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Docket Number

No. S13A0330.

Attorney(S)

David T. Blackburn, Blackburn & Blackburn, Dalton, GA, for Appellant. Robert Douglas Jenkins, Dalton, GA, for Appellee.

Judges

Hugh P. Thompson

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Smart Summary

Vines et al. v. Vines, No. S13A0330 (Ga. Mar. 4, 2013) — Opinion Summary

Factual and Procedural Background

Anita and Thomas Vines were divorced in 2005. The final decree awarded Anita primary physical custody of their child and granted Thomas secondary physical custody with visitation at least every other week from Thursday afternoon until Monday morning. In 2007 the trial court modified Thomas' visitation after receiving evidence that Thomas was using pornography in the home where the child visited, evidence of bestiality and other inappropriate conduct in the home, and evidence of misbehavior and harassment by Thomas and his new wife, Dianna, directed toward Anita. The court found Thomas suffered from histrionic personality disorder, had not sought treatment, and that Thomas and Dianna engaged in behavior destructive to the child and designed to alienate the child from her mother.

The 2007 modification limited Thomas to weekly 1.5-hour supervised visits at Compassion House (exercised on a bi-weekly basis), restricted contacts between the parties (including e-mail-only contact from Thomas to Anita), prohibited Thomas and Dianna from coming near the child's school or within 200 yards of Anita or her places of work/residence/vehicle, prohibited harassment or derogatory remarks about Anita in the presence of the child, and prohibited Dianna from contacting Anita. The order also required Thomas to undergo treatment and obtain a therapist's confirmation of progress before additional visitation would be allowed.

In November 2011 Anita petitioned to suspend Thomas' visitation and to modify child support. In December 2011 Thomas filed a petition to modify visitation (seeking more frequent and unsupervised visitation) and to hold Anita in contempt for not turning over certain personal property. Anita counterclaimed seeking to hold Thomas and Dianna in contempt. The trial court denied Thomas' petition to modify visitation and granted Anita's petition for contempt and requested attorney fees. In a separate order the trial court denied Anita's request to suspend visitation but granted an increase in child support; Thomas' direct appeal from that separate order was dismissed for failure to file an application to appeal.

Legal Issues Presented

Whether the trial court abused its discretion in denying Thomas' motion to modify visitation rights previously ordered in 2007.
Whether the trial court erred by refusing to interview the child or otherwise consider the child's testimony in relation to Thomas' motion to modify visitation.
Whether the trial court's award of attorney fees for Anita's contempt petition lacked an adequate statutory basis because the trial court did not cite the specific statute in its order.

Arguments of the Parties

Appellant (Thomas Vines) — Arguments

The trial court abused its discretion by denying his motion to modify visitation to secure more frequent and unsupervised visitation.
The trial court erred by refusing to interview the child or otherwise hearing from the child regarding her desire for increased visitation with her father (argued without citation to authority).
The award of attorney fees to Anita should be set aside because the trial court's order did not cite the statutory basis for the award.

Appellee (Anita Vines) — Arguments / Requests

She sought suspension of Thomas' visitation and modification of child support (petition filed November 2011).
In her counterclaim, she sought to hold Thomas and Dianna in contempt of the 2007 orders and requested attorney fees and expenses incurred in bringing the contempt motion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Viskup v. Viskup, 291 Ga. 103, 727 S.E.2d 97 (2012)	Trial court faced with a petition for modification must exercise its discretion to determine the child's best interest.	Used to frame the standard that modification of custody/visitation requires exercise of discretion centered on the child's best interest.
Haskell v. Haskell, 286 Ga. 112, 686 S.E.2d 102 (2009)	A trial court's decision regarding change in custody/visitation will be upheld unless there is a clear abuse of discretion; where any evidence supports the ruling, appellate court will not find abuse.	Applied to affirm that, because evidence supported the trial court's findings, the denial of modification was not a clear abuse of discretion.
Horn v. Shepherd, 292 Ga. 14, 732 S.E.2d 427 (2012)	No requirement that the trial court's order explicitly cite OCGA § 19–6–2 when awarding attorney fees in a contempt action; existence of statutory basis can be inferred from the order and circumstances.	Relied upon to conclude there was a statutory basis for the attorney-fee award and that the trial court was not required to cite the statute in its order.
Killingsworth v. Killingsworth, 286 Ga. 234, 686 S.E.2d 640 (2009)	Supports the principle that attorney-fee awards in appropriate family-law contempt contexts are within trial court discretion when supported by evidence.	Used alongside Horn to support validity of fee award predicated on contempt and the evidence presented concerning fees and parties' finances.
Findley v. Findley, 280 Ga. 454, 629 S.E.2d 222 (2006)	Fee award reversed where fees were sought under multiple statutory provisions and the court's order contained no information concerning the basis of the trial court's award.	Distinguished from this case to show the present fee award differed because the record and order here made clear the award was based on contempt and thus consistent with a single statutory basis.

