MCFADDEN, P. J., BRANCH and BETHEL, JJ.
Scott Edler appeals from the trial court's order granting
his eldest daughter's request to live with her mother,
Lisa Hedden. He argues the trial court misinterpreted OCGA
§ 19-9-3 (a) (5) by allowing the eldest daughter, E. E.,
to make the request less than two years after she had first
requested to live with him. We agree and reverse.
record shows that Edler and Hedden divorced in February 2012
and that Hedden was awarded primary physical custody of their
children, including E. E. Three years later, in December
2015, the final divorce order was modified so that E. E.
could reside with her father. However, in March 2016, Hedden
filed a petition for change of custody indicating that E. E.,
aged 15, had signed an affidavit electing to return to the
physical custody of her mother. The trial court granted the
request, noting that E. E. had made her second election
within two years of the prior election, and that her request
was therefore valid under OCGA § 19-9-3 (a) (5). This
outset, we note that "the standard of review for a
question of law on appeal is de novo. And when a question of
law is at issue, as here, we owe no deference to the trial
court's ruling and apply the plain legal error standard
of review." Georgia Transmission Corp. v.
Worley, 312 Ga.App. 855, 856 (720 S.E.2d 305) (2011)
(footnote omitted). With these guiding principles in mind, we
will now address the substance of Edler's argument.
argues that the trial court erred in its interpretation of
OCGA § 19-9-3 (a) (5) by permitting E. E. to make a
second election of where she preferred to live because less
than two years had passed since her first election. We agree.
§ 19-9-3 (a) (5) provides that a child who has reached
the age of 14 has "the right to select the parent with
whom he or she desires to live. The child's selection for
purposes of custody shall be presumptive unless the parent so
selected is determined not to be in the best interests of the
child." "Without a finding of unfitness the
child's selection must be recognized and the court has no
discretion to act otherwise." Harbin v. Harbin,
238 Ga. 109, 110 (230 S.E.2d 889) (1976) (per curiam). The
statute further provides that the child's "selection
may only be made once within a period of two years from the
date of the previous selection and the best interests of the
child standard shall apply." OCGA § 19-9-3 (a) (5).
The trial judge has "a wide latitude and
discretion" in determining the best interests of the
child. Pritchett v. Pritchett, 219 Ga. 635, 636 (135
S.E.2d 417) (1964).
cardinal rule of statutory interpretation is to ascertain the
legislature's purpose in enacting a statute and then
construe the statute to effect that purpose, avoiding
interpretations that do not square with common sense and
sound reasoning." Ins. Dept. of State of Ga. v. St.
Paul Fire & Cas. Ins. Co., 253 Ga.App. 551, 552 (559
S.E.2d 754) (2002) (footnotes and punctuation omitted).
"Language in one part of the statute must be interpreted
in light of the legislature's intent as found in the
whole statute. But if the statutory language is plain and
unequivocal, then judicial construction is not only
unnecessary but forbidden." Id. (footnotes and
issue before us in this appeal is the proper interpretation
of OCGA § 19-9-3 (a) (5), and specifically, the
provision of that statutory section that provides that a
child's "selection may only be made once within a
period of two years from the date of the previous
selection[.]" Hedden argues that this Court should
interpret this statutory section to mean that after a child
has chosen which parent he or she wants to live with, the
child may make a different selection once within the two
years following the date of the child's original
selection. And at first glance, this argument seems
meritorious. However, such an interpretation would
effectively render the statute meaningless because it would
result in an unlimited selection cycle. More specifically,
each selection by the child would become the "previous
selection" as soon as the child changed his or her mind,
thus restarting the running of the two year period that would
now be without effect or meaning under this reading of the
statute must be construed to give sensible and intelligent
effect to all its provisions and to refrain from any
interpretation which renders any part of the statute
meaningless." Handel v. Powell, 284 Ga. 550,
554 (670 S.E.2d 62) (2008) (citation and punctuation
omitted). Here, so as to give effect to all parts of the
statute, the most logical interpretation of OCGA §
19-9-3 (a) (5) is that the legislature intended for the
child's selection to be effective for two years from the
date of his or her previous selection. As for E. E.,
because she originally chose to live with her father in
December 2015, she could not change her mind for two years
following that date - December 2017. See OCGA §
19-9-3 (a) (5). Heden's March 2016 motion, to the
extent it was based on the preference of the child as
contemplated in OCGA § 9-9-3 (a) (5), should have been
denied as premature.
McFadden, P J, concurs Branch, J, concurs in judgment only.*
OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF ...