Rozier v. Berto

• Decision Date: 03 February 1998
• Docket Number: No. A97A2563,A97A2563
• Citation: Rozier v. Berto, 496 S.E.2d 544, 230 Ga.App. 427 (Ga. App. 1998)
• Parties: , 98 FCDR 571 ROZIER v. BERTO.
• Court: Georgia Court of Appeals

Page 544

496 S.E.2d 544

230 Ga.App. 427, 98 FCDR 571

ROZIER v. BERTO.

No. A97A2563.

Court of Appeals of Georgia.

Feb. 3, 1998.

G. Samuel Burnette, Macon, for appellant.

Lynn E. Berto, pro se.

Fred I. Graham, Warner Robins, for appellee.

BLACKBURN, Judge.

Hubert Franklin Rozier, Jr. appeals the dismissal of his petition for a change in custody of his minor daughter from his ex-wife, Lynn Elizabeth Berto, to himself pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA), OCGA § 19-9-40 et seq. The trial court dismissed Rozier's petition based on insufficiency of process and service of process and lack of personal jurisdiction over Berto, a Virginia resident. For the reasons set forth below, we affirm the trial court's dismissal of this case.

In response to a phone call from Berto on July 25, 1996, Rozier traveled to Berto's home in Virginia to pick up his daughter and take her back to Georgia for a visit. Rozier's current wife, who answered Berto's phone call, alleged that Berto told her that someone was stalking the child and that she wanted Rozier to take the child to a safer place. Rozier testified that when he arrived at Berto's home on July 26, 1996, his daughter was filthy, improperly clothed, and generally neglected. Berto, on the other hand, contended that she called Rozier to ask him to pick up their daughter early for a planned visitation because she was in the process of moving into a new apartment. Berto testified that she "thought it would be better for [her daughter] to be away and in a happy environment instead of having to move and juggle things." Berto also refuted Rozier's claims that their daughter was dirty and neglected.

After returning to Georgia with his daughter on July 27, 1996, Rozier filed his petition for change of custody on August 2, 1996. He requested therein an emergency ex parte order giving him temporary custody. Rozier's emergency custody order was granted on August 2, 1996, and he was awarded temporary custody of his daughter until a hearing could be held on the matter.

On August 10, 1996, Berto was personally served at her home in Virginia with a copy of the petition and the emergency custody order which contained a rule nisi requiring Berto to "appear and show cause before the presiding Judge in the Superior Court of Jones County, Georgia at 9:00 o'clock a.m. on the 15th day of August, 1996, if she can, why the demands of [Rozier] should not be granted." The process served upon Berto did not include a summons. The trial court ultimately dismissed Rozier's petition in its order filed June 5, 1997, finding that it lacked personal jurisdiction over Berto due to the insufficiency of process and insufficiency of service of process in that no summons was attached to the petition.

Pretermitting a determination of the correctness of the trial court's reasoning, we review the question of whether the trial court properly exercised its emergency jurisdiction. This is the threshold issue, as without such condition, Georgia cannot exercise subject matter jurisdiction under OCGA § 19-9-43(a)(3)(B). "Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian (OCGA § 19-9-23(a); Matthews v. Matthews, [238 Ga. 201, 232 S.E.2d 76 (1977) ] ), and one of the purposes of the ... UCCJA is to assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and his family have a closer connection with another state; and the UCCJA shall be construed to promote its general purposes. OCGA § 19-9-41(a)(3) and (b)." (Punctuation omitted.) Lightfoot v. Lightfoot, 210 Ga.App. 400, 402(2), 436 S.E.2d 700 (1993). In other words, the UCCJA favors the hearing of custody matters in a child's home state, "the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months." OCGA § 19-9-42(5). In this case, the home state is clearly Virginia.

There is, however, a limited exception to this general rule of home state jurisdiction in certain cases of emergency arising in a state other than the home state. OCGA § 19-9-43(a)(3) provides that a Georgia court may exert its jurisdiction over a child custody matter if the child is physically present in Georgia, and if the child has either been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.

Before invoking jurisdiction under this exception, a Georgia trial court should remember the purpose of the statute and determine that an emergency exists which demands the exercise of jurisdiction by such Georgia court rather than by the courts of the child's home state. As a general matter, if the emergency pled before the...