Mauldin v. Mauldin, A13A0326.

• Decision Date: 28 June 2013
• Docket Number: No. A13A0326.,A13A0326.
• Citation: 745 S.E.2d 754,322 Ga.App. 507
• Parties: MAULDIN v. MAULDIN, et al.
• Court: Georgia Court of Appeals

322 Ga.App. 507

745 S.E.2d 754

MAULDIN

v.MAULDIN, et al.

No. A13A0326.

Court of Appeals of Georgia.

June 28, 2013.

Elizabeth Mauldin, for Appellant.

Katherine Lindsey O'Gwin, Joel P. Thames, Dalton, Jesse Lee Vaughn, for Appellee.

McMILLIAN, Judge.

Elizabeth Mauldin, pro se, appeals the final order entered by the superior court awarding joint legal custody of her daughter, O.M., to the child's father, Russell Edward Mauldin, and paternal grandparents, Ronald and Pat Mauldin, with primary physical custody to the grandparents. We affirm for the reasons set forth below.

Generally, “[a]ny change in custody is subject to the trial court's discretion based on the best interests of the child. We view the evidence in favor of upholding the trial court's order and will affirm if there is any reasonable evidence to support the decision.” (Citations omitted.) Fifadara v. Goyal, 318 Ga.App. 196, 197, 733 S.E.2d 478 (2012). In this case, however, because the superior court placed joint legal and primary physical custody in the grandparents, and not the mother, the evidence supporting the decision must be clear and convincing. Clark v. Wade, 273 Ga. 587, 599(IV), 544 S.E.2d 99 (2001).

The mother and father were married in 2001; their daughter, O.M., was born in February 2002; and they were divorced in 2003. The divorce and custody agreement, as subsequently modified, apparently awarded the mother primary custody of O.M. and granted the father visitation rights. On July 29, 2008, the father filed a “Petition to Modify Parenting Time and Child Support,” seeking to increase his visitation with O.M. and to decrease his payment of child support. The mother, who was represented by counsel in the proceedings below, opposed the petition and filed a counterclaim for contempt based upon the father's failure to comply with the terms of the divorce decree, including the failure to pay child support. In February 2010, the father filed a motion for contempt based upon the mother's failure to appear or produce O.M. at the time of his scheduled visitation. The superior court ordered the parties to mediation, which was unsuccessful, but the mother and father subsequently reached a preliminary agreement on visitation, and on April 26, 2010, the superior court issued an order memorializing that agreement “pending the outcome of [the mother's] petition filed in the Juvenile Court of Murray County” to terminate the father's parental rights.¹

The paternal grandparents subsequently filed a motion to intervene in the action, seeking custody of O.M. The mother apparentlyfiled a motion opposing the intervention, although it does not appear in the record, but she failed to appear at the hearing on the issue. Following that hearing, on June 29, 2010, the trial court entered a temporary order, granting the paternal grandparents' motion to intervene and placing O.M. in their sole legal and physical custody. Approximately ten days later, Bobby Lee and Peggy Louise Humble, O.M.'s maternal grandparents, filed their own petition to intervene, seeking custody of the child. The superior court later granted the request to intervene, but maintained custody in the paternal grandparents. On August 3, 2010, the superior court appointed a guardian ad litem to represent O.M.'s interest in the proceedings.

During a second court-ordered mediation, the parties reached an agreement regarding certain issues, but the custody issue remained unresolved. At a subsequent hearing on August 18, 2011, the parties announced their agreement to submit the issue of custody to the superior court on stipulated evidence, along with an ex parte interview of the child by the trial judge, in lieu of an evidentiary hearing. The superior court issued its final order granting custody to the paternal grandparents and the father, with visitation to the mother, based on this evidence.

In the mother's initial appeal of this order, this Court was unable to determine whether the appellate record contained all of the stipulated evidence and accordingly remanded the case to the superior court for completion of the record. Following remand, the superior court held a hearing to show the parties the court's proposed supplement to the appellate record and to ensure it was complete. In this appeal, the mother once again challenges the superior court's final custody order.²

1. The mother asserts that the superior court erred in exercising jurisdiction in this case in light of the pending termination proceeding before the Murray County Juvenile Court.

