The new year started out slowly. In January 2019, two new custody related appellate opinions, and only one other family law related opinions were released.
Plummer v. Plummer, 305 Ga. 23 (2019)
The parties were divorced in Camden County in 2013. Mother, who lived in Florida, had primary physical custody of their child, and Father had visitation. In 2015, Father filed a custody modification action in Camden County, where he still lived. Shortly thereafter, the Navy transferred him to Virginia, and Mother filed a motion to dismiss. The trial court granted her motion, reasoning that pursuant to O.C.G.A. §19-9-62(a)(2), it lost subject matter jurisdiction since both parents and the child no longer lived in Georgia. Father appealed to the Court of Appeals, which affirmed the trial court’s dismissal in Plummer v. Plummer, 342 Ga. App. 605 (2017). Father then petitioned for certiorari, which the Supreme Court granted to address the proper interpretation of O.C.G.A. §19-9-62 (a)(2), a provision of Georgia’s Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Reversed. Jurisdiction attaches as of the filing of an action. Thus, since Father lived in Georgia when he filed the modification action, the trial court erred in dismissing his petition. O.C.G.A. §19-9-62(a)(2) provides that a Georgia court retains exclusive, continuing jurisdiction over its custody determinations unless and until a court determines that both parents and the child no longer reside in Georgia. However, the statute, which is almost identical to §202 of the UCCJEA, does not expressly address at what point this determination should be made. The Supreme Court rejected Mother’s argument that the trial court properly made this determination at the time it dismissed Father’s modification action. Instead, the Supreme Court recognized the domestic relations general background rule in Georgia, that jurisdiction is determined as of the time an action is filed. The Court also recognized that consistent with this background principle, the official comments to §202 of the UCCJEA explain that jurisdiction attaches when a case is filed, and other states that have addressed this question have reached the same conclusion.
Reid v. Lindsey, 348 Ga. App. 425 (2019)
D.R. lived almost exclusively with Lindsey, his paternal grandmother, for the first ten years of his life. He had regular contact with his parents and siblings, and Reid, his father, periodically provided financial support. However, Lindsey provided most of his support, and made most decisions regarding his care. When D.R. was five years old, his mother died. Reid remarried twice, and had a child with his second wife. When D.R. was ten years old, Reid terminated all unsupervised contact with Lindsey, and moved D.R. into his home. Shortly thereafter, Lindsey filed a petition for primary custody of D.R. (later amended to include a claim for visitation). A Guardian ad Litem and a Parent Coordinator were appointed. The trial court temporarily granted Lindsey’s visitation request, subject to scheduled extracurricular activities. Thereafter, Reid scheduled numerous extracurricular activities that interfered with, or prevented Lindsey’s visitation.
At the final trial, D.R.’s counselor testified that visitation with Lindsey would be “emotionally damaging” to D.R. The Guardian ad Litem, however, expressed concerns about D.R.’s counseling, and instead recommended visitation for Lindsey, with no special accommodations for D.R.’s sports activities. Likewise, the Parent Coordinator testified to the strong emotional bond between Lindsey and D.R. She opined that denying contact between them would be traumatic for D.R., and that Lindsey’s visitation should take precedence over extracurricular activities. In its final order, the trial court granted Lindsey’s visitation request, subject only to school related extracurricular activities, and giving her discretion as to whether D.R. attends non-school related activities. The trial court also reallocated the Guardian ad Litem fees, requiring Reid to pay half. Reid appealed from the trial court’s order.
The Court of Appeals affirmed the trial court’s grant of visitation to Lindsey, but reversed the reallocation of Guardian ad Litem fees. The Court held initially that the trial court’s findings of fact were specific and sufficient enough to support its conclusions. The trial court’s finding that denying visitation would likely be harmful to D.R.’s health or welfare was authorized by O.C.G.A. §19-7-3(c)(1), since he lived with Lindsey for more than six months, and since she provided for his care and financial support for at least one year. Furthermore, because of their pre-existing and long standing relationship, O.C.G.A. §19-7-3(c)(3) authorized the trial court to presume that D.R. might suffer harm if he is denied contact with Lindsey. In reaching these conclusions, the trial court was authorized to disregard the testimony of D.R.’s counselor, and instead rely on the testimonies of the Guardian ad Litem and the Parent Coordinator. Additionally, the Court held that in these unique circumstances, the evidence was clear and convincing that the visitation schedule, as set out in the order, was in D.R.’s best interests.
The Court of Appeals rejected Reid’s argument that the trial court’s order violates O.C.G.A. §19-7-3(c)(4), which provides that Lindsey’s visitation shall not interfere with D.R.’s “school or regularly scheduled extracurricular activities.” The Court reasoned that if, as in this case, extracurricular activities undermine visitation awarded pursuant to O.C.G.A. §19-7-3(c)(1) or §19-7-3(c)(3), then the latter two code sections would be rendered meaningless. Accordingly, the trial court was authorized to find in this case that it was in D.R.’s best interests to distinguish between school related and non-school related extracurricular activities, and to prioritize Lindsey’s visitation over non-school related activities.
Finally, the Court reversed the portion of the trial court’s order that required Reid to pay half of the Guardian ad Litem fees. The consent order appointing the Guardian ad Litem provided that Lindsey would pay all of the retainer and fees, “subject to reallocation.” That provision, however, is contrary to O.C.G.A. §19-7-3(e)(1), which requires Lindsey to bear all of the Guardian ad Litem expenses. The parties can agree to many things in a consent order, but they cannot agree to anything prohibited by statute or public policy. Thus, the reallocation provision of the consent order has no legal effect.
This Court of Appeals opinion is physical precedent only. Court of Appeals Rule 33.2(a).
Related Cases Released in January, 2019:
Murphy v. O’Keefe, 348 Ga. App. 344 (2019)
The evidence was insufficient to show that the complained-of conduct fell within the statutory definition of stalking.