Court's Reasoning and Analysis

The court first articulated the applicable standards: visitation rights are part of custody under OCGA § 19–9–22(1), and a trial court deciding a custody/visitation modification must exercise its discretion to determine what is in the child's best interest (citing Viskup). Decisions regarding changes in custody or visitation are reviewed for abuse of discretion and will be upheld if any evidence supports the trial court's ruling (citing Haskell).

On the merits of the visitation-modification request, the court recited the evidence presented at the hearing: continued failure by Thomas and Dianna to comply with prior orders addressing harassment and degradation of Anita, evidence that such conduct caused harm and detriment to the child, Thomas' refusal to cooperate with the child's psychologist, and his failure to pay for another qualified psychologist as required to obtain expanded or unsupervised visitation. Considering the child's best interest and the record evidence, the court concluded there was not a clear abuse of discretion in denying Thomas' motion to modify visitation.

Regarding Thomas' claim that the trial court refused to interview the child, the court observed there is nothing in the record indicating the court refused to talk to the child or prohibited Thomas from calling the child as a witness. The only references were Thomas' counsel encouraging the court to talk to the child. Absent any authority requiring the trial court to interview the child sua sponte or any evidence the court prevented the child from testifying, the claim presented nothing for appellate review.

On the attorney-fees award, the court noted Anita sought fees and expenses in her contempt petition. OCGA § 19–6–2(a)(1) authorizes a trial court to award attorney fees and expenses in a contempt action, after considering the parties' financial circumstances. The record included evidence on the reasonableness of the fees and the parties' finances. The court found the trial court's order made clear the fee award was predicated on a finding of contempt, consistent with OCGA § 19–6–2(a)(1), and relied on Horn and Killingsworth to support that there was a statutory basis even though the trial court did not cite the statute expressly. The court contrasted Findley, where reversal was required because the trial court's order lacked any indication of the statute relied upon when multiple statutes had been invoked.

Holding and Implications

Judgment affirmed.

Holding: The Supreme Court of Georgia affirmed the trial court's denial of Thomas Vines' motion to modify visitation and affirmed the trial court's grant of Anita Vines' contempt petition and award of attorney fees.

Implications: The direct effect is that Thomas' request for increased and unsupervised visitation was denied and the contempt finding and attorney-fee award in favor of Anita were upheld. The opinion applies established standards concerning modification of custody/visitation and the trial court's discretion in awarding fees in contempt proceedings; it does not announce a new legal rule or broader precedent beyond applying and distinguishing existing Georgia authority.

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VINES et al. v. VINES.

THOMPSON

David T. Blackburn, Blackburn & Blackburn, Dalton, GA, for Appellant. Robert Douglas Jenkins, Dalton, GA, for Appellee.
THOMPSON, Presiding Justice.

Thomas Vines appeals from a trial court's order denying his motion to modify the terms of his visitation rights with his daughter and granting Anita Vines' counterclaim for contempt and request for attorney fees. Finding no error, we affirm.

1. Anita and Thomas Vines were divorced in 2005 by a final decree awarding Anita primary physical custody of their child and granting Thomas secondary physical custody and visitation at least every other week from Thursday afternoon until Monday morning. In 2007, Thomas' visitation rights were modified after Anita presented evidence that he was using pornography in the home where the child visited, evidence of bestiality and other inappropriate conduct in the home, and evidence of misbehavior and harassment by Thomas and his new wife, Dianna, directed toward Anita. Based on the evidence presented, the court found Thomas suffered from histrionic personality disorder and had not sought any treatment, that Thomas failed to address his psychological issues and modify his behavior, that Thomas and Dianna continued to engage in a pattern of behavior destructive to the child, and that he and Dianna had engaged in behavior designed to alienate the child from her mother. The court thus modified the final decree to limit Thomas' visitation with the child to weekly 1.5 hour visits supervised by Compassion House. Only Thomas and his three younger children are allowed visitation, which Thomas has exercised on a bi-weekly basis. The modification order further directed Thomas to have only e-mail contact with Anita and directed Thomas and Dianna not to go near the child's school, not to come within 200 yards of Anita, her place of employment, her residence, or her vehicle, and not to harass or make any derogatory remarks about Anita in the presence of the child. Dianna was ordered to have no contact with Anita whatsoever. Finally, the 2007 order provided that no additional visitation would be allowed until Thomas underwent treatment from a qualified therapist and the therapist confirmed he had made progress in recognizing his condition, its causes and symptoms, the inappropriate behavior that can result from the condition, and the harm it causes the child. In November 2011, Anita filed a petition to suspend Thomas' visitation and to modify child support. A month later, Thomas filed a separate petition in which he sought to modify visitation to provide for more frequent and unsupervised visitation and to hold Anita in contempt for failing to turn over certain personal property. Anita counterclaimed in that action, seeking to hold Thomas and Dianna in contempt of the court's previous orders. Pertinent to this appeal, the trial court denied Thomas' petition for modification and granted Anita's petition for contempt.

