FIRST DIVISION

DOYLE, C. J.,

PHIPPS, P. J, and BOGGS, J.

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.

http://www.gaappeals.us/rules

November 17, 2015

In the Court of Appeals of Georgia

A15A1201. MEDLEY v. MOSLEY. DO-060

DOYLE, Chief Judge.

Venyke Medley appealsfromthe trial court’s final order, which awarded Justan

Mosley (“Mosley”), the father of her son, Justan, Jr. (“Justan”), primary physical

custody of Justan, and the trial court’s order on Mosley’s petition for contempt or to

compel, which awarded Mosley $2,580 in back child support for the period of time

prior to the entry of a support order. Medley appeals, arguing that (1) Fulton County

Superior Court’s use of officers other than superior court judges in making custody

decisions is unconstitutional; (2) the court’s decision to grant an emergency motion

tomodify custody fromMedley to Mosley was an abuse of discretion because Medley

was not present at the conference on the motion; (3) the superior court abused its

discretion because (a) there was insufficient evidence to show that permanently
giving Mosley primary custody was in Justan’s best interests, and (b) there was

insufficient evidence that Medley’sfailure to allow visitation with Mosley materially

affected Justan’s welfare or was in his best interests; and (4) the trial court erred by

awarding back child support to Mosley because (a) it was erroneous to award the

support for a period of time prior to entry of a support order, and (b) Medley’s lack

of income was not taken into account. We affirm in part, vacate in part, and remand

the case for the reasons that follow.

The record shows that Mosley filed a legitimation action in Clayton County

with regard to Justan, who was born in July 2008, and an order was entered in March

2012, which included a parenting plan awarding primary physical custody and

support to Medley and visitation to Mosley. Thereafter, on July 9, 2013, Mosley filed

the instant “Petition for Modification of Child Custody, Child Support, and

Visitation” (“the Petition”), alleging that Medley had been denying himvisitation and

interfering with his parental rights since entry of the March 2012 order. 

A 30-day status conference was scheduled for August 13, 2013, on which date

Mosley filed a “Motion for Emergency Temporary Child Custody Hearing and

Motion for Contempt” (“Emergency Petition”). At the conference, despite Medley’s

2
absence,1

the court2heard evidence related to Mosley’s Emergency Petition. Based

on Mosley’s evidence, the court entered a Temporary Custody Order, awarding

Mosley sole legal and physical custody, awarding Medley supervised visitation only

if the parties could not agree on visitation, and suspending Mosley’s child support

requirement.

3

In its order, the court found that in January 2013, Mosley had filed a motion

for contempt inClaytonCounty, alleging that Medley had withheld visitation, and the

parties reached a mediated agreement on April 23, 2013. Nevertheless, on April 25,

Medley repudiated the agreement, and a hearing on the matter wasscheduled for June

17, 2013, at which hearing Medley agreed to adhere to the April 23 settlement

agreement. Immediately thereafter, however, Medley refused to allow Mosley his

visitation under the agreement, and she also filed a temporary protective order

(“TPO”) against him, which was later dismissed on August 6, 2013, for lack of

1 Medley claimed she did not believe her attendance was necessary because she

believed service was improper. 

2 Magistrate Judge Margaret Dorsey was sitting by designation to hear the

Emergency Petition. 

3 The court did not enter an order of support requiring Medley to make

payments to Mosley. 

3
evidence. On August 9, 2013,

4

despite Mosley arriving at a pre-arranged location to

exchange Justan, Medley failed to appear, prompting Mosley to file the Emergency

Petition.

On August 19, 2013, Medley filed her answer to the Petition, asking for the

court to return custody to her, alleging that she had prevented Mosley from visiting

with Justan because visits with Mosley disturbed him, leading Medley to seek

psychological care for Justan from psychologist David Rush; Medley also claimed

that Mosley was not paying child support asrequired. Medley also filed an emergency

motion for a custody modification, a Rule 1000-4 Request to have all matters

presided over by a superior court judge, and a motion for return of custody, alleging,

among other things, that it was in the best interests of Justan to be returned to her. 

