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Mashburn v. Mashburn

Court of Appeals of Georgia, Second Division

October 31, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.

          Rickman, Judge.

         These related appeals arise out of two separate orders of the Whitfield County Superior Court concerning the custody of the mother's minor children, L. G. M. and F. W. In Case No. A19A1616, the mother appeals from an order granting her parents ("the grandparents") sole legal and physical custody of L. G. M. and providing the mother with four hours of supervised visitation per month. The mother asserts that the trial court erred in granting the grandparents' petition because the grandparents failed to prove by clear and convincing evidence that maternal custody of L. G. M. would cause the child physical or long-term emotional harm. She further contends that the grandparents failed to meet their burden of proof as a matter of law, because they offered no expert testimony as to the emotional effect of maternal custody on L. G. M. Finally, the mother asserts that the trial court erred in admitting into evidence nude photographs of the mother.

         In Case No. A19A1617, the mother appeals from an order granting sole legal and physical custody of F. W. to the child's father ("the father") and providing the mother with four hours of supervised visitation per month. The mother contends that the evidence failed to support the trial court's finding that a change in material conditions or circumstances affecting the welfare of F. W. had occurred. And the mother again asserts that the trial court erred in admitting into evidence nude photographs of her.

         For reasons explained more fully below, we find that sufficient evidence supported the trial court's award of custody of L. G. M. to the grandparents and the award of primary physical custody of F. W. to her father. We further find, however, that the trial court's orders do not show that the court analyzed the children's best interests in awarding the mother only supervised visitation. Furthermore, the trial court's orders contained an impermissible self-executing visitation provision and failed to set forth or otherwise incorporate the parenting plan required by OCGA § 19-9-1. Accordingly, we vacate the trial court's orders and remand both cases for further proceedings consistent with this opinion.

         When reviewing an order in a child custody case, we view the evidence in the light most favorable to the trial court's decision. Strickland v. Strickland, 298 Ga. 630, 633 (1) (783 S.E.2d 606) (2016). We will not set aside the trial court's factual findings if there is any evidence to support them, and we defer to the trial court's credibility determinations. Saravia v. Mendoza, 303 Ga.App. 758, 758 (695 S.E.2d 47) (2010). We review de novo, however, the legal conclusions the trial court draws from the facts. Id.

         The record shows that L. G. M. was born in April 2013 to the mother and her then-husband. L. G. M.'s father abandoned the marriage and the child when L. G. M. was approximately six months old, and the child has had no contact with her father since that time.[1] F. W. was born in March 2015 to the mother and her then-fiancé. Although the father and the mother were never married, the father legitimated F. W. and was awarded visitation with the child.

         The mother had physical custody of both children from the time of each child's birth until August 2017. On approximately August 20, 2017, the mother separated from her second husband, Jordan Patterson, and the mother and children moved out of the marital residence. Several days later, on August 24, 2017, the grandparents filed their petition seeking sole legal and physical custody of L. G. M., and the father filed his petition for modification of custody as to F. W. Both petitions sought ex parte relief, with the grandparents requesting an ex parte order granting them immediate temporary custody of L. G. M. and a restraining order barring the mother from having any contact with them. The father requested an ex parte order granting him immediate temporary custody of F. W. and a restraining order barring the mother from having any contact with him. The trial court granted the requested ex parte relief, and the children were removed from the mother's custody.

         On December 21, 2017, the trial court held a consolidated temporary hearing on both the grandparents' petition for custody of L. G. M. and the father's petition for custody of F. W. The evidence presented at that hearing showed that since September 1, 2017, the mother had resided in a two-bedroom rental home, with the mother's brother-in-law paying the entire first year's rent in advance. Immediately after moving out of the marital residence she shared with Patterson and before the mother was served with the ex parte orders temporarily removing the children from her custody, the mother and her daughters spent approximately four nights with the mother of Drew Wachter.[2]

         Prior to the ex parte orders being served, the mother drove a car provided by the grandparents. After the grandparents reclaimed that car, the mother's sister and brother-in-law provided a car for her, which is titled in the mother's name. At the time of the temporary hearing, the mother was working at a local Waffle House, where she worked various shifts six days a week. During her marriage to Patterson, the mother had worked as a sales consultant for Pure Romance, a company that marketed sexually-themed, adult novelties through in-home parties. Additionally, the mother acknowledged that she and Destiny Wachter (the wife of Drew) had contemplated a business venture where they would charge women for personal nude photo shoots. The mother's attorney objected to this line of questioning, but the trial court overruled the objection on the grounds that the information was relevant to the environment in which the children were being raised. The trial court subsequently allowed the grandparents to introduce into evidence 32 pictures of the mother in various states of undress, with the mother indicating that the photographs were meant to be used as part of the proposed business venture.[3] According to the mother, the photographs were taken on approximately four different occasions. Some of the pictures were taken inside the marital residence she shared with Patterson and her daughters, while others were taken in or outside of a vacation home rented by the grandparents for a family vacation. The mother further testified, however, that her children were not present when the pictures were taken and had never seen the photographs.

