Connell v. Woodward

• Decision Date: 17 November 1998
• Docket Number: No. A98A1530.,A98A1530.
• Parties: CONNELL v. WOODWARD.
• Court: Georgia Court of Appeals

509 S.E.2d 647

235 Ga. App. 751

CONNELL v. WOODWARD.

No. A98A1530.

Court of Appeals of Georgia.

November 17, 1998.

Reconsideration Denied December 14, 1998.

Certiorari Denied April 9, 1999.

Bocher & Richardson, Melody Z. Richardson, Atlanta, for appellant.

Monzer Mansour, Marietta, for appellee.

POPE, Presiding Judge.

We granted John Connell's application to review the superior court's denial of his motion to set aside its judgment on a petition to domesticate and modify a Florida child support order. Because the superior court was without authority to modify the Florida child support order under the federal Full Faith & Credit for Child Support Orders Act ("FFCCSOA"), we reverse its subsequent denial of the motion to set aside.

The record established that Kelly Woodward and Connell were divorced by a 1992 final judgment issued in Florida. Later Woodward brought an action in Florida under URESA to establish paternity and for child support. The Florida court entered a final order on paternity and support on June 16, 1993.

In 1995, Woodward, who had moved with the child to Gwinnett County, filed a "Petition for Recognition and Enforcement of Foreign Judgment, Petition for Modification of Child Support and Motion for Contempt" in the Gwinnett County Superior Court. Her action sought to domesticate and modify the child support ordered by the Florida court and also sought to hold Connell in contempt for his failure to comply with the support provisions of the Florida court's order.

There is no dispute that Connell has continually maintained his residence in Florida for the past 25 years. Nevertheless, Connell was served by process with the petition while he was visiting the child in Georgia, but did not file an answer and did not appear when the case was called for trial. In November 1995, after hearing evidence from Woodward regarding the issues, the Gwinnett County court domesticated the final divorce decree, increased the amount of child support Connell was to pay, found Connell in contempt of the final order and ordered him to pay $750, and awarded Woodward attorney fees.

Connell then filed a motion to set aside the judgment, claiming the Gwinnett court did not have jurisdiction to modify the Florida child support order. Citing Hutto v. Plagens, 254 Ga. 512, 330 S.E.2d 341 (1985), the court rejected Connell's arguments and denied his motion to set aside. From this determination, Connell appeals.

1. In his first enumeration of error, Connell argues that the court erred in failing to grant his motion to set aside the judgment because under the FFCCSOA, Florida has continuing, exclusive jurisdiction. We agree.

The FFCCSOA, 28 USC § 1738B, which was enacted in 1994, requires the appropriate authorities of each state to enforce the terms of a child support order of another state when made in accordance with the act's jurisdictional and due process standards. In subsection (e) the statute provides that in the absence of the parties' written consent, a court of one state "may make a modification of a child support order with respect to a child that is made by a court of another State if—(1) the court has jurisdiction to make such a child support order; and (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any contestant...." ¹ On July 1, 1997, OCGA § 19-6-26, which adopts the provisions of the FFCCSOA, became effective in Georgia.²

Although the precise question raised in this case does not appear to have been addressed by Georgia courts, our Supreme Court interpreted the provisions of the FFCCSOA in Early v. Early, 269 Ga. 415, 499 S.E.2d 329 (1998).³ In Early the couple had been divorced in Georgia, a Georgia court modified the original decree, and then Mrs. Early and the couple's child had moved to California. Robert Early's petition alleged that although he had submitted himself to the jurisdiction of the California court, the California court had declined to exercise jurisdiction because of the provisions of the FFCCSOA. Robert Early thus "moved the Georgia court to enter an order declining to exercise jurisdiction over the modification of support issue so that the California court could assume jurisdiction thereof." Early v. Early, 269 Ga. at 416, 499 S.E.2d 329. In response to this request, the Georgia court entered an order declining to exercise jurisdiction over Robert Early's petition for modification of child support. Our Supreme Court reversed the trial court's order, determining that the FFCCSOA does not grant a court of the state that issued a child support order the discretion to decline to exercise jurisdiction over a child support modification action.

In so holding, our Supreme Court stated: "[u]nder subsection (d) of the FFCCSOA, a court of a state that has made a child support order consistent with that section, `has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant' unless the court of another state was authorized pursuant to subsections (e)(f) or (i) of the FFCCSOA to make a modification of the order. Id. at (a), (d)." (Emphasis supplied.) Early v. Early, 269 Ga. at 416, 499 S.E.2d 329. The Early court decided that, in the absence of the parties' consent, because Georgia was the only state to have issued a valid child support order and Robert Early had remained a resident of Georgia, the Georgia court had retained "exclusive, continuing jurisdiction." Id. at 416, 499 S.E.2d 329. The Early court stated: "we find the statutory language is plain and unambiguous in its requirement that the court of the state that last made a child support order consistent with the FFCCSOA has continuing, exclusive jurisdiction over the order where, as here, one of the parties to the order continues to reside in the state, [28 USC § 1738(B)(d)] unless each individual contestant has filed written consent with the state of continuing, exclusive jurisdiction for a court of another state to modify the order and assume continuing, exclusive jurisdiction over the order, id. at (e)(2)(B), or one of the other provisions in subsection (e), (f), or (i) applies." Early v. Early, 269 Ga. at 416-417, 499 S.E.2d 329. The court concluded that its interpretation of the FFCCSOA comported with the legislation's purpose of drawing a "bright line rule which clarifies that a court of the state with continuing, exclusive jurisdiction over a child support order will in every instance maintain...