BAGWELL v. HESTER (2026)

James D. Bagwell (“Father”) seeks review of the trial court's final order resolving Terri Hester's (“Mother”) petition for contempt as well as his petition to modify the child custody and child support arrangements concerning his minor son, L. B. On appeal, he argues that the trial court erred by (1) imputing his income when modifying the child support amounts based on a faulty credibility determination; (2) making multiple factual errors in its order; (3) awarding primary physical custody as part of a contempt proceeding; (4) making a self-executing visitation award; and (5) amending its order after the notice of appeal was filed. Upon a review of the record, we affirm the trial court's child custody ruling in part, but we vacate the portions of the trial court's order on child support and attorney fees, and we remand for the trial court to reconsider the issue of attorney fees and the Father's income for child support purposes. We also reverse the trial court's self-executing visitation provision granting discretion to L. B. as to when he can visit the Father as well as vacate its amended order that was entered after the notice of appeal was filed.

“On review of an order modifying a child custody arrangement, this Court views the evidence in the record in the light most favorable to the trial court's order and will affirm the trial court's decision if there is any evidence to support it.” Burnham v. Burnham, 350 Ga. App. 348, 349, 829 S.E.2d 425 (2019) (quotation marks omitted). Similarly, we review a trial court's ruling on a petition to modify child support for an abuse of discretion, and we will uphold the factual findings underlying the ruling if they are supported by any evidence. Park-Poaps v. Poaps, 351 Ga. App. 856, 864(4), 833 S.E.2d 554 (2019). Finally, “[t]he trial court's discretion in contempt matters is broad, and its decision will be upheld if there is any evidence to support it.” Id. at 859(1), 833 S.E.2d 554.

The record shows that the parties were married and had two children, G. B. (born in 2006) and L. B. (born in 2012).¹ The parties divorced in 2016, and the divorce decree awarded the parties joint physical and legal custody over the two children, with the parties exercising a joint “week on, week off” visitation and parenting time schedule. In 2020, the Mother filed a petition to modify the custody arrangements and to find the Father in contempt of the divorce decree for failing to make certain childcare payments as well as failing to make certain property transactions. The trial court granted the petition in April 2021, granting the Mother primary physical custody and finding the Father in contempt. The trial court modified the parties’ parenting plan to a “roughly 60-40” arrangement. As part of its order, the trial court determined that the Father's evidence of his financial situation was “entirely uncredible” based on his reluctance to participate in discovery, concluding that there was no assurance that the Father was not hiding assets. The trial court therefore imputed a monthly income to the Father of $7,083 based on his work as an electrician and ordered the Father to pay $1,213 per month in child support. The trial court also ordered the Father to pay $7,800 in attorney fees.²

On November 22, 2022, the Mother filed a petition for contempt, alleging that the Father failed to pay the ordered attorney fees, failed to pay certain medical expenses, and was far behind on his child support obligations. In response, on April 28, 2023, the Father filed an action to modify the custody and child support arrangements based on the alleged changed circumstances that the Mother had remarried as well as alleged behavioral issues concerning the children. Both parties requested attorney fees in their respective petitions.

After the actions were consolidated, the trial court held a final hearing on both the petition for contempt and the modification petition,³ and the trial court also conducted an in camera interview with L. B. Following the hearing, the trial court entered an order granting in part and denying in part each party's requests for relief. As for child custody, the trial court concluded after considering the evidence presented that it was in L. B.’s interest not to modify the existing visitation schedule between the parties but that it was in his interest to have more discretion in whether he wanted to spend more time with the Father. Thus, the trial court directed that “[i]f [L. B.] indicates that he wishes to increase the number of visits with [the Father], neither parent shall interfere with that decision and shall deliver the minor child into the physical custody of [the Father].” As for child support, the trial court concluded that the Mother's new source of income warranted a change in the amount of child support. The trial court, however, again concluded that the financial information provided by the Father was not credible, and so it imputed to him an annual income of $93,600 ($7,800 per month) based on his electrician work and ordered him to pay $904 per month in child support. The trial court finally concluded that it would not award attorney fees to either party based on misconduct by both sides. The Father filed the instant appeal on December 5, 2024. On December 19, 2024, the trial court entered an amended final order, wherein it expanded upon its calculations for the income it imputed to the Father and cited to the Bureau of Labor Statistics’ general statistics for the average wage of an electrician, which the trial court attached to the amended order as an exhibit.

