Blackburn v. Blackburn

Citations: 308 S.E.2d 193; 168 Ga. App. 66; 1983 Ga. App. LEXIS 2683Docket: 66682

Court: Court of Appeals of Georgia; September 6, 1983; Georgia; State Appellate Court

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In Blackburn v. Blackburn, 168 Ga. App. 66 (1983), the Court of Appeals of Georgia addressed a custody dispute involving the minor child Nicholas between his mother, Kathleen Blackburn, and his paternal grandmother. The Supreme Court of Georgia had previously reversed a trial court's custody award to the grandmother, citing her failure to prove the mother's unfitness by clear and convincing evidence. After this decision, the child's father, Mark Blackburn, petitioned for custody and was awarded it by the Superior Court of Burke County, prompting an appeal from Kathleen Blackburn.

Mark and Kathleen married on October 31, 1977, and moved to Minnesota before settling in Millen, Georgia, where Kathleen worked as a dietician. They divorced on July 17, 1979, with custody awarded to Kathleen and Mark ordered to pay child support. Following the divorce, Mark improved his employment status and successfully completed an electrical apprentice program, achieving recognition as an outstanding student.

Both parents had troubled pasts: Mark had a conviction for simple battery and an arrest for theft, while Kathleen was involved with an officer who became her partner after Mark's arrest. Mark's behavior exhibited a commitment to family, as he engaged with his stepdaughters and maintained religious involvement. He consistently exercised visitation rights and adhered to child support payments for a significant period. The paternal grandmother held legal custody of Nicholas from late 1981 until November 1982.

The appellant has relocated seven times since her marriage dissolution, starting by living with a co-worker, then renting a mobile home where she faced eviction due to unpaid rent. Following her eviction, the landlord reported finding unsanitary conditions in the home. The appellant then stayed at the Congress Motel before securing an apartment at Millen Villa from July 1980 to July 1982, after which she moved three more times and currently resides in another rented mobile home. Despite landlord testimony regarding her previous living conditions, other evidence suggested she generally maintained adequate housekeeping.

After resigning from her hospital job, the appellant worked at a poultry processing plant and currently manages a record store earning $115 weekly. She was often seen with men late at night at the motel, particularly with Nicholas and later with Gene Wright, whose brief visits to her Millen Villa apartment were noted. Their relationship led to the appellant’s pregnancy, and she later became involved with Willie Boyd, who has stayed overnight multiple times.

On February 23, 1983, a report was made to the Burke County Department of Family and Children Services concerning Nicholas being beaten, with some evidence suggesting Boyd's involvement. Boyd was unavailable for questioning due to recent incarceration, but the caseworker concluded that Nicholas was not in danger. Boyd admitted to spanking Nicholas for a derogatory comment and had previously been violent towards the appellant in Nicholas's presence. 

While working, the appellant sometimes left Nicholas unsupervised and failed to provide adequate clothing for him on occasion. Dr. Virgil Abreu treated Nicholas for frequent health issues, noting that his respiratory ailments were unusually frequent and could be linked to the unsupervised conditions and expired baby formula consumption.

Dr. Abreu observed that Nicholas did not gain weight between February and June 1981, indicating abnormal growth. The appellant allowed Nicholas's maternal grandmother to care for him during illness, and the child gained 2 pounds after being placed in her custody. Two pediatricians, Dr. Gerson Avonovitz and Dr. Monica Green, examined Nicholas before the trial, finding him healthy with no signs of abuse, contradicting Dr. Abreu's conclusions. Since her divorce, the appellant has had an illegitimate child, an abortion, and treatment for gonorrhea but no significant medical issues otherwise. A psychiatric evaluation by Dr. Lloyd Baccus on February 1, 1983, deemed her emotionally stable and capable of caring for her children. However, she lacks close family ties. The trial court determined that custody should be awarded to the appellee based on the child's best interests. On appeal, Kathleen Blackburn argues that the court incorrectly ruled on the appellee's parental rights, claiming estoppel doctrines and procedural errors regarding discovery. The court held that custody changes between natural parents require proof of material changes in circumstances and that a natural parent retains custody unless clear evidence of unfitness or loss of rights is shown. The appellant asserts the appellee had relinquished his parental rights through a voluntary contract with his mother, but the evidence presented only indicated discussions about custody, insufficient to establish a contractual relinquishment. The appellant also claims the appellee is bound by his counsel's assertions of waiver during the grandmother's custody petition.

A statement made by an attorney in court regarding a client's conduct is generally binding on the client unless there is evidence of fraud or mistake. However, this principle does not apply when the statement was made before the attorney-client relationship was established. The trial court in this case appropriately treated the matter as involving two natural parents. 

In custody disputes, a change in custody due to a material change in conditions affecting the child's welfare can be affirmed if reasonable evidence supports the decision. The Supreme Court has revised the appellate review standard for custody disputes between third parties and natural parents, but this does not extend to disputes solely between natural parents. 

Evidence indicated significant improvements in the appellee's circumstances since the divorce, including stable employment and home life, while the appellant's situation had deteriorated, marked by instability and adverse personal circumstances. The trial court concluded that the appellee provided better material and emotional support for the child, justifying the custody award to him. 

The appellant's arguments that the appellee's custody petition was barred by res judicata or estoppel were rejected, as these defenses require the same parties or their privies to be involved in the subsequent suit, which was not the case here.

The appellee's parental rights regarding custody of the child are distinct and superior to those of the third party grandmother, and therefore, he and his mother could not be considered privies in the earlier proceeding between her and the appellant. The trial court correctly ruled that the appellee's petition was not barred by res judicata or estoppel by judgment as a result of that earlier case. The appellee retains the right to seek modification of the custody award established in the divorce decree of July 17, 1979, as permitted by OCGA 19-9-1 (b). The appellant's claim of equitable estoppel based on alleged deception by the appellee was found to lack merit, as no injury was demonstrated from the appellee's absence in the prior case. The appellee was not an indispensable party in that proceeding, and there is no obligation for a noncustodial parent to intervene in a custody dispute between the custodial parent and a third party.

Additionally, the trial court did not err in refusing to impose sanctions for the appellee's failure to produce specific evidence, as the appellant had waived objections to certain evidence, and there was no evidence of noncompliance regarding the photograph. The court allowed relevant questioning at trial related to deposition inquiries about the appellee's premarital sexual activity, but the appellant did not pursue this during the trial, thus negating grounds for complaint regarding discovery issues. The judgment was affirmed by the court.