Under the Georgia Constitution, superior courts have “ jurisdiction in all cases, except as otherwise provided in this Constitution.” 1983 Ga. Const., Art. VI, Sec. IV, Par. I; Brine v. Shipp, 291 Ga. 376, 377(1), 729 S.E.2d 393 (2012). Included in this expansive grant of authority is “original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents.” (Citations and punctuation omitted.) Stone–Crosby v. Mickens–Cook, 318 Ga.App. 313, 314(1), 733 S.E.2d 842 (2012). See also OCGA § 19–6–14 (superior court has jurisdiction to determine custody “until the final judgment in [a divorce] case”).

In contrast, the Georgia Constitution grants courts of limited jurisdiction, including juvenile courts, only such jurisdiction as “provided by law.” 1983 Ga. Const., Art. VI, Sec. III, Par. I. And under OCGA § 15–11–28(a)(1)(C), juvenile courts are granted “exclusive original jurisdiction” over an action in which a child “is alleged to be deprived,” which jurisdiction encompasses an award of temporary custody of a child who is adjudicated deprived. Ertter v. Dunbar, 292 Ga. 103, 104–105, 734 S.E.2d 403 (2012). Under certain circumstances, therefore, a juvenile court and a superior court may share concurrent jurisdiction over the temporary custody of children. See Long v. Long, 303 Ga.App. 215, 218(2), 692 S.E.2d 811 (2010). But juvenile courts “[do] not have the authority to award permanent custody without a transfer order from a superior court. OCGA § 15–11–28(c)(1).” Ertter v. Dunbar, 292 Ga. at 105, 734 S.E.2d 403. The record in this case contains no order transferring the issue of custody to any juvenile court; therefore, the superior court retained and properly exercisedits jurisdiction to award permanent custody of O.M.³ See also Stone–Crosby v. Mickens–Cook, 318 Ga.App. at 314(1), 733 S.E.2d 842 (“even when a termination petition is brought in the juvenile court, if it is merely a ‘disguised custody matter’ it is not within the [juvenile] court's jurisdiction”) (citation omitted).

2. The mother also raises a number of issues regarding the stipulated evidence considered by the superior court in issuing its final order.

(a) The mother first asserts that the superior court erred by rendering a ruling based on documents “not recorded in the superior court” before it issued its final decision. She asserts that no “substantiating evidence” exists to demonstrate that the superior court had possession of these documents before it ruled.

But the record is clear that the parties, including the mother, agreed at the August 18, 2011 hearing to stipulate to the admission of certain evidence, including doctors' reports and notes, a video deposition of one of the doctors, school records and the guardian ad litem's report. Some of this evidence was not available at the hearing, and the superior court asked the parties to provide the additional evidence in an expedited manner. The superior court also indicated that all of the parties should get copies of this evidence, so that “everybody know[s] what the Court is looking at.” Although these documents were not formally marked for admission into evidence at that time, the parties were in agreement that the documents were to be submitted as evidence for the superior court to consider in issuing its ruling.

Following this Court's remand of the original appeal, the superior court invited the parties to review and confirm the stipulated documents the court intended to submit as part of the appellate record. The documents were marked as separate exhibits at that time and paginated for inclusion in the appellate record. The superior court stated on the record that the supplemented documents were those submitted by the parties and considered by the court. Moreover, the superior court clarified that it considered only the actual records and not any attorney-prepared summaries in issuing its final order. The mother, who was representing herself pro se, had the opportunity to review the documents prior to their submission to this Court. The record does not indicate that she, or any other party, raised any formal objection to the superior court's proposed submission. Moreover, the mother does not identify any particular omissions or inclusions in the appellate record that do not accurately reflect the documents considered by the superior court. Accordingly, we find no error.

(b) The mother also argues that the superior court erred in relying upon this stipulated evidence because it was hearsay. But by stipulating to the admissibility of the documentary evidence, the mother induced any error and cannot complain that the evidence was hearsay. Haralson v. Moore, 236 Ga. 131, 132(2), 223 S.E.2d 107 (1976). See also OCGA § 15–11–56(a) (“in all proceedings involving custody of a child, all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent” in a hearing).

(c) The mother further asserts that the superior court erred in allowing any reference in the stipulated evidence to Parent Alienation Syndrome because she asserts that it is an unfounded and scientifically invalid theory not recognized by the American Psychiatric Association. But the mother not only failed...