McFADDEN, P. J., MCMILLIAN and GOSS, JJ.
appeal from the denial of her motion to dismiss a
father's petition in this custody dispute, the mother
argues that the superior court erred because a Florida court
maintains jurisdiction over the petition under the Uniform
Child Custody Jurisdiction and Enforcement Act
("UCCJEA"), codified in Georgia as OCGA §
19-9-40 et seq. We disagree and therefore affirm.
Wertz and Charles Shayne Marshall were married and have two
children. In 2006, the parties divorced in Florida. The
Florida court awarded Wertz physical custody of the children.
In 2012, Wertz allowed the younger child to live with
Marshall, who had moved to Georgia, and the child has lived
with him ever since. In 2017, Marshall filed this petition to
modify the Florida custody award, seeking sole, permanent
custody of that child.
filed an answer in which she admitted an allegation in
Marshall's petition that she is a resident of Colorado
and that the Walker County Superior Court had jurisdiction
over the petition. At that time, Wertz's husband, an
active duty service member, was temporarily stationed in
Colorado. About six months later, Wertz moved to dismiss
Marshall's petition under the UCCJEA.
trial court denied the motion to dismiss. In its order, the
trial court found that Wertz "by and through counsel
filed an Answer admitting that this Court has jurisdiction
and venue to hear this case and that [Wertz] is a resident of
the State of Colorado" and that Wertz "did not
timely file a motion or pleading raising the defenses of lack
of jurisdiction, improper venue, or insufficient service of
process pursuant to OCGA § 9-11-12, and consequently,
such defenses are waived by law." The court entered a
final order on Marshall's custody modification petition,
and Wertz filed a timely notice of appeal.
argues that the trial court erred in addressing the merits of
the modification petition because the court in Florida had
exclusive jurisdiction over the case, because that court took
no action to relinquish its jurisdiction, and because Wertz
still resides in Florida. Wertz admitted in her answer,
however, that she was a resident of Colorado, which
conclusively divested the Florida court of jurisdiction.
§ 24-8-821 of the 2013 Evidence Code provides:
"Without offering the same in evidence, either party may
avail himself or herself of allegations or admissions made in
the pleadings of the other." See also former OCGA §
24-3-30 (2012); Georgia-Pacific v. Fields, 293 Ga.
499, 501 (1) (748 S.E.2d 407) (2013) ("admissions or
allegations appearing in the pleadings are treated as
admissions in judicio and, if not withdrawn, are conclusive
of the facts contained therein").
dissent points out, this trial court was not in a position to
conclude that the mother waived the matter of the court's
own subject matter jurisdiction. It remains true, however,
that the father availed himself of the mother's admission
in her answer, filed by counsel, that she was a Colorado
resident. This was an admission of fact. See Black's Law
Dictionary, 10th ed., 2014 (defining residence as "[t]he
place where one actually lives, as distinguished from a
domicile"). Further, the dissent cites no relevant
authority for its suggestion that the answer's unverified
status has some bearing on the status of any admissions it
might have contained.
often be the case, the mother later disclaimed the admission
as not actually authorized by her. But this disclaimer does
not effect a withdrawal of the admission; on the contrary,
the mother was not authorized to present any evidence on the
factual question of her residency, which was established
beyond dispute, as in Colorado rather than Florida. Nor does
the record show that the mother ever amended her answer or
asked the court's permission to withdraw the admission
made therein. It follows from the above that the trial court
did not err in concluding, after a hearing on the issue, that
because the mother had admitted to residency in Colorado, the
question of subject matter jurisdiction was settled in favor
of the Georgia trial court such that the mother's motion
to dismiss the father's petition should be denied. See
OCGA § 19-9-62 (a) (2) (a court retains jurisdiction
under the UCCJEA until, among other things, that or another
court "determines that neither the child nor the
child's parents or any person acting as a parent
presently resides in [that] state").
McMillian, J, concurs.
McFadden, P. J. dissents. *
*THISOPINION IS PHYSICAL PRECEDENT
ONLY. COURT OF ...