Mitchell v. Mitchell, 74473

• Decision Date: 05 November 1987
• Docket Number: No. 74473,74473
• Citation: 184 Ga.App. 903,363 S.E.2d 159
• Parties: MITCHELL v. MITCHELL et al.
• Court: Georgia Court of Appeals

Page 159

363 S.E.2d 159

184 Ga.App. 903

MITCHELL v. MITCHELL et al.

No. 74473.

Court of Appeals of Georgia.

Nov. 5, 1987.

Rehearing Denied Nov. 19, 1987.

Certiorari Denied Jan. 14, 1988.

Galen P. Alderman, Elsie H. Griner, Nashville, for appellant.

William S. Perry, Nashville, for appellees.

CARLEY, Judge.

A series of cases ultimately culminates in this appeal. The series begins with the judgment and decree of divorce issued in 1982 by the Superior Court of Berrien County dissolving the marriage of appellee Mrs. Dana Mitchell and appellant Mr. Richard Mitchell (Divorce Action). The decree in this Divorce Action incorporated a settlement agreement whereby the permanent custody of Mr. and Mrs. Mitchell's only child was awarded to appellee Mrs. Mitchell and visitation rights were granted to appellant.

Subsequently, appellant filed a complaint requesting a change with regard to his visitation rights (Parental Visitation Rights Action). Appellant was represented in his Parental Visitation Rights Action by an attorney. Appellant's visitation rights were eventually amended in conformity with a new settlement agreement executed by the parties and entered as an order of the court.

Shortly thereafter, in January of 1984, appellant filed a petition for change of custody (Parental Custody Action). In this Parental Custody Action, the trial court entered an order which did the following: granted temporary custody to appellant on the condition that he not remove the child from Berrien County until further order of the court; granted temporary visitation rights to the maternal grandparents, appellees Mr. and Mrs. Turner; and, set a date for a hearing on permanent custody. Prior to the date set by the trial court for the hearing on permanent custody, however, appellant filed an agreement with the court. This agreement, which was signed by both appellant and appellee Mrs. Mitchell, purported to give permanent custody of the child to appellant. Although this agreement between Mr. and Mrs. Mitchell as to permanent custody was filed with the court, it was never incorporated into an order of the court. No hearing on appellant's petition for permanent custody was held and, shortly after the change of custody agreement had been filed with the court, appellant left Georgia with the minor child.

Less than six months later, appellees Mr. and Mrs. Turner filed their independent action for grandparents' visitation rights (Grandparents' Visitation Rights Action). This Grandparents' Visitation Rights Action was brought under OCGA § 19-7-3 and appellant was named as the defendant therein. There is a dispute as to whether appellant, who was no longer living in Georgia, was ever served with the petition for grandparents' visitation rights. However, it is clear from the record that appellant did not appear to contest appellees Mr. and Mrs. Turner's claim and that the court entered a final order which granted to them the grandparents' visitation rights that they sought. The attorney who represented appellees Mr. and Mrs. Turner in their Grandparents' Visitation Rights Action and who has continued to represent them in all subsequent proceedings is the same attorney who represented appellant in his Parental Visitation Rights Action.

Subsequently, in June of 1986, appellee Mrs. Mitchell went to Oklahoma, where appellant was then living with the child. Under circumstances that remain unclear, appellee Mrs. Mitchell returned with the child to Berrien County. Appellant swore out a warrant against appellee Mrs. Mitchell for "child stealing" and in late June of 1986, she was arrested in Berrien County under the Oklahoma warrant.

On June 30, 1986, appellees Mr. and Mrs. Turner filed a pleading which they styled as an amendment to the petition which had initiated their Grandparents' Visitation Rights Action in 1984. In this amendment, appellees Mr. and Mrs. Turner sought custody of their grandchild (Grandparents' Custody Action). The trial court granted appellees Mr. and Mrs. Turner temporary custody pending a hearing on permanent custody.

On July 10, 1986, the trial court conducted a hearing and entered an order which purported to consolidate the following series of cases: the original 1982 Divorce Action; appellant's 1984 Parental Custody Action; and, appellees Mr. and Mrs. Turner's 1984 Grandparents' Visitation Rights Action and their 1986 Grandparents' Custody Action. Thereafter, the trial court entered a final judgment in the consolidated case which granted permanent custody of the child to appellees Mr. and Mrs. Turner and which granted to appellee Mrs. Mitchell and appellant only limited visitation rights. Pursuant to this court's grant of his application for a discretionary appeal, appellant brings this appeal from the trial court's order awarding permanent custody of his son to appellees Mr. and Mrs. Turner.

