Lynch v. Horton, A09A1934 (Ga. App. 3/3/2010), A09A1934.

• Decision Date: 03 March 2010
• Docket Number: A09A1934.
• Parties: LYNCH, v. HORTON.
• Court: Georgia Court of Appeals

Page 1

LYNCH, v. HORTON.

A09A1934.

Court of Appeals of Georgia.

Decided: March 3, 2010.

MILLER, Chief Judge.

After a New Jersey appellate court vacated a trial court's custody award to Chesare Horton on jurisdictional grounds, Horton filed a petition for modification of custody, visitation and child support against Deborah Hinton-Lynch in Cobb County, seeking custody of their minor daughter. The trial court awarded sole custody of the child to Horton, and Lynch appeals, arguing that the trial court erred in granting Horton's petition because (i) Horton did not move to set aside the domesticated New Jersey judgment; (ii) Horton filed his petition as a counterclaim; (iii) the trial court failed to find that Horton had unclean hands notwithstanding evidence that he took the child across state lines, in violation of Lynch's custodial rights; and (iv) Horton failed to prove a material change of circumstances affecting the minor child to warrant a change in custody. Finding the existence of material conditions affecting the child's welfare which would warrant a change of custody and promote the child's best interest, we affirm the trial court's order modifying custody.

We will affirm a trial court's decision on a petition to change custody if there is any reasonable evidence in the record to support it. See Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009). "When reviewing a child custody decision, this [C]ourt views the evidence presented in the light most favorable to upholding the trial court's order." (Footnote omitted.) Id.

So viewed, the evidence shows that Lynch and Horton are the parents of a minor daughter, T.H. Horton filed a petition to legitimate T.H., and in 2002, the trial court issued an order declaring T.H. to be Horton's legitimate child; awarding Lynch sole custody; and granting Horton supervised visitation for two years, followed by unsupervised visitation. By separate consent order, Horton was obligated to pay child support to Lynch. Later in 2002, Lynch moved to New Jersey. Thereafter, on several occasions, Horton had little or no visitation with T.H. because Lynch was either not at home or had moved when he traveled from Georgia to New Jersey to visit with the child. Nor did Lynch communicate with Horton or return his phone calls. In October 2004, when Lynch took T.H. to her mother and stepfather's home in North Carolina, she failed to inform Horton of such fact. T.H. remained with Lynch's mother and stepfather until late January 2005.

In October 2004, Lynch filed a petition in New Jersey to reinstate Horton's supervised visitation, alleging that Horton had left T.H. in the care of his 12 year-old daughter and had smoked in the presence of T.H., who had asthma. Lynch's petition was scheduled for a hearing on January 30, 2005, but Lynch failed to appear, and the trial court issued a bench warrant for her arrest. The New Jersey trial court rescheduled the hearing for the following day and allowed Horton to appear by phone. On that same day, Lynch's mother's husband, Bruce Frierson, called Horton to inquire about his whereabouts. Based on that telephone call, Horton picked up T.H. from Lynch's mother's house in North Carolina and returned to Georgia with the child.

On January 31, 2005, the New Jersey trial court denied Lynch's petition and entered an order finding that Lynch had no standing to modify Horton's visitation because she had relinquished custody of the child to "someone outside the Court's order," i.e. Lynch's mother. The New Jersey trial court then allowed T.H. to remain with Horton, given that she had been staying with him since the previous day when he picked up T.H. from Lynch's mother's house in North Carolina.

In February 2005, Lynch went to Horton's residence in Georgia, accompanied by Cobb County law enforcement, and presented Horton with a forged court order purporting to modify the New Jersey order entered on January 31, 2005 and to award custody of T.H. to Lynch. Horton convinced the police that the order appeared to be inauthentic, and the police did not remove the child from Horton's home. On March 3, 2005, at the direction of the New Jersey trial court, Horton filed a petition to modify custody. Following a hearing on March 17, 2005, at which neither Lynch nor her attorney appeared, the New Jersey trial court granted custody of the minor child to Horton and awarded supervised visitation to Lynch ("New Jersey order").

