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Brende v. Brende

Court of Appeals of Georgia, Second Division

January 27, 2015

BRENDE
v.
BRENDE

Custody. Camden Superior Court. Before Judge Wilkes.

Garnett Harrison, Jacqueline N. Fortier, for appellant.

Lee S. Ashmore, for appellee.

McFADDEN, Judge. Andrews, P. J., concurs; Ray, J., concurs in the judgment only.

OPINION

Page 532

McFadden, Judge.

This is an interlocutory appeal from an order in a Georgia divorce proceeding in which the trial court, among other things, ruled that he lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), OCGA § 19-9-40 et seq., to decide the custody of an unborn child. The trial court assumed that the child would be born in Oregon and therefore deemed Oregon the child's home state. See OCGA § § 19-9-41 (7) (defining " home state" of child); 19-9-61 (a) (providing that child's home state is primary factor in establishing court's jurisdiction over initial child custody determination). We vacate the jurisdictional ruling, because the trial court's anticipatory determination of the unborn child's home state was advisory, and we remand the case to the trial court to reconsider his jurisdiction of the child custody issues in the divorce given the existing circumstances in this case. (We do not address the other ruling in the trial court's order, because that ruling has not been challenged on appeal.)

1. Procedural history.

The record shows that on March 6, 2014, Matthew James Brende (the father) filed a complaint for divorce from Qynne Marie Brende (the mother). Among other things, the father alleged that he and the mother both were Georgia residents, that the mother had left Georgia [330 Ga.App. 557] one month earlier and currently was living in Oregon, that the mother was pregnant, and that the child was expected to be born in mid-May 2014. As part of the divorce proceedings, the father sought sole legal and physical custody of the unborn child.

In her answer, the mother challenged the trial court's jurisdiction over the custody determination. After holding a hearing and receiving memoranda of law on the jurisdiction issue, the trial court, on May 1, 2014, ruled that " assuming the parties' child is born in Oregon as anticipated, Oregon will have exclusive jurisdiction over the issue of custody." We granted the father's request for interlocutory review of this ruling.

2. Events that occurred after the trial court's May 1 ruling.

As an initial matter, we note that the father has made representations in the statement of facts section of his brief about events after entry of the ruling on appeal. Specifically, he represents that a female child was born to the mother in Oregon after the trial court's ruling and that, upon the child's birth, Oregon's Department of Child Protective Services took custody of her and subsequently placed her in the father's custody. Evidence of these events was not -- indeed could not have been -- before the trial court at the time of his ruling, and the mother correctly notes that we cannot consider these events in deciding whether the trial court erred in his May 1 ruling. " It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court." Farmer v. State, 216 Ga.App. 515, 522 (1) (455 S.E.2d 297) (1995) (on motion for reconsideration) (citing Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga.App. 347, 351 (411 S.E.2d 75) (1991)). Nevertheless, as indicated in Division 4, infra, the possibility that events subsequent to his order could affect the trial court's jurisdiction over the custody issues underlies our decision to remand this case for further consideration by the trial court.

Page 533

3. The trial court's May 1 jurisdictional ruling must be vacated because it was an ...


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