Wiepert v. Stover
| Decision Date | 02 July 2009 |
| Docket Number | No. A09A0197.,A09A0197. |
| Citation | 298 Ga. App. 683,680 S.E.2d 707 |
| Parties | WIEPERT et al. v. STOVER et al. |
| Court | Georgia Court of Appeals |
William D. Hentz, for appellants.
Bandy & Stagg, Lawrence Alan Stagg and Marshall M. Bandy Jr., Ringgold, for appellee.
David F. Wiepert and Carol E. Wiepert appeal the temporary order of the trial court awarding custody of D.T. to Marty Dwight Stover and Debra K. Stover. The Stovers are the child's maternal grandmother and stepgrandfather, and the Wieperts are the child's great aunt and great stepuncle.
On May 20, 2008, the Stovers filed a petition for custody of D.T. in the Superior Court of Walker County. At that time, a petition for custody filed on April 17, 2007 by the Wieperts was pending in that same court, and a child deprivation petition was apparently pending in the Juvenile Court of Walker County.1 D.T. was in the custody of the Walker County Department of Family and Children Services ("DFACS"). The record is unclear as to why DFACS took custody of the child, but a hearing on the deprivation petition was scheduled for May 22, 2008. On May 21, apparently in response to a "motion to be divested of custody and dismiss case" filed by DFACS, the juvenile court entered an order continuing the deprivation hearing until June 10, 2008 and reserving a ruling on DFACS's motion pending the outcome of the superior court hearing. The juvenile court acknowledged that
the Superior Court has original jurisdiction in child custody matters and that sometimes cases arise where jurisdiction overlaps .... Because the Court is convinced that the Superior Court is quite capable of deciding this custody case correctly [,] it would be an ineffective use of Walker County funds and time to litigate the issue in two courts.
The trial court entered an ex parte order awarding immediate custody of D.T. to the Stovers and set a hearing on the petition for June 3, 2008. The order directed that the Wieperts and other interested parties be served with a copy of the order, and at the hearing "show cause, if any, they have or can, why relief sought should not be granted." The Wieperts filed a motion to intervene arguing that the Stovers' petition be denied because the custody issue was already before the court because of their 2007 custody petition, and the court's temporary order awarding them custody. They also argued that res judicata barred the Stovers' claim relative to D.T.'s custody. The Wiepert's also filed an answer as intervenors in the case, asserting several defenses including collateral estoppel, estoppel by judgment, lack of subject matter jurisdiction, failure to join necessary parties, res judicata, abatement, and forum non-conviens. Following a hearing, which was not included with the record, the trial court entered a temporary order awarding full custody of D.T. to the Stovers. The order further noted that after hearing from the Wieperts, as intervenors, who were present with counsel, "and evidence having being presented to the Court, and the Court having heard the evidence, the Court hereby finds as a matter of fact and a matter of law that the Superior Court of Walker County has jurisdiction over the matter." The Wieperts appeal from that order.
1. In several enumerations of error the Wieperts contend that the trial court erred in failing to dismiss the action based on the principles of collateral estoppel, abatement, and res judicata, and forum non conveniens. We note, however, that the record does not reflect that the Wieperts moved to dismiss the action based on any of these doctrines. The record reflects that the Wieperts filed a motion to intervene and an answer as intervenors. The record does not reflect that the trial court granted the motion to intervene, but presumably, it did so, as the custody order noted that the intervenors appeared at the hearing with counsel.
OCGA § 9-11-12 contains the rules relating to answers, defenses, and how and when defenses are presented and heard. According to subsection (c) of this statute, "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." This Court has found no authority, and [the Wieperts] cite[] no authority, indicating the trial court has authority to treat an allegation or statement in an answer as a motion to dismiss the case.
Howell v. Styles, 221 Ga.App. 781, 782(1), 472 S.E.2d 548 (1996). Pursuant to OCGA § 9-11-7(b)(1), "[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought."
To the extent that these arguments were presented at the hearing, the absence of a transcript prevents us...
To continue reading
Request your trial
- Hill v. State
-
Artson, LLC v. Hudson
...DILLARD, McFADDEN, BOGGS, RAY, BRANCH, and McMILLIAN, JJ., concur. 1. Artson relies on this Court's decision in Wiepert v. Stover, 298 Ga.App. 683, 680 S.E.2d 707 (2009), citing Klorer–Willhardt, Inc. v. Martz, 166 Ga.App. 446, 304 S.E.2d 442 (1983), in support of its argument that David wa......
-
Stone–Crosby v. Mickens–Cook
...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; jurisdictio......
-
Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC
... ... to cancel a deed, issue of whether grantor was a necessary party was waived by failing to file a motion to dismiss) (punctuation omitted); Wiepert v. Stover, 298 Ga.App. 683, 685(2), 680 S.E.2d 707 (2009) (same defense waived by failure to file motion to dismiss). See, e.g., Reece v. Smith, 276 ... ...
-
Trial Practice and Procedure
...820-21.76. 322 Ga. App. 859, 747 S.E.2d 68 (2013).77. Id. at 862 & n.1, 747 S.E.2d at 71 & n.1. The court disapproved Wiepert v. Stover, 298 Ga. App. 683, 680 S.E.2d 707 (2009), Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 304 S.E.2d 442 (1983), Caswell v. Jordan, 184 Ga. App. 755, 36......