MILLER, P. J., DOYLE, P. J., and REESE, J.
Wilson appeals the grant of a final order of a modification
of child custody regarding minor child E. W., and the award
of attorney fees to Debra Perkins. He argues, inter alia,
that: (1) there was no material change in circumstances
warranting a child custody modification action; (2) the trial
court erred in admitting evidence of his nolo contendre plea;
(3) the trial court erred in admitting harmful and/or clearly
erroneous hearing testimony; and (4) the award of attorneys
fees was improper. For the following reasons, we reverse in
part, vacate in part, and remand.
and Perkins are former spouses who divorced in 2012 and were
awarded joint legal and physical custody of E. W., born in
2009. In 2012, Perkins decided to move to Florida, and Wilson
petitioned to modify custody of E. W. Wilson was awarded
primary physical custody of E. W., with Perkins receiving
2014, Perkins's mother, C. G., contacted local law
enforcement about bruises found on the buttocks area of E. W.
A City of Dallas patrol officer wrote in a family violence
report issued in connection with the investigation, "I
observed several bruises on [E. W.] around the buttocks and
upper leg area. I asked [E. W.] where the bruises came from.
[E. W.] told me his dad hit him with a belt a couple of days
ago because he took something that was not his." Wilson
was arrested and charged with one count each of family
violence battery and battery and two counts of simple battery
against E. W. Perkins sought and obtained a temporary
protective order on behalf of E. W. In December 2014, Wilson
and Perkins, each without attorney representation, met with a
church pastor and signed a document wherein they agreed to
share joint legal and physical custody of E. W., and Perkins
agreed to dismiss the protective order.
entered a nolo contendere plea as to one count of family
violence battery against E. W. on May 4, 2015. Subsequently, the
parties executed a consent final order, as to custody of E.
W. which was filed on June 3, 2015.
was arrested in early June 2015, and incarcerated on charges
of aggravated assault, false imprisonment, and sexual battery
against an adult female, S. G. Wilson remained incarcerated
until August 20, 2015. Wilson testified that he contacted
Perkins upon his release from incarceration, intending to
pick up E. W. While Wilson was incarcerated, Perkins filed a
petition to modify custody, of E. W. on June 15, 2015.
obtained a temporary protective order on behalf of E. W.
against Wilson on August 21, 2015. In September 2015, after a
hearing, a family violence twelve-month protective order was
entered on behalf of E. W. through September
2016. In January 2016, Wilson petitioned to
modify the temporary protective order in the Superior Court
of Cobb County, and was denied.
custody modification hearing in December 2016, Perkins
testified, that after the issuance of the permanent
protective order, Wilson twice filed petitions, in Paulding
County Magistrate Court to have warrants issued against
Perkins for custodial interference regarding E. W. She
further testified that one of the petitions was denied and
the other dismissed.
and the woman he had been accused of assaulting, S. G., both
testified that the charges against Wilson regarding S. G. had
been dropped and expunged from his record. Wilson testified
that he did not cause the bruises found on E. W. He further
testified that he believes "in spanking" children
and "[doesn't] see anything wrong with it." He
testified that Perkins, in the past, had brought up her
concerns to him about spanking E. W.
the custody hearing, the trial court granted Perkins's
request for the modification of custody of E. W., finding
that a material change in circumstances had occurred since
the June 3, 2015 final order. The trial court granted Perkins
primary physical custody of E. W. and terminated Wilson's
appeals, arguing that there was not a material change in
circumstances warranting a modification of the custody order,
the trial court improperly admitted evidence that was
prejudicial to Wilson, and the award of attorney fees in the
amount of $27, 230.85 to Perkins was improper.
[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. 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. Where there is any evidence to
support the trial court's ruling on custody or
visitation, a reviewing court cannot say there was an abuse
the best interests of the child are controlling as to custody
changes. Whether particular circumstances warrant a change in
custody is a fact question determined under the unique
situation in each individual case. In contemplating a
custodial change, the trial court must exercise its
discretion to determine whether a change is in the best
interests of the child. The circumstances warranting a change
in custody are not confined to those of the custodial parent:
any new and material change in circumstances that affects the
child must also be considered.
are mindful that the Solomonic task 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." With these guiding ...