Jones v. Jones, 71842

• Decision Date: 07 April 1986
• Docket Number: No. 71842,71842
• Citation: 178 Ga.App. 794,344 S.E.2d 677
• Parties: JONES v. JONES.
• Court: Georgia Court of Appeals

Page 677

344 S.E.2d 677

178 Ga.App. 794

JONES v. JONES.

No. 71842.

Court of Appeals of Georgia.

April 7, 1986.

Rehearing Denied April 23, 1986.

Certiorari Granted June 4, 1986.

J. William Harvey, Jesup, for appellant.

Ben Kirbo, Bainbridge, for appellee.

BIRDSONG, Presiding Judge.

This court granted an application by the appellant mother, Betina Jones, for discretionary appeal from an order of the Decatur County Superior Court granting custody of her minor child to the father. Betina Jones and Jody Jones, parents of the minor child, were divorced on October 8, 1982. Both parties agreed to custody of the child by the mother and visitation rights by the father. Thereafter, the mother was transferred by her employer to Jesup, Georgia, in Wayne County, a distance of approximately 190 miles from Bainbridge in Decatur County where the father resides. The mother is required to transport the child from Jesup to Bainbridge on two weekends each month to comply with the visitation rights contained in the divorce decree. The mother must remove the child from school on Friday afternoons to comply with the court-ordered visitation rights of the father. Mrs. Jones instituted an action in Decatur County, the county of residence of her former husband, to modify the visitation rights in the divorce decree. Mr. Jones answered and counterclaimed, requesting a change of custody of the minor child from the mother to himself. He contends that the mother, a resident of Wayne County, voluntarily submitted herself to the full jurisdiction of the Decatur County court, thus it had jurisdiction to hear his motion for a change of custody. The court agreed and found venue was proper. The mother's motion to dismiss the counterclaim for improper venue was denied and custody of the child was granted to the father. We granted the mother's application to bring this appeal. Held:

OCGA § 19-9-23 provides, in pertinent part: "(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.

"(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section XIV, Paragraph VI [now Art. VI, Sec. II, Par. VI] of the Constitution of this state.

"(c) No complaint specified in subsection (a) or (b) of this Code section shall be made:

"(1) As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or

"(2) In response to any other action or motion seeking to enforce a child custody order." (Emphasis supplied.)

The mother was the legal custodian by order of the court, and under subsection (b) was required to bring a request for a change in visitation rights in the county of residence of the defendant--under the Constitution. Art. VI, Sec. II, Par. VI, Ga. Const. of 1983. Hence, the mother did not "voluntarily," as suggested by the father, submit herself to the jurisdiction of the Decatur County court, but complied with the requirements of the code and our constitution.

Subsection (a) of this code section mandates that "any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian," except "as otherwise provided in this Code section." It is not "otherwise provided in this Code section" that an application for "a change of legal custody" can be brought in any manner, except as a "separate action" and only within "the county of residence of the legal custodian," in this instance the county of residence of the mother. (Emphasis supplied.)

This change of legal custody petition was brought as a counterclaim in the county of residence of the party not having legal custody. Subsection (c) of OCGA § 19-9-23 provides that any complaint specified in subsection (a) or (b), which includes a change of legal custody, shall not be made as a counterclaim or in response to a petition for habeas corpus or a petition seeking to "enforce" child custody, or as a response to any other action seeking "to enforce a child custody order." Thus, it is arguable that since the legislature omitted any reference in subsection (c) to an action under subse...