Barfield v. Butterworth, A13A0129.

• Decision Date: 16 July 2013
• Docket Number: No. A13A0129.,A13A0129.
• Citation: 746 S.E.2d 819,323 Ga.App. 156
• Parties: BARFIELD v. BUTTERWORTH.
• Court: Georgia Court of Appeals

323 Ga.App. 156

746 S.E.2d 819

BARFIELD

v.BUTTERWORTH.

No. A13A0129.

Court of Appeals of Georgia.

July 16, 2013.

Shane Michael Geeter, for Appellant.

Amanda S. Petty, Milledgeville, for Appellee.

MILLER, Judge.

This appeal arises from a child custody action involving the competing interests of a child's grandmothers. Juanita Barfield, the paternal grandmother, moved to dismiss the petition for custody Dana Butterworth, the child's maternal grandmother, filed in the Superior Court of Baldwin County, arguing that the superior court lacked subject matter jurisdiction to dissolve letters of temporary guardianship over the child she obtained from the Probate Court of Putnam County after Butterworth commenced this action. The trial court denied Barfield's motion and issued a certificate of immediate review. This Court granted Barfield's application for interlocutory appeal, and Barfield now appeals, arguing that the probate court has exclusive jurisdiction over the appointment and removal of guardians. Concluding that Barfield's temporary guardianship does not deprive the superior court of subject matter jurisdiction to determine whether permanent custody should be awarded to Butterworth, we affirm.

The superior court's decision regarding its subject matter jurisdiction was based on an application of law to undisputed facts, and we therefore apply a de novo standard of review. Snyder v. Carter, 276 Ga.App. 426, 623 S.E.2d 241 (2005).

The record shows that on April 13, 2012, Butterworth filed a verified petition for custody in the superior court against the mother and father of H.H., a female child born March 31, 2010, and the petition was served on the parents on April 18, 2012. On May 30, 2012, Barfield filed a motion to intervene as of right, arguing that she had an interest in the case by virtue of letters of temporary guardianshipthe probate court issued to her on April 25, 2012. ¹ On June 29, 2012, the superior court granted Barfield's motion to intervene. At a hearing that same day, Barfield moved to dismiss Butterworth's petition for custody for lack of subject matter jurisdiction. The trial court denied Barfield's motion.

1. “This Court has a duty to inquire into its jurisdiction to entertain each appeal.” (Citation omitted.) Hammonds v. Parks, 319 Ga.App. 792, 793(2), 735 S.E.2d 801 (2012). At the time we granted Barfield's application for interlocutory appeal, OCGA § 5–6–34(a)(11), provided a right of direct appeal from “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” In the order granting Barfield's application, we stated that if the order that is the subject of an application for interlocutory appeal is subject to direct appeal, we will grant the application as a matter of course. See Spivey v. Hembree, 268 Ga.App. 485, 486 n. 1, 602 S.E.2d 246 (2004). We expressed uncertainty, however, as to whether the General Assembly intended OCGA § 5–6–34(a)(11), to provide a right of direct appeal as to routine pretrial orders that do not actually implicate custody. Accordingly, we directed the parties to address this issue in their briefs.

The jurisdictional issue we asked the parties to address is now moot because, as discussed in Murphy v. Murphy, 322 Ga.App. 829, 747 S.E.2d 21, 22–23, Case No. A13A0206, 2013 WL 3481770, at *1, 2013 Ga.App. LEXIS 620, at *2 (2013), the General Assembly has amended OCGA § 5–6–34(a)(11), effective May 6, 2013, and the subsection, as amended, provides that a party may file a direct appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.” SB 204 §§ 1, 2 (2013). Since the statute as amended “governs only procedure of the courts, ... it is to be given retroactive effect absent an expressed contrary intention.” (Citations omitted.) Polito v. Holland, 258 Ga. 54, 55(2), 365 S.E.2d 273 (1988); Murphy, supra, 322 Ga.App. at ––––, 747 S.E.2d 21, 22–23, 2013 WL 3481770, at *1–2, 2013 Ga.App. LEXIS 620, at *3. Since the trial court's order is not an order “awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt” of such an order, it is not subject to direct appeal. Having granted Barfield's application for interlocutory appeal, however,we exercise our discretion to retain the appeal and review this case on the merits.

2. In her sole enumeration of error, Barfield contends that the trial court lacks subject matter jurisdiction over Butterworth's petition for custody because the petition encroaches upon the probate court's “original, exclusive, and general jurisdiction of ... [t]he appointment and removal of guardians of minors[.]” OCGA § 15–9–30(a)(5). We disagree.

