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Weiss v. Grant

Court of Appeals of Georgia, Fifth Division

June 12, 2018

WEISS
v.
GRANT.

          MCFADDEN, P. J., RAY and RICKMAN, JJ.

          McFadden, Presiding Judge.

         This appeal challenges a trial court order modifying a child custody order from another state and ordering payment of a child support arrearage. Contrary to the appellant's claims, the trial court had jurisdiction to modify the foreign custody order. The court did not err in modifying the prior order. The order addresses the appellee's past misconduct and does not exceed the scope of the court's discretion. But the appellant is correct that the trial court erred in ordering the appellee to repay a child support arrearage at the rate of $100 per month, which improperly postpones the bulk of the payments until after the children have reached the age of 18. Accordingly, we affirm in part and reverse in part.

         Sarah Weiss and Larry Grant were married in 2007, separated in 2008, and divorced in 2011. The final divorce decree, entered by the Superior Court of Paulding County, Georgia, found that the parties had two minor children, L. G. and T. G.; that Weiss and the children were residents of South Carolina; and that a child custody action was pending in a South Carolina Family Court.[1] The South Carolina court had previously entered a temporary order giving the parents joint custody of the children, designating Weiss as the primary physical custodian, and awarding Grant one week of visitation each month.

         In April 2011, after a scheduled visitation, Grant failed to return the children to Weiss, purportedly because Weiss was allowing a convicted child abuser to be around the children. Weiss has disputed that allegation. Grant apparently moved out of his home in Paulding County, took the children to live with him at different homes both in and out of state, and concealed those locations from Weiss. On April 27, 2012, the South Carolina court entered a final custody order finding that Grant had fled with the children and that they were still missing, granting sole custody of the children to Weiss, and suspending Grant's visitation.

         In October 2012, Grant and the children were found by police living in Alabama. Grant was arrested on an outstanding South Carolina warrant and the children were returned to Weiss. Grant pled guilty in South Carolina to a misdemeanor charge of interfering with child custody and was given a probated sentence, which he completed.

         Grant filed a complaint in Paulding County Superior Court for modification of the South Carolina order which had awarded sole custody to Weiss and had suspended his visitation. Weiss filed an answer and motion to dismiss the action for lack of jurisdiction. The trial court denied the motion to dismiss, finding that it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), OCGA § 19-9-40 et seq. A hearing was held on July 1, 2015, during which the trial judge stated that while he was not, at that point, going to change custody, he was going to appoint a psychologist or counselor to evaluate the family and make a recommendation to the court on "the question of what to do about these children and . . . their parents in the future." The court directed the parties to meet and see if they could agree on a person to conduct the evaluation.

         On September 9, 2015, the trial court entered a temporary order which, pursuant to the parties' agreement, appointed clinical psychologist Dr. Robert Shaffer to evaluate the family and make a recommendation about what "is in the [c]hildren's best interests regarding re-introducing [Grant] into the [c]hildren's lives." The order reiterated that the court was not, at that point, going to modify custody. But the order temporarily awarded Grant two hours per week of supervised visitation.

         Over a year later, on December 16, 2016, court held a final hearing at which Dr. Shaffer was qualified as an expert witness. Dr. Shaffer testified, among other things, that he had no concerns about any issues that would prevent Grant from having a full relationship with his children; that the children were connected and emotionally bonded to Grant; that he believed Grant could adequately meet the needs of the children; that Grant's abduction of the children was based on a genuine protective instinct and concern about the children's welfare; and that Grant understood what he did was wrong and was not inclined to commit such an act again, and would instead avail himself of other resources to protect the children. Dr. Shaffer also testified not only that there was no reason to restrict the children from supervised visitation with the father, but that unsupervised visitation would actually be healthier for the children. Dr. Shaffer further opined that, in assessing the family as a whole, it would be appropriate for Grant and Weiss to share joint legal custody.

         On December 27, 2017, the trial court entered a final order modifying the South Carolina custody order. The trial court found that a change in custody was in the best interests of the children, ordering that Weiss and Grant have joint legal custody of the children, awarding Weiss primary physical custody, and awarding Grant visitation rights. Weiss filed a motion for new trial, which the trial court denied. Weiss appeals.

         1. Jurisdiction.

         Weiss contends that the trial court lacked jurisdiction to modify the South Carolina custody order. Because the parties and their children no longer resided in South Carolina and jurisdiction was otherwise proper in the trial court, the argument is without merit.

         OCGA § 19-9-63, which is part of the UCCJEA, provides in pertinent part that

a court of this state may not modify a child custody determination made by a court in another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and: (1) The court of the other state determines it no longer has exclusive continuing jurisdiction under Code Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or (2) A court of this state . . . determines that neither the child nor the child's parents or any person acting as a parent presently resides in the other state.

(Emphasis supplied.)

         With regard to the first provision set forth above - that in order to modify the custody ruling of a foreign court, a Georgia court must have jurisdiction to make an initial custody determination under OCGA § 19-9-61 -

[t]his provision makes it clear that . . . the requirements of [either] paragraphs (1) or (2) of OCGA § 19-9-61 (a) must be satisfied by showing[, in pertinent part]: (1) This state is the home state of the child on the date of the commencement of the proceeding, . . . [or] (2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise ...

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