Oni v. Oni

• Decision Date: 26 June 2019
• Docket Number: A19A0711
• Citation: 830 S.E.2d 775,351 Ga.App. 400
• Court: Georgia Court of Appeals
• Parties: ONI v. ONI.

351 Ga.App. 400

830 S.E.2d 775

ONI

v.ONI.

A19A0711

Court of Appeals of Georgia.

June 26, 2019

Reconsideration Denied July 10, 2019

Certiorari Denied February 28, 2020

David A. Webster ; Faulhaber Family Law, Tamar O. Faulhaber, for appellant.

Jean M. Kutner ; Hester Outman, James B. Outman, for appellee.

Barnes, Presiding Judge.

Adedamola Olagoke Oni, M.D. (Dr. Oni) appeals from an order depriving him of custody of minor twins that he adopted after their biological mother, Cassondra Oni (Ms. Oni), surrendered her parental rights to the children. Because the trial court impermissibly relied upon its equity jurisdiction in ruling on the custody issue, we reverse the judgment and remand the case.

This is the third appearance of this case before this Court. The first two appearances are set out at Oni v. Oni , 323 Ga. App. 467, 746 S.E.2d 641 (2013) (physical precedent only) (hereinafter, Oni I ), and Oni v. Oni , 336 Ga. App. 278, 784 S.E.2d 112 (2016) (hereinafter, Oni II ). For purposes here, we recite the following background.

After meeting in 2009, Dr. Oni and Ms. Oni¹ began a [romantic] relationship. They discussed the possibility that Dr. Oni would adopt the twins, who were not his biological children. In April 2010, Ms. Oni and her then three-year-old twins moved into Dr. Oni's home. One month prior to that, in March 2010, Ms. Oni and the twins' natural father had surrendered their parental rights to facilitate the twins' placement for adoption. Notably, the surrender documents executed by Ms. Oni stated, inter alia, that she agreed that Dr. Oni "may initiate legal proceedings for the legal adoption of the children without further notice to me. I do, furthermore, expressly waive any other notice or service in any of the legal proceedings for the adoption of the children."

A final decree of adoption was granted to Dr. Oni on August 24, 2010.

(Footnotes omitted.) Oni II , 336 Ga. App. at 279, 784 S.E.2d 112, citing Oni I , 323 Ga. App. at 467-468, 746 S.E.2d 641.

Nearly a year later, and with the relationship between Dr. Oni and Ms. Oni having ended, Ms. Oni filed a motion on July 1, 2011 in Fulton County Superior Court to set aside the adoption. Oni I , 323 Ga. App. at 468-469, 746 S.E.2d 641. Dr. Oni countered that the motion to set aside the adoption decree was statutorily time barred. Id. at 469 (1), 746 S.E.2d 641. The trial court rejected Dr. Oni's contention, and granted Ms. Oni's motion to set aside the adoption. Id. at 469, 746 S.E.2d 641. Also, the trial court granted temporary custody of the twins to Ms. Oni. Id. at 470 (1), 746 S.E.2d 641.

In Oni I , Dr. Oni contended that the trial court erred by granting Ms. Oni's motion to set aside the adoption and giving her temporary custody of the twins. Oni I , 323 Ga. App. at 467, 746 S.E.2d 641. After determining that the adoption decree had been entered pursuant to OCGA § 19-8-18 (b), Oni I recited that " OCGA § 19-8-18 (e) provide[d] that ‘[a] decree of adoption issued pursuant to subsection (b) of this Code section shall not be subject to any judicial challenge filed more than six months after the date of entry of such decree.’ "² Oni I , 323 Ga. App. at 469 (1), 746 S.E.2d 641.³ Oni I next calculated that Ms. Oni's challenge had been filed approximately ten months after entry of the adoption decree, then turned to Ms. Oni's argument that the statutory six-month period in which to challenge an adoption had been tolled by Dr. Oni's (alleged) fraud in concealing the adoption decree from her. Id. Oni I determined that "the language of the statute is unequivocal" and that "the language of OCGA § 19-8-18 (e) brooks no exception." Oni I , 323 Ga. App. at 470 (1), 746 S.E.2d 641. Accordingly, Oni I concluded that Ms. Oni's motion to set aside the adoption was time barred, reversed the contested judgment, and remanded the "case to the trial court for proceedings not inconsistent with [that] decision, necessarily leaving to the trial court's determination whether there [were] appropriate proceedings available to facilitate a transition of the children from Ms. Oni's care to Dr. Oni's care." Id. Ms. Oni's petition for certiorari was denied by the Supreme Court of Georgia.⁴