The custody dispute below falls within the broad original jurisdiction the Georgia Constitution confers upon superior courts. The Constitution provides that “[t]he superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution.” 1983 Ga. Const., Art. VI, Sec. IV, Par. 1; see also Ertter v. Dunbar, 292 Ga. 103, 104, 734 S.E.2d 403 (2012). Superior courts have “original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents.” (Citations and punctuation omitted; emphasis supplied.) Stone–Crosby, supra, 318 Ga.App. at 314(1), 733 S.E.2d 842; see also Foltz v. Foltz, 238 Ga. 193(1), 232 S.E.2d 66 (1977) (“[T]he superior courts of this state have subject matter jurisdiction over issues of child custody.”) (citations omitted). Butterworth's petition seeks an award of permanent custody of H.H. and names H.H.'s parents as defendants. Since the petition involves the custody of a child between her parents and a third party, the superior court had jurisdiction in this case.²

Butterworth's petition implicates OCGA § 19–7–1(b.1), which addresses custody disputes between one or both parents and specific third parties. Galtieri v. O'Dell, 295 Ga.App. 797, 798, 673 S.E.2d 300 (2009) ( “Custody disputes between a biological parent and a third-party relative, in this case a maternal grandmother, are directly controlled by OCGA § 19–7–1(b.1)”). A third party seeking custody of a child under OCGA § 19–7–1(b.1), must prove by clear and convincing evidence that the child would suffer physical or emotional harm if custody were awarded to the biological parent, and once this showing is made, must demonstrate that an award of custody to the third party would best promote the child's welfare and happiness. Harris v. Snelgrove, 290 Ga. 181, 182–183(2), 718 S.E.2d 300 (2011); Clark v. Wade, 273 Ga. 587, 599(V), 544 S.E.2d 99 (2001).

Barfield obtained an interest in and became a party to these proceedings only because she procured, with the consent of the parents, letters of temporary guardianship from the probate court after Butterworth filed her petition for custody. To the extent that, due to the letters of temporary guardianship Barfield obtained, these custody proceedings now involve a custody dispute as between non-parents, Butterworth and Barfield, the superior court's custody determination must be made according to the best interest of H.H. Stills v. Johnson, 272 Ga. 645, 649(2), 533 S.E.2d 695 (2000) (holding that “where neither party seeking custody is a parent as defined by Georgia law, a determination of custody is to be made according to the best interest of the child even where there exists an agreement by which a parent of the child has transferred parental power to one of the parties seeking custody.”) (footnote omitted); McFalls, supra, 316 Ga.App. at 191, 728 S.E.2d 820 (applying best interest of child standard in custody dispute between child's paternal great uncle, who was appointed temporary guardian by probate court, and her maternal great aunt and uncle).

As Barfield maintains, “the right to custody of the child is ... the principal attribute of guardianship of the person.” (Citation and punctuation omitted.) Boddie v. Daniels, 288 Ga. 143, 144, 702 S.E.2d 172 (2010); see also OCGA § 29–2–22(a)(1) (appointment of guardian vests in guardian the exclusive power, without court order, to “[t]ake custody of the person of the minor and establish the minor's place of dwelling within this state”). What Barfield fails to acknowledge, however, is that the probate court did not, and under the circumstances of this case, could not purport to decide the issue of permanent custody by appointing a permanent guardian. A permanent guardian may not be appointed where, as here, a child has a natural guardian.³ See OCGA § 29–2–14; Brown v. King, 193 Ga.App. 495, 497, 388 S.E.2d 400 (1989). Here, the probate court awarded Barfield only a temporary guardianship, which neither terminates parental rights nor confers permanent custody. See Sheppard v. McCraney, 317 Ga.App. 91, 92 n. 3, 730 S.E.2d 721 (2012). A temporary guardianship is “intended to encourage parents experiencing difficulties to temporarily turn over the custody and care of children—safe in the knowledge that they will be able to regain custody [from the temporary guardian] in the future.” (Emphasis supplied.) Boddie, supra, 288 Ga. at 146, 702 S.E.2d 172. Thus, parents exercise significant authority over the establishment and termination of a temporary guardianship. For example, where, as apparently occurred here, a petition for temporary guardianship attaches notarized consents from the sole or both parents, the probate court “shall grant the petition without further notice or hearing.” OCGA § 29–2–6(a).⁴

A decision by a child's parents to utilize a temporary guardianship, however, does not foreclose the filing of a petition for permanent...