Bowman v. Bowman

• Decision Date: 06 March 2018
• Docket Number: A17A2082
• Parties: BOWMAN v. BOWMAN.
• Court: Georgia Court of Appeals

345 Ga.App. 380

811 S.E.2d 103

BOWMAN

v.BOWMAN.

A17A2082

Court of Appeals of Georgia.

March 6, 2018

Reconsideration Denied March 21, 2018

Johnson, Kraeuter & Dunn, Jonathan V. Dunn, Savannah, for appellant.

Balbo & Gregg, A. J. Balbo, Richmond Hill, for appellee.

Miller, Presiding Judge.

In this case, we must determine whether a Georgia trial court had jurisdiction over a petition requesting custody of two minor children under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), OCGA § 19-9-61.¹ While visiting family in Georgia from Michigan, Chelsey Bowman filed a complaint seeking custody of her minor children from her husband and the children’s father, Luke Bowman. The trial court concluded that it had jurisdiction over the petition pursuant to the UCCJEA. Luke sought interlocutory review, which this Court granted. We now conclude that the trial court erred in finding that jurisdiction was proper here. Accordingly, we reverse the trial court’s order and remand for the trial court to dismiss the petition for lack of jurisdiction.

We review a question of subject-matter jurisdiction de novo. Kogel v. Kogel , 337 Ga. App. 137, 140, 786 S.E.2d 518 (2016). So viewed, we begin with a recounting of this case’s complicated procedural history. Luke and Chelsey married in Georgia in 2009. Their son was born in Georgia in 2011. In 2012, the family moved to Michigan, and their daughter was born there in 2013. For approximately one year, the family moved around Michigan. They then moved to Wisconsin for Luke’s job, and they remained there for a year. When Luke’s job ended, he moved to Indiana, and Chelsey remained in Wisconsin until the lease on their home terminated. At that time, Chelsey and the children returned to Michigan in October 2015, where they stayed with different members of Luke’s family for one month.

In November 2015, Luke and Chelsey brought the children to Georgia to visit Chelsey’s family for Thanksgiving. The parties agree that the plan was for Chelsey and the children to return to the midwest after the holiday.² However, after Luke left Georgia, Chelsey became concerned that he had engaged in an extra-marital affair, and she immediately filed an ex parte motion in Georgia for custody of the children. In December 2015, the trial court granted temporary custody to Chelsey.

Luke moved to vacate the ex parte order, arguing that the Georgia court lacked jurisdiction to enter the custody award because the children had no significant connection to Georgia. Chelsey opposed the motion, and both parties submitted numerous affidavits to show the ties the children had in Michigan and Georgia.

The trial court held a hearing in Georgia in January 2016 to address the issue of jurisdiction. Shortly before that hearing, Luke filed for divorce in Michigan.

In February 2016, a Michigan trial court also held a hearing to determine which state was the proper jurisdiction for the custody dispute. The Michigan court heard testimony from Luke and Chelsey, as well as Luke’s mother. After considering the family ties in each state, the Michigan court concluded that there was no basis for that state to exercise jurisdiction. Luke filed an appeal of the Michigan court’s decision and also moved to dismiss the Georgia trial court’s order. When the case returned to the trial court in Georgia, the trial court held the case in abeyance pending the outcome of the Michigan appeal.³

In October 2016, the Michigan Court of Appeals issued its decision upholding the determination that jurisdiction was proper in Georgia, but remanding because the trial court failed to communicate with the Georgia court before reaching its decision. The parties then returned to court in Georgia in December 2016, at which time the trial court spoke with the judge in Michigan and they agreed that jurisdiction was proper in Georgia. During that hearing, the parties stipulated that neither Michigan nor Georgia was the children’s "home state," under the UCCJEA, and both the Michigan and Georgia judges agreed that the children had a significant connection to both states. The Georgia trial court also considered whether Chelsey had improperly filed the ex parte motion for custody and found that she had not done so. The trial court then reinstated its ruling finding that it had jurisdiction under OCGA § 19-9-61 (a) (2) and (a) (4), and made a blanket statement that the children had a significant connection with the state that warranted the exercise of jurisdiction. This interlocutory appeal followed.⁴

