From McWilliams v. Meghrian, decided Monday by Georgia Court of Appeals Judges Jeffrey Watkins, Christopher McFadden, and J. Wade Padgett:

This appeal arises from a child custody modification proceeding in which the trial court, [among other things,] … permanently enjoined … Mother … from making any "disparaging" statements about Father "via social media or other means" and modified child support. Mother appeals, and for the reasons below, we vacate the trial court's final order and remand for further proceedings. The parties are the parents of one child, born in 2008….

Mother argues that the final order and accompanying parenting plan included unconstitutional prior restraints on speech. The final order directed Mother to "immediately cease all disparagement of [Father] whether via social media or other means." The final order also adopted and incorporated the parenting plan proposed by Father, which provided that the parties "will not speak badly of each other or the members of the family of the other parent." …

During the final hearing, the trial court stated, "So, Ms. McWilliams, when we're dealing with, you know, parents—and I understand what you said. You're putting your truth out there and saying your truth. Disparagement doesn't care about the truth. It just means that you're putting down another parent." Mother responded, "Yeah." The court concluded:

And so publicly like that is something that you just—you can't do, and so we want to be careful about that. There's a reason that we're careful about that. Things on social media get back to kids. They just do. And I think that we're all—we're all cognizant of that in this day and age, but we have to be careful about what we put out there. And if we can't say anything nice, we just don't need to say anything at all, and that's the best rule to live by in terms of this. So that's—that's kind of what we need to—what we need to work on there….

As to Mother's failure to assert her constitutional challenge before the trial court, it is true that "[b]ecause this Court is a court for the correction of errors, we will not consider matters, even of constitutional magnitude, that were not raised and ruled upon in the trial court." However, the injunction, in its objectionable form, was not entered until the final order. And Mother raised the issue in her application for discretionary review, which was her first opportunity to do so.

Accordingly, on remand, the trial court is instructed to address the constitutional issue in the first instance. As we do not reach the constitutional issue, we need not decide whether, as Father argues, it is moot because the child has reached 18 years of age…. In sum, we vacate the grant of attorney fees, the injunction (both in the final order and in the incorporated parenting plan) restricting speech, and the order of child support….

Malone Williams Allen represents the mother.

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