Court: Court of Appeals of Georgia; November 18, 2013; Georgia; State Appellate Court
Michelle Weeks appeals a December 4, 2012 order from the trial court, which found her in contempt of a previous order regarding custody and visitation of her son, C. J. W. The trial court has broad discretion in contempt matters, and its decisions are upheld unless there is gross abuse of that discretion. Following the divorce on January 24, 2008, Michelle was granted physical custody of C. J. W., while Clark Weeks (the father) received joint legal custody and scheduled monthly visitation. Michelle was previously held in contempt on multiple occasions for obstructing the father's visitation rights, resulting in orders for her to pay attorney fees and temporary custody adjustments favoring the father.
Despite an initial modification that reinstated Michelle's custody, she was later found in contempt again for not delivering C. J. W. for visitation as ordered. The November 8, 2010 final order recognized that continued custody by Michelle was in the child's best interest but mandated supervised visitation for the father. In August 2012, the father filed for contempt, leading to the December 2012 ruling that Michelle again violated visitation terms, resulting in the removal of the supervision requirement and an order for her to pay the father's attorney fees and travel expenses.
A compliance hearing was set for January 31, 2013, amid ongoing compliance issues. Michelle's appeal was filed before this hearing, and she contests the subsequent change of custody to the father made in a March 20, 2013 order, asserting it was erroneous. However, since this order occurred after her notice of appeal, it cannot be contested in the current appeal.
The mother claims that the trial court improperly changed her visitation rights from supervised in Colorado to unsupervised in Georgia during a contempt hearing, arguing she was not notified of the changes and that the court lacked the authority to make such a modification. However, under OCGA 19-9-3 (b), the trial court is authorized to modify visitation rights during contempt proceedings, either at the request of a party or on its own motion. While custody changes are not permissible in contempt hearings, visitation modifications are allowed. The court found sufficient evidence indicating the mother was obstructing visitation as previously ordered, justifying the change in visitation terms.
Regarding the award of attorney fees, the mother contends it was erroneous due to lack of evidence on the fees incurred or their reasonableness. The court agrees, noting that OCGA 19-6-2 (a) requires consideration of both parties' financial circumstances when determining attorney fees in contempt cases. The trial court had ordered the mother to pay $3,000 in fees without sufficient evidence or rationale for the amount, leading to the conclusion that the fee award must be vacated and the case remanded for an evidentiary hearing on the fees.
Lastly, the mother appeals the denial of her request for supersedeas under OCGA 5-6-13 (a), which allows for a supersedeas if a person convicted of contempt submits a notice of intent to seek review.
On November 18, 2013, the appellate court addressed a case involving a mother’s appeal following a trial court order dated December 4, 2012, which denied her request under OCGA 5-6-13 (a) related to modifications of visitation provisions deemed a child custody issue. The trial court also denied her emergency motion for supersedeas. The mother’s appeal focused solely on the denial of supersedeas, not challenging the contempt finding, rendering her appeal moot. The appellate court affirmed in part and vacated in part, remanding the case. Additionally, it noted that the mother faced a 30-day incarceration or was required to seek counseling. OCGA 19-9-3 (b) allows modification of visitation rights without proving material changes, but limits such modifications to once every two years. The court may consider the effects of a military parent's deployment when evaluating changes in circumstances but cannot rely solely on deployment as a basis for change. Under OCGA 5-6-34 (a), judgments in child custody cases are directly appealable, with specific provisions in subsection (e) regarding nonmonetary relief. The concept of mootness was also highlighted, indicating cases are moot when they resolve abstract questions not grounded in existing facts or rights.