1. We first address the Father's argument that the trial court's December 19, 2024 amended final order was improper because it was entered after the notice of appeal was filed. We agree.

“[T]he filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Upton v. Jones, 280 Ga. 895, 896(1), 635 S.E.2d 112 (2006) (punctuation omitted).⁴ And although the trial court normally has the power to correct clerical errors sua sponte under OCGA § 9-11-60(g), “not even that option is available” after a notice of appeal is filed. Upton, 280 Ga. at 896(1), 635 S.E.2d 112. Because the trial court's December 19, 2024 amended order was entered after the notice of appeal was filed, it is void and of no effect. As a result, we vacate that order, and we will only review the trial court's initial order on appeal. See id. (reviewing the trial court's initial order).⁵

2. Turning to the merits, the Father first argues that trial court erred by imputing his income based upon erroneous fact findings and information outside of the evidentiary record. We agree that the trial court made erroneous fact findings in its credibility determination of the Father's financial records, and so we vacate the trial court's child support ruling and remand for it to readdress the issue.

“Under Georgia law, determining each parent's monthly gross income is the first step that a court must take in calculating child support under our child support guidelines. These guidelines broadly define gross income as all income from any source, whether earned or unearned.” Gibson v. Fowler, 375 Ga. App. 681, 684(1), 917 S.E.2d 363 (2025) (citation modified). To that end, OCGA § 19-6-15(f)(4)(B) provides that

[w]hen cases with established orders are reviewed for modification and a parent fails to produce reliable evidence of income, such as tax returns for prior years, check stubs, or other information for determining current ability to pay child support or ability to pay child support in prior years, and the court or the jury has no other reliable evidence of such parent's income or income potential, the court or the jury may impute income as set forth in subparagraph (A) of this paragraph, or may increase the child support of the parent failing or refusing to produce evidence of income by an increment of at least 10 percent per year of such parent's gross income for each year since the final order was entered or last modified and shall calculate the basic child support obligation using the increased amount as such parent's gross income.

Thus,

the text of this statute creates two conditions precedent to the applicability of the provision: (1) a parent's failure to produce ‘reliable’ evidence of income and (2) the absence of any other ‘reliable evidence of such parent's income or income potential.’ And it is only if these two conditions precedent are met ․ [that] the trier of fact ‘may’ resort to the remedy prescribed in the statute to increase a parent's support obligation. Our Supreme Court further explained that the clear codified intent of the subsection is to provide for a proxy—which is also in the nature of a penalty—for situations in which the parent's failure to cooperate impedes the court's ability to determine how appropriately to modify child support.

Gibson, 375 Ga. App. at 685(1), 917 S.E.2d 363 (citation modified). “It [is] for the trial court to determine whether a party's own representations regarding income were credible, and we will not disturb the trial court's factual findings in this regard if there is any evidence to support them.” Franco v. Eagle, 361 Ga. App. 506, 510(1)(a), 864 S.E.2d 675 (2021) (punctuation omitted).

Here, the trial court imputed income to the Father based on its finding that the income records he provided were not credible. The trial court specifically found that the records were not credible because of the Father's attempts to evade the Mother's discovery requests, including an instance where he provided the Mother with bank records of his son, James N. Bagwell, as an attempt to pass them off as his own bank records. At the hearing, the Mother testified that she received tax returns that purported to be from the Father but were not signed or dated. The Mother also testified that the bank records in evidence were entered under the name of James Nathan Bagwell, the Father's son. However, the Mother testified that she had received these bank records after subpoenaing the credit union, and she was the one who entered the son's records into evidence. Thus, the record does not support the trial court's conclusion that the Father attempted subterfuge or attempted to pass off his son's records as his own. Since this formed the basis of the trial court's credibility determination, which in turn supported the trial court's decision to impute the Father's income, the decision on child support cannot stand as is.