On September 18, 2013, Medleymoved for appointment of a guardian ad litem

(“GAL”) on the basis that Dr. Rush was concerned because Justan had described

being spanked by Mosley and had drawn what Dr. Rush described as a “smoking

apparatus but not a cigarette” after Justan’s prior visits with Mosley; additionally,

Medley alleged thatJustan’s former Pre-Kindergarten teacher reported thatJustan had

a difficult time concentrating after previously visiting with Mosley. Mosley, though

4

 This incident occurred after the instant Petition had been filed.

4
he did not agree that he had harmed the child, consented to appointment of a GAL.

On November 11, 2013, a consent order appointing Jessie R. Altman as GAL was

entered by a superior court judge. 

A status conference was scheduled for October 2, 2013, before the court, but

instead the parties mediated because Medley’s Rule 1000-4 Request prevented a

hearing before an official other than a superior court judge. The parties came to an

agreement, entered as a consent order on October 18, which left primary physical

custodywith Mosley, granted Medley joint legal custody and visitation every second,

third, and fourth weekend per month, and granted her specified parenting time over

the approaching winter holidays. An amended order was entered on October 25,

adding that custody exchanges would occur at a specified location. 

On February 10, 2014, Mosley filed a motion to compel discovery, alleging

that Medley had failed to respond to discovery he had filed in October 23, 2013.

Medley responded, contending that she had provided responses and the motion for

contempt should be denied. A consent agreement for child support was entered on

May 13, 2014,stating that Medley would pay $250 per month to Mosley. Thereafter,

Medley filed a domestic relations financial affidavit, and the parties were ordered to

mediation before June 30, 2014. 

5
On October 31, 2014, the superior court held a hearing and as a result of

previous mediations, the parties had agreed on certain provisions, but they needed the

court to decide (1) which parent would have school-year primary custody; (2) which

parent would have summer session primary custody; and (3) various other issues. At

the hearing, Medley testified that prior to the Clayton County contempt motion, she

had begun limiting Justan’s visits with Mosley because Justan was not acting like

himself afterward and instead was crying and upset. Medley did not force Justan to

go with Mosley when Justan started protesting to her that he wanted to stay with her

instead; she admitted that this “was wrong,” but at the time, she believed that

something during the visits must have caused Justan to behave that way. Medley

admitted thatshe registered Justan for basketball, and it wasinconvenient for Mosley

to attend games and practices because he would have to drive about 25-30 minutes.

Medley also admitted that she had been charged with simple battery for behavior at

a custody exchange with Mosley, and she was awaiting a hearing on the charge. 

The GAL testified that her recommendation was for Mosley to have primary

custody because Medley worked nights and Medley’s mother was providing most of

the care for Justan when Medley had custody. Altman stated that Medley admitted she

denied visitation when Justan refused to go with Mosley, but Medley had learned that

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is not acceptable. Finally, all Medley’s negative allegations about Mosley, including

allegations of drug use in front of Justan, were notsupported by the GAL’s visits and

interactions with him and Justan. 

After the hearing, on November 4, 2013, the trial court ordered joint legal and

physical custody, but with Mosley having primary physical custody during the school

year and Medley having the majority of the summer. The trial courtspecified parental

decision making authority, off-custody visitation for each parent, locations for

custody exchanges, directions for extracurricular activities and communications

between the parents. The trial court awarded no child support per the parties’

agreement, but ordered them to split the costs of uncovered medical expenses and

extracurricular activities, and it ordered Mosley to maintain health insurance for

Justan. On November 10, 2014, the trial court entered an order in response to

Mosley’s Contempt motion, ordering attorney fees and back child support in the

amount of $2,580, which was half of Mosley’s proven child-related expenses over the

applicable time frame. This appeal followed.

1. As an initial matter, we note that although Medley enumerates six errors as

stated above, her brief provides argument and citations of authority only as to four of

those errors, which we address below, despite the fact that the argument section of her

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brief is divided into only two sections. Pursuant to Court of Appeals Rule 25 (c) (2)

any unsupported enumeration of error is deemed abandoned.

5

2. Medley argues that the trial court abused its discretion by awarding primary

physical custody to Mosley without a showing of how her failure to allow visitation

with Mosley materially affected Justan’s welfare or that the change was in Justan’s

best interests.

