGA § 19-6-2, but we vacate the trial court's award of fees under OCGA § 19-9-3 and remand for further proceedings consistent with this opinion. We also find that Odum's present appeal renders moot the order dismissing his initial notice of appeal.

         Odum and Peggy Ann Russell were married in April of 2004, and divorced in July of 2008, and the original divorce decree granted them joint legal and physical custody of their minor child, who was two years old at the time of the divorce. The divorce decree further granted the parents, among other things, physical custody of the child on an alternating week-by-week basis, gave Odum final decision-making over the child's education, gave Russell final decision-making over the child's health-related issues, and gave both parents shared decision-making authority over the child's extracurricular activities.

         On February 10, 2014, Odum filed a petition to modify custody and child support and a motion for contempt. Odum alleged that a change in legal and physical custody of the child was warranted and in the child's best interest based on changes in material circumstances, including that Russell had failed and refused to comply with certain terms and provisions of the divorce decree, did not consult with Odum about the child's health and other issues, provided false and misleading information relating to the child, exhibited poor judgment in disciplining the child, and failed to properly supervise the child.

         Russell filed her answer and a counterclaim, in which she alleged material changes in circumstances necessitating that she be granted final decision-making authority in "all matters relating to the minor child after consultation with [Odum], " requested that the summer custody/visitation be modified, and requested that child support be increased to reflect the substantial increase in Odum's income. She also requested that she be awarded attorney fees and litigation expenses.

         Following a hearing, and upon finding no "material change in circumstances that would authorize a change in custody or a reduction in the Mother's parenting time, " the trial court entered an order on January 13, 2016, denying the petition to modify custody and directing that "the custody arrangements will remain the same with the parties retaining joint legal and joint physical custody." The trial court found, however, that "parenting issues in the original divorce agreement need adjusting in the best interest of [the child]."

         While finding no material change in circumstances, the trial court modified several parenting provisions of the original decree, including changing the final decision-making authority about education from the father to the mother, changing the decision-making about extracurricular activities from joint to the father, and deleting a week of the father's custody during the summer. The order further provided that the child was to "remain in the current school district so long as the mother lives within the district, and . . . stay in the current school through her current fourth (4th) grade and through fifth (5th) grade, at which time she is to attend middle school, then high school in the same district."

         The trial court did find a substantial increase in Odum's income since the final judgment and, adopting Russell's child support worksheet referenced in her counterclaim, increased Odum's monthly child support.[1] The court found that Russell was not in contempt for violating the divorce decree, and ordered that the parties undergo co-parenting counseling. The trial court directed Russell to submit her request for litigation expenses and attorney fees within 30 days of the entry of the order.

         On February 11, 2016, Russell filed her application for attorney fees and litigation expenses, and on February 12, 2016, Odum filed a timely notice of appeal from the order denying his petition to modify custody. Subsequently, on February 23, 2016, Russell filed a motion to dismiss the notice of appeal, alleging that the order was not final because the motion for attorney fees and litigation expenses was pending, and thus that Odum had to bring the appeal by application. Russell also sought attorney fees for having to respond to Odum's notice of appeal.

         On March 14, 2016, Odum filed a response to Russell's February 11 request for attorney fees and litigation expenses, and on March 29, 2016, filed a response to her motion to dismiss his notice of appeal. Following a hearing on the motions, the trial court entered an order on March 31, 2016, granting Russell's motion to dismiss Odum's notice of appeal, and, on June 14, 2016, entered an order granting her an award of attorney fees and litigation expenses. Odum now appeals the January 13 final order, the March 31 order dismissing his notice of appeal, and the June 14 order awarding Russell attorney fees and litigation expenses.

         1. Odum first contends that the trial court erred in modifying child custody because the trial court found there were no material changes in circumstances. We agree.

         Once an award of child custody has been made, to change that arrangement, 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. Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 S.E.2d 97) (2012). If so, the trial court then determines whether the child's best interests will be served by a change in custody. Todd v. Casciano, 256 Ga.App. 631, 632-633 (1) (569 S.E.2d 566) (2002). This Court will not interfere with a trial court's decision "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." (Citation omitted.) Autrey v. Autrey, 288 Ga. 283, 285 (4) (702 S.E.2d 878) (2010). However,

there is no precedent which would allow a trial court, absent a change in conditions affecting the welfare of the child, to modify custody. The best interest of the child should be utilized in deciding the case once a change in condition has been established. . . . While a "best interest of the child" standard applies to an initial determination of custody, . . . it is applicable in a change of custody action only after there has been a showing of a change in condition materially ...

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