Tyler Perry v. Kaitlyn v. Jenkins ( 2021 )

FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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 31, 2021
In the Court of Appeals of Georgia
A21A0969. PERRY v. JENKINS.
PHIPPS, Senior Appellate Judge.
This is the second time this child custody case has come before us. In Perry v.
Jenkins, 352 Ga. App. XXV (Case No. A19A1309) (Oct. 29, 2019) (unpublished),
Tyler Perry appealed from the trial court’s order granting joint legal custody of his
minor child to him and the child’s mother, Kaitlyn Jenkins, but primary physical
custody to Jenkins. We reversed and remanded with instructions. Id., slip op. at 1-2.
On remand, the trial court issued a new custody order in which it once again awarded
the parties joint legal custody, with primary physical custody and final decision-
making power resting with Jenkins. It is from this order that Perry now appeals,
contending that (i) the trial court failed to follow our directive on remand to give due
consideration to joint physical custody; (ii) the trial court improperly limited his
visitation with the child before the child’s fifth birthday; and (iii) the trial court’s
custody ruling violates his rights to due process and equal protection. For the reasons
that follow, we affirm.
We set forth the underlying facts in our prior opinion:
Jenkins and Perry dated for approximately five years before
ending their relationship. During the relationship, Jenkins and Perry had
a son together [in 2015]. The child was approximately two years old
when the couple split. After the break up, Jenkins and the child went to
live with her parents and Perry continued to be actively involved in the
child’s life. . . . Jenkins limited Perry’s visitation time with the child
after Perry began dating someone that Jenkins did not approve of. . . . .
Perry petitioned the trial court for legitimation, custody,
visitation, and child support. Following a temporary hearing in May
2018, . . . the trial court found Perry the legal father of the child, granted
Jenkins primary physical custody of the child, and granted Perry
visitation with the child every other weekend. During the final hearing
in October 2018, Perry testified that he wanted primary physical custody
of the child, or in the alternative, to share primary custody of the child
with Jenkins. After the final hearing, . . . the trial court awarded primary
physical custody to Jenkins noting that “I sincerely believe a small child
that’s been with the mother needs to stay with the mother.” The trial
court also kept the visitation order issued following the temporary
hearing in place until the child reaches the age of five. Perry then
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requested the trial court issue written findings of fact, from which he
[previously appealed].
Perry, slip op. at 2-3. In the prior appeal, we reversed the trial court’s custody ruling
and remanded the case to the trial court for it to make findings and conclusions in
accordance with the applicable statutory scheme “and to give due consideration to the
issue of joint physical custody.” Id., slip op. at 6.
On remand, the trial court expressly noted that the parties do not dispute that
each parent is “proper and fit” but nevertheless concluded that joint physical custody
is not in the child’s best interest based on several factual findings. In particular, the
court found that changing custody would be detrimental to the child’s best interest
because Jenkins has cared for, bonded with, and maintained a stable, nurturing, and
safe environment for the child since his birth. According to the court, Jenkins has the
greatest knowledge and familiarity with the child and his needs, having taken the
child to all medical appointments. The court concluded that maintaining continuity
in this regard is in the child’s best interest.
The court further found that Perry works between 40 and 48 hours each week,
while Jenkins, who currently is unemployed, has only worked part-time since the
child’s birth. Consequently, the court determined that Perry’s work schedule will limit
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his availability to spend time with the child and require the child to spend time with
another caregiver if the parties share physical custody, whereas Jenkins’s schedule
affords more time for the child to be with a parent. On a related note, the court found
that the distance between each parent’s home – which takes at least 40 minutes to
travel each way – also weighs against a joint physical custody arrangement. The court
awarded Perry visitation from 9:00 a.m. to 5:00 p.m. every other Saturday and Sunday
until the child turned five, at which time a comprehensive visitation schedule attached
to the court’s order (which now includes overnight visits) took effect.1
1. On appeal, Perry first argues that the trial court failed to give due
consideration to joint physical custody and instead simply added “magic words” to
its prior custody order to comply with our instructions on remand. In that regard, he
primarily takes issue with the depth of the trial court’s analysis, faulting the court for
failing to explain in more detail how each of its factual findings necessarily weighs
against joint physical custody, while Perry provides several reasons why such
findings arguably weigh in favor of shared custody. Although we agree that the facts
1
The schedule attached to the trial court’s order appears to be the local judicial
circuit’s standard visitation schedule. The child turned five in 2020.
