Daust v. Daust
| Decision Date | 16 April 1992 |
| Docket Number | No. A92A0666,A92A0666 |
| Citation | 204 Ga.App. 29,418 S.E.2d 409 |
| Parties | DAUST v. DAUST. |
| Court | Georgia Court of Appeals |
N. Lee Presson, Mary P. Schildmeyer, for appellant.
Susan B. Ellis, Rich, Bass, Kidd & Witcher, R. Hopkins Kidd, for appellee.
This court granted Sylvia Daust's application for interlocutory appeal in order to review the trial court's order denying her motion to dismiss a child custody case for lack of jurisdiction and improper venue. The case began as a contempt proceeding arising out of a divorce awarded in DeKalb County in 1987. Two contempt proceedings were filed, but only the second is relevant to this appeal. This second contempt petition was filed on August 24, 1989. The response from Timothy Daust included a request for a modification of visitation and for other relief. The trial court ordered a temporary change in visitation on June 14, 1990. Subsequently, the appellee filed a "motion to change custody." It is not disputed that this motion was a part of the contempt case and not a separate action. The trial court subsequently entered two consent orders which changed the custody arrangements of the minor children of the parties. The first of these was entered on December 7, 1990, and the second on December 17, 1990. A guardian ad litem was appointed to represent the interests of the children. On January 23, 1991, the trial court entered an emergency order which also dealt with matters related to custody of the children. Some six months later, at a hearing initiated by the court, appellant made an oral motion to dismiss the appellee's motion for a change of custody, alleging that DeKalb County was not the proper venue for that action and that the court lacked jurisdiction. The trial court denied the motion to dismiss in an order entered June 19, 1991.
The appellant's sole enumeration of error is that the trial court erred by denying her motion to dismiss. We disagree. In its order denying the motion to dismiss, the trial court acknowledged the general rule that an action for contempt cannot be the vehicle used by a respondent to modify custody. See Georgia Child Custody Intrastate Jurisdiction Act of 1978, codified in OCGA § 19-9-20 et seq. The trial court further acknowledged the principle that actions for custody are to be brought in the county of residence of the legal custodian. Appellant was the legal custodian of the minor children and a resident of DeKalb County at the time she filed the contempt action. The only evidence in the record regarding her residence at subsequent stages of the proceedings is the recital of the trial court in its order. There it is indicated that she moved first to Fulton County then to Cobb County at some point before the court entered its first order regarding custody on December 7, 1990. Since Sylvia Daust was a DeKalb County resident at the time the original action was filed, the preferred procedural approach in this case would have been for the respondent, Timothy Daust, to have filed a separate action in DeKalb County seeking a change in custody and then to move for consolidation of the two cases. By taking these steps, Timothy Daust would have eliminated any possible jurisdictional challenge. Nonetheless, it is clear from the facts of this case that Sylvia Daust's conduct in entering into consent orders regarding custody has effectively waived any defense which she may have raised. OCGA § 9-12-23 expressly provides that "[t]he consent of the parties to a judgment has the effect of removing any issuable defenses...." There being no showing of fraud or mistake, she cannot now complain....
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