Hammonds v. Parks

735 S.E.2d 801, 319 Ga. App. 792, 2013 Fulton County D. Rep. 3, 2012 Ga. App. LEXIS 1068
CourtCourt of Appeals of Georgia
DecidedDecember 19, 2012
DocketA12A2320
StatusPublished
Cited by21 cases

This text of 735 S.E.2d 801 (Hammonds v. Parks) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hammonds v. Parks, 735 S.E.2d 801, 319 Ga. App. 792, 2013 Fulton County D. Rep. 3, 2012 Ga. App. LEXIS 1068 (Ga. Ct. App. 2012).

Opinion

MCFADDEN, Judge.

This case originated as a contempt action: the custodial father, Lorenzo Hammonds, alleged that the child’s mother, Eden Parks, had violated a provision of the custody order. Contrary to the rule that petitions for change of custody brought against custodial parents must be brought as separate actions, as well as the rule that such petitions must be brought in the custodial parent’s county of residence, OCGA § 19-9-23, the trial court granted the mother’s oral motion for change of custody. She was without jurisdiction to do so, and we reverse. That unauthorized custody ruling led to several subsequent unauthorized rulings, and we reverse those as well — with the exception of a contempt order against the father, which is moot because the term of incarceration has already been served.

One of the orders on appeal contains another contempt ruling on an issue properly before the trial court, which has not been challenged on appeal; we affirm that portion of that order. Finally, we do not review Hammonds’s request for reimbursement of child support and certain costs connected with the improper change-in-custody proceedings, because the request does not enumerate a trial court error.

1. Facts and procedural background.

Parks failed to file an appellate brief. Consequently, we may accept as true Hammonds’s statement of facts. Court of Appeals Rule 25 (b) (1).

Hammonds and Parks are the parents of the child whose custody is at issue in this case. They never married, but Hammonds legitimated the child in 2003. In 2009, the DeKalb County Superior Court entered an order awarding Hammonds primary physical custody of the child and incorporating a parenting plan. (The record conflicts on whether Hammonds also was awarded sole legal custody of the child. The 2009 order provided that the parents share joint custody, but the terms of the parenting plan gave Hammonds sole legal custody. The [793]*793trial court in this case found that Hammonds had sole legal custody of the child. We can decide this appeal, however, without resolving that conflict.)

On August 17, 2011, Hammonds filed in the DeKalb County Superior Court a petition for citation of contempt, in which he alleged that Parks had violated a term of the custody order regarding the child’s medical treatment. At a hearing on the contempt petition, Parks orally sought a change in the child’s custody to her. Hammonds objected to this request on the ground that the DeKalb County Superior Court was not authorized to hear a change-in-custody petition brought against him because he did not live in DeKalb County. Nevertheless, the trial court received evidence on the custody issue at the hearing. On December 5,2011, the court entered an order finding Parks in contempt for violating the earlier custody order but requiring Hammonds and Parks to undergo a custody evaluation by a third party, giving Parks temporary custody of the child, directing Hammonds to pay Parks child support as a result of the change in custody, and setting a final hearing on custody, visitation and child support.

Hammonds moved the trial court to set aside those portions of the December 5 order pertaining to custody, again arguing that the DeKalb County court was not authorized to rule on a request for change in custody because Hammonds did not reside in that county. The trial court denied the motion to set aside on March 15, 2012, and in that order directed Hammonds to provide it with certain financial documents that the court deemed necessary “[t]o make a proper determination on custody and support.”

On June 7, 2012, the trial court issued two orders in which it found that Hammonds had failed to provide the required financial documents. In one order, the court held Hammonds in contempt and ordered that he be incarcerated. In the other, the court imposed attorney fees upon Hammonds. Hammonds filed a timely notice of appeal from the June 7 orders.

2. Appellate jurisdiction.

This Court has a duty to inquire into its jurisdiction to entertain each appeal. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006). Hammonds asserts claims of error related to the change-in-custody order, the order declining to set aside the change-in-custody order, the order holding him in contempt, and the order imposing upon him attorney fees. He is entitled to a direct appeal from the contempt order and the attorney fee order, because the trial court based its rulings in those orders on Hammonds’s failure to abide by an order in a child custody case, namely the court’s order that he provide certain documents in connection with, inter [794]*794alia, the custody determination. See OCGA § 5-6-34 (a) (11). And Hammonds is entitled to appellate review of the earlier orders regarding change in custody, because those rulings were “rendered in the case... and... may affect the proceedings below.” OCGA § 5-6-34

(d).

3. Rulings pertaining to change in custody.

Whether the DeKalb County court was authorized to modify custody in this case presents a question of law, and we owe no deference to the trial court’s ruling. See Seeley v. Seeley, 282 Ga. App. 394, 395 (1) (638 SE2d 837) (2006). We agree with Hammonds that the court was not authorized to issue the rulings pertaining to change in custody, because the change-in-custody request did not comply with OCGA § 19-9-23.

OCGA § 19-9-23 requires a party seeking to obtain a change of legal custody to bring “a separate action in the county of residence of the legal custodian of the child,” OCGA § 19-9-23 (a), or, if the party seeking the change in custody is the legal custodian, to bring “a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.” OCGA § 19-9-23 (b). That Constitutional provision requires the case to be tried “in the county where the defendant [here, the respondent in the change-in-custody action] resides.” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. The party seeking a change in custody cannot make such request as a counterclaim or other response to an action seeking to enforce a child custody order. OCGA § 19-9-23 (c). See Saravia v. Mendoza, 303 Ga. App. 758, 761 (1) (695 SE2d 47) (2010). The provisions of OCGA § 19-9-23 are clear, unequivocal and mandatory. Bailey v. Bailey, 283 Ga. App. 361, 362-363 (641 SE2d 580) (2007).

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Cite This Page — Counsel Stack

Bluebook (online)
735 S.E.2d 801, 319 Ga. App. 792, 2013 Fulton County D. Rep. 3, 2012 Ga. App. LEXIS 1068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammonds-v-parks-gactapp-2012.