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before the trial court could have supported shared custody, we discern no abuse of
discretion under the deferential standard of review we must apply here.2
It is the policy of this State “to encourage parents to share in the rights and
responsibilities of raising their child after such parents have separated.” OCGA § 19-
9-3 (d); Marks v. Soles, 339 Ga. App. 380, 386 (2) (793 SE2d 587) (2016); accord
Baldwin v. Baldwin, 265 Ga. 465, 465 (458 SE2d 126) (1995). In accordance with
that policy, the General Assembly has defined “joint custody” to mean “joint legal
custody, joint physical custody, or both,” and “joint legal custody” to mean that
both parents have equal rights and responsibilities for major decisions
concerning the child, including the child’s education, health care,
extracurricular activities, and religious training; provided, however, that
the judge may designate one parent to have sole power to make certain
decisions while both parents retain equal rights and responsibilities for
other decisions.
OCGA § 19-9-6 (4)-(5). This statute provides a court “with options of awarding joint
legal custody, joint physical custody, or both, where appropriate.” In the Interest of
2
Given our ruling in this regard, we assume, without deciding, that Perry
properly preserved his challenges to the adequacy of the reasons underlying the trial
court’s custody ruling, and we therefore express no opinion on Jenkins’s claim to the
contrary.
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A. R. B., 209 Ga. App. 324, 326 (2) (433 SE2d 411) (1993) (physical precedent only).
It also evinces a legislative intent “to afford greater equality between parents in
fostering relationships with their children so that the best interests of each child can
be served” and to favor “equally shared parenting obligations and opportunities” so
as to place children “first in the constellation of individual interests and desires.” Id.Thus, as we noted in our prior opinion in this case,
“[the] child . . . has a right to shared parenting when both [parents] are
equally suited to provide it. Inherent in the express public policy is a
recognition of the child’s right to equal access and opportunity with both
parents, the right to be guided and nurtured by both parents, [and] the
right to have major decisions made by the application of both parents’
wisdom, judgment and experience.”
Perry, slip op. at 5-6 (quoting In the Interest of A. R. B., 209 Ga. App. at 327 (3)).
Nevertheless, where a trial court “determines that both parents are fit and
equally capable of caring for the child, the court must consider joint custody but is not
required to enter such an order unless it specifically finds that to do so would be in
the best interest of the child.” Baldwin, 265 Ga. at 465 (emphasis in original). Thus,
[w]here a trial court exercises its discretion and awards custody to one
fit parent over the other fit parent, [an appellate c]ourt will not interfere
with that decision unless the evidence shows the trial court clearly
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abused its discretion. If there is any evidence to support the decision of
the trial court, [an appellate c]ourt cannot say there was an abuse of
discretion.
Brock v. Brock, 279 Ga. 119, 121 (3) (610 SE2d 29) (2005) (citations omitted);
accord Arthur v. Arthur, 293 Ga. 63, 64 (1) (743 SE2d 420) (2013); Marks, 339 Ga.
App. at 380. See also Scott v. Scott, 276 Ga. 372, 373 (578 SE2d 876) (2003)
(“Whether particular circumstances warrant a change in custody is a fact question
determined under the unique situation in each individual case.”). In making that
determination, the trial court’s “primary duty” is to determine solely what is in the
child’s best interest and will best promote the child’s welfare and happiness. Baldwin,
265 Ga. at 465-466. See also OCGA § 19-9-3 (a) (2); accord Scott, 276 Ga. at 373(“The best interests of the child are controlling as to custody changes.”). We
emphasize that the trial court has “very broad discretion” in this regard. See Urquhart
v. Urquhart, 272 Ga. 548, 549 (1) (533 SE2d 80) (2000).
Applying the deferential standard of review here, “we cannot say the trial court
abused its discretion in making its award. Had we been the factfinder below, we
might well have weighed the evidence differently. But this is not our duty as an
appellate court.” See Scott v. Scott, 227 Ga. App. 346, 348 (1) (489 SE2d 117)
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(1997). See also generally Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d
261) (2014) (a proper application of abuse-of-discretion review recognizes that there
is a “range of possible conclusions the trial judge may reach” and that this Court often
will affirm a trial court ruling under an abuse-of-discretion standard “even though we
would have gone the other way had it been our call”) (citation and punctuation
omitted); McDonald v. Garden Svcs., Inc., 163 Ga. App. 851, 852-853 (295 SE2d
551) (1982) (absent an abuse of discretion, this Court will not substitute its judgment
for the trial court’s, even if individual members of this Court may have reached a
different conclusion).
