Coker v. MOEMEKA
311 Ga. App. 105
| Ga. Ct. App. | 2011Background
- This is a Georgia custody case wherein the trial court held the mother in contempt, awarded custody to the father, required supervised visitation, and terminated the father’s child-support obligation.
- Moemeka filed an emergency petition alleging the mother planned to move the child out of state, sought visitation, custody modification, and child-support modification.
- The petition was served by publication after the mother’s address burned and she allegedly moved; Moemeka later acknowledged alternative contact methods existed.
- The January 2010 order granted sole custody to the father, appointed supervised visitation, and stopped support, without addressing service deficiencies.
- Coker moved to vacate the January 2010 order, arguing improper service and improper consolidation of contempt with custody, which the trial court did not clearly address.
- The appellate court reversed, finding improper sua sponte combination of contempt and custody, and inadequate service, including defective publication notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether contempt and custody modification were properly adjudicated together | Coker (plaintiff) | Moemeka (defendant) | Improper—cannot modify custody in a contempt proceeding. |
| Whether service by publication satisfied due process and notice requirements | Coker | Moemeka | Improper—service by publication insufficient; due diligence lacking. |
| Whether publication notice adequately informed of custody change | Coker | Moemeka | Notice did not indicate custody action; due process not satisfied. |
Key Cases Cited
- McCall v. McCall, 246 Ga.App. 770, 542 S.E.2d 168 (2000) (contempt cannot modify final custody order; custody must be separate action)
- Hammontree v. Hammontree, 186 Ga. App. 819, 368 S.E.2d 576 (1988) (contempt proceeding cannot adjudicate custody in a single action)
- Saxton v. Davis, 262 Ga.App. 72, 584 S.E.2d 683 (2003) (due process requires notice reasonably calculated to inform interested parties)
- Abba Gana v. Abba Gana, 251 Ga. 340, 304 S.E.2d 909 (1983) (publication service requires reasonable diligence to locate absent parties)
- Pierce v. Pierce, 270 Ga.416, 511 S.E.2d 157 (1999) (publication notice must show reasonable diligence in locating interested parties)
- Taylor v. Padgett, 300 Ga.App. 314, 684 S.E.2d 434 (2009) (publication service adequacy depends on the facts showing efforts to locate party)