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Grailer v. Jones

Court of Appeals of Georgia, Fourth Division

March 6, 2019

GRAILER
v.
JONES.

          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          DOYLE, PRESIDING JUDGE.

         Following their divorce, Christy Grailer ("the mother") and Shanon Jones ("the father") share joint legal custody of their minor child, N. J. In their second appearance before this Court, [1] the mother appeals three 2018 orders by the Juvenile Court of Gwinnett County dismissing her modification petition, granting the father's modification petition and granting him physical custody of N. J., denying her contempt motion, granting the father's motions for contempt, ordering her to pay child support, and awarding attorney fees to the father. For the reasons that follow, we affirm in part, reverse in part, vacate in part, and remand the case for further proceedings.

         This case has a protracted procedural history. The record shows that N. J. was born on July 21, 2002. The parties divorced in 2010, and pursuant to a settlement agreement, the judgment granted them joint physical and joint legal custody of N. J., with each parent having him half of the time. In August 2010, the father filed a modification petition, and the superior court entered an order in January 2011, again granting the parties joint physical and legal custody, with each party having alternating weekly physical custody. In July 2011, the mother filed a custody modification action, which the superior court dismissed, finding that there was no material change in circumstances. In January 2014, the father filed a petition to modify custody, attaching thereto an affidavit by N. J. in which he elected to live with the father. The following month, the mother filed an affidavit by N. J. in which he elected to live with the mother. The case was transferred to juvenile court, and in November 2014, the juvenile court entered an order granting the parties joint legal custody, but granting primary physical custody to the father and granting the mother visitation every other weekend and alternating Wednesdays.[2] The juvenile court denied the mother's subsequent motion for new trial, and the mother appealed. In March 2016, the mother filed a petition for modification of custody; the father moved to dismiss the petition, arguing that the trial court lacked jurisdiction because the previous modification order was still on appeal, and the trial court granted the dismissal. In June 2016, in an unpublished opinion, this Court affirmed the denial of the mother's motion for new trial, vacated the award of attorney fees to the father because the juvenile court did not specify the basis therefor, and remanded the case for reconsideration of the attorney fee issue.

         On June 29, 2016, the mother filed in superior court her third petition for modification, attaching thereto an affidavit from N. J. electing to live with her. On July 7, 2016, the superior court transferred the case to juvenile court. On July 26, 2016, the juvenile court appointed a guardian ad litem ("GAL"). In his July 27, 2016 answer to the mother's modification petition, the father filed a counterclaim for modification of custody, requesting to eliminate the mother's Wednesday night visitation to reduce the number of times N. J. was exchanged; the father also sought an award of attorney fees under OCGA §§ 19-9-3 (g) and 9-15-14. On August 2, 2016, the juvenile court held a temporary hearing, and the court spoke with N. J. in chambers; at the conclusion of the hearing, the juvenile court apparently orally announced its ruling. On August 12, 2016, the father filed a motion for contempt, alleging that on three separate occasions the mother withheld N. J. from the father's visitation as orally ordered by the juvenile court at the August 2, 2016 hearing. On August 25, 2016, nunc pro tunc to August 2, 2016, the juvenile court entered a temporary order transferring temporary primary physical custody of N. J. to the mother and giving the father visitation every other Thursday through Monday.

         On August 26, 2016, after again speaking with N. J. in chambers, the juvenile court entered an emergency order finding the mother in willful contempt of the November 2014 order and its August 2, 2016 oral pronouncement by failing to return N. J. to his father on three separate occasions following her visitation.[3] Thereafter, on August 12, 2016, and November 7, 2017, the father filed contempt motions alleging that the mother had interfered with his custody and/or visitation.[4]

         On November 13-17, 2017, the juvenile court conducted a hearing on the parties' motions, at which both parents and N. J. testified. After the mother rested her case, the father made an oral motion to dismiss her modification petition on the basis that she had withheld custody from him in violation of custody orders, citing OCGA § 19-9-24. The juvenile court orally granted the motion, stating: "There has been constant withholding of visitation. It started with N. J. didn't want to go, so I couldn't make him, and now it's N. J.'s afraid, and I can't make him. You are not in control of N. J., obviously, and all of the claims against [the father] have been unsubstantiated, so the motion is granted."

         On January 18, 2018, the father filed a contempt motion alleging that the mother had interfered with his visitation on January 15, 2018, by retrieving N. J. from the father's home at 10:30 p.m. On January 19, 2018, the mother filed a petition for a family violence ex parte temporary protection order ("TPO"); the superior court dismissed the petition because the mother elected not to go forward with it.

