Woodruff v. Choate

• Citation: 780 S.E.2d 25,334 Ga.App. 574
• Decision Date: 17 November 2015
• Docket Number: No. A15A0452.,A15A0452.
• Parties: WOODRUFF v. CHOATE.
• Court: United States Court of Appeals (Georgia)

334 Ga.App. 574

780 S.E.2d 25

WOODRUFF

v.CHOATE.

No. A15A0452.

Court of Appeals of Georgia.

Nov. 17, 2015.

Alan Mullinax, for Appellant.

John C. Mayoue, Atlanta, Rhani Morris Lott, for Appellee.

MILLER, Judge.

Rita Dawn Woodruff filed a petition for modification of child custody and visitation against her ex-husband, William Choate. The trial court dismissed Woodruff's petition and awarded attorney fees to Choate. Woodruff appeals, contending that the trial court erred in (1) dismissing sua sponte her petition and (2) awarding Choate attorney fees and expenses of litigation. For the reasons that follow, we reverse and remand to the trial court.

"We review a trial court's sua sponte order of dismissal de novo." (Citation omitted.) Haygood v. Head, 305 Ga.App. 375, 377(1), 699 S.E.2d 588 (2010). "In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party's favor." (Citation omitted.) Scott v. Scott, 311 Ga.App. 726, 727(1), 716 S.E.2d 809 (2011).

So viewed, Woodruff's complaint alleged that she and Choate, who have a sixteen-year-old child together, divorced in 2002. Under a 2010 consent order, the parties shared joint legal custody; Choate had primary physical custody of the child; and Woodruff, who then lived out of state, was entitled to visitation every other weekend during the school year.

In September 2011, Woodruff purchased a home in Woodstock, near Choate's home. At the beginning of the 2012–2013 school year, Woodruff and Choate, with the help of a parenting coach, agreed to deviate from the 2010 consent order and adopted an informal joint parenting plan, whereby they alternated custody of the child every few days during the school year and every two weeks during the summer. In July 2013, Choate ended the informal parenting plan and the parties reverted to the custody and visitation schedule set forth in the 2010 consent order.

In August 2013, Woodruff filed the instant petition for modification of custody and visitation, alleging changed circumstances and seeking joint legal and physical custody and equal parenting time. Woodruff specifically alleged:

Since the date of the most recent modification action, ... the circumstances of the parties and the needs of the minor child have changed to the degree that the [2010 consent order] is no longer in the best interest of the child and should be modified accordingly.

Woodruff also requested child support and attorney fees. Choate filed an answer to Woodruff's petition, denying her allegations and requesting attorney fees.

In September 2013, the child signed an election, indicating a preference to live with Choate. At a status conference in January 2014, the trial court ordered the parties and their attorneys to avoid discussing the litigation with the child. Despite the court's order, in February 2014, the child signed a different election, indicating a preference to live with Choate and Woodruff on an equal basis. In March 2014, after reserving the issue of attorney fees and hearing opening arguments, the trial court struck the child's February 2014 election¹ and, without accepting any other evidence from Woodruff, dismissed her petition. In June 2014, Choate sought and the trial court awarded approximately $47,000 in attorney fees and expenses of litigation under OCGA § 9–15–14 and OCGA § 19–9–3. This appeal ensued.

1. As an initial matter, Choate argues that Woodruff is barred from seeking review in this Court because she failed to timely appeal from the trial court's March 2014 dismissal of her petition to modify custody and failed to file an application for discretionary review from the trial court's June 2014 order awarding attorney fees under OCGA § 9–15–14 and OCGA § 19–9–3(g). This Court initially dismissed Woodruff's appeal on those grounds, but we later granted Woodruff's motion for reconsideration, reinstated the appeal, and directed the parties to address the issue of jurisdiction. Woodruff argues that she is entitled to a direct appeal under OCGA § 5–6–34 because the trial court's June 2014 order was a final judgment in a child custody case. After careful consideration, we conclude that we have jurisdiction over this direct appeal.

(a) The Appellate Practice Act "shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case[.]" OCGA § 5–6–30. "The policy of the Appellate Practice Act is against multiple appeals and piecemeal litigation." (Citation omitted.) Mays v. Rancine–Kinchen, 291 Ga. 283, 283–284, 729 S.E.2d 321 (2012).

"Two Code sections determine the method for pursuing appeals to this Court: OCGA § 5–6–34, which describes the trial court's judgments and orders that may be appealed directly, and OCGA § 5–6–35, which lists cases in which an application for appeal is required." Collins v. Davis, 318 Ga.App. 265, 266(1), 733 S.E.2d 798 (2012).

