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Todd v. Casciano

The juvenile court erred in awarding attorneys' fees to the father on his contempt claim without construing the parties' divorce agreement to ascertain their intent in prohibiting co-habitation with non-relatives of the opposite sex.

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We granted Joan Todd’s application to appeal an order of the Juvenile Court of Gwinnett County changing physical custody of the parties’ five children to the natural father.1

After ten years of marriage, Todd age 42 at the time of the hearing and Peter Casciano age 39 at the time of the hearing were divorced on June 14, 1995, shortly after their fifth child was born, and the divorce decree awarded the parents joint custody of their children. The parties agreed that Todd would have primary physical custody. Based on a court order dated January 2000, the children resided with Todd nine days out of every fourteen-day period and with Casciano for the rest. On August 24, 2000, Casciano filed a petition to change custody and sought an order of contempt. In count 1, he claimed that circumstances had changed that had adversely affected the children in that Todd “was living in a meretricious relationship in an open manner with a member of the opposite sex in the presence of the minor children.” In count 2, he alleged that Todd should be held in contempt for violating a provision of the divorce decree, which provided that “neither party shall cohabitate sic with a person of the opposite sex, not a relative, in the presence of the children.”

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