Brooks v. Carson

• Decision Date: 19 January 1990
• Docket Number: No. A89A1726,A89A1726
• Citation: 194 Ga.App. 365,390 S.E.2d 859
• Parties: BROOKS v. CARSON.
• Court: Georgia Court of Appeals

Page 859

390 S.E.2d 859

194 Ga.App. 365

BROOKS v. CARSON.

No. A89A1726.

Court of Appeals of Georgia.

Jan. 19, 1990.

Rehearing Denied Feb. 2, 1990.

Betty S. Frazer, Albany, for appellant.

Brown, Phillips & Scoccimaro, Ralph O. Scoccimaro, for appellee.

BIRDSONG, Judge.

This is an interlocutory appeal in a child custody action filed in January 1989 by the child's natural father against the natural mother. A third party, apparently not a relative of either parent, filed a motion to be allowed to intervene as a party defendant for the asserted express purpose of terminating the father's paternal rights and obtaining custody, by challenging his fitness and promoting the best interests of the child.

The intervenor, Mary Carson, contended the natural mother had given her custody of the child by a "transfer of custody agreement" dated August 28, 1986, and that she had had physical custody of the child for three years and had supplied the child with a warm home place; that the child "does not know the [natural father] and is very fearful of living with him," and, as presently situated with Mary Carson, is an excellent student and has a very happy disposition.

Carson averred further that the plaintiff natural father (Michael Brooks) was unfit to raise the child; that he "is presently the stepfather of four children and doesn't even have a telephone and therefore is financially unable to care for the needs of said minor child."

Carson contemporaneously filed a "proposed intervenor answer and counterclaim" to the father's suit against the mother, asserting that the father had wilfully abandoned the child for over one year preceding the filing of his complaint, and further that she (Carson) "is informed and believes that the [p]laintiff is a substance abuser and has in fact sniffed transmission additives in the past in order to satisfy his need for a 'high.' " Her proposed prayer sought, inter alia, termination of the father's parental rights, dismissal of the father's custody suit, and the award of physical and legal custody to herself.

Carson also tendered interrogatories to the father, questioning his previous contacts with the child, the names and ages of his stepchildren and wife, the identity and addresses of all his local relatives, and inquiring into his driving record and as to whether he had ever been charged with or convicted of a crime.

Carson proposed three requests for admission, to-wit: "1. Do you admit or deny that you have not visited with [the child] since August 28, 1986 [the date the mother transferred custody to Carson]? (2) Do you admit or deny that you have not communicated or visited with [the child] for one year preceding the filing of your complaint. (3) Do you admit or deny that you have sniffed 'transmission-go' in the past."

The trial court granted third-party Carson's motion to intervene as defendant, and subsequently, "[b]ased upon the fact that the [father] has not provided support for the minor child ... for three (3) years or more," denied the father's motion for reconsideration. Held:

1. The question arises whether this appeal is timely, because appellant-father did not seek a certificate of immediate review after the trial court's order of intervention executed February 16 and filed February 20, 1989, but did so only after the denial of his March 16 "Motion for Reconsideration of Judgment" (which motion would not ordinarily toll the time for appeal).

We find our appellate jurisdiction to be proper in this case. Appellant's so-called "Motion for Reconsideration" was in substance and procedure actually a motion to dismiss the third-party intervenor for lack of standing. See American Mut. Liability Ins. Co. v. Moore, 120 Ga.App. 624, 171 S.E.2d 751. He timely obtained a certificate of immediate review to its denial, and filed his appeal petition "pursuant to OCGA § 5-6-34(b)," which is the interlocutory appeal statute. The case clearly is one for interlocutory appeal, and therefore his mere misnaming of it as "discretionary" does not affect his stature in this court.

Except for giving his pleadings the wrong names, appellant-father proceeded properly and timely to vacate and appeal the order allowing Mary Carson to intervene in appellant's suit against the mother. There is no magic in nomenclature; we construe pleadings properly filed to serve the best interests of justice, and to reflect their true function and intent. See Frost v. Frost, 235 Ga. 672, 674(1), 221 S.E.2d 567.

