MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
appeal from a trial court's order modifying custody in
favor of the mother of the two children at issue, the father
asserts that the trial court erred in denying his motion to
dismiss the mother's counterclaim for visitation,
awarding child support to the mother, denying the
father's offer of proof at the final hearing, and
awarding the mother attorney fees. We find no error and
the parties' 2013 divorce decree entered in DeKalb
Superior Court, the parents had joint legal custody of the
children, with the mother having primary physical custody and
neither parent paying child support. These proceedings began
when the mother, Jennifer Lewis, filed a petition for
modification of visitation and child support in DeKalb County
Superior Court, where the father continued to reside. The
father, Todd O'Brien, answered and counterclaimed for
attorney fees and then for modification and child support.
When the mother moved to dismiss the father's
counterclaim under OCGA § 19-9-23 (b), the father
voluntarily dismissed it.
meantime, the mother moved with the children to Forsyth
County. The trial court granted the father's application
for an injunction and ordered the children returned to school
in DeKalb County. When the mother amended her petition in
DeKalb Superior Court to dismiss her request for change in
visitation, the father filed his own petition for
modification of custody and child support in Forsyth County.
Because the only issue remaining in the DeKalb County
proceeding was the mother's claim for modification of
child support, the parties moved the DeKalb court to transfer
the mother's case to Forsyth County and jointly moved the
Forsyth court to consolidate the cases. The DeKalb court
transferred the mother's case, and the Forsyth court
ordered the cases consolidated.
mother then filed an amended answer, including a
counterclaim, in which she moved to modify visitation under
the former version of OCGA § 19-9-3 (b), which
authorized a trial court to modify visitation "on the
motion of any party or on the motion of the judge . . .
without the necessity of any showing of a change in any
material conditions and circumstances of either party or the
child . . . once in each two-year period following the date
of entry of the judgment," or more frequently if a
material change has occurred. The father moved to dismiss the
motion on the ground that under OCGA § 19-9-23, the
mother was required to bring her counterclaim as a separate
action in DeKalb County, where the father still lived. After
a hearing, the trial court denied the father's motion,
noting that he had filed his own modification action in
Forsyth County, that the cases had been consolidated there on
joint motion of the parties, and that the court was empowered
therein to take account of the children's best interests.
hearing was held in January 2018. During the father's
cross-examination of the mother, the trial court sustained
the mother's relevancy objection as to a dispute between
herself and her nephew and refused the father's proffer
as to these family difficulties. On January 31, the court
entered a final order increasing the mother's parenting
time and awarding her $2, 349 in monthly child support. The
court also vacated its previous injunction requiring the
mother to return the children to their DeKalb school. The
father then missed his February 2018 child support payment,
in light of which the trial court excepted the child support
provisions of the final order from any supersedeas. After a
second hearing, no transcript of which appears in the
appellate record, the court awarded the mother $30, 000 in
attorney fees under OCGA §§ 19-6-15 and 19-9-3
The father's motion for new trial was denied.
father first asserts that the trial court should have granted
his motion to dismiss the mother's counterclaim to modify
visitation. We disagree.
The current version of OCGA § 19-9-23 provides in
(a)[A]ny complaint seeking to obtain a change of legal
custody of the child shall be brought as a separate
action in the county of residence of the legal custodian of
(b)A complaint by [a] legal custodian seeking a
change of legal custody or visitation rights shall
be brought as a separate action in compliance with
Article VI, Section II, Paragraph VI of the Constitution of
(c)No complaint specified in subsection (a) or (b) of
this Code section shall be made: (1) [a]s a counterclaim
or in any other manner in response to a petition for a writ
of habeas corpus seeking to enforce a child custody order;
or (2) [i]n response to any other action or motion
seeking to enforce a child custody order. . . .
(Emphasis supplied.) It is also "well established that the
term 'custody' includes visitation rights."
Bennett v. Wood, 188 Ga.App. 630, 631 (1) (373
S.E.2d 645) (1988); see also OCGA § 19-9-22 (1).
understand "'[t]he plain meaning of OCGA §
19-9-23 [to be] that an action . . . to modify visitation
with a minor child must be brought in the county of residence
of the custodial parent.'" Rogers v.
Baudet, 215 Ga.App. 214, 214 (449 S.E.2d 900) (1994),
quoting Bennett, 188 Ga.App. at 631 (1). Here, the
mother and the father shared legal custody under the 2013
divorce decree, with the mother having primary physical
custody, such that when the father filed his modification
action in Forsyth County, he did so "in the county of
residence of [a] legal custodian of the child" - that
is, in the county of residence of the mother, who had joint
legal and primary physical custody. OCGA § 19-9-23
Further, "where a nonresident voluntarily institutes a
suit in a county in this State," he submits himself,
"for all purposes of that suit, to the jurisdiction of
the courts of the county in which the suit is pending."
(Footnote and punctuation omitted.) Colbert v.
Colbert, 321 Ga.App. 841, 844 (2) (743 S.E.2d 505)
(2013); see also Hopkins v. Hopkins, 237 Ga. 845,
847 (1) (229 S.E.2d 751) (1976) (the waiver provisions of the
Civil Practice Act "on jurisdiction of the person and
venue are applicable to custody cases as well as divorce
cases"). As the trial court correctly noted, this father
consented to the Forsyth court's jurisdiction over the
parties' disputes over all custody issues, including
parenting time, visitation rights, and child support. See
Colbert, 321 Ga.App. at 844 (a superior court