In three interrelated enumerations or error, Luke argues that the trial court erred in exercising jurisdiction over the custody dispute because (1) the ex parte order failed to meet the standard for conferring emergency jurisdiction; (2) the trial court ignored evidence of Chelsey’s misconduct in filing the emergency petition; and (3) the trial court failed to consider which state had the more significant connection to the children. After a thorough review of the record, we find that the trial court failed to make the requisite factual findings before concluding that it had jurisdiction.

1. Luke first argues that the trial court erred in exercising emergency jurisdiction because there was no basis to grant such relief under OCGA § 19-9-64. We find no reversible error.

(a) Under OCGA § 19-9-64 (a), the trial court may exercise emergency jurisdiction when "the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse." Generally, to exercise jurisdiction under this statute, there must be an immediate danger of harm or abuse. See Prabnarong v. Oudomhack , 334 Ga. App. 723, 726, 780 S.E.2d 393 (2015).

Alternatively, under the UCCJEA, a trial court has jurisdiction to make an "initial custody determination" if certain jurisdictional requirements are met. OCGA § 19-9-61 (a). The term "initial determination" is defined as "the first child custody determination concerning a particular child." See OCGA § 19-9-41 (8).

Thus, even if there was no basis for emergency jurisdiction under § 19-9-64, given that no other state had a pending custody petition before it, the trial court properly considered whether it had jurisdiction under OCGA § 19-9-61. Any error in considering the emergency custody motion is rendered moot by the trial court’s subsequent ruling on the jurisdictional question. Delgado v. Combs , 314 Ga. App. 419, 421 (1), 724 S.E.2d 436 (2012).

(b) Luke argues, however, that Chelsey’s alleged misconduct in invoking emergency jurisdiction required the trial court to decline to exercise jurisdiction regardless of whether the jurisdictional prerequisites of the UCCJEA were met and that the trial court erred in failing to consider evidence of her misconduct.

Here, the trial court found that Chelsey did not engage in any misconduct, and we must defer to that factual finding. Parke v. Fant , 260 Ga. App. 84, 86 (2), 578 S.E.2d 896 (2003). Moreover, our conclusion in Division 1 (a) that the Georgia trial court could consider the initial custody determination regardless of the emergency petition essentially renders Chesley’s conduct irrelevant, and we need not consider whether the trial court reviewed Luke’s evidence of Chesley’s alleged misconduct. Furthermore, even if there had been some misconduct, the UCCJEA does not require a court to decline to exercise jurisdiction where, as here, both the Michigan court and the Georgia court expressly determined that jurisdiction in Georgia was the more appropriate and convenient forum.⁵ Therefore, assuming that Georgia had jurisdiction, the trial court was not required to decline to exercise that jurisdiction.

2. We thus turn to whether the trial court properly exercised jurisdiction under the UCCJEA after finding that the children had more significant connections to Georgia than to Michigan. We now conclude that the trial court erred.

(a) The UCCJEA sets forth the circumstances in which a court of this state has jurisdiction to make an initial custody determination. The purposes of the UCCJEA are to

(1) avoid jurisdictional competition, (2) promote cooperation between courts of different states, (3) discourage use of the interstate system to continue custodial controversies, (4) deter child abductions, (5) avoid relitigation of custody decisions in other states, and (6) facilitate enforcement of decrees by other states.

(Citation omitted.) Delgado , supra, 314 Ga. App. at 425 (1), n. 10, 724 S.E.2d 436. To these ends, OCGA § 19-9-61 provides,

(a) Except as otherwise provided in Code Section 19-9-64 [providing for emergency jurisdiction], a court of this state

has jurisdiction to make an initial child custody determination only if:

(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Code Section 19-9-67 [setting out factors for inconvenient forum] or 19-9-68 [where jurisdiction is wrongfully obtained] and:

(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;

(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is

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