Alexis Brian Harrison v. Jennifer Nicole Whitaker ( 2021 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
August 26, 2021
In the Court of Appeals of Georgia
A21A0755. HARRISON v. WHITAKER.
MARKLE, Judge.
Alexis Brian Harrison appeals pro se from the trial court’s order denying his
petition for the modification of custody of his daughter. On appeal, he raises
numerous claims of error regarding the form of the trial court’s final order and certain
of its evidentiary rulings. Because the trial court did not address the threshold issue
of whether a material change in circumstances warranted a modification of custody,
we vacate the trial court’s order, and remand the case with direction for the trial court
to provide sufficient findings to enable appellate review of these issues.
When reviewing an order in a child custody case, we view the
evidence in the light most favorable to the trial court’s decision. 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.
We review de novo, however, the legal conclusions the trial court draws
from the facts.
(Citations omitted.) Mashburn v. Mashburn, 353 Ga. App. 31, 32 (836 SE2d 131)
(2019).
So viewed, the record shows that Harrison and Jennifer Nicole Whitaker
divorced in 2015 in Wisconsin. Under the divorce decree, Whitaker was granted sole
legal custody, and primary physical custody, of their minor daughter; while Harrison
maintained visitation rights.1
Five years later, Harrison filed his petition to domesticate the Wisconsin
divorce decree and for modification of custody in the Walker County Superior Court.
He alleged that Whitaker had improperly denied him access to their child, and he
sought sole legal and physical custody. Whitaker answered and attached the affidavit
of the now 14-year-old child, who stated that she was receiving psychological
treatment; she preferred her mother to be her sole legal and physical custodian; and
she did not wish to visit with her father.
1
The Wisconsin divorce decree is not included in the appellate record.
However, the parties do not dispute the terms of the decree.
2
Following a hearing, during which the trial court heard testimony from the
child outside the presence of the parties, the trial court entered a final order awarding
sole legal and physical custody to Whitaker, but granting Harrison visitation rights
solely at the child’s discretion.2 Harrison was also permitted to access the child’s
medical records, and to communicate with her via text messages, so long as such
contact was approved under her continuing psychological care. Harrison now appeals.
1. Before considering Harrison’s arguments on appeal, we must first address
whether this matter is properly subject to our review. We conclude that the trial
court’s failure to make any ruling as to the threshold issue of a change in
circumstances requires us to vacate the trial court’s order and remand this case for
further factual findings.
2
For the first time on appeal, Harrison objects to the trial court’s entry of a
final order, as opposed to a temporary order, following the hearing. However,
Harrison did not object when the trial court indicated it would enter a final order at
the close of the hearing. Nor did he raise the finality of the order in his objection to
Whitaker’s proposed order. “Absent a contemporaneous objection, this enumeration
of error presents nothing for appellate review.” Lynch v. Horton, 302 Ga. App. 597,
599 (1) (692 SE2d 34) (2010); see also Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d
13) (2010) (in the absence of an objection before the trial court, appellant could not
complain on appeal about procedures used to present evidence at the hearing below).
As such, we review the trial court’s order as a final order, and not a temporary order.
3
“Whether particular circumstances warrant a change in custody is a fact
question determined under the unique situation in each individual case.” Scott v.
Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003). We review a custody modification
order for an abuse of discretion. Longino v. Longino, 352 Ga. App. 263, 263-264 (834
SE2d 355) (2019); Burnham v. Burnham, 350 Ga. App. 348, 351 (2) (829 SE2d 425)
(2019).
As we have explained, however,
a change of custody may be granted only if a new and material change
in circumstances affects the child. The trial court must find that a
material change in circumstances has taken place before it can consider
whether modification of custody is in the child[]’s best interests.
Accordingly, the trial court must make a threshold finding that there has
been a material change in circumstances before it considers what is in
the child[]’s best interests.
(Citations and punctuation omitted; emphasis in original.) Burnham, 350 Ga. App.
at 352 (2); see also Longino, 352 Ga. App. at 263-264; OCGA § 19-9-3 (b) (“[T]his
subsection shall not limit or restrict the power of the judge to enter a judgment
relating to the custody of a child in any new proceeding based upon a showing of a
change in any material conditions or circumstances of a party or the child.”); cf.
Odum v. Russell, 342 Ga. App. 390, 392-393 (1) (802 SE2d 829) (2017) (trial court’s
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removal of father’s extra week of summer visitation amounted to a modification of
joint physical custody, and was error where trial court found there was no material
change in circumstances affecting the welfare of the child).
Here, the trial court did not make any finding touching upon this threshold
issue in its order, or in any of its comments at the hearing, before proceeding to a best
interests of the child analysis in modifying the prior custody arrangement.
Accordingly, we must vacate the trial court’s order and remand this case for further
factual findings. Burnham, 350 Ga. App. at 352-353 (2); see also Longino, 352 Ga.
App. at 266 (“[W]ithout either a statement anywhere on the record reflecting that the
trial court found a change in material conditions or circumstances that justified the
change in custody, or an order that reflected in some degree that the trial court
understood and applied the requisite findings, we must vacate the trial court’s order
and remand the case for the trial court to make such threshold statutory findings.”).
2. In light of our holding in Division 1, we do not reach Harrison’s remaining
claims of error.
Judgment vacated and case remanded with direction. Barnes, P. J., and
Gobeil, J., concur.
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