Reese, Judge.Matthew Wilson appeals the grant of a final order of a modification of child custody regarding minor child E. W., and the award of attorney fees to Debra Perkins. He argues, inter alia, that: (1) there was no material change in circumstances warranting a child custody modification action; (2) the trial court erred in admitting evidence of his nolo contendre plea; (3) the trial court erred in admitting harmful and/or clearly erroneous hearing testimony; and (4) the award of attorneys fees was improper. For the following reasons, we reverse in part, vacate in part, and remand. Wilson and Perkins are former spouses who divorced in 2012 and were awarded joint legal and physical custody of E. W., born in 2009. In 2012, Perkins decided to move to Florida, and Wilson petitioned to modify custody of E. W. Wilson was awarded primary physical custody of E. W., with Perkins receiving visitation.In 2014, Perkins’s mother, C. G., contacted local law enforcement about bruises found on the buttocks area of E. W. A City of Dallas patrol officer wrote in a family violence report issued in connection with the investigation, “I observed several bruises on [E. W.] around the buttocks and upper leg area. I asked [E. W.] where the bruises came from. [E. W.] told me his dad hit him with a belt a couple of days ago because he took something that was not his.” Wilson was arrested and charged with one count each of family violence battery and battery and two counts of simple battery against E. W. Perkins sought and obtained a temporary protective order on behalf of E. W. In December 2014, Wilson and Perkins, each without attorney representation, met with a church pastor and signed a document wherein they agreed to share joint legal and physical custody of E. W., and Perkins agreed to dismiss the protective order. Wilson entered a nolo contendere plea as to one count of family violence battery against E. W. on May 4, 2015.[1] Subsequently, the parties executed a consent final order, as to custody of E. W. which was filed on June 3, 2015.Wilson was arrested in early June 2015, and incarcerated on charges of aggravated assault, false imprisonment, and sexual battery against an adult female, S. G. Wilson remained incarcerated until August 20, 2015. Wilson testified that he contacted Perkins upon his release from incarceration, intending to pick up E. W.While Wilson was incarcerated, Perkins filed a petition to modify custody, of E. W. on June 15, 2015.Perkins obtained a temporary protective order on behalf of E. W. against Wilson on August 21, 2015. In September 2015, after a hearing, a family violence twelve-month protective order was entered on behalf of E. W. through September 2016.[2] In January 2016, Wilson petitioned to modify the temporary protective order in the Superior Court of Cobb County, and was denied. At the custody modification hearing in December 2016, Perkins testified, that after the issuance of the permanent protective order, Wilson twice filed petitions, in Paulding County Magistrate Court to have warrants issued against Perkins for custodial interference regarding E. W. She further testified that one of the petitions was denied and the other dismissed.Wilson and the woman he had been accused of assaulting, S. G., both testified that the charges against Wilson regarding S. G. had been dropped and expunged from his record. Wilson testified that he did not cause the bruises found on E. W. He further testified that he believes “in spanking” children and “[doesn't] see anything wrong with it.” He testified that Perkins, in the past, had brought up her concerns to him about spanking E. W.After the custody hearing, the trial court granted Perkins’s request for the modification of custody of E. W., finding that a material change in circumstances had occurred since the June 3, 2015 final order. The trial court granted Perkins primary physical custody of E. W. and terminated Wilson’s visitation. Wilson appeals, arguing that there was not a material change in circumstances warranting a modification of the custody order, the trial court improperly admitted evidence that was prejudicial to Wilson, and the award of attorney fees in the amount of $27,230.85 to Perkins was improper.Generally,[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. 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. Where there is any evidence to support the trial court’s ruling on custody or visitation, a reviewing court cannot say there was an abuse of discretion.[3]
Also,the best interests of the child are controlling as to custody changes. Whether particular circumstances warrant a change in custody is a fact question determined under the unique situation in each individual case. In contemplating a custodial change, the trial court must exercise its discretion to determine whether a change is in the best interests of the child. The circumstances warranting a change in custody are not confined to those of the custodial parent: any new and material change in circumstances that affects the child must also be considered.[4] “We are mindful that the Solomonic task of making custody decisions lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.”[5] With these guiding principles in mind, we turn now to Wilson’s specific claims of error.1. Wilson argues that the trial court erred in admitting and considering evidence of his nolo contendere plea of family violence battery against E. W. during the child custody and modification hearing and, as a result, there was no evidence to support a finding of a material change in circumstances. We agree. Georgia law provides “[e]xcept as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose[.]“[6] This Court has previously held, in the context of a child modification proceeding, a nolo contendere plea cannot be used against a defendant for any purpose.[7]The record reflects that the trial court, over Wilson’s objection, allowed Perkins to present evidence of his nolo contendere plea, stating “[the trial court will] allow it for purposes of explaining [Perkins's] conduct.” Further, the trial court, in its findings of fact in its final modification of child custody order, found Wilson “utilize[d] inappropriate punishment tactics while [E. W.] [was] in his custody and control” and Wilson “[was] overly harsh physically, and engage[d] in physically punitive behaviors toward [E. W.] that [were] inappropriate and hurtful.” The alleged abuse that resulted in the nolo contendere plea took place before the June 3, 2015 consent custody order. Thus, the trial court erred in admitting the evidence to the extent it considered the abuse when deciding whether there had been a material change of circumstances since June 2015. The nolo contendere plea is inadmissible because, unlike a guilty plea, a nolo contendere plea is not an admission by Wilson of having committed the acts at issue.[8]Despite Perkins’s assertions to the contrary, neither the trial court, nor Perkins in her brief, has pointed to any exception to OCGA § 17-7-95 (c) that is applicable here.[9] It follows that the trial court erred in admitting Wilson’s nolo contendere plea during the hearing.[10]Further, the trial court found that Wilson “ha[d] a history of physically abusing [E. W.] by using corporal punishment to the extent that bruises [were] left on [E. W.] on more than one occasion over the past seven (7) years.” However, the trial court did not identify, in its January 26, 2017 modification order, any specific instance of Wilson “physically abusing” E. W. since the entry of the June 3, 2015 child modification order. This Court has stated that, [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.[11]