In response, the Mother cites to numerous other pieces of evidence in the record showing that the Father's financial records were not credible, such as the fact that there were discrepancies in his bank records, that on cross-examination, the Father admitted that additional financial records existed to the ones he submitted to the trial court, and that he could not explain how he claimed that he owed money to the IRS while he also obtained refunds on his income taxes. However, the trial court did not rely on these discrepancies to make its credibility determination, and it is not our job on appeal to weigh the credibility of evidence ourselves, as that is a matter emphatically reserved for the trial court. See Sloans v. State, 360 Ga. App. 256, 258(1)(b), 861 S.E.2d 130 (2021) (“Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.”).

Accordingly, we vacate the trial court's order modifying the amount of child support, and we remand the case so that the trial court can redetermine whether the Father's financial records and evidence were credible, and thus whether his income should be imputed under OCGA § 19-6-15(f)(4)(B) for child support purposes. We express no opinion as to the answer to these questions.

3. The Father next argues that the trial court erred by attributing acts to him that were not supported by the evidence, specifically pointing to the trial court's conclusions that he “dodged service of process and failed to respond to discovery requests” and that he “presented bank records belonging to his son of the same name, purporting the bank records to be his own in an attempt to obfuscate the Court's decision-making.” The trial court made these findings in relation to its conclusion that it would not award attorney fees to either party, concluding that both parties committed inappropriate conduct.

The grant of attorney's fees as a part of the expenses of litigation, made at any time during the pendency of the litigation, whether the action is for ․ contempt of court arising out of ․ a divorce and alimony case ․ shall be [w]ithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party.

OCGA § 19-6-2(a)(1). Similarly, the trial court may award “reasonable attorney's fees” in child custody disputes, OCGA § 19-9-3(g), and the trial court may award attorney's fees to the prevailing party in actions to modify child support. OCGA § 19-6-15 (k)(5). “The trial court has wide discretion to award attorney fees under these statutes.” Davis v. Taylor, 370 Ga. App. 837, 848(7), 898 S.E.2d 574 (2024).

As noted above in Division 2, the record does not indicate that the Father provided his son James N. Bagwell's financial records in an attempt to mislead the court but that the Mother instead subpoenaed those records from the credit union and introduced them into evidence. We have also scoured the record and have found no evidence that the Father evaded service of process in this case - indeed, the return of service indicates that the Father was served within one month of the Mother's petition for contempt.⁶ Accordingly, since there is no evidence in the record to support the trial court's factual findings, we cannot affirm them, and so we must also vacate the trial court's ruling on attorney fees and remand for it to again exercise its discretion on the parties’ requests for attorney fees.

4. The Father argues that the trial court erred by awarding the Mother “sole physical custody” when she did not move to modify the custody arrangements in her favor.⁷ The record shows, however, that the trial court had already granted the Mother primary physical custody in April 2021. Although the trial court's order stated that it was granting the Mother “sole physical custody,” the trial court did not actually make any detrimental change to the Father's parental rights, visitation rights, or parenting time with L. B. To show reversible error on appeal, “there must be harm as well as error[.]” Monitronics Int'l, Inc. v. Veasley, 323 Ga. App. 126, 141(5), 746 S.E.2d 793 (2013). Because there was no actual change in custody or visitation time, the Father has not shown reversible error in this respect.

5. Finally, we agree with the Father that the trial court made an erroneous self-executing custody provision. As part of its ruling on child custody and visitation, the trial court ordered that

it is in the best interest of the minor child not to modify the visitation arrangement currently in place. However, the Court finds that it is in the best interest of the minor child to have discretion in deciding if he wants to schedule additional visits with [the Father]. If the minor child indicates that he wishes to increase the number of visits with [the Father], neither parent shall interfere with that decision and shall deliver the minor child into the physical custody of [the Father].

The Father argues that it was improper to leave the amount of visitation up to L. B.’s discretion.

“A self-executing change of visitation provision allows for an automatic change in visitation based on a future event without additional judicial scrutiny.” Graham v. Graham, 376 Ga. App. 883, 887(3), 921 S.E.2d 440 (2025) (quotation marks omitted).

[I]t is the trial court's responsibility to determine whether the evidence is such that a modification or suspension of custody/visitation privileges is warranted, and the responsibility for making that decision cannot be delegated to another, no matter the degree of the delegatee's expertise or familiarity with the case. A review of the case law regarding prohibited self-executing provisions shows that they can generally be summarized as having one of two critical flaws. First, self-executing provisions that rely on a third party's future exercise of discretion essentially delegate the trial court's judgment to that third party. And, second, self-executing provisions that execute at some uncertain date well into the future are not permitted because the trial court creating those provisions cannot know at the time of their creation what disposition at that future date would serve the best interests of the child; the passage of time (and thus, likelihood of changed circumstances) is just too great.

