Appellant Nikita Denise Williams (Wife) and appellee Byron J. Williams (Husband) were divorced in June 2015. The final judgment and decree awarded sole legal and physical custody of their minor child to Husband, and granted Wife supervised visitation. We granted Wife's application for discretionary appeal to consider whether the child custody award should be vacated for the failure of the trial court to incorporate a permanent parenting plan. We conclude that the final judgment and decree must be vacated in part and the case remanded on this ground. We also vacate the award of attorney fees for the court, upon remand, to make the necessary findings of fact for the award of attorney fees to Husband.
Wife filed a complaint for divorce on November 4, 2013. On the same day, she filed a motion for emergency custody requesting ex parte relief and an emergency hearing. In this filing, she claimed that Husband had taken the minor child from the marital residence and refused to allow her to see him. She also claimed that Husband had a history of domestic violence, including a pending charge of simple assault, and mental health issues. In response, the trial court awarded Wife temporary primary legal and physical custody of the child and scheduled a hearing for December 3, 2013. Husband filed an answer to Wife's complaint, a counterclaim for divorce, and a response to Wife's emergency motion denying the allegations. The hearing on the matter was reset to December 10, 2013.
At the December hearing, Wife's counsel failed to appear at the calendar call, although the court noted that counsel filed an untimely conflict letter. Wife appeared at the calendar call, but was not present when the case was called by the court and had not been excused. Following the hearing, the court ordered that Husband have visitation with the child every Saturday at a church, and set a hearing on the issues raised in Wife's ex parte request for custody "as well as temporary issues" for January 14, 2014. Prior to this hearing however, Husband filed a motion for contempt for Wife's refusal to allow him visitation as ordered.
On January 15, 2014, following a hearing, the trial court entered a temporary order awarding the parties joint legal and physical custody of the minor child, and ordering that they exchange the child each week, with Husband paying Wife $40 per week for child support. On December 29, 2014, the trial court entered a temporary consent order wherein the parties agreed to a holiday visitation schedule, the location where the child was to be exchanged, the allocation of home appliances, and the termination of Husband's child support payments. The order also provided that the parties would share custody of the child on a week-to-week basis.
Following a bench trial, the trial court, on June 9, 2015, entered a final judgment and decree awarding legal and physical custody of the child to Husband, granting Wife supervised visitation, awarding Husband child support and attorney fees, and requiring that Wife reimburse Husband for marital funds she retained. The order also required Wife to have a full and complete psychological evaluation performed and filed with the court in the event she desired to file any modification of her visitation rights.
Wife filed a motion and an amended motion for new trial. Husband filed a response to Wife's motions and a counterclaim for contempt alleging that Wife failed to make child support payments and pay attorney fees as ordered in the final judgment and decree, and asserting that Wife had interfered with his award of custody by informing the child's school that the child was deceased. The trial court denied Wife's motion for new trial on January 25, 2016.
1. Wife argues that the trial court denied her any meaningful visitation by failing to set forth specific visitation and leaving the visitation to the discretion of a third party. In deciding visitation,
The final judgment and decree provided that Wife "shall have ONLY SUPERVISED visitation TWICE per month at St. Julian's [Episcopal Church] in Douglas County. Plaintiff and Defendant shall cooperate with St. Julian's i[n] setting up the [Wife's] bi-monthly visits." In granting Husband custody of the child, the trial court found that Wife falsely accused Husband of abusing the child and observed that it was "afraid [Husband] would never get to exercise visitation with the child." The court noted in denying Wife's motion for new trial, that she repeatedly "wi[ld]ly exaggerated" or falsely accused Husband of family violence, and that her "unexplained bitterness as well as her sudden launching of a concerted vendetta against Husband . . . started early on in the marriage and was on display throughout this litigation." The court also found that Wife kept the child from Husband without reason "creating unnecessary drama when the minor child was in her care[,] scaring the minor child, and delaying and stalling, all to the point that not one but two incarceration orders against Wife had to be issued" for her to produce the child.
Without asserting that she has been denied any visitation, Wife essentially contends that she was effectively denied visitation because the court failed to set forth a specific schedule and left visitation to the discretion of a third party. But we find no authority requiring the trial court to set specific dates and times in an award of visitation,
In this case, the court did not merely order "reasonable" visitation, nor did it leave visitation solely to the unfettered discretion of the custodial parent or to a third party. The court, within its discretion, required that visitation would occur twice per month at a particular location, a local church, with the days and times for those visits to be arranged by the church, in cooperation with Husband and Wife. The court therefore intended the parties to work together in setting up Wife's visitation. This arrangement alone shows no effective denial of visitation.
