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O'brien v. Lewis

Court of Appeals of Georgia, Fifth Division

June 19, 2019

O'BRIEN
v.
LEWIS.

          MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.

          GOSS, JUDGE.

         On 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 affirm.

         Under 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.

         In the 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.

         The 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.

         A final 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 (g).[1] The father's motion for new trial was denied.

         1. The 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 relevant part:
(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 the child.
(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 this state.
(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.)[2] 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).

         We 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 (a).[3] 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 "properly ...


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