Id. at 887-88(3), 921 S.E.2d 440 (quotation marks omitted). However, “not all self-executing provisions are invalid. Rather, we must closely examine the nature of any such provision in determining whether it fails to give paramount import to the child's best interests.” Hardin v. Hardin, 338 Ga. App. 541, 543(1), 790 S.E.2d 546 (2016).

The Georgia Supreme Court has previously upheld some provisions that made automatic and self-executing changes in custody based on the child's wishes. In Weaver v. Jones, 260 Ga. 493, 493(3), 396 S.E.2d 890 (1990), the Supreme Court approved a custody provision that provided for an automatic and self-executing change of custody in the event that the child chose to live with the other parent when he reached the age of 14. In Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (2003), the Court characterized the provision in Weaver as being “consonant with statutory and case law,” particularly OCGA § 19-9-3(a). Id. at 373-74, 578 S.E.2d 876. Under that provision, “[i]n all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live[,]” and “[t]he child's selection for purposes of custody shall be presumptive[.]”OCGA § 19-9-3(a)(5). The Supreme Court in Scott contrasted the “flexible self-executing change of custody provision in Weaver that is designed to accommodate a 14-year-old child's exercise of his or her statutory right to select the parent with whom the child desires to live” with the “draconian custody change provisions” in other cases “that altogether ignore the best interests of the child at the time of the triggering event.” Scott, 276 Ga. at 375, 578 S.E.2d 876. Similarly, in the case Doritis v. Doritis, 294 Ga. 421, 424-25(5), 754 S.E.2d 53 (2014), the Georgia Supreme Court upheld a trial court's order that a parent would have visitation with a 17-year-old child “as the minor child and [h]usband mutually agree.”

Crucially, however, the visitation provisions in Weaver, Scott and Doritis involved children who were above the age of 14, and the custody provision here was entered before L. B. turned 14.⁸ By contrast to OCGA § 19-9-3(a)(5), which makes the choice of children 14 and older presumptive,

[i]n all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child's desires shall not be controlling. The judge shall further have broad discretion as to how the child's desires are to be considered, including through the report of a guardian ad litem. The best interests of the child standard shall be controlling.

OCGA § 19-9-3(a)(6) (emphasis supplied).⁹ Thus, the testimony and desires of a child between 11 and 14 can be considered by the trial court, but they are not controlling on the court's judgment. Linn v. O'Kelley, 237 Ga. 161, 162, 227 S.E.2d 45 (1976). See also Prater v. Wheeler, 253 Ga. 649, 650 (“The desires of children under 14 years of age in not wanting to visit their noncustodial parent is not sufficient to deny the noncustodial parent his or her rights of visitation.”) (citation modified). In an almost identical situation to the instant case, the Georgia Supreme Court struck a visitation provision that provided that a 13-year-old girl would have visitation with her father on certain specified dates “if she so desires.” Green v. Dawson, 210 Ga. 128, 128, 78 S.E.2d 17 (1953). The Supreme Court stated directly that “[t]he law of Georgia does not authorize a trial judge to enter an order which in effect permits a minor child, thirteen years of age, to determine or select the place of her residence.” Id.

Considering all of this legal context, we are convinced that the visitation provision here giving discretion to L. B. as to the amount of visitation with the Father is improper. First, the provision essentially delegates the trial court's judgment as to the proper amount of visitation to L. B. While L. B. is clearly not an unrelated “third party,” Georgia law does not allow trial courts to give such unilateral discretion over visitation and custody to children under the age of 14. Green, 210 Ga. at 128, 78 S.E.2d 17. Instead, the child custody statute directly states that such a child's desires “shall not be controlling” and that instead it is the trial court that has the statutory right to have complete discretion in assigning custody.¹⁰ See OCGA § 19-9-3(a)(6).