         The grandparents also introduced into evidence a child's lunchbox, containing drug paraphernalia designed to facilitate the smoking of marijuana.[4] A marijuana grinder found inside the lunchbox was in the shape of a small ball that resembled a child's toy. On cross-examination, the mother acknowledged ownership of the lunchbox, and also that she had smoked marijuana during her marriage to Patterson. However, she denied smoking marijuana in front of her children or otherwise exposing them to drugs or drug paraphernalia. The mother further testified that she was willing to submit to a drug screen that day. Additionally, the mother stated that since losing custody of her children, she had seen a psychiatrist and been diagnosed with bipolar disorder, depression, anxiety, and PTSD. The mother now met with a therapist on a weekly basis and took medication to treat the bipolar disorder.

         Additional evidence introduced by the grandparents included copies of text messages between the mother and Patterson which showed that on several occasions the mother was away from home after midnight procuring marijuana for either herself or others. The mother explained that on those occasions, her daughters would have been home with Patterson and asleep. Additionally, the mother acknowledged that her children had slept in her bed when Patterson was also present, and sometimes slept with Patterson when the mother was out.

         When questioned about her marital problems with Patterson, the mother admitted to having engaged in an extramarital affair. According to the mother, when she and Patterson fought, he would "scream and holler and throw chairs and kick the baby gate over." Although the mother testified that she found some things on Patterson's phone that "concerned" her, she did not provide any information regarding the nature of those items.

         The grandparents also introduced evidence concerning the mother's relationship with Drew Wachter. The evidence showed that Wachter was a convicted sex offender and was required to register as such.[5] The mother admitted that she was aware of Wachter's criminal status and that she had a prior romantic relationship with him. She further testified, however, that she was no longer romantically involved with Wachter, although they did work together at the Waffle House. The mother admitted that she had been at Wachter's residence the day before the temporary hearing but claimed she was there to visit Wachter's roommate. Additionally, the mother denied ever allowing Wachter around her children, and she explained that although her children were with her during the three to four days she spent at the home of Wachter's mother, Wachter was not present in the home. The mother also stated that she would have no objection to the court including in any custody order a provision prohibiting Wachter from having contact with her children.

         Prior to the temporary hearing, the mother was allowed two hours of supervised visitation with her children every other weekend. The mother explained that she was required to pay $70 for each visit to cover the cost of the supervisor. The mother presented the testimony of Christine Carroll, who supervised each of the mother's visits prior to the temporary hearing. Carroll described the mother's parenting style as "wonderful," explaining that the mother "corrects the girls when they do not use manners. She corrects them . . . if they're using ugly words with each other . . . [s]he teaches them to share, cooperate. [She's] . . . a joy to do the visit with. I wish more were like her." Additionally, Carroll noted that the mother always came to the visits well-prepared with nutritious snacks (including fruits and vegetables) and activities that she could engage in with her children (such as crafts, games, and reading). Carroll described the children as being closely bonded with their mother and stated that L. G. M., especially, was having a hard time being separated from her mother.

         Following the temporary hearing, the trial court entered temporary custody orders in both cases. In Case No. A19A1616, the court granted temporary custody of L. G. M. to the grandparents and provided the mother with two hours of supervised visitation every other weekend. The court entered a similar order in Case No. A19A1617, awarding temporary custody of F. W. to her father and giving the mother two hours of supervised visitation every other weekend.

         In both cases, the trial court based its decision to take custody from the mother and allow her only supervised visitation on the following factual findings: (1) the mother frequently left the children alone with Patterson, whom the mother claimed "pushed over chairs, screamed at [the mother], and engaged in questionable Internet searches"; (2) the mother left the children with Patterson so that she could procure marijuana for herself and others, distribute marijuana, and engage in an extramarital affair; (3) the mother allowed the children to sleep in the same bed with Patterson despite the lack of a biological relationship with their stepfather; (4) the mother smoked marijuana; (5) the mother stored her marijuana and related drug paraphernalia in a "Finding Nemo" lunchbox, which would be attractive to small children; (6) the mother was currently involved in a sexual relationship with Wachter, despite the fact that he was a registered sex offender, and had been seen with Wachter two days before the temporary hearing, and the court was convinced the relationship would continue. With respect to L. G. M., the court found that this evidence served to overcome the statutory presumption in favor of parental custody, showed clearly and convincingly that custody with the mother "would physically harm the child," and demonstrated that it was in the child's best interests that custody be given to the grandparents. With respect to F. W., the court found that these facts showed that there had been a material change of circumstances related to the child and that it was in the child's best interest that custody be granted to the father.