1. Several of appellant's enumerations of error relate to the issue of the jurisdiction of the trial court.

The Parental Custody Action, which had been filed by appellant in 1984, had only resulted in an award of temporary custody to appellant. "[A] judgment awarding temporary custody is not a final judgment but only interlocutory and does not adjudicate the parental rights of the parties nor suspend them...." Adams v. State, 218 Ga. 130, 132-133, 126 S.E.2d 624 (1962). The agreement between Mr. and Mrs. Mitchell purporting to give permanent custody to appellant was of no legal effect, did not serve to terminate the Parental Custody Action, and appellee Mrs. Mitchell thereafter still retained permanent custody pursuant to the divorce decree. "Where the issue of custody has been previously adjudicated by a court of competent jurisdiction in a divorce case, the children become wards of the court, and no contract of the parties attempting to change custody of the children is binding on the court. [Cits.]" Wood v. Knight, 221 Ga. 746, 748(1), 146 S.E.2d 880 (1966). Although the agreement between Mr. and Mrs. Mitchell purporting to change permanent custody to appellant was filed with the court, it was never incorporated into an order of the court. Fortson v. Fortson, 195 Ga. 750(2), 25 S.E.2d 518 (1943).

It follows that there was never a final order which terminated the Parental Custody Action. Since five years had not elapsed subsequent to the last order which had been entered in the Parental Custody Action, it follows that that action was still pending before the trial court. Since the Parental Custody Action was still pending, it follows that the trial court had personal jurisdiction over appellant, who initiated that action, and jurisdiction over the subject matter of the permanent custody of the child. " 'A court, having obtained jurisdiction, retains it until the final disposition of the cause.' [Cit.]" Slater v. Slater, 216 Ga. 242, 245, 115 S.E.2d 353 (1960). See also Brewer v. Williams, 210 Ga. 341(1), 80 S.E.2d 190 (1954); Terhune v. Pettit, 195 Ga. 793, 25 S.E.2d 660 (1943).

2. Appellant enumerates as error the trial court's grant of permanent custody, contending that appellees Mr. and Mrs. Turner had filed no viable pleadings pursuant to which the trial court was authorized to award them custody.

The only pleading ever filed by appellees Mr. and Mrs. Turner wherein they sought permanent custody of the child was the purported 1986 amendment to the petition which had initiated their 1984 Grandparents' Visitation Rights Action. A final order in the Grandparents' Visitation Rights Action had been entered long before appellees Mr. and Mrs. Turner had attempted to amend their petition for those visitation rights so as to seek permanent custody. "[A] pleading may be amended after judgment but only insofar as to make it conform to the evidence. [Cit.]" (Emphasis in original.) Buffington v. Nalley Discount Co., 117 Ga.App. 820, 162 S.E.2d 212 (1968). Thus, the 1986 amendment to the petition which had initiated the Grandparents' 1984 Visitation Rights Action could not have initiated a viable Grandparents' Custody Action.

However, the trial court did not hold the hearing and enter its order as to permanent custody of the child based solely on the Grandparents' Custody Action. The hearing was held as to all the cases which the trial court had ordered consolidated, including the 1984 Parental Custody Action which had been initiated by appellant against appellee Mrs. Mitchell. As discussed in Division 1, the Parental Custody Action was still pending in the trial court. In a custody suit initiated by one parent against the other, "[t]he trial court has the power to award custody to third persons...." Guest v. Williams, 240 Ga. 316(1), 240 S.E.2d 705 (1977). See also Cothran v. Cothran, 237 Ga. 487, 228 S.E.2d 872 (1976); Larson v. Gambrell, 157 Ga.App. 193, 276 S.E.2d 686 (1981). Since the Parental Custody Action was still pending at the time of the hearing, it follows the trial court had the legal authority to award permanent custody to appellees Mr. and Mrs. Turner notwithstanding the fact that they themselves had not initiated their own viable action seeking custody.

3. Appellant enumerates the grant of permanent custody to appellees Mr. and Mrs. Turner as erroneous for lack of sufficient evidence.

"[A]n award of child custody to a third party must be based upon more than the 'best interests' of the child because such an award is in derogation of the right to custody of the parent, in whose custody the law presumes the child's best interest will be served. Thus, it is only when the present unfitness of the parent is established...