After the remittitur was entered in the trial court, Ms. Oni filed, and the trial court granted, an amended motion to set aside the adoption. Oni II , 336 Ga. App. at 281, 784 S.E.2d 112. Subsequently, in Oni II , Dr. Oni contended that the trial court lacked authority to set aside the adoption decree, and we agreed. Id. at 282 (1), 784 S.E.2d 112 ("Right or wrong, [ Oni I ] was a final determination of the validity of the adoption decree, and conclusive of that question as between Dr. Oni and Ms. Oni.") (punctuation and citation omitted). Therefore, Oni II reversed the judgment, and remanded the case with direction for the trial court to enter judgment in accordance with Oni I . As Oni II further espoused:

Where the trial court, after hearing a motion to set aside a prior order in a pending case vacates the judgment complained of, and on appeal the trial court's decision is reversed ..., judgment of the appellate court is final. Upon the remittitur from the appellate court being filed in the trial court, the issue is res judicata, and the lower court has no authority to allow the movant to amend his motion. Nor can it hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of [this] court. The only action which that court had authority or power to take [was] to make the judgment of [the appellate] court the judgment of the trial court and to enter an order overruling the motion to vacate.

Oni II , 336 Ga. App. at 282 (1), 784 S.E.2d 112, quoting Shepherd v. Shepherd , 243 Ga. 253, 254-255, 253 S.E.2d 696 (1979).

Upon the remittitur being filed in the trial court, Ms. Oni did not again seek to set aside the adoption. However, she initiated a separate action in the Fulton County Superior Court, filing on May 13, 2016 a "Petition to Establish Custody, Parenting Time, and Child Support and Other Relief." Ms. Oni asserted that she was the children's biological mother, that they had been in her custody nearly all their lives, and that they were then in her custody. Ms. Oni acknowledged that Dr. Oni had adopted the children in 2010, and recounted that she had unsuccessfully attempted to set aside the adoption. Ms. Oni alleged that the children had no relationship with Dr. Oni, and that the children's few memories of him were negative. Ms. Oni claimed that she was a fit, capable, and qualified mother to the children and that it was in the children's best interest to remain with her. Thus, Ms. Oni sought to be awarded, among other things "sole physical and legal custody of the [c]hildren on a temporary and permanent basis."

Dr. Oni argued that Ms. Oni's petition was not viable for numerous reasons, including that Ms. Oni lacked standing because of her surrender of parental rights to the twins and his subsequent adoption of them; that Ms. Oni was thus not authorized to seek (as a third party) custodial rights against him (as the twins' parent); and that Oni I and Oni II , together with doctrines such as res judicata and collateral estoppel, foreclosed Ms. Oni's petition for custody.

The trial court consolidated the case initiated by Ms. Oni's custody petition with the case underlying Oni I and Oni II . And after conducting a hearing, the trial court entered the judgment contested in this appeal. Therein, the court described, "Legally[,] the Petitioner [Ms. Oni] is a stranger to the children, as she surrendered her parental rights to them in March 2010." The court further described, "While Respondent [Dr. Oni] is the legal parent, he is a virtual stranger to the children." The court found that "[r]emoving [the] children forever from the primary caregiver with whom they formed a primary bond and returning them to live with a virtual stranger is likely to cause them significant immediate and possible long-term emotional harm." The trial court concluded that "[t]he harm and damage that would befall the children if they are taken from the primary caregiver whom they have known and lived with almost their entire lives ... must be prevented." Discerning further the constitutional issues underlying the consolidated case, then determining that the case presented peculiar circumstances that "def[ied] the operation of the general rules of law," the trial court turned to its equity jurisdiction to award Ms. Oni "permanent custody" of the twins and to order Dr. Oni to "have no contact with them."

1. In several interrelated claims of error, Dr. Oni maintains that because Ms. Oni surrendered her parental rights to the twins and he subsequently adopted them, the trial court erred by invoking equity as a basis to grant custody to Ms. Oni.⁵ For reasons explained below, we agree.

"Parents⁶ have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children." Clark v. Wade , 273 Ga. 587, 596, 544 S.E.2d 99 (2001) ; see In the Interest of M. F ., 298 Ga. 138, 144-145 (2), 780 S.E.2d 291 (2015) ("The presumption that children ordinarily belong in the care and custody of their parents is not merely a presumption of the statutory and common law, but it has roots in the fundamental constitutional rights of parents.").

Although in most instances it will be found that the legal right of the parent and the interest of the child are the same, if through misconduct or other circumstances it appears that the case is exceptional, and that the welfare of the child requires that it should be separated even from its parent, the parens patriae must protect the helpless and the innocent. ... Thus, in certain circumstances, the legislature may enact statutes that permit a child's interest to prevail over a parent's constitutional right to custody.

(Punctuation and citations omitted.) Clark, 273 Ga. at 596 (IV), 544 S.E.2d 99.

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