         Following entry of the temporary order, the mother filed a motion in both cases seeking the appointment of a guardian ad litem for each child. It appears from the record that the trial court never acted on either motion and no guardian ad litem was appointed.

         In August 2018, the trial court held a joint final hearing in both cases. At the outset of the hearing, the trial court stated that in making its final decision, it would also consider the evidence presented at the temporary hearing eight months earlier.

         The mother testified that in February 2018, she went to work at the local Volkswagen plant as a quality inspector. Typically, the mother worked Monday through Thursday from 5:45 a. m. until 4:45 p. m. Thus, she worked a minimum of 40 hours a week and occasionally worked mandatory overtime hours. The job provided the mother with an income sufficient to allow her to feed and clothe her children and provide for their daily needs. Additionally, if the mother were awarded custody of the children, she could provide them with health insurance through her employer. If custody were returned to the mother, she would drop the older child (L. G. M.) at her sister's house on her way to work. The sister would then get the child ready for school and the child would attend aftercare at school until the mother picked her up. The younger child (F. W.) would attend the on-site day care at the mother's place of employment.

         The mother continued to live in her two-bedroom rental home and she planned to renew the lease. She also had a car and a valid driver's license. The mother acknowledged that her brother-in-law paid her rent, utilities and car insurance, and the brother-in-law testified that he intended to continue that financial support for at least the next two years.

         At the time of the final hearing, the mother was pregnant with her third child, which was due in the next several weeks. The father of this child was Drew Wachter. The mother stated that she and Wachter never had an ongoing romantic relationship, but that they did have sex on several occasions, and she became pregnant when her birth control failed. The mother denied having any current romantic or sexual relationship with Wachter, noting that Wachter remained married to Destiny and the couple currently had a three-month-old child. The mother further explained that she and Wachter were in contact because they were going to have a child together, and she had last seen him two weeks before the hearing when she ran into him at a local Walmart. When questioned, the mother stated her understanding that Wachter could not have any contact with L. G. M. or F. W., as such contact would violate his probation. She had no plans to expose her two older children to Wachter, and she had no objection to the court prohibiting contact between Wachter and L. G. M. and F. W.

         The mother testified that although her pregnancy prevented her from taking the medication prescribed for her bipolar disorder, she planned to resume that medicine after the baby was born. Additionally, she continued to see a therapist every other week, and she planned to continue with therapy. According to the mother, she had not used marijuana for a year, she would not test positive for drugs, she did not drink, she had never been charged with any drug or alcohol related offense, and she had never been convicted of any crime. The mother further explained that she had never exposed her children to drugs and that the lunchbox in which she had stored her drug paraphernalia was not in an area of the home accessible to her children.[6]

         The evidence showed that the mother had not exercised her right to supervised visitation since March 23, a period of five months.[7] The mother had, however, maintained telephone contact with her children, speaking with each daughter twice a week. The visitation supervisor testified that the mother's next visit after March 23 was scheduled for April 4, but on that date, both of the children were out of town. The mother canceled two additional visits scheduled in April because of mandatory overtime at her job. When the mother attempted to schedule a visit in May, the supervisor told the mother to contact her attorney to schedule any additional visits. The supervisor stated that after a parent missed two scheduled visits, it was the policy of her employer to cancel all future visits.

         Drew Wachter testified that he was 17 years old at the time of his conviction for aggravated sexual battery, [8] and he was sentenced under the First Offender Act[9]to five years on probation with the first six months served in the probation detention center. As a condition of his probation, Wachter could have no contact with minor children other than those of his family members. He was convicted of violating his probation on two occasions. Wachter served seven months in custody as a result of the first violation and eight months in custody as a result of the second violation.[10]

         Wachter acknowledged that the mother was pregnant with his child, that he was married to someone other than the mother, and that his wife had recently given birth to another of his children. He stated that he had only a brief romantic relationship with the mother and the relationship had ended several months earlier. Wachter and the mother planned for the mother to have primary custody of their child, and Wachter stated that he would not have contact with either L. G. M. or F. W.

         The grandmother testified that L. G. M. had lived with the grandparents since August 2017 and was currently enrolled in school, where she was doing well. The grandparents lived with L. G. M. in a five bedroom home, and L. G. M. slept with them on a regular basis. The home also had an apartment with a separate entrance that the grandparents rented out through the Airbnb website. The grandmother worked as a hairdresser three days a week, and on those days a sitter would get L. G. M. from school and bring her to the hair salon. The grandparents had F. W. over every other weekend ...

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