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Woodson v. Lino

Court of Appeals of Georgia, Third Division

May 15, 2018



          Phipps, Senior Appellate Judge.

         In this custody dispute between biological parents who never married, the issues before this Court arise out of the mother's decision to move from Georgia to New York with the child. For the reasons below, we hold that the trial court did not err in determining custody but that a portion of the award related to child support must be vacated and remanded for reconsideration.

         The record shows that on July 15, 2016, Dwayne Woodson filed a petition for legitimation and custody in which he alleged that Maxine Lino had indicated that she was moving to New York and taking their child, who was born out of wedlock in 2008. Woodson prayed that Lino not be allowed to leave Georgia, that Woodson be legitimated, and that he be granted joint legal and primary physical custody of the child. Woodson requested an emergency hearing due to the fact that the Georgia school year was about to begin. On August 4, following an emergency ex parte hearing, the court ordered that the child be returned to Georgia, if he had been removed, and that the child be enrolled in school in Atlanta. Lino moved to set aside the August 4 order on the grounds that she had not been served with notice of the hearing. She also answered, admitted that Woodson was the father, admitted that the child resided with her in New York, and counterclaimed for child support and attorney fees. Woodson countered with a motion for a finding that Lino was in contempt of the August 4 order prohibiting her from removing the child from Georgia.

         The court held a hearing on August 17, 2016, and entered an order that day in which the court noted that the parties had agreed to vacate the August 4 order. Further, the court declared the child to be the legitimate child of Woodson. And the court found that the mother had the legal right to move with the child because the father had not previously legitimated the child. See OCGA § 19-7-25 (mother may exercise all parental power where child born out of wedlock has not been legitimated). The court awarded the parties joint legal custody and made temporary physical custody decisions pending a final hearing. A guardian ad litem was appointed.

         The final hearing was conducted on March 21, 2017, following which the court issued a final order on "Legitimation, Custody, and Child Support" and a "Final Parenting Plan." In the final order and plan, the court found, among other things, that based on the factors defined in OCGA § 19-9-3, the parties would share joint legal custody with the mother having primary physical custody. The court ordered the mother to relocate to Georgia and ordered the father to pay the mother's relocations costs, including a security deposit and three months' housing costs. The court also required the father to bear the cost of airfare and lodging for the mother to travel to Atlanta to secure housing. And the court ordered the mother to secure employment and begin paying for her own housing by the fourth month. Based on a finding that the father earned over $10, 000 a month whereas the mother earned approximately $1, 250 per month, the court ordered the father to pay child support. Woodson appeals from the court's order.[1] Lino did not file a cross appeal.[2]

         1. Woodson first contends that the trial court committed plain legal error by failing to apply the law as articulated by the Supreme Court of Georgia in Bodne v. Bodne, 277 Ga. 445 (588 S.E.2d 728) (2003). We disagree.

         OCGA § 19-9-3 provides that the duty of a judge in a custody case "shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child's welfare and happiness and to make his or her award accordingly." OCGA § 19-9-3 (2). The statute also provides a nonexclusive list of 17 factors relevant to determining the best interests of the child. OCGA § 19-9-3 (4). Our Supreme Court's decision in Bodne made clear that "[w]hen exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test." 277 Ga. at 446. Under this standard, the child's interests are paramount:

[T]he primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, [ ] all other rights are secondary, and [ ] any determination of the best interests of the child must be made on a case-by-case basis.

Id. Accordingly, there is neither a presumption that a relocating parent will lose custody nor a presumption in favor of relocation. Id.

         Here, the trial court's order shows that it considered 14 of the 17 non-exclusive factors as a part of determining the best interests of the child. And we find nothing in the trial court's order to indicate that it applied any improper presumptions arising out of the mother's decision to move to New York. We also find nothing internally inconsistent in the trial court's finding that the child's best interest would be served in Atlanta but giving the mother, who apparently has not relocated to Georgia, primary physical custody. As stated above, any issue regarding the mother's compliance with the trial court's order is not before this court. In sum, Woodson's first enumeration of error is without merit.

         2. Woodson contends that the trial court's factual findings were conclusory and not reflective of the evidence; accordingly, he argues that the facts were inadequate to support the court's ruling. "Where there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion." Haskell v. Haskell, 286 Ga. 112, 112 (1) (686 S.E.2d 102) (2009) (citation and punctuation omitted); Coppedge v. Coppedge, 298 Ga. 494, 499 (3) (783 S.E.2d 94) (2016) (same).

         Woodson contends that the trial court had no evidentiary support for four of the fourteen factual findings in the order. Specifically, Woodson contends the trial court's findings with regard to factors (D), (E), (F), and (M) of OCGA § 19-9-3 (4) were not supported by the evidence. We disagree.

         On factor (D), the court found that the mother "appeared to be more in tune to the child's health and financial needs." With regard to the child's health needs, evidence was presented that the father and his new wife failed to recognize that the child needed immediate medical attention during a week with the father. After the mother picked up the child, she took the child to the emergency room where it was discovered that the child had scarlet fever. As to the child's financial needs, evidence was presented that the father made no payments for the child's support during some early years of the child's life; that the father prevaricated with regard to his willingness to pay the mother for some expenses she needed to support the child; that the father admitted that he did not understand his own finances very well; that the father threatened to hide income if the mother asked for child support; and that when the mother was in financial ...

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