Christine Alden v. Dale Yarborough

• Court: Court of Appeals of Georgia
• Decided: August 5, 2021
• Docket: A21A0678
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

August 5, 2021

In the Court of Appeals of Georgia A21A0678. ALDEN v. YARBOROUGH.

MILLER, Presiding Judge.

This appeal concerns a superior court’s order relinquishing jurisdiction from

Georgia to North Carolina under the Uniform Child Custody Jurisdiction and

Enforcement Act (OCGA § 19-9-40 et seq.) (“UCCJEA”). Christine Alden, the

mother of minor children L. A. Y. and E. A. Y., appeals from the superior court’s

order finding Georgia to be an inconvenient forum to address issues relating to

custody of the children. On appeal, Alden argues that the superior court erred by

issuing its ruling without first informing the parties that it had communicated with a

judge in North Carolina and allowing the parties to present facts and arguments

relating to those communications. We agree, and we therefore vacate the superior

court’s order and remand the case for further proceedings. We review for abuse of discretion a trial court’s determination that it is an

inconvenient forum under the UCCJEA. See Spies v. Carpenter, 296 Ga. 131, 133-

134 (2) (765 SE2d 340) (2014). In an analogous context, we determined that, because

the relevant statutory framework granted the parties a right to be heard before the

matter was decided, the trial court abused its discretion by deciding the matter

without first allowing the parties an opportunity to be heard. See In re Scott, 288 Ga.

App. 374, 375 (654 SE2d 221) (2007).

The record shows that, in April 2005, the children’s father, Dale Yarborough,

filed a complaint for custody in the Superior Court of Camden County, Georgia. In

May 2007, the superior court entered a consent order reflecting the parties’ agreement

as to child support, custody, and visitation. Under the terms of this order, Alden was

granted primary custody of the children. In subsequent related cases, the superior

court rejected attempts by the children’s paternal grandparents to obtain custody and

visitation, and the court also entered orders addressing Yarborough’s failure to pay

child support. The court apparently did not, however, enter any orders changing the

parties’ custody arrangements.

Alden moved to North Carolina with the children, and in 2017, North

Carolina’s Department of Social Services removed the children from her custody. In

2 December 2019, Alden filed a “Motion for Declaratory Judgment” in the Georgia

court, seeking a ruling that, pursuant to the UCCJEA, Georgia has exclusive and

continuing jurisdiction to determine issues relating to custody of the children. The

superior court denied Alden’s request for a declaratory judgment, ruling that there

was no actual and justiciable controversy because, although there was clearly a

pending action in North Carolina, there was no pending custody action in Georgia.

In May 2020, the Georgia superior court entered an order releasing jurisdiction

under the UCCJEA to North Carolina. The court stated that it was acting both sua

sponte and upon the request of the District Court of Alleghany County, North

Carolina. According to the court’s order, a North Carolina judge had communicated

to the superior court judge that the North Carolina proceeding had been dismissed

because the North Carolina court determined that it lacked jurisdiction under the

UCCJEA.1 The superior court determined that North Carolina is a more appropriate

forum to decide matters related to custody of the children, and it released Georgia’s

jurisdiction over the matter to North Carolina pursuant to the UCCJEA. Alden filed

1 New petitions alleging neglect were filed in North Carolina in March 2020, and therefore, at the time of the judges’ communications, the North Carolina court was exercising emergency temporary jurisdiction over the children.

3 an application for discretionary review of the superior court’s order, which we

granted. She then filed this appeal.2

1. In two related enumerations of error, Alden argues that the superior court

erred by failing to allow the parties to present facts and legal arguments before

making its decision as to jurisdiction and by failing to maintain a record of its

communications with the North Carolina judge. We conclude that, because the

superior court’s decision was based on its communications with the North Carolina

judge, the court committed reversible error by failing to inform the parties of those

communications and by failing to allow the parties to present facts and arguments

relating to those communications.

The UCCJEA provides that, with certain exceptions not relevant to this case,

once a court of this state has made an initial custody determination, it “has exclusive,

continuing jurisdiction” over the matter. OCGA § 19-9-62 (a). Nevertheless, a court

with jurisdiction under the UCCJEA may decline to exercise its jurisdiction if it

determines that it is an inconvenient forum for further custody considerations. OCGA

§ 19-9-67 (a); Devito v. Devito, 280 Ga. 367, 368 n.2 (628 SE2d 108) (2006). The

inconvenient-forum issue may be raised by a party, by the court, or by the request of

2 The father did not file an appellee brief in this case.

4 another court. OCGA § 19-9-67 (a). Before deciding if it is an inconvenient forum,

the court must consider whether it is appropriate for a court of another state to

exercise jurisdiction. OCGA § 19-9-67 (b). “For this purpose, the court shall allow

the parties to submit information and shall consider all relevant factors, including

[those enumerated in the statute.]” (Emphasis supplied.) Id.; Murillo v. Murillo, 300

Ga. App. 61, 62-63 (684 SE2d 126) (2009).