As far as the record shows, Ms. Carson herself, without any notice to appellant, prepared the order to intervene and had the trial court execute it ex parte on February 16, only 22 days after the father sued the mother. The record does not show that Ms. Carson ever served a motion to intervene upon appellant prior to obtaining the intervention order ex parte, nor does it appear she served any of the voluminous "proposed" pleadings seeking to terminate his parental rights, except her three-question interlocutories. The record indicates appellant did not even know Mary Carson had, on February 16, made herself a party to his suit against his child's mother.

Carson filed a lengthy "Notice to Produce," which she certified as having served on appellant on February 26. At this point, appellant must have hied himself to the courthouse to find out why Ms. Carson was taking such a commanding interest in his suit against the mother.

The ex parte order to intervene was improper and should have been vacated. Gregory v. Tench, 138 Ga.App. 219, 225 S.E.2d 753. Shortly after appellant found out about it, he properly moved to vacate it by expressly seeking a dismissal of Carson for lack of standing, but called his pleading a "Motion for Reconsideration." His talent for calling things by the wrong name causes much confusion, but his instincts as to the substance of what he was doing stand him well. There was in fact nothing to "reconsider," for no legal judgment had ever been "considered"; but Brooks acted correctly in seeking to vacate the order and dismiss Ms. Carson for lack of standing. The trial court's denial of appellant's misnamed motion seeking to dismiss Carson was timely followed by a certificate of immediate review, and appellant timely sought appeal of it "pursuant to § 5-6-34(b)." Jurisdiction of this case is thus properly lodged in this court by interlocutory appeal.

2. We reverse in part and affirm in part. The trial court was statutorily required to make Ms. Carson a "party," but not for the purposes she proposes.

OCGA § 19-9-50 requires Ms. Carson to be made a party to the father's suit because she has physical custody of the child. The object of that slim codal provision seems to be mainly to ensure the physical custodian produces the child to the court. See OCGA § 19-9-51(a). The Child Custody Intrastate Jurisdiction Act, of which the cited code sections are a part, is to be construed to facilitate its general purpose, which is to eradicate intrastate jurisdictional disputes and conflicts and avoid abductions and the "shifting of children from county to county." OCGA § 19-9-21(a)(1). The Act is to be construed in concert with existing law. Gambrell v. Gambrell, 246 Ga. 516, 272 S.E.2d 70. Nothing in it can increase the substantive rights of any person. Beyond the narrow provision for joinder as a "party" at § 19-9-50, neither the Georgia Code nor any Georgia case law expressly and intentionally gives a third party who is not a relative the right or power to instigate a challenge to the right of a natural parent of the child, if such parent has not lost custody by one of the means established in OCGA § 19-7-1 or OCGA § 19-7-4. We conclude that, although § 19-9-50 requires Ms. Carson to be made a "party" because she has physical custody of the child, the father has the prima facie right to custody, and Carson does not have a right to challenge the father's right to custody in favor of herself, or to do anything to promote her own interests and rights, for she has none. But, she may serve as witness to the only material issue here, viz., the fitness or unfitness of the father as parent; and, she can do that only to the extent she has direct knowledge bearing pertinently on his present fitness.

It was long ago said that the latter code section (OCGA § 19-7-4) referring to the criteria for abandonment by a parent, must be strictly construed in favor of the parent, being a very harsh provision and "permitting as it does the taking of a child from its parent at the instance of any citizen, without regard to the individual right of the applicant." (Emphasis supplied.) Hammond v. Hammond, 90 Ga. 527, 530, 16 S.E. 265. We doubt this statement is entirely true today, or whether it is procedurally correct, or legally and morally proper, to suggest that a child can be taken from its parent by "any citizen."

On the principle of common sense, it is difficult to say persons having the natural concerns of blood and family communion have no place in calling to account an unfit parent of a child sheltered by the family, or whom the family seems to protect. To take such a stand would seem foreign to the precepts of child custody law as far as it seeks to strengthen family stability and accountability.

Therefore, instead of saying a relative has no right to instigate the removal of a child from an unfit parent, the courts have placed such actions under strictest scrutiny. See Blackburn v. Blackburn, 249 Ga. 689, 692, 292 S.E.2d 821. But, it seems clear to us from a review of the cases, that if the law tolerates the natural concern of a relative of the child, it naturally abhors interference between parent and child by third parties who are no relation.

In Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471, which involved a close relation, the Supreme Court held in accord with this court that in a custody dispute between a parent and a third party (a relation), the trial court must first make a determination...