On July 8, 2005, Lynch filed a petition to modify custody in Cobb County, which the trial court denied. Thereafter, Lynch filed a motion to vacate and set aside the New Jersey order, and on September 23, 2008, a New Jersey appellate court concluded that the New Jersey trial court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to modify custody in Horton's favor, vacated the New Jersey order and directed dismissal of Horton's petition for change of custody. On September 24, 2008 and September 25, 2008, Lynch filed actions to domesticate the New Jersey final judgment of dismissal in Cobb County. On September 25, 2008, Lynch advised Horton that she planned to pick up the child. In response, Horton filed a motion for emergency temporary custody of the child and a petition for modification of custody in Cobb County. The trial court issued an order granting immediate emergency custody of the child to Horton, and in December 2008, the trial court awarded sole custody of the child to Horton and supervised visitation to Lynch.

1. For the first time on appeal, Lynch argues that the trial court erred in modifying custody because Horton failed to set aside the domesticated New Jersey judgment and res judicata barred Horton from relitigating a second custody action between the parties. We disagree.

During the hearing on Horton's petition for modification of custody, Lynch failed to object to the proceedings on the grounds asserted above. Absent a contemporaneous objection, this enumeration of error presents nothing for appellate review. See Bell v. Forster, 211 Ga. App. 76 (438 SE2d 145) (1993) (where party failed to challenge trial court's grant of attorney fees based on quantum meruit, the issue was waived on appeal).

2. Lynch contends that the trial court erred in allowing Horton to bring his petition for modification of custody as a counterclaim. We are not persuaded.

OCGA § 19-9-23 (a) provides that "[e]xcept as otherwise provided in this Code section, . . . 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."¹ OCGA § 19-9-23 (c) prohibits bringing a complaint seeking to change legal custody "in response to any other action . . . ." It is well settled that "this statute precludes a counterclaim seeking a change of custody." (Citations omitted.) Seeley v. Seeley, 282 Ga. App. 394, 396 (1) (638 SE2d 837) (2006).

On September 24, 2008 and September 25, 2008, Lynch filed actions to domesticate the final judgment in the New Jersey proceedings in Cobb County. See Wylie v. Blatchley, 237 Ga. App. 563, 564 (1) (515 SE2d 855) (1999); OCGA §§ 9-12-130; 9-12-133. On September 25, 2008, Horton filed his petition for modification of custody and a motion for emergency temporary custody order. Lynch thereafter filed an answer and affirmative defenses to Horton's petition for modification of custody. We cannot conclude from this record that Horton's petition was filed in response to Lynch's action to domesticate the foreign judgment since Horton's petition bears a different case number from Lynch's petitions and the parties' actions were filed almost simultaneously. See Armstrong v. Rapson, 299 Ga. App. 884, 885 (683 SE2d 915) (2009) (where party failed to show error affirmatively from the record, appellate court assumes the judgment below was correct).

3. The trial court's finding to the contrary notwithstanding, Lynch argues that Horton had unclean hands because he took the child from her mother and step-father's house in North Carolina to Georgia when she had lawful custody of the child. Lynch therefore claims the trial court's grant of Horton's petition violated public policy and the unclean hands doctrine under OCGA § 23-1-10 should apply. We disagree.

The unclean hands maxim as set forth in OCGA § 23-1-10 applies to equitable rights which relate directly to the cause of action. Zaglin v. Atlanta Army Navy Store, Inc., 275 Ga. App. 855, 858 (2) (622 SE2d 73) (2005). "[This] rule regarding equitable rights [,] [however,] does not apply in child custody cases." Green v. Krebs, 245 Ga. App. 756, 760 (4) (538 SE2d 832) (2000).² While the trial court is charged with the duty "to exercise its discretion to look to and determine solely what is for the best interest of the child . . . and what will best promote [her] welfare and happiness[,]" the fact that Horton took T.H. from Lynch's mother and step-father with their consent does not mandate a finding that Lynch retain custody of T.H. (Punctuation and footnote omitted.) Id.; OCGA § 19-9-3 (a) (2). Furth...