Anita filed and the trial court granted a motion to add Dianna as a party to the action.

In a separate order, the trial court denied Anita's request to suspend Thomas' visitation but granted her petition to increase child support. Thomas' direct appeal from that order challenging only the court's ruling on child support was dismissed by this Court on November 26, 2012, for failure to file an application to appeal.

2. In several enumerations of error, Thomas argues the trial court abused its discretion by denying his motion to modify the visitation rights afforded him in the trial court's 2007 order. Under Georgia law, visitation rights are a part of custody. See OCGA § 19–9–22(1). “A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child's best interest.” Viskup v. Viskup, 291 Ga. 103, 105(2), 727 S.E.2d 97 (2012). See OCGA § 19–9–3(a)(2). A trial court's decision regarding a change in custody/ visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. Haskell v. Haskell, 286 Ga. 112(1), 686 S.E.2d 102 (2009). Where there is any evidence to support the trial court's ruling, a reviewing court cannot say there was an abuse of discretion. Id.

At the hearing on Thomas' motion to modify visitation, there was substantial evidence of Thomas and Dianna's continued failure to comply with the court's orders pertaining to their harassment and degradation of Anita despite the harm and detriment it caused the child. In addition, the court heard evidence of Thomas' refusal to work with the child's psychologist and his failure to pay for another qualified psychologist in order to obtain additional or unsupervised visitation. Based on the evidence presented at the hearing and the trial court's consideration of the child's best interest, we cannot say there was a clear abuse of discretion in the trial court's denial of the motion to modify visitation rights.

3. Thomas asserts without citation to authority that the trial court erred by refusing to interview the child regarding her desire for increased visitation with her father. There is nothing in the record, however, indicating that the trial court refused to talk to the child or that Thomas was precluded from presenting the child as a witness in support of his motion to modify visitation. There are only two references in the record to the possibility of the child testifying, and on both occasions Thomas' counsel merely encouraged the court to talk to the child. Absent any authority requiring the court to interview the child sua sponte or any evidence that the court prohibited Thomas from calling the child as a witness, this enumeration of error presents nothing for us to review.

4. Thomas contends the trial court's award of attorney fees must be set aside because the statutory basis for the award is not cited in the court's order. We disagree. In her petition for contempt, Anita sought attorney fees and expenses incurred by her in having to bring her motion for contempt. OCGA § 19–6–2(a)(1) authorizes a trial court to award attorney fees and expenses of litigation within its sound discretion after considering the financial circumstances of both parties in a contempt action. Evidence was presented at the motions hearing regarding the reasonableness of the fees and expenses requested and the parties' financial circumstances both at the present time and at the time of their divorce. In addition, the language of the order makes clear that the court's fee award is predicated on its finding of contempt, which is consistent with an award of fees under OCGA § 19–6–2(a)(1), not an award under OCGA § 9–15–14(a). We conclude, therefore, that “ there was a statutory basis for the fee award, and there was no requirement that OCGA § 19–6–2 be cited in the trial court's order, as there is no indication that the court relied on some other authority to award the attorney fees.” Horn v. Shepherd, 292 Ga. 14(9), 732 S.E.2d 427 (2012). See Killingsworth v. Killingsworth, 286 Ga. 234(4), 686 S.E.2d 640 (2009). Compare Findley v. Findley, 280 Ga. 454(2), 629 S.E.2d 222 (2006) (fee award reversed where fees were sought under multiple statutory provisions and court's order contained no information concerning basis of trial court's award).

Judgment affirmed. All the Justices concur.
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Vines v. Vines