Rogers v. Baudet, A94A1649
| Decision Date | 14 November 1994 |
| Docket Number | No. A94A1649,A94A1649 |
| Citation | 215 Ga.App. 214,449 S.E.2d 900 |
| Parties | ROGERS v. BAUDET. |
| Court | Georgia Court of Appeals |
C. Alan Mullinax, Stone Mountain, for appellant.
James L. Bass, Blue Ridge, for appellee.
Appellant, Joseph Rogers, and appellee, Cathy Baudet, are former husband and wife. When the parties divorced in 1991, Baudet was awarded custody of the couple's three minor children. In 1993, however, permanent custody of the oldest child, Christopher, was awarded to Rogers. Rogers and Christopher are residents of Kentucky. Rogers brought this action seeking custody of the other two children in Fannin County, Georgia, Baudet's residence. Baudet counterclaimed seeking, inter alia, custody of and visitation for Christopher.
Rogers subsequently dismissed his complaint and moved to dismiss Baudet's counterclaim on grounds that custody modifications are required to be brought in the county and state where the legal custodian of the child resides, in this case Kentucky. Baudet filed no response to the motion and Rogers subsequently filed another motion to dismiss the counterclaim under OCGA § 9-11-41 because Baudet had not objected to the motion to dismiss the complaint. The trial court denied both of Rogers's motions. The court also denied Baudet's counterclaim for change of custody, but it did establish a schedule for visitation for Christopher. We granted Rogers's application for discretionary appeal to determine whether the trial court had jurisdiction to consider the counterclaim and issue the visitation schedule.
1. Rogers contends the trial court erred in failing to dismiss Baudet's counterclaim because it lacked jurisdiction under OCGA § 19-9-23. We agree. OCGA § 19-9-23(a) provides that "after a court has determined who is to be the legal [guardian] of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought in a separate action in the county of residence of the legal custodian of the child." We have held that a counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent's residence is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent's residence. Jones v. Jones, 256 Ga. 742, 743, 352 S.E.2d 754 (1987). Thus, Fannin County, the county of residence of the noncustodial parent, lacked jurisdiction to consider Baudet's counterclaim for custody of Christopher, including her prayer that visitation be established.
2. Rogers also contends the court erred in modifying, sua sponte, the visitation schedule for Christopher. It is unclear from the record...
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O'Brien v. Lewis
...to modify visitation with a minor child must be brought in the county of residence of the custodial parent.’ " Rogers v. Baudet , 215 Ga. App. 214, 215 (2), 449 S.E.2d 900 (1994), quoting Bennett, 188 Ga. App. at 631 (1), 373 S.E.2d 645. Here, the mother and the father shared legal custody ......
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O'Brien v. Lewis
...... to modify visitation with a minor child must be brought in the county of residence of the custodial parent.’ " Rogers v. Baudet , 215 Ga. App. 214, 214, 449 S.E.2d 900 (1994), quoting Bennett, 188 Ga. App. at 631 (1), 373 S.E.2d 645. Here, the mother and the father shared legal custody ......
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Bailey v. Bailey, A07A0610.
...is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent's residence." Rogers v. Baudet.4 See Jones v. Jones.5 Although early on we held that a custody change could be sought as a counterclaim in response to an action that was not s......
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Local Government Law - R. Perry Sentell, Jr.
...would have investigated." Id. Accordingly, the court affirmed the trial judge's summary judgment in favor of defendant. Id. at 153, 449 S.E.2d at 900. 25. 213 Ga. App. 849, 446 S.E.2d 526 (1994). 26. Id. at 851, 446 S.E.2d at 528. Under the agreement, plaintiff had surrendered his teaching ......