Carr v. Carr, A92A1978

• Decision Date: 22 February 1993
• Docket Number: No. A92A1978,A92A1978
• Citation: 207 Ga.App. 611,429 S.E.2d 95
• Parties: CARR v. CARR.
• Court: Georgia Court of Appeals

Page 95

429 S.E.2d 95

207 Ga.App. 611

CARR v. CARR.

No. A92A1978.

Court of Appeals of Georgia.

Feb. 22, 1993.

Reconsideration Denied March 5, 1993.

Certiorari Granted May 3, 1993.

Heyman & Sizemore, William H. Major, Atlanta, for appellant.

Rumsey & Ramsey, Penelope W. Rumsey, Atlanta, for appellee.

ANDREWS, Judge.

We granted the application for appeal in this child custody matter to determine the validity of the trial court's order granting summary judgment.

The parties here, Pitts and Virginia Carr, were divorced by final judgment and decree of the Fulton Superior Court effective July 23, 1987. The decree awarded shared custody to the parties of their minor child, William, born in 1983, and ordered that "meaningful decisions be jointly made whenever possible." Under the decree, the mother was the primary custodial parent and the father was the secondary custodial parent. At the time of the decree both parties resided in Atlanta.

The decree set forth the court's finding that both parents had equal parenting skills and interest in the child. The court stated: "because the child appears to be well-adjusted to his routine and environment, the Court feels that it would be in the best interest of the child that in the event that either parent moves to another city (outside the metropolitan Atlanta area) or another state, then the primary residence of the child shall be with the non-moving parent who shall become the primary custodial parent if he or she is not already so designated and the parent who has moved to another city in another state will have the same visitation rights with the child as are here and above stated for the original secondary custodial parent." There was no appeal from that decree.

Mrs. Carr filed this action for a declaratory judgment on October 16, 1991. In her action, she requested the court to declare void that portion of the decree which she described as a "self-executing change of custody," contending that the provision constituted an impermissible attempt to prevent the parties' minor child from being taken outside the Atlanta area to live and was void. She also sought an increase in child support payments.

Mrs. Carr then filed a motion for summary judgment in which she argued that she was entitled to a judgment declaring that the portion of the decree which stated that the parent who remained in Atlanta would be the custodial parent amounted to an unenforceable attempt on the part of the trial court to retain jurisdiction over the issue of custody. Mr. Carr also filed a motion for summary judgment in which he contended that the provision was not void as an attempt to retain jurisdiction, but was valid and enforceable as a self-executing change of primary custodian and change of visitation. The court granted Mrs. Carr's motion and denied Mr. Carr's motion. The court's order found that "any provision which would foreclose the Court from consideration of other factors related to the child's best interest is void. OCGA § 19-9-5(b)." The court then determined that the subject provision of the decree constituted an impermissible attempt to retain permanent jurisdiction of custody issues in the trial court. From this order, Mr. Carr appeals.

In his first enumeration of error, Mr. Carr claims that the trial court erred in ruling that the self-executing provision in this joint custody order was void as a matter of law. He argues that this determination violates the spirit of the joint custody provisions of OCGA § 19-9-6.

We agree. Although a line of cases arguably supports the trial court's ruling here, see, e.g., Evans v. Allen, 212 Ga. 193(1), 91 S.E.2d 518 (1956); Anthony v. Anthony, 212 Ga. 356, 92 S.E.2d 857 (1956); Connell v. Connell, 222 Ga. 765(3), 152 S.E.2d 567 (1966); Hollingsworth v. Peck, 226 Ga. 95, 172 S.E.2d 839 (1970); these cases involve neither joint custody under OCGA § 19-9-6, nor self-executing orders. In all of the above cases, the Supreme Court determined where the custody of a child had been awarded to one parent, provisions of the divorce decree prohibiting removal of the child from the jurisdiction of the court were void.

Here, contrary to Mrs. Carr's assertions, the original order provided for joint custody of the child--it specifically stated that custody would be "shared." The order evinces an intent for all of the decisions regarding the child to be shared. Despite Mrs. Carr's attempts to characterize her custody of the child as sole, we find that the custody was joint. See generally OCGA § 19-9-6.

Because custody was with both parents and because the order was a self-executing provision which simply changed the primary custodial parent, the objected to portion of the trial court's order was not void. That part of the court's decree was necessary so that neither parent could defeat joint custody. Unlike the cases above, the order did not prohibit Mrs. Carr from moving, it simply set forth self-executing consequences if she decided to do so. Thus, the order was...