As discussed above, the trial court based its custody ruling on the following
factual findings: (i) Jenkins has cared for the child since his birth and has the greatest
knowledge of the child’s needs; (ii) her work schedule affords her more time to care
for the child; and (iii) the distance between each parent’s home weighs against joint
physical custody. While it arguably would have been preferable for the trial court
here to have engaged in a more robust analysis, we conclude that it has done at least
the minimum that was required of it on remand, and we discern no abuse of discretion
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in its application of the law to the facts in this case.3 See Arthur, 293 Ga. at 64 (1)
(the trial court did not abuse its discretion in awarding joint legal custody to both
parents and primary physical custody to the mother where neither parent contended
that the other was unfit, and “the final judgment contain[ed] a finding of fact
supported by the evidence that [was] sufficient to support the award” and “from
which this Court [could] make a meaningful appellate review”); Brock, 279 Ga. at
121 (3) (finding no abuse of discretion where the trial court awarded the parents joint
legal custody, with primary physical custody to the father, where the evidence
indicated “that both parents were fit and proper parents and each had a loving
relationship with the children,” and some evidence supported the custody ruling);
Urquhart, 272 Ga. at 549-550 (1) (even though the trial court found both parents fit,
it did not abuse its discretion by awarding sole custody to the father after finding that
the parents did not communicate and cooperate as needed for joint custody).
2. Perry also challenges the visitation schedule that was in effect before the
child reached age five. It is undisputed, however, that the child turned five in 2020,
3
Should the parties’ or child’s circumstances change, Perry may then seek a
change in custody. See OCGA § 19-9-3 (b) (a trial court may modify custody “based
upon a showing of a change in any material conditions or circumstances of a party or
the child”).
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and those provisions thus no longer are in effect. Consequently, any potential
challenge to those provisions is now moot, as a ruling will have no practical effect on
Perry’s visitation. See Hughes v. Ga. Dept. of Corrections, 267 Ga. App. 440, 443 (2)
(600 SE2d 383) (2004) (“An issue is moot when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the existing controversy.”)
(citation and punctuation omitted). See also Davis v. Creative Land Dev. Corp., 230
Ga. 47, 48-49 (195 SE2d 411) (1973) (a claim for relief becomes moot when the relief
no longer can be granted).
And although Perry urges us to apply one or more exceptions to the mootness
doctrine, we see no reason to do so here. Georgia has adopted “a narrow exception
to the doctrine of mootness when the issue is capable of repetition and yet evades
review.” Hopkins v. Hamby Corp., 273 Ga. 19, 19 (538 SE2d 37) (2000). Perry’s
contentions that the now-expired visitation schedule issues he seeks to challenge are
likely to recur frequently and evade review are premised entirely on his conclusory
assertions to that effect and are unsupported by legal authority, empirical data, or any
other objective basis. We therefore decline to find an exception to the mootness
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doctrine here.4 See generally Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766
SE2d 106) (2014) (“[A]n appellant must support enumerations of error with argument
and citation of authority, and mere conclusory statements are not the type of
meaningful argument contemplated by our rules.”) (citations and punctuation
omitted).
3. In his final enumeration of error, Perry contends that the trial court’s custody
rulings violate his constitutional rights to substantive and procedural due process and
to equal protection. “However, appellate courts will not rule on a constitutional
question unless it clearly appears in the record that the trial court distinctly ruled on
4
The Hopkins Court noted that other states have recognized an exception to the
mootness doctrine that applies when “(1) the public interest will be hurt if the
question is not immediately decided; (2) the matter involved is likely to recur
frequently; (3) it involves a duty of government or government’s relationship with its
citizens; and (4) the same difficulty that prevented the appeal from being heard in
time is likely to again prevent a decision.” 273 Ga. at 19. Regardless of whether those
criteria may apply in this state, Perry’s failure to provide any support for his mootness
claim dooms it under either test.
To the extent that any of Perry’s appellate challenges may be read to reach the
now-operative visitation provisions in the trial court’s order, we note that the order
provides for “liberal” visitation if the parents can agree to such and provides for
minimum reasonable visitation times if they cannot agree. It also extensively details
weekend, summer, and other holiday visitation and further provides for telephone
visitation. These provisions are strikingly similar to the visitation schedule we found
to be well within the trial court’s discretion in Scott, 227 Ga. App. at 350 (3), and the
same result follows here.
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the point, and the record in the present case contains no such ruling.” Price v.
Grehofsky, 349 Ga. App. 214, 222 (2) (825 SE2d 594) (2019) (citation and
punctuation omitted) (declining to address – because the trial court issued no ruling
on – the appellant’s claim that the denial of her petition for adoption violated her
equal protection rights); accord American Home Svcs., Inc. v. A Fast Sign Co., Inc.,
322 Ga. App. 791, 797 (5) (747 SE2d 205) (2013) (declining to address – because the
trial court issued no ruling on – the appellant’s claim that the trial court’s final
judgment violated its right to due process). We therefore do not address this
enumeration or transfer this case to the Supreme Court. See Price, 349 Ga. App. at
222 (2); Griffin v. Burden, 281 Ga. App. 496, 497 (2) (636 SE2d 686) (2006).
Judgment affirmed. Rickman, C. J., and McFadden, P. J., concur.
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