Dallow v. Dallow, 299 Ga. 762

Background

Parents divorced in 2014; final decree incorporated an agreed parenting plan giving Mother primary physical custody of J.D. (then 14) and a minimum weekly mid‑week visitation schedule for Father; parties also agreed a "mutually agreeable" arrangement for older teen in another sibling's case but not expressly for J.D.
After J.D. hosted an unauthorized party and tensions escalated, J.D. resisted the court‑ordered split‑week visits and expressed a strong preference to avoid forced mid‑week visitation with Father.
Father filed multiple contempt petitions and sought enforcement/makeup visitation; Mother filed a separate civil complaint (in Father’s county) to modify visitation so J.D. would visit Father only at mutually agreeable times.
The trial court held an evidentiary hearing, found Father’s conduct contributed to the breakdown of the relationship, granted Mother’s modification, and awarded Mother $46,593.05 in attorney fees.
Father appealed, arguing the modification suit should have been dismissed under OCGA §§ 19‑9‑23/24, that the court improperly terminated his parenting time by requiring mutual agreement, that the attorney‑fee award cited the wrong statute and violated due process, and raised late additional enumerations which the Court refused to consider.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether OCGA §§ 19‑9‑23/24 required dismissal of Mother’s separate modification action	Dallow: Mother’s modification was filed "in response to" his contempt/enforcement action and thus barred by the venue/jurisdiction rules	Mother: She complied with § 19‑9‑23(b) by filing a separate action in defendant’s county; the statutes govern how/where to file, not provide a categorical bar solely because an enforcement action is pending	Court: Denied dismissal. § 19‑9‑23 governs form/venue; § 19‑9‑24 did not apply because the court did not find Mother had withheld visitation overall.
Whether modifying visitation to "mutually agreeable" times unlawfully terminated Father’s parenting time	Dallow: Modification deprived him of court‑ordered minimum parenting time and was arbitrary without adequate findings or less drastic remedies (e.g., reunification therapy)	Mother: Evidence showed J.D.’s severe distress from forced schedule; modification seeks to restore relationship and is the least harmful remedy	Court: Affirmed modification as within trial court’s discretion and supported by evidence; mutual‑agreement schedule is not termination and can increase time if Father fosters a relationship.
Validity and procedure of attorney‑fee award citing OCGA § 19‑6‑2	Dallow: Award under § 19‑6‑2 is inapplicable; award violated due process because no proper motion/hearing/evidence	Mother: Trial court plainly intended OCGA § 9‑15‑14(b); she requested fees repeatedly and submitted affidavits/billing; citation was scrivener’s error	Court: Affirmed fee award. Citation error was clerical; record shows § 9‑15‑14(b) basis and parties waived/heard the fee issue.
Whether late supplemental brief raising new enumerations is permissible	Dallow: Attempted to add three new enumerations in a replacement brief filed shortly before argument	Mother: Procedural rules require timely enumerations; supplemental briefing cannot evade timing/page limits	Court: Refused to consider late additional enumerations per Court rules.

Key Cases Cited

Matthews v. Matthews, 238 Ga. 201 (recognizing need to discourage relitigation in improper forums in custody disputes)
Jones v. Jones, 256 Ga. 742 (approving filing separate modification action in noncustodial parent’s county)
Hutto v. Hutto, 250 Ga. 116 (explaining availability of separate actions when counterclaims are barred by custody‑venue rules)
Avren v. Garten, 289 Ga. 186 (discussing § 19‑9‑24 and withholding visitation as a bar to actions)
Coppedge v. Coppedge, 298 Ga. 494 (standards for appellate review of custody/visitation modifications)
Andersen v. Farrington, 291 Ga. 775 (trial court discretion to impose reasonable visitation restrictions)
Doritis v. Doritis, 294 Ga. 421 (upholding refusal to compel visitation or counseling for an older teen)
Williams v. Becker, 294 Ga. 411 (clerical mis‑citation of fee statute is not reversible when record shows intended statutory basis)
Viskup v. Viskup, 291 Ga. 103 (court may review record to determine statutory basis for fee awards)