         On January 31, 2018, the juvenile court entered a final order after considering the evidence, argument of counsel, and the recommendation of the GAL.[5] The court stated that it dismissed the mother's motions for custody modification and for contempt because she withheld N. J. from the father "over [35] times after the filing of her [c]omplaint, including withholding [N. J.] at the time of trial. Notwithstanding that, the [c]ourt finds that although the child has made an election to be in the custody of his mother[, ] it would not be in his best interest to effect that election."[6] The court then found that: the mother had withheld visitation; three reports made to the Department of Children and Family Services about alleged abuse by the father were "all unsubstantiated"; her allegation that the father had withheld medication from N. J. was not credible; she had eliminated the father from any involvement in decision-making about N. J., including putting him on medication; and "the child's election has been influenced by his mother's seven[-]year war against the father[, ] is not independent or wise[, ] and certainly [is] not in his best interest." Finding a change in material circumstances as set forth in OCGA § 19-9-3, the juvenile court granted the father's counterclaim, modifying the November 26, 2014 and September 7, 2016 orders by incorporating a parenting plan that the mother was directed to prepare in accordance with the recommendations of the GAL. The parenting plan, which was entered on February 14, 2018, gave the father primary physical custody, granted the mother visitation every other weekend, certain times in the summer and on holidays, and eliminated midweek visitation. The court also required the mother to pay $476 per month in child support, adopting the father's child support addendum. Finally, the court awarded the father attorney fees in the amount of $7, 500 pursuant to OCGA §§ 19-9-3 (g) and 9-15-14 (b).

         On February 9, 2018, the mother filed her second petition for a family violence TRO in superior court. The superior court granted the petition, issuing a TRO awarding her custody, and N. J. was removed from the father's custody. On February 12, 2018, the father filed a contempt motion in juvenile court, alleging that the mother had interfered with his custody by obtaining the TRO in superior court. On February 13, 2018, the mother filed a notice of appeal of the juvenile court's January 31, 2018 final order modifying custody. On February 14, 2018, the mother filed an intent to seek review of the contempt order and automatic supersedeas.

         On February 20, 2018, following a hearing at which the father, his attorney, the mother's attorney, and the GAL were present, [7] the juvenile court entered an order on the father's January 18, 2018 and February 12, 2018 contempt motions, finding the mother in willful contempt for interfering with the father's custody on January 15, 2018; it did not find her in contempt for obtaining the TRO. The court determined that the mother's February 9, 2018 petition for a TRO was based on the same allegations made during the November 2017 trial, and it vacated the TRO. The court ordered the mother to pay $5, 870 in attorney fees to the father pursuant to OCGA § 19-6-2 and ordered the mother's immediate incarceration for 15 days or until she paid the attorney fees. On February 20, 2018, the mother filed an amended notice of appeal indicating her intention also to appeal the court's February 20, 2018 contempt order. On February 21, 2018, the juvenile court entered an amended order on the father's contempt motion, reinstating the TPO so that the magistrate judge sitting by designation for the superior court could preside over the TPO matter. On February 26, 2018, the mother filed her second amended notice of appeal, indicating her intention to also appeal the February 21, 2018 order. Finally, on March 28, 2018, the juvenile court withdrew the incarceration order.

         1. The mother contends that the juvenile court erred by dismissing her modification petition pursuant to OCGA § 19-9-24. We disagree.

OCGA § 19-9-24 provides in relevant part:
(a) A physical custodian shall not be allowed to maintain against the legal custodian any action for . . . child custody, . . . change of child custody, or change of visitation rights or any application for contempt of court so long as custody of the child is withheld from the legal custodian in violation of the custody order.
(b) A legal custodian shall not be allowed to maintain any action for . . . child custody, . . . change of child custody, or change of visitation rights or any application for contempt of court so long as visitation rights are withheld in violation of the custody order.

         The mother contends that OCGA § 19-9-24 involves subject matter jurisdiction, which is an affirmative defense that must be asserted in either a responsive pleading or by separate motion. The mother argues that the father has waived his right to seek dismissal of her modification petition by failing to assert a lack of subject matter jurisdiction in his responsive pleadings or in a written motion. This argument is without merit. The mother has not cited any legal authority to support her contention that a parent must assert in writing his right to dismissal under OCGA § 19-9-4 before the custody hearing. And the Code section imposes no such requirement.

         The trial court's finding that the mother had withheld visitation was supported by the record.[8] And contrary to her argument on appeal, the mother's testimony that N. J. did not wish to visit with the father is unpersuasive.

The fact that a child of 14 can select his . . . custodial parent, does not require the conclusion that such a child can be allowed to elect to not visit with the noncustodial parent. . . . [Fourteen]-year-olds do have the right to elect not to visit with their noncustodial parents; however, to allow them to make such election without a court order would violate . . . statutory provisions [regarding modification and custody] and would permit, if not encourage, custodial parents to vent their spite for their former mates by pressuring, directly or indirectly, the children to make such an election.[9]

         Accordingly, the juvenile court did not err by dismissing the mother's modification petition pursuant to OCGA § 19-9-24.[10]

         Furthermore, the juvenile court also found that notwithstanding the father's right to dismissal of the petition, it was not in N. J.'s best interests to effect his election to be in his mother's custody. And as we explain in Division 2, this finding was supported by the record.

         2. The mother argues that the juvenile court erred by failing to honor N. J.'s affidavit of election to live with her and granting physical custody to the father. Again, we disagree.

         "A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the ...


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