Pursuant to OCGA § 5–6–34(a)(1), "[d]irect appeals are generally authorized from lower court orders that are final, meaning that there are no issues remaining to be resolved in the lower court." Mays, supra, 291 Ga. at 284, 729 S.E.2d 321. Here, in its March 2014 order, the trial court specifically reserved the issue of attorney fees. In its June 2014, the trial court awarded Choate attorney fees under OCGA § 9–15–14 and OCGA § 19–9–3. Thus, contrary to Choate's assertion, the trial court's March 2014 order was not a final judgment because it did not adjudicate all the pending claims.² See Miller v. Miller, 288 Ga. 274, 282(4), 705 S.E.2d 839 (2010) (holding that there was no final judgment in a divorce action until the reserved issue of attorney fees was resolved). Moreover, the March 2014 order did not terminate the custody action, and the trial court's custody order was subject to revision at any time before the entry of final judgment.³ OCGA § 9–11–54(b). Rather, the June 2014 order, which awarded attorney fees under not only OCGA § 9–15–14 but also OCGA § 19–9–3, disposed of all the claims in this case, and thus was the final judgment. Accordingly, the June 2014 order was subject to direct appeal under OCGA § 5–6–34(a)(1).

(b) We must also consider, however, whether an application is nonetheless required based on the "underlying subject matter" at issue. See Todd v. Todd, 287 Ga. 250, 251(1), 703 S.E.2d 597 (2010). Here, the underlying subject matter is Woodruff's petition for modification of custody.

Both of our jurisdictional statutes, OCGA § 5–6–34 and OCGA § 5–6–35, have been substantially amended in recent years and those amendments bear directly on this issue. Prior to 2007, child custody cases were explicitly identified as domestic relations cases for appellate purposes and a party was required to file an application for discretionary review. See Collins, supra, 318 Ga.App. at 266(1), 733 S.E.2d 798 ("Prior to 2007, there was no right to a direct appeal in any domestic relations or child custody case [;] former OCGA § 5–6–35(a)(2) ... provided that applications for discretionary review were to be filed from appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases.") (punctuation omitted).

The 2007 amendment to OCGA § 5–6–34(a)(11) stated that parties could file direct appeals from all judgments and orders in child custody cases and the 2007 amendment to OCGA § 5–6–35(a)(2) removed child custody cases from the list of cases that required an application for discretionary review. See Ga. L. 2007, p. 554, § 2; Ga. L. 2007, p. 555, § 3 (requiring applications for discretionary review in "[a]ppeals from judgments or orders in divorce, alimony, and other domestic relations cases"). With the 2007 amendments, "the legislature intended for child custody cases to be treated differently from other domestic relations cases for purposes of appeals" and intended that such cases no longer be subject to discretionary review. Moore v. Moore–McKinney, 297 Ga.App. 703, 707(1), 678 S.E.2d 152 (2009). Accordingly, following enactment of the 2007 amendments, appellants were no longer required to file applications for discretionary review to appeal any judgment or order in a child custody case.

In 2013, the legislature again amended OCGA § 5–6–34(a)(11), thereby clarifying that this subdivision extended a right of direct appeal only to "judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders [.]" (Emphasis supplied.)

Murphy v. Murphy, 295 Ga. 376, 377, 761 S.E.2d 53 (2014) ; see also Ga. L. 2013, p. 736, § 1. Although the 2013 amendment limited the scope of OCGA § 5–6–34(a)(11) to those orders—such as the trial court's March 2014 order—that changed or refused to change child custody, the legislature did not amend OCGA § 5–6–35(a)(2).⁴ Rather, the current version of OCGA § 5–6–35(a)(2), which requires applications for discretionary review in domestic relations cases and explicitly includes divorce and alimony cases in that designation, is silent as to child custody cases.

The legislature is presumed to know that, based on its 2007 amendments to OCGA § 5–6–35(a)(2) and our decision in Moore v. Moore–McKinney,

supra, 297 Ga.App. at 707(1), 678 S.E.2d 152, child custody cases are no longer considered domestic relations cases for purposes of discretionary appellate review and, thus, final judgments in child custody cases are thereby subject to direct review. See Avnet v. Wyle Laboratories, 263 Ga. 615, 619–620(2), 437 S.E.2d 302 (1993) ("All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection with and in harmony with the existing law, their meaning and effect is to be determined in connection, not only with the common law...