In contrast this appeal is from a final decree awarding a specific amount of visitation at a particular place to Wife, not unspecified "reasonable" visitation as in
Wife argues further that prior to the court's order, the parties had sixteen months of successful week-to-week exchanges of the child and there was no evidence to justify restricting her visitation. But the trial court's findings underlying its ruling on visitation are supported by some evidence, including that outlined below in Division 2. We therefore conclude that its ruling granting Wife supervised visitation twice per month was not an abuse of discretion. See
2. Wife argues that the trial court erred by relying on evidence from temporary hearings in making its final custody decision without providing notice to the parties. In denying Wife's motion for new trial, the court concluded that the transcript of the final hearing "is replete with evidence that while likely  presented in temporary hearings," was brought out again during the final hearing, that it used evidence presented during the final hearing to make its determination, and that the evidence was "substantially unaltered" between the temporary and final hearings. The record supports this conclusion.
Wife presented four witnesses at the final hearing: two neighbors, a "spiritual counselor," and a police sergeant. While some of the evidence presented concerned events that took place prior to the temporary hearing and order in January 2014, there was evidence after that date presented for the trial court's consideration. Wife admitted at the final hearing that in June 2014, she took pictures of the child that she claimed showed bruises and scratches on him after he returned from a visit with Husband, and that she stripped the child of his clothing at each exchange with Husband to examine him for signs of abuse. The trial court viewed those pictures and concluded that they showed no abuse. The record also reveals the court considered Wife's testimony in the final hearing blaming her former lawyers for inappropriate conduct in their representation of her in this action, her admission that she failed to bring the child for the Husband's court-ordered supervised visitation between November 2013 and January 2014, and her failure to make the child available at the final hearing.
Because the record reveals that the trial court relied upon evidence presented at the final hearing, Wife's argument on this ground fails. See
3. Wife argues that the trial court erred in failing to incorporate a permanent parenting plan in the final judgment and decree. This requirement is found in OCGA § 19-9-1 (a). The parties disagree as to whether the current version of this Code section, effective July 1, 2016, applies, or whether the former version in effect at the time of the 2015 bench trial applies. But we need not decide this issue, because both versions provide that the trial court, in a final order involving the custody of a child, "shall incorporate a permanent parenting plan." (Emphasis supplied.) OCGA § 19-9-1 (a); former OCGA § 19-9-1 (a).
The final judgment and decree here does not incorporate a parenting plan. In the order denying Wife's motion for new trial, the court ruled that "the provisions concerning custody and visitation contained in the Final Judgment and Decree are sufficient to be considered a permanent parenting plan envisioned by" OCGA § 19-9-1 and Uniform Superior Court Rule § 24.10.
However, the order with regard to custody and visitation does not satisfy the statutory requirement for a permanent parenting plan, and the failure of a party to cooperate does not create an exception. See
Because the trial court failed to incorporate a permanent parenting plan in the final judgment and decree, we vacate the judgment in part and remand this case for compliance with the requirements of OCGA § 19-9-1.
4. Wife asserts that the trial court erred in awarding Husband attorney fees without specifying the basis for the award. She contends that the court failed to indicate whether the fees were awarded pursuant to OCGA § 19-6-2 (a) (1) or OCGA § 9-15-14 (b), and that if made pursuant to OCGA § 19-6-2 (a) (1), the court failed to consider the financial circumstances of both parties.
In his counterclaim for divorce, Husband requested the "costs of maintaining this action including reasonable attorney's fees," and at the final hearing requested attorney fees of no less than $20,000 based on the fact that Wife had been stubbornly litigious, frivolous in her filings, and caused delay. In the final judgment and decree, the trial court found that "the actions of [Wife] in this matter have unnecessarily prolonged this matter and have forced additional attorney fees upon [Husband]. Therefore, [Wife] is herein ORDERED to pay directly to [Husband] $12,000 in attorney fees. Said amount . . . shall be made in 12 equal payments. . . ." Although the court found that Wife had unnecessarily prolonged the matter, implying that the award was made pursuant to OCGA § 9-15-14 (b), in the order on motion for new trial, the court explained that "[a] review of the transcript supports this Court's decision to make the award of attorney's fees pursuant to OCGA § 19-6-2." That Code section provides in part:
(Citation and punctuation omitted.) Id. at 806. And we have explained that this Court may review the record to determine the statutory basis of an attorney fees order.
The trial court stated in the order denying Wife's motion for new trial, that it granted attorney fees pursuant to OCGA § 19-6-2. During cross-examination, Wife testified to the income she receives at her two places of employment, and that she pays $326 per month for her car payment. She explained further that she lives with her mother and pays $500 per month to help her with expenses. In the final judgment and decree, the court noted Husband's and Wife's gross monthly incomes in ordering that Wife pay child support, and attached to the judgment was a child support worksheet showing the parties' gross income and expenses related to child care. It is unclear from the court's oral ruling and final judgment and decree whether it considered both parties' financial circumstances,
The former subsection provides: