Terry v. Garibaldi, A05A0548.
| Decision Date | 13 May 2005 |
| Docket Number | No. A05A0548.,A05A0548. |
| Citation | 618 S.E.2d 6,274 Ga. App. 405 |
| Parties | TERRY v. GARIBALDI. |
| Court | Georgia Court of Appeals |
Celeste F. Brewer, Atlanta, for appellant.
Jeffrey B. Bogart, George R. Ference, Susan A. Hurst, Bogart & Bogart, P.C., Atlanta, for appellee.
The parties were formerly married and have one minor child, who was born in 1991. When the parents divorced in 1994, their settlement agreement was incorporated into the divorce decree. The settlement agreement provided for joint legal and physical custody with the father having the child for five days a week and the mother having him for two days. The agreement did not specify which parent would have custody which days of the week. Neither parent was to pay child support. The settlement agreement did not provide a device to resolve any conflict arising between the parties upon issues involving the welfare of the child.1
In February 2002, the father brought a petition for modification and clarification of the final divorce decree. In it, he sought an award of child support and clarification of the final judgment. He alleged that the parties were unable to mutually agree on the days and times for physical custody, and that the mother had interpreted the provision of the agreement as allowing her to have physical custody every weekend. He added that the mother "selfishly and unjustly" denied him any custody or time with the child on weekends. Furthermore, the father sought to modify the divorce decree to require the payment of child support by the mother. To support that request, he alleged a material and substantial change in the mother's income financial status, and the needs of the child.
The mother filed a counterclaim for modification of custody, alleging that she should be awarded primary physical and legal custody of the child, as well as given authority to make final decisions regarding all issues upon which the parties could not agree. The mother based her counterclaim on an alleged change of condition materially affecting the welfare of the child. She did not specify in her pleadings what material change occurred, but at an August 2002 hearing to decide temporary physical custody she pointed out that the parties could not agree on whether the child should attend public or private school. Specifically, the father wanted the child to attend a neighborhood public school, and the mother wanted the child to attend private school.2
The father moved to dismiss the counterclaim based on OCGA § 19-9-23, arguing that the mother could not pursue a change of custody by way of a counterclaim.
After a final hearing, the trial court entered a final order transferring physical custody to the mother. In its order, the superior court acknowledged that, "as a general rule," final orders awarding child custody to one parent in a divorce action can only be modified through a separate action and not by way of counterclaim. But the court held that that rule did not apply in this case. The court stated that
[i]n a case where both parents have relatively equal rights to custody and control of decisions involving the child's welfare, it does not appear that there is any prohibition to the modification of conditions of custody either in [a] separate case or by way of a counterclaim where there is a change in condition affecting the welfare of the child.
The court noted that the "gridlock" between the parents concerning the child's education is a sufficient change in condition to warrant modification of custody. The court found further that the best interest of the child supports the change of primary physical custody to the mother, and included provisions for visitation by the father and for his payment of child support.
The father filed an application for discretionary review, asking this Court to determine, among other things, whether the superior court erred in allowing the mother to seek a change of custody by way of a counterclaim, and whether the trial court erred in ruling that the parents' disagreement regarding where the child would attend school is a substantial change of circumstances affecting the welfare of the child that would justify a change in custody. We granted his application and, for the reasons which follow, reverse the decision of the trial court.
1. The father complains that the superior court erred in allowing the mother to seek a change of custody by way of a counterclaim. The law supports his position.
OCGA § 19-9-23(a) provides that after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian. OCGA § 19-9-23(b) provides that a complaint by the legal custodian seeking a change of custody shall be brought as a separate action. OCGA § 19-9-23(c) provides that no complaint3 specified in subsection (a) or (b) shall be made in response to any other action or motion seeking to enforce a child custody order.
In Jones v. Jones,4 the mother (custodial parent) filed an action to modify the father's visitation rights and the father filed a counterclaim seeking to change custody. The Supreme Court of Georgia stated that the father violated OCGA § 19-9-23(a) by, among other things, failing to bring a separate action to have custody changed. Similarly in Wilson v. Baldwin,5 this Court ruled that in filing a counterclaim seeking to change custody, the father violated OCGA § 19-9-23 by not seeking the change in an action separate from the mother's petition for modification of child support.6
Nonetheless, the mother argues that Lewis v. Lewis7 requires that we permit a counterclaim for modification of custody here. In Lewis, the father filed a complaint to modify custody, and the mother cross-petitioned for modification of custody. In that case, however, the Court did not examine the issue of whether a counterclaim was prohibited by OCGA § 19-9-23. Issues merely lurking in the record, neither brought to the Court's attention nor expressly ruled upon, have not been decided so as to constitute precedent.8
We realize that the filing of a separate change of custody suit by the mother could result in consolidation of the two actions in front of the same judge, and that the trial court would have had to consider the custody issue whether the mother filed a counterclaim or a separate complaint. In terms of judicial efficiency, the mother's position is understandable, even compelling. Moreover, it may well be that in enacting OCGA § 19-9-23, the legislature only contemplated a situation in which the parents lived in different counties, and did not intend that the rule prohibiting the filing of a counterclaim to modify child custody would apply in cases in which the parents live in the same county. Unfortunately, there is no way for this Court to know. The statute, as written, does not make that distinction. Instead, the statute is clear: any complaint seeking to obtain a change of custody of a child shall be brought as a separate action.9 We cannot ignore the clear language of the statute, even where it appears, under circumstances presented in this case, to defy logic.
We do not agree with the mother's position that the father's petition sought a change of custody. The parties had different interpretations of what the decree provided on the issue of custody. The father posited that the mother's interpretation of the provision was unfair because it allowed her to have physical custody every weekend. The father simply sought clarification of the meaning of a vague provision in the divorce decree. Modification was requested as to the issue of child support. In the August 2002 hearing set to decide temporary physical custody and support issues, the father's attorney stated that the father's petition did not seek a change of custody, that he was requesting that custody remain as provided in the decree, and that he simply needed the court to determine which five days he is to have custody.
Therefore, the trial court erred in allowing the mother to petition for a change of custody through a counterclaim to the father's petition.
2. The father contends the trial court erred in ruling that a dispute arising out of how the child is educated is a substantial change of circumstances affecting the welfare of the child that would justify a change in custody. We agree that this ruling of ...
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...that there had 820 S.E.2d 478been no material change in circumstances. Id. at 393 (1), 802 S.E.2d 829. Likewise, in Terry v. Garibaldi , 274 Ga. App. 405, 618 S.E.2d 6 (2005), the mother sought a change of custody based in part on the parents’ inability to make a decision regarding whether ......
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...the child's failing grades]. Accordingly, this finding does not support the modification of custody.").22 See Terry v. Garibaldi , 274 Ga. App. 405, 408 (2), 618 S.E.2d 6 (2005) ("A dispute over how a child will be educated is not a material change that will justify a change of custody."); ......
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