J.S.S., Matter of, s. 70055
| Decision Date | 09 July 1985 |
| Docket Number | 70056,Nos. 70055,s. 70055 |
| Parties | In the Matter of J.S.S. SULLIVAN v. SULLIVAN. |
| Court | Georgia Court of Appeals |
H. Gilman Hudnall, John J. McManus, Atlanta, for appellant.
M.T. Simmons, Jr., James E. Spence, Jr., Decatur, for appellee.
These consolidated cases arise from a common set of facts resulting in the adjudication and determination of the custody of J.S.S., the minor child of the divorced parties, appellant-mother and appellee-father. Following the order of the Juvenile Court of DeKalb County which awarded to appellee permanent custody of J.S.S., as well as the denial of her subsequent motion for new trial, we granted appellant's application for discretionary review.
The procedural facts are as follows: Appellant and appellee were married to each other on October 5, 1974 and J.S.S. was born to them on May 31, 1975. After a separation of approximately one month, appellant filed her petition for divorce in the Superior Court of DeKalb County on August 15, 1978 seeking, inter alia, temporary and permanent custody of J.S.S. in addition to child support, alimony, attorney fees, and certain described personal property. After a hearing, the superior court ordered on September 6, 1978 that temporary custody of J.S.S. be awarded to appellant with specified visitation rights to appellee. In the temporary order, appellee was also required to pay specific sums in attorney fees and each week for child support and alimony. Appellee answered and counterclaimed for divorce on September 18, 1978 denying the material allegations of appellant's petition, except her assertion of entitlement to the custody of J.S.S. After appellant filed a demand for jury trial, appellee filed his motion for partial summary judgment on the pleadings. On April 11, 1979 the superior court granted a total divorce to the parties. 1 The order further expressly stated: "All other issues in the case concerning the wife's right to alimony, [attorney] fees, child support and a division of property are hereby reserved for trial or further determination by the Court."
On September 14, 1979 appellee, then acting pro se, filed a pleading in the same case in the superior court seeking modification of temporary custody and child support. An attached rule nisi set the hearing for October 9, 1979. Appellant, through her attorney moved for a continuance based upon a purported need for time to make discovery as the change of custody case involved complex issues. Appellant's motion for continuance was granted and hearing was set for October 19, 1979, but the record contains no order and apparently no hearing took place. On September 23, 1983 appellee's counsel filed on his behalf a contempt motion against appellant alleging that she refused him the visitation rights with J.S.S. granted by the temporary order of September 6, 1978. In this motion appellee sought enforcement of such visitation rights pending a final resolution of the matter of custody. At the hearing on this motion on September 29, 1983 counsel for both parties stipulated a settlement on appellee's temporary visitation schedule and the motion for contempt was dismissed. Appellee's counsel informed the trial court that he had contacted the clerk of court to request that the matters of permanent custody, visitation and child support be set down for resolution. The interim visitation schedule for October and November was read into the record with appellee's counsel stating that if permanent custody had not been decided by the end of November, counsel for both parties would reach an agreement for visitation until a hearing could be held. Appellant and her counsel agreed with the stipulations. The trial judge of the superior court then announced that if neither party objected, he would transfer the case to the Juvenile Court of DeKalb County for investigation and determination. No objections were raised, and by order signed and entered on September 29, 1983 the superior court transferred the determination of the permanent custody of J.S.S. to the juvenile court.
On January 17, 1984 appellant filed in the superior court a pleading entitled "Motion for Declaratory Judgment or, in the alternative, Motion for Judgment on the Pleadings" seeking a stay of the juvenile court proceedings set to begin January 18, 1984 based upon her claim that permanent custody had already been determined. The superior court declined to rule on this motion. Also on January 17, 1984 appellee filed in the superior court an amendment to his answer and counterclaim in the divorce action which denied appellant's entitlement to permanent custody of J.S.S. and affirmatively sought the award of such custody to himself.
A lengthy evidentiary proceeding was held in the juvenile court and both parties were represented by counsel. By order dated February 23, 1984 appellee was awarded permanent custody of J.S.S. Appellant's motion for new trial was denied on September 6, 1984.
1. In her first enumeration of error, appellant contends that the juvenile court was without jurisdiction over the issue of child custody as the superior court has exclusive jurisdiction over this issue under the facts of this case. We disagree. OCGA § 15-11-5(c) provides: (Emphasis supplied.) Although appellant correctly points out that superior courts are vested with exclusive jurisdiction "in divorce cases" by our state constitution (Ga. Const. Art. VI, Sec. IV, Par. I), our Supreme Court has held that this "does not include the determination of custody of minor children." Wilbanks v. Wilbanks, 220 Ga. 665, 666, 141 S.E.2d 161 (1965). Further OCGA § 15-11-6(b) provides: (Emphasis supplied.)
Insofar as appellant's challenge to the superior court's transfer of the custody issue to the juvenile court may be understood to raise any constitutional violations, we find it to be without merit. First, appellant did not raise any objection on specific constitutional grounds in either the superior or juvenile court. Further, appellant originally filed in the Supreme Court her application for discretionary review in which she raised this enumeration of error. The Supreme Court then ordered this case transferred to this court for decision on the application. "Inasmuch as all cases involving the constitutionality of any state law are solely within the jurisdiction of our Supreme Court and this case was transferred here, we deem that court to have determined that the constitutional issue was not properly raised or was otherwise not before the court on appellate review." Harris v. State, 157 Ga.App. 367, 278 S.E.2d 52 (1981). Even if so raised, it was not meritorious. Egerton v. Jolly, 133 Ga.App. 805 (1), 212 S.E.2d 462 (1975). Moreover, a reading of the case cited by the Supreme Court in its transfer order, Munday v. Munday, 243 Ga. 863, 257 S.E.2d 282 (1979), shows that the Supreme Court declined jurisdiction of appellant's application because the custody question did not also involve a judgment for divorce.
Under OCGA § 15-11-6(b) the superior court was authorized to "transfer the question of the determination of custody and support to the juvenile court for ... investigation and determination." Appellant relies upon obiter dictum in Robinson v. Ashmore, 232 Ga. 498, 499, 207 S.E.2d 484 (1974), to the effect that the superior court may transfer jurisdiction to the juvenile court in habeas corpus actions, but not in cases involving child custody decided in a divorce. We find this unpersuasive in part because Robinson arose from a habeas corpus action and any comment regarding the issue raised in this case is, thus, obiter dictum. More important, the laws of this state have been revised regarding the power of the superior court to transfer the custody controversy to the juvenile court for investigation and determination. In Tallant v. Tallant, 227 Ga. 26(2), 178 S.E.2d 887 (1970), the Supreme Court held the transfer of the determination of child custody from the superior court to the juvenile court to be authorized for the purpose of investigation and determination. The opinion in Tallant was rendered based upon law as it appeared in Code Ann. § 24-2409(2) (Ga.L.1951, pp. 291, 298-99; as amended, Ga.L.1968, pp. 1013, 1022). See also Pitts v. Pitts, 224 Ga. 11, 159 S.E.2d 287 (1968); Burney v. Burney, 222 Ga. 790(1), 152 S.E.2d 871 (1966). This appears to be the precursor to OCGA § 15-11-6(b). In 1971 the Juvenile Court Code was enacted "to revise, classify, consolidate and supersede" the juvenile court laws at that time. Ga.L.1971, p. 709. The provision at issue here authorizing the transfer of custody controversies to juvenile court for investigation and determination was not included and was specifically repealed. Ga.L.1971, p. 756. See generally Showalter v. Sandlin, 229 Ga. 405(2), 191 S.E.2d 828 (1972). This provision...
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