6

[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. Furthermore, 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. And where there is any

5 See Murphy v. Murphy, 330 Ga. App. 169, 172-173 (4) (767 SE2d 789)

(2014). Medley’s first enumeration that the use of judicial officersin making custody

decisions is unconstitutional presents nothing for review because it was not ruled

upon by the trial court. See Ga. Board of Dentistry v. Pence, 223 Ga. App. 603, 604

(1) (478 SE2d 437) (1996) (holding that an appellate court will not rule on a

constitutional question “unless it clearly appears in the record that the trial court

distinctly passed on the point”) (citation and punctuation omitted); Raskin v. Wallace,

215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994) (holding that if a trial court did not

“distinctly pass or rule on” a constitutional issue, an assertion as to it on appeal

“presents nothing for review”) (citation and punctuation omitted).

6 To the extent that Medley contends that the temporary order entered by the

magistrate judge in August 2013 was erroneous because Medley was not at the

hearing, she has not cited any authority to support this contention and is therefore

abandoned. See Division 1, supra; Court of Appeals Rule 25 (c) (2). 

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evidence to support the trial court’s ruling, a reviewing court cannot say

there was an abuse of discretion.

7

In this case, we find no error in the temporary order modifying custody, or the

ensuing orders resulting in Mosley having primary physical custody. The evidence

before the judicial officer showed that Medley, in violation of numerous court orders

and consent agreements, prevented Mosley from exercising visitation with Justan

between December 2011 and August 2013. “Asrecently noted by our Supreme Court,

the fact that a parent has interfered with the other parent’s visitation supported the

trial court’sfinding that it was more likely that the other parent will provide visitation

and abide by the Court’s Orders, and its conclusion that it was in the best interest of

the child to modify custody.”8 Medley also often left Justan in his grandmother’s

custody rather than allowing him to visit with his father while she worked nights.

9

7

(Footnotes and punctuation omitted.) Jackson v. Sanders, 333 Ga. App. 554,

558-559 (5) (773 SE2d 835) (2015).

8

(Punctuation omitted.) Fifadara v. Goyal, 318 Ga. App. 196, 201 (3) (733

SE2d 478) (2012), quoting Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97)

(2012).

9 See Shotwell v. Filip, 314 Ga. App. 93, 96-97 (1) (722 SE2d 906) (2012)

(holding that mother’s actions of allowing maternal grandmother rather than father

to keep the child constituted material change in circumstances).

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And during the time period between the temporary award of primary custody

to Mosley and the hearing before the trial court, Justan was doing very well at school

and was emotionally adjusted, which findings support the trial court’s order

continuing primary custody with Mosley.

10 Medley’s behavior, including taking out

an unsupported TPO against Mosley but then inviting him to her home for Justan’s

birthday party and committing an act to warrant a charge for simple battery, also

supported the trial court’s determination that Justan should remain in the primary

physical custody of Mosley during the school year. Accordingly, we cannot say that

the superior court erred by granting Mosley primary physical custody during the

school year.

3. Medley also argues that the trial court erred by awarding child support for

the period of time prior to entry of an order because the trial court incorrectly based

its ruling on Weaver v. Chester,

11 which Medley contends applies only to putative

fathers who fail to support their children. As explained in Smith v. Carter,

12

however,

the requirement to provide child support extendsto both mothers and fathers, and the

10

 See Viskup, 291 Ga. at 105.

11

 195 Ga. App. 471 (393 SE2d 715) (1990).

12

 305 Ga. App. 479 (699 SE2d 796) (2010).

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custodial parent may seek back support for at most the actual expenses the parent

provided during the time the noncustodial parent failed to pay.

13

Despite Mosley’s argument that the award is supported by the law, “in

determining what portion of the amount actually expended must be born by the

noncustodial parent, a trial court is required to follow the Child Support Guidelines,

which would include at least a consideration of the custodial parent’s income, the

noncustodial parent’s income, and other child support obligations of the parents.”14

Because the record does not reflect that the superior court applied the child support

guidelines to the parties’ incomes during the time period in question to support the

Court’s decision to award Mosley half his proven expenditures, we vacate the Order

on Petition for Contempt and to Compel and remand for further proceedings

consistent with this opinion.

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

Phipps, P. J., and Boggs, J., concur.

13

 See id. at 481-482 (2).

14

 Id. at 482 (2). 

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