In the Supreme Court of Georgia



                                                 Decided:    May 23, 2016


                     S16A0534 AMOAKUH v. ISSAKA.


      HINES, Presiding Justice.

      Eddie Amoakuh (“Father”) appeals pursuant to OCGA § 5-6-34 (a) (11)

from the trial court’s orders finding him in contempt, modifying child custody

and child support, and awarding attorney’s fees. For the reasons that follow, we

affirm in part, vacate in part, and remand the case to the trial court for further

proceedings.

      Father and Mariama Issaka (“Mother”) were divorced in May 2010; at that

time they had three minor children. Under a 2012 court order modifying the

prior child custody arrangement, the two children who were still minors moved

to the United Kingdom with Mother, who became their primary physical

custodian; Father was granted visitation during the summer months, and at any

time he was in the United Kingdom, or in the place of “Mother’s residence.”

Father’s child support obligation was set at $150 per month.
      In 2014, Mother had become a resident of Ghana; one child was still a

minor, and a dispute arose over the logistics regarding the exercise of Father’s

summer visitation with that child. Father traveled from Ghana to the United

States with the child, and entered her in school in Georgia. Mother filed a

petition for a finding that Father was in contempt of the 2012 order, and

requested that custody of the minor child be modified so that she be sole

custodian, and that child support be modified accordingly; Father

counterclaimed, seeking a finding that Mother was in contempt of the 2012

order, and a modification of custody to name him the primary physical custodian

of the child. After a hearing, the trial court granted Mother’s petition and denied

Father’s requested relief; the court found Father to be in contempt of the 2012

order, and Mother was awarded sole legal and physical custody of the child.

The court ruled that Father would have no access to the child’s passport and

would have the same amount of visitation with the child as under the prior order,

but would exercise that visitation in whatever country the child was residing.

Father’s child support obligation was also raised to $381.00 per month, and

Mother was awarded $3,258.47 in attorney’s fees and expenses.

      1. Father contends that the trial court erred in modifying custody of the

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child.

         A petition to change child custody should be granted only if the trial
         court finds that there has been a material change of condition
         affecting the welfare of the child since the last custody award. If
         there has been such a change, then the court should base its new
         custody decision on the best interest of the child. . . . The evidence
         sufficient to warrant a modification of custody can consist of a
         change in material conditions which have a positive effect on the
         child’s welfare as well as changes which adversely affect the child.
         [Cits.] 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. [Cits.]

Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). There was

evidence that Father refused to return the child to Mother after he exercised

summer visitation in 2014, prevented the child from communicating with

Mother, and enrolled the child in school without Mother’s knowledge or

consent; the court found that this behavior had caused the child to fear that she

would not be returned to Mother. Although Father emphasizes other evidence

in the record, the trial court’s determination that there had been a material

change of conditions is supported by the record, and there is no abuse of the trial

court’s discretion in concluding that the best interests of the child were served

by the new custody arrangement. Id. Contrary to Father’s contention, the fact

that Mother has moved to Ghana does not indicate that the trial court abused its

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discretion, nor do the new custody and visitation provisions terminate his

parental rights. See Taylor v. Taylor, 282 Ga. 113 (fn. 1) (646 SE2d 238)

(2007).

      2. Father also contends that the trial court erred in finding him to be in

contempt of the 2012 order, as well as in failing to find Mother in contempt of

that order. Trial courts have “broad discretion to determine if a party is in

contempt of its order, and the exercise of that discretion will not be reversed on

appeal unless grossly abused.” Baker v. Schrimsher, 291 Ga. 489, 491 (731

SE2d 646) (2012) (Citations omitted.) Father admits he failed to timely pay all

child support, but asserts that his failure to do so was not willful, and that he had

no opportunity to pay Mother the amount he was in arrears as to child support

until the end of the first day of trial. However, the record amply supports the

trial court’s conclusion that Father had access to sufficient funds, could have

paid the amount due “weeks” earlier than he did, and that his failure to pay child

support was “flagrant and willful.” Similarly, the evidence supports the trial

court’s conclusion that Father was in contempt for willfully keeping the child

with him after the expiration of his 2014 summer visitation period.

      In his counterclaim, Father asserted that Mother should be held in

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contempt of the 2012 order for failing to provide him with the child’s passport,

and asserts that the trial court erred in failing to find Mother in contempt in that,

and other respects. However, the trial court specifically credited Mother’s

testimony regarding efforts to renew the child’s passport, and Father fails to

show any abuse of the trial court’s discretion in

failing to hold her in contempt. See Hammond v. Hammond, 282 Ga. 456, 457

(2) (651 SE2d 95) (2007).

      3. The trial court awarded attorney’s fees and expenses in connection with

the contempt portion of the proceedings. Father contends, inter alia, that the

trial court’s order fails to meet the requirements of OCGA § 9-15-14. However,

the court’s order is not premised on OCGA § 9-15-14, but specifically states

that the award of attorney’s fees is made pursuant to OCGA § 19-6-2, for fees

and expenses in connection with the contempt portion of the case. Accordingly,

there is no merit to Father’s assertions of error under OCGA § 9-15-14.

      Nonetheless, Father asserts that, judged under the requirements of OCGA

§ 19-6-2, the award of attorney’s fees is improper because the trial court did not

take into account the financial circumstances of the parties. This is correct. In

its order finding Father to be in contempt, the trial court requested that Mother

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show to the court what portion of the attorney’s fees she had requested pertained

to the contempt proceedings, which she did. However, in issuing its final order

on attorney’s fees in connection with the contempt proceedings, the court did

not make findings of fact regarding the relative financial circumstances of each

party, or otherwise cause the record to show that such had been properly

considered. See McCarthy v. Ashment-McCarthey, 295 Ga. 231, 233-234 (758

SE2d 306) (2014); Leggette v. Leggette, 284 Ga. 432, 433 (2) (668 SE2d 251)

(2008). Compare Hoard v. Beveridge, ___ Ga. ___, ___ (2) (783 SE2d 629)

(2016); Simmons v. Simmons, 288 Ga. 670, 673-674 (6) (706 SE2d 456) (2011).

Accordingly, the award of attorney’s fees in connection with the contempt

proceedings must be vacated, and the case must be remanded to the trial court

for reconsideration of this issue. McCarthy, supra.

      Judgment affirmed in part and vacated in part, and case remanded with

direction. All the Justices concur.




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