The UCCJEA includes the following provisions as to communications between

courts of different states:

(a) A court of this state may communicate with a court in another state concerning a proceeding arising under this article and concerning any proceeding or court order in another state relating to family violence. A court of this state may consult any state or national registry of court orders relating to family violence with regard to any party.

(b) The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.

(c) Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties. A record need not be made of the communication.

5 (d) Except as otherwise provided in subsection (c) of this Code section, a record must be made of any communication under this Code section. The parties must be informed promptly of the communication and granted access to the record.

(e) For the purposes of this Code section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(Emphases supplied.) OCGA § 19-9-49.

Georgia appears to lack precedent on the issue presented in this case, but courts

in other states have found reversible error in cases where the trial court communicated

with a court of another state and the parties were not informed of, and granted access

to a record of, those communications.3 See B. N. v. Madison County Dept. of Human

Resources, 151 So3d 1115 (Ala. App. 2014) (reversing judgment relinquishing

jurisdiction because trial court did not keep a record of its communications with the

3 “[W]e note that — as we have previously stated and as required by the Act itself — in applying and construing the provisions of the UCCJEA as codified in Georgia, we must consider the need to promote uniformity of the law with respect to its subject matter among states that enact it. In accordance with this mandate, and given the relative dearth of Georgia law on this subject, we will look to the cases of other jurisdictions when appropriate to resolve the issues presented in this case.” (Punctuation and footnotes omitted.) Kogel v. Kogel, 337 Ga. App. 137, 139-140 (786 SE2d 518) (2016).

6 court of another state, the parties were not given an opportunity to present facts and

arguments before the decision on jurisdiction was made, and the parties were not

granted access to a record of communications between the courts); In re R. E. G., 234

Ore. App. 652 (229 P3d 621) (2010) (vacating judgment because trial court did not

allow the parties to present facts and legal arguments relating to the record of

communications between the courts before issuing its jurisdictional ruling); Cole v.

Cushman, 946 A2d 430 (Me. 2008) (vacating judgment relinquishing jurisdiction

because trial court did not allow the parties to submit facts and argument with respect

to its communications with the court of another state). We agree with our sister courts

that, where the trial court’s decision to relinquish jurisdiction is based on its

communications with a court of another state, it commits reversible error by failing

to inform the parties of those communications and by failing to allow the parties to

present facts and arguments relating to the record of those communications.

Here, Alden sought a declaration that Georgia had exclusive jurisdiction to

determine custody matters and the court held a hearing on that motion before denying

it, so she had at least some opportunity to present evidence and arguments relating to

jurisdiction before the superior court entered its order relinquishing jurisdiction. But

the superior court denied Alden’s request for a declaratory ruling on the ground that

7 there was no actual or justiciable controversy, and its denial did not address the

substance of the jurisdictional issue. It was only after the North Carolina judge

contacted the superior court judge that the court entered its order relinquishing

jurisdiction. Consequently, it is clear that the superior court’s decision as to

jurisdiction was based, at least in part, on its communications with the North Carolina

judge. And contrary to the plain requirements of the UCCJEA, see OCGA § 19-9-49

(d), there is no indication that the parties were informed of the judges’

communications or granted access to the record of those communications. Because

the trial court’s decision to relinquish jurisdiction was based in part on its

communications with a court of another state, it committed reversible error by failing

to inform the parties of those communications and by failing to allow the parties to

present facts and arguments relating to the record of those communications.

We therefore vacate the trial court’s order relinquishing jurisdiction and

remand for the trial court to comply with the requirements of OCGA § 19-9-49 before

determining whether Georgia is an inconvenient forum under the UCCJEA.

2. In her final enumeration of error, Alden argues that the superior court erred

in deciding that, under the facts of this case, Georgia is an inconvenient forum and

North Carolina is a more appropriate forum to decide matters related to custody of the

8 children. Because we have concluded, in Division 1, that the superior court erred by

issuing its decision without first allowing the parties to present all the relevant facts

and arguments, we do not reach this issue at this time and express no opinion as to

which state is the proper forum.

Judgment vacated and case remanded. Mercier, J., and Senior Appellate Judge

Herbert E. Phipps concur.