P. J., COOMER and MARKLE, JJ.
Alexa Burnham ("Alexa") appeals from the trial
court's order granting her ex-husband's petition to
modify custody of their two children. On appeal, she argues
that the trial court erred because there was no evidence of a
change in circumstances that affected the children's best
interest. After a thorough review of the record, and for the
reasons that follow, we vacate the trial court's order
and remand the case for further factual findings.
review of an order modifying a child custody arrangement,
"this Court views the evidence in the record in the
light most favorable to the trial court's order and will
affirm the trial court's decision if there is any
evidence to support it." (Citation and punctuation
omitted.) Lowry v. Winenger, 340 Ga.App. 382 (797
S.E.2d 230) (2017). We are "mindful that the Solomonic
task of assigning the custody of children 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." (Citation and punctuation
omitted.) Gordy v. Gordy, 246 Ga.App. 802, 803 (1)
(542 S.E.2d 536) (2000).
viewed, the evidence shows that Alexa and Michael Bruce
Burnham ("Bruce") were divorced in 2016. They have
two children, a son born in 2007 and a daughter born in 2010.
The divorce was amicable, and the parties did not consult
with attorneys before signing the separation and divorce
papers. The parties agreed that they would have joint legal
custody, with Alexa having physical custody and Bruce paying
child support in the amount of $1, 746 per month. Per the
terms of the separation agreement, the parties were to live
within 120 miles of the current home address in Palmetto,
Georgia, unless one of them had to relocate due to employment
of either the parent or the parent's new spouse.
beginning, the parties co-parented well, with both remaining
very involved in their children's lives, and with Bruce
spending more time with the children than he was allotted
under the visitation schedule. Bruce moved out of the marital
home to allow Alexa and the children to remain there, and he
moved in with his parents. Bruce later remarried, and Alexa
became engaged. Both of the parties' significant others
have children from previous relationships, and the Burnham
children get along well with the significant others and their
2017, Bruce approached Alexa about reducing the amount of
child support payments he made each month because he had
started a new business with his brother. Around the same
time, Alexa began to strictly enforce the terms of the
2018, Alexa and her fiancé decided to move to Cobb
County as a result of a change in her work schedule. It is
undisputed that this move is within the 120 miles
contemplated by the separation agreement. Bruce subsequently
purchased a home with his new wife that would enable the
children to remain in their current school district.
result of Alexa's planned move, Bruce filed a complaint
to modify custody and child support on the ground that the
move constituted a material change in circumstances. The
children had lived in Coweta County their entire lives and
had family nearby with whom they had close relationships,
including their paternal grandparents who often picked them
up from school or had them spend the night. The children were
doing well in school, participated in several extracurricular
activities, and were active in church. According to family
and friends, both parents were involved in these activities
and provided nurturing environments for the children.
filed her own petition for modification of visitation and for
contempt based on Bruce's failure to pay child support
and maintain a life insurance policy. The trial court
consolidated these petitions and ordered Bruce to make
payments on the child support arrears.
a hearing, at which the trial court and the parties addressed
only whether a change in custody was in the best interest of
the children, the trial court modified custody to award
physical custody to Bruce, and ordered Alexa to pay $669 a
month in child support. Without addressing whether
Alexa's move constituted a material change in
circumstances, the trial court found that the best interest
of the children weighed in favor of granting physical custody
to Bruce. Alexa now appeals.
sole enumeration of error, Alexa argues that the trial
court's order must be reversed because it failed to make
a threshold determination that there was a material change in
circumstances, given that the separation agreement specifies
that only a move beyond 120 miles would qualify.
Before we address Alexa's argument on appeal, we first
consider Bruce's claim that she has waived her alleged
error by not arguing it before the trial court and by
implicitly conceding that there were changed circumstances.
We do not agree that Alexa has waived this issue.
was not the party seeking a modification of custody, and thus
it was not her burden to show changed circumstances.
Young v. Young, 209 Ga. 711, 713-714 (3) (75 S.E.2d
433) (1953) ("The decree in a divorce case which awards
custody of minor children to the mother is conclusive as
between the parties, . . . and where the decree is relied
upon by the mother, the burden is upon the father to show
affirmatively a change in circumstances that would free the
case from the former adjudication."); see also Lyon
v. Lyon, 226 Ga. 879 (178 S.E.2d 195) (1970) (burden is
on party seeking change in custody); Mink v. Mink,
195 Ga.App. 760, 762 (3) (395 S.E.2d 237) (1990) (same)
(physical precedent only). As such, the failure to raise the
argument that there was not sufficient evidence of changed
circumstances does not waive the issue. Compare Moore v.
Moore, 346 Ga.App. 58, 60-61 (3) (815 S.E.2d 242) (2018)
("Because Appellant acquiesced to a modification of his
child support obligations, he waived any objection to whether
the threshold ...