Additionally, the visitation provision does not contain any specific limitations in terms of time or circumstances as to when it will take effect, and it therefore allows visitation to change without having an analysis of the facts at the time and whether it is actually in the best interest of L. B. to make the change at the time it is invoked. Thus, the provision “violates [this State's] public policy as expressed in OCGA § 19–9–3” that the trial court “take into account the factual situation at the time the custody modification is sought,” with the court's “paramount concern” always remaining “the best interests and welfare of the minor child.” Scott, 276 Ga. at 375-77, 578 S.E.2d 876. We therefore reverse that portion of the trial court's visitation order. See Bankston v. Warbington, 332 Ga. App. 29, 35(2), 771 S.E.2d 726 (2015) (reversing improper self-executing custody provision).

Accordingly, we affirm the trial court's child custody ruling in part, but we vacate the portions of the trial court's order on child support and attorney fees, and we remand for the trial court to reconsider the issue of attorney fees and the Father's income for child support purposes. We also reverse the trial court's self-executing visitation provision as well as vacate its amended order that was entered after the notice of appeal was filed.

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

FOOTNOTES

1.   Since G. B. is over the age of 18, the trial court only ordered relief as to L. B., and this appeal also only concerns the child custody and child support arrangements concerning L. B. See, e.g., Francis-Rolle v. Harvey, 309 Ga. App. 491, 492(1), 710 S.E.2d 659 (2011) (“Because at 18 years the child has reached the age of legal majority and is no longer subject to the custody order, this issue is moot.”).

2.   In March 2022, the Father was again found in contempt of court, and it appears that his parenting time was reduced as a result of that contempt. The written order that is in the record, however, makes no reference to the Father's visitation or custody rights, and so it is not entirely clear to us what the Father's current visitation rights are.

3.   The final hearing took place over two days on March 26, 2024, and August 20, 2024.

4.   We note that, under OCGA § 5-6-34(e), “[w]here an appeal is taken pursuant to this Code section for a judgment or order granting nonmonetary relief in a child custody case, such judgment or order shall stand until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.” While this means that the trial court's order, to the extent it was a child custody order, stood and remained enforceable during the pendency of this appeal, Murphy v. Murphy, 330 Ga. App. 169, 174(5), 767 S.E.2d 789 (2014), we do not read this statute to completely dispose of all effects of supersedeas in child custody appeals from the Superior Court without any specific language to that effect. Cf. OCGA § 15-11-35 (“In all cases of final judgments of the juvenile court, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court. However, no such judgment or order shall be superseded or modified except in the discretion of the trial court; rather, the judgment or order of the court shall stand until reversed or modified by the reviewing court.”) (emphasis supplied).

5.   Because we vacate the trial court's amended order, we have no actual cause to address the trial court's apparent independent research into the Bureau of Labor Statistics’ employment and wage data following the hearing and the close of evidence. Cases must be decided based on the properly admitted evidence presented by the parties. See Code of Judicial Conduct Rule 3.2(B) (“Judges shall not investigate facts in a pending proceeding or impending matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed. A judge must not otherwise consider facts derived from first-hand personal observations or media, including printed publications, computer retrievable electronic data, or internet and social network communications.”).

6.   In the record, there is testimony that the Father evaded the sheriff for 28 days after the previous March 2022 contempt ruling that ordered his incarceration. While this act may be what the trial court was referencing, this is not a matter of dodging service of process.

7.   See Pascal v. Pino, 361 Ga. App. 212, 215-17(1), 863 S.E.2d 694 (2021) (a trial court cannot award relief in a child custody case unless that relief was requested in a proper petition).

8.   The record does not appear to contain the date of L. B.’s birth, and so while he was born in 2012 and is therefore turning 14 this year, it is unknown to us whether he is now, in fact, 14. In any event, the order was entered while L. B. was younger than 14.

9.   “Visitation privileges are, of course, part of custody.” Prater v. Wheeler, 253 Ga. 649, 649, 322 S.E.2d 892 (1984).

10.   The trial court's role in supervising custody is not something to be cast aside lightly. Even in cases involving children over the age of 14, the Supreme Court has concluded that a child cannot make an election to not have any visitation with a parent without a court order as it would otherwise violate statutes and “permit, if not encourage, custodial parents to vent their spite for their former mates by pressuring, directly or indirectly, the children to make such an election.” Prater v. Wheeler, 253 Ga. 649, 650, 322 S.E.2d 892 (1984).

Davis, Judge.

Doyle, P. J., and Senior Judge C. Andrew Fuller concur.