Holt v. Leiter
| Decision Date | 30 April 1998 |
| Docket Number | No. A98A0520.,A98A0520. |
| Citation | 501 S.E.2d 879,232 Ga. App. 376 |
| Parties | HOLT v. LEITER. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
M.V. Booker, Washington, for appellant.
William M. Wheeler, Thomson, for appellee.
Jerry Holt, father of a boy born February 2, 1991, appeals an order modifying a previous custody order and granting primary physical custody to the son's mother Constance Diane Leiter. Her petition was prompted by Holt and the child's move from Augusta to Alabama without notice to Leiter. Holt raises several procedural issues and contends there is no evidence of a change in the child's condition sufficient to order a change in custody.
The parties were divorced in late 1994, and the separation agreement provided Holt would have custody of the three-year-old boy subject to certain visitation rights. The next year near Christmas, when Leiter attempted to get him from Holt's residence for her court-ordered visit, she was told by Holt's family that he moved with the child to an unknown location. The family warned her not to return to the house or call anymore. Holt had moved the day before. He contended in the trial court that he left Leiter an answering machine message about his plans, but Leiter denied receiving it, and Holt apparently has abandoned this assertion on appeal. According to him, the message contained no address or phone number where he could be reached anyway.
Three months after the aborted visit, on March 11, 1996, Leiter filed a verified petition to modify the McDuffie County custody order. She alleged she was unable to locate the child and sought custody and control. She filed the petition in Richmond County, where Holt and the child had resided before the sudden move to Alabama, and she told the court that service on Holt was unnecessary because Holt's whereabouts were unknown. The court entered an ex parte order awarding custody and control to Leiter and directing all law enforcement officers and officials of the State of Georgia, in the event they could locate the child, immediately to take custody and deliver him to Leiter.
About June 11, Leiter filed an action in Alabama to obtain a writ of assistance to regain physical custody, attaching a copy of the Georgia petition and affidavit. This was apparently Holt's first knowledge of the Georgia action. A hearing was held, and the Alabama court ordered that Holt have an opportunity to challenge the Georgia March order. The order explained that if he did not do so, the child would be turned over to Leiter pursuant to the Georgia order. In the meantime, the child was placed with the Department of Family & Children Services in Alabama.
On June 24, Holt moved to set aside the March order on the grounds that he did not receive notice of the action nor of any hearing. Holt's motion requested that the court set a hearing "concerning the best interests of the child." One week later he moved to dismiss the petition to change custody altogether, contending he was never served with it and no attempt at service had ever been made.
A hearing was held in Richmond County on July 1 to address the two motions. Both parties were present and represented by counsel. The child was still in DFACS custody in Alabama. At the hearing, Leiter attempted to serve Holt by giving a copy of the petition to his attorney. The parties agreed at this hearing that the Uniform Child Custody Jurisdiction Act (UCCJA) applied to the proceedings. The court first addressed the question of subject matter jurisdiction, then venue in Richmond County, then service of process, then whether filing a motion to set aside waives service, and finally, whether the temporary order should remain in effect pending final resolution of the case. Holt and Leiter testified on the merits of the custody issue.
Leiter testified that up until a week or so before the hearing, she had not seen her son since December 11, 1995, a period of over six months. Holt had refused to allow court-ordered visitation on at least five previous occasions. The court received evidence that Leiter obtained contempt citations against Holt for some of these refusals. She described the steps she took to try to locate Holt and their son after Holt left without word. On cross-examination Holt admitted he was not listed in any Alabama phone book, that he had never notified the McDuffie court of his new address, and that he gave no notice of his move or new address to his former employer.
In its order following the hearing the court specifically held it had subject matter jurisdiction of the case pursuant to the UCCJA. The court amended its March order and granted Leiter immediate and extended visitation rights to the child at her home in McDuffie County, in conformity with the Alabama court order. Holt was given limited visitation rights and ordered not to take the child out of Georgia. The court reserved its ruling as to permanent custody until a final hearing could be held. The court apparently also ordered the appointment of a guardian ad litem.
On October 25, Holt's new attorney filed an answer and counterclaim to the petition denying the court had subject matter jurisdiction and raising only one affirmative defense, failure to state a claim.
A hearing was held on October 29 at which both parties, their counsel, and the guardian ad litem were present. The court stated that Holt's procedural motions had been addressed and denied, but Holt pressed the issue of personal jurisdiction, urging there had been no service. The court took the question under advisement, allowed further briefing on it, and decided only the issue of visitation.
On November 1, Holt was formally served with the Georgia petition by personal service and certified mail.
The court entered an order on November 26 stating that in July it had reserved a ruling on personal jurisdiction. It ruled that the action did not commence until proper service on November 1 and that it had personal and subject matter jurisdiction. The court ordered the parties to schedule the matter for final hearing.
On December 20, Holt moved to set aside the November 26 order on the ground that subject matter jurisdiction could not be based on events occurring after Leiter's petition was filed on March 11, 1996.
The final hearing was held on April 4, 1997, before a different judge. The court confirmed the earlier denial of Holt's procedural motions. It gave each party opportunity to review the report of the guardian ad litem. The parties presented evidence on the merits. Leiter reiterated Holt's obstinate prevention of the fulfillment of her visitation rights, the contempt orders against him, and how Holt and the child were gone when she went for the child at Christmas time.
During her testimony she explained that she had begun to deny Holt visitation rights in January 1997 on her attorney's instruction, in response to learning things from the child that led her to believe Holt was about to take the child again and not bring him back. The child had told her Holt was taking him to Alabama during his visitation, which Holt was not allowed to do.
The court in its final order stated that it had previously overruled and denied the motions to set aside and dismiss, and it affirmed those rulings. It found there had been a change in the circumstances affecting the child's welfare and that a change to joint custody would be in the child's best interest. Leiter was designated as the primary physical custodian with visitation rights for Holt.
1. In one enumeration, Holt contends the court did not have subject matter jurisdiction because he was not a resident of Georgia and that venue was not proper in Richmond County.
The parties agree the UCCJA applies to the case. The court determined that a Georgia court had jurisdiction under the UCCJA because it was in the best interest of the child, at least one parent had a significant connection with the state, and there was available in Georgia substantial evidence concerning the child's present or future needs and concerns. Jurisdiction is properly grounded on this finding.1 Holt does not present any argument or citation of authority to rebut this decision. The only reason the child had a growing connection with Alabama was that Holt improperly moved him there from Georgia without notice.
This action was filed at a time when the child's home state under the UCCJA was Georgia, but Holt was not formally served until almost eight months later. Because the court had jurisdiction under the best interest test, moot are the questions of whether the court had subject matter jurisdiction based on the child's "home state" under OCGA § 19-9-43(a)(1) and whether a delay in service of process affects when a proceeding under the UCCJA has commenced for the purposes of determining the home state.
The general purposes of the UCCJA are to: "(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody, which competition and conflict have in the past resulted in the shifting of children from state to state with harmful effects on the children's well-being; ... [and] (5) Deter abductions and other unilateral removals of children undertaken to obtain custody awards."2
Holt waived any question of improper venue by not objecting in writing to the case being brought in Richmond County either in his motion to dismiss, his motion to set aside, or his answer and counterclaim.3 The affirmative defense of improper venue in a child custody case may be waived.4
Also, ... 5 Holt's procedural error eliminates any cause to...
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