Stone–Crosby v. Mickens–Cook

• Decision Date: 01 November 2012
• Docket Number: No. A12A1258.,A12A1258.
• Citation: 318 Ga.App. 313,733 S.E.2d 842
• Parties: STONE–CROSBY v. MICKENS–COOK.
• Court: Georgia Court of Appeals

318 Ga.App. 313

733 S.E.2d 842

STONE–CROSBY

v.MICKENS–COOK.

No. A12A1258.

Court of Appeals of Georgia.

Nov. 1, 2012.

Dana Cubbedge Ashford, Decatur, for Appellant.

Tracey Antoinette Moran, Teresa Ann Mann, East Point, David Roy Tannen, Doraville, for Appellee.

BOGGS, Judge.

Katherine Stone–Crosby brought this action in Fulton County Superior Court seeking custody of her niece and nephew, orphaned by the murder-suicide of their parents. Twelve days after the action was filed, Odessa Mickens–Cook, the paternal grandmother, moved to intervene and filed an answer to the petition. On the same day, she also filed a deprivation petition in Fulton County Juvenile Court and moved to dismiss the superior court action for lack of jurisdiction. The superior court denied the motion to dismiss but granted Mickens–Cook's motion to intervene.

After an investigation by social services and a hearing at which the parties testified, the trial court awarded custody to Mickens–Cook. Stone–Crosby filed a motion for reconsideration, a motion to set aside, and a motion for new trial. After a hearing, the trial court denied all three motions in a well-reasoned, comprehensive order, and Stone–Crosby appeals.¹ Finding no error, we affirm.

1. In her first enumeration of error, Stone–Crosby contends that the superior court lacked jurisdiction to hear this custody matter. We disagree.

Stone–Crosby asserts that no statute expressly provides for jurisdiction of the superior court over custody when both parents are deceased. But in so doing, she overlooks the controlling provision of the Georgia Constitution: “The superior courts shall have jurisdiction in all cases, except as otherwise provided in this Constitution.” (Emphasis supplied.) Ga. Const. of 1983, Art. VI, Sec. IV, Par. I. “The superior court ha[s] 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. See In re J.R.T., 233 Ga. 204, 205, 210 S.E.2d 684 (1974); In the Interest of K.R.S., 253 Ga.App. 678, 679 (1), 560 S.E.2d 292 (2002).” Dunbar v. Ertter, 312 Ga.App. 440, 441, 718 S.E.2d 350 (2011), cert. granted, ––– Ga. –––– (Case No. S12G0452, March 5, 2012). ²

It is true that the superior court's jurisdiction to hear custody matters is concurrent in certain circumstances with that of the juvenile court, but that occurs only “when the issue is transferred by proper order of the superior court.” OCGA § 15–11–28(c)(1). The juvenile court has exclusive jurisdiction when a child is alleged to be deprived, OCGA § 15–11–28(a)(1)(C), or when termination of parental rights is sought, except in connection with adoption proceedings, in which the superior court also has concurrent jurisdiction. OCGA § 15–11–28(a)(2)(C). But even when a termination petition is brought in the juvenile court, if it is merely a “disguised custody matter” it is not within the court's jurisdiction. In the Interest of C.L.C., 299 Ga.App. 729, 733(1), 683 S.E.2d 690 (2009). See also Wiepert v. Stover, 298 Ga.App. 683, 685(3), 680 S.E.2d 707 (2009) (complaint for permanent custody not a deprivation petition and did not allege that child was deprived; jurisdiction properly in superior court).

Moreover, in Segars v. State of Georgia, 309 Ga.App. 732, 710 S.E.2d 916 (2011), this court observed: “In determining the issue of competing jurisdictions, we have repeatedly applied the principle that where common law courts have concurrent jurisdiction, the first court taking jurisdiction will retain it.” (Citations and punctuation omitted.) Id. at 735, 710 S.E.2d 916. On that basis, we held that “the superior court lacked jurisdiction ... because the juvenile court had already exercised its concurrent jurisdiction.” Id. at 736, 710 S.E.2d 916. See also in thE interest OF J.C.W., 315 gA.app. 566, 571–572(1), 727 S.E.2d 127 (2012). Here, in contrast, the custody action in superior court was filed before the deprivation action in juvenile court.

Relying on Zinkhan v. Bruce, 305 Ga.App. 510, 699 S.E.2d 833 (2010), Stone–Crosby also argues that jurisdiction was properly in the probate court because of its statutory authority to order a guardian for the children. But in Zinkhan, the deceased parents' wills nominated a testamentary guardian underOCGA § 29–2–4(b), the guardian had filed a request for letters of testamentary guardianship, and the probate court had issued letters to the guardian. Only then did the opposing parties file a petition for custody in the superior court. We held that this “collateral attack” on the guardianship was improper when the probate court properly had jurisdiction and the opposing parties could have moved to revoke or suspend the letters of testamentary guardianship. Id. at 514(1), 699 S.E.2d 833.

Here, in contrast, both parents died without a will, and the petition in probate court by the maternal grandparents was not filed until after the superior court custody action was pending. And as with juvenile court, even “[w]here a probate court (formerly a court of ordinary) and a superior court have concurrent jurisdiction over an action, the general rule is that the court first taking jurisdiction will retain it unless some good reason is shown for equitable interference.” (Citations and footnote omitted.) Morris v. Mullis, 264 Ga.App. 428, 434(5), 590 S.E.2d 823 (2003).

The trial court therefore correctly held that, in the absence of an earlier-filed action in juvenile court or probate court, it was the first court to take jurisdiction and it properly retained it. The trial court did not err in denying Stone–Crosby's motion to dismiss for lack of jurisdiction.

2. In her second enumeration of error, Stone–Crosby argues that the trial court erred in denying her motion for new trial when no evidence supported the trial court's finding that her marital status affected the children's welfare. She complains that the trial court relied exclusively on her separation from her husband, weighed that factor “heavily” against her as a “bright-line test,” and failed to articulate how it would affect the welfare of the children. In support of this argument, Stone–Crosby relies on Todd v. Todd, –––Ga. ––––, ––––, 703 S.E.2d 597 (2010). We are not persuaded that the trial court abused its discretion, nor that it employed a “rigid policy” or “ bright-line test” as forbidden by Todd.

At the hearing on the motion for new trial, the trial court observed that it was “not persuaded that its final decision is contrary to the law, [c]ontrary to the evidence[,] strongly against the weight of the evidence[,] nor that it was the result of the court's rushing the parties into a final decision.”

A trial court may grant a motion for new trial if, in the exercise of its discretion, it finds that a jury's verdict was against the weight of the evidence. However, when a trial court denies such a motion, the appellate court does not have the discretion to grant a new trial on that ground. We can only review the evidence to determine if there is any evidence to support the verdict. The standard of appellate review of the denial of a motion for new trial on the general grounds is essentially the same as that applicable to the denial of a motion for directed verdict or judgment n. o. v. The appellate courts can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported.

(Citations and punctuation omitted.) Cook v. Huff, 274 Ga. 186(1), 552 S.E.2d 83 (2001).

The Georgia Supreme Court's decision in Todd v. Todd, supra, is not applicable here. In that case, the trial...