Andersen v. Farrington
291 Ga. 775
| Ga. | 2012Background
- In 2009, husband and wife were divorced; the decree awarded joint custody with wife having primary physical custody.
- Husband filed a Forsyth County contempt action and sought a psychological custody evaluation of wife; wife was served in Forsyth County.
- Approximately four months later, wife moved to dismiss; husband then appended a change-of-custody motion to the contempt action.
- The parties entered a settlement in open court to resolve custody and contempt issues and complied for about eight months.
- Wife later moved to invalidate the agreement and argued the change of custody action should have been filed in Fulton County due to her relocation; trial court denied and awarded husband custody, restricted wife’s visitation pending a psych evaluation, ordered child support, and found wife in contempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper venue for custody change? | Wife moved to Fulton; venue should be Fulton under OCGA 19-9-23(a). | Waiver of defenses due to consent order; Daust controls. | Change proper despite relocation; defenses waived. |
| Evidence supporting a custody change? | Evidence showed new and material conditions affecting welfare. | Trial court findings insufficient or improperly relied on past custody orders. | Findings support best interests and change in custody. |
| Visitation conditioned on psych evaluation? | Policy favors parent-child contact; no need to condition visitation on evaluation. | Court may impose reasonable visitation restrictions and require evaluation.” | No abuse of discretion; court permissibly conditioned visitation and required evaluation. |
| Default judgment issue? | Wife’s absence at hearing could imply default. | No default judgment; order based on record. | No default judgment entered against wife. |
| Effect of DR information form filing issue? | Form deficiency may have affected proceedings. | Any error was harmless. | Harmless error; affirmed judgment. |
Key Cases Cited
- Daust v. Daust, 204 Ga. App. 29 (1992) (waiver of defenses when consent order issued and defenses raised late)
- Bailey v. Bailey, 283 Ga. App. 361 (2007) (consenting to transfer of action containing change of custody counterclaim does not constitute waiver)
- Ganny v. Ganny, 238 Ga. App. 123 (1999) (venue of custody waiver when no objection raised until later)
- Coker v. Moemeka, 311 Ga. App. 105 (2011) (custody generally cannot be modified in a contempt action, unless waived)
- Hill v. Rivers, 200 Ga. 354 (1946) (custody judgments not conclusive as to status at time of rendition)
- Haralson v. Moore, 237 Ga. 257 (1976) (appellate review of custody modification; welfare standard)
- Edwards v. Edwards, 237 Ga. 779 (1976) (discretion in visitation matters)
- Price v. Dawkins, 242 Ga. 41 (1978) (visitation not to be contingent on full payment of support)