Delgado v. Combs
314 Ga. App. 419
| Ga. Ct. App. | 2012Background
- Georgia trial court modified a Kansas initial custody order under the UCCJEA after finding Georgia the home state and Delgados’ residence in Kansas unclear.
- Kansas initially awarded joint care and allowed Delgado to be residential custodian; later Kansas transferred physical custody to Combs for 2009-2010 school year with Georgia relocation.
- Combs sought emergency jurisdiction in Georgia (OCGA § 19-9-64) and a permanent modification, alleging Delgado’s drug use and lack of contact.
- Delgado allegedly moved within Kansas, but Combs produced limited proof of her current Kansas residence; service by publication was used.
- Georgia found it had temporary emergency jurisdiction and later permanent jurisdiction to modify, then Kansas contested jurisdiction, leading to appellate review of UCCJEA compliance.
- Court ultimately held Georgia lacked subject-matter jurisdiction to permanently modify the Kansas order; Kansas retained exclusive, continuing jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Georgia had subject-matter jurisdiction to modify the Kansas custody order | Delgado | Combs | Georgia lacked authority to permanent modify (subject-matter jurisdiction lacking). |
| Whether Kansas lost exclusive continuing jurisdiction or Georgia was a more convenient forum | Delgado | Combs | Kansas retained exclusive jurisdiction; Georgia erred in assuming ongoing jurisdiction. |
| Whether service by publication was proper to invoke jurisdiction | Delgado | Combs | Service by publication inappropriate where residence was not proven to be outside Kansas. |
| Whether Delgado’s motion to set aside judgment should have been granted | Delgado | Combs | Trial court’s jurisdictional errors invalidated the judgment; motion to set aside granted for lack of jurisdiction should have been granted. |
| Whether Delgado is entitled to attorney fees under the UCCJEA | Delgado | Combs | No fee awards; §§ 19-9-68, 19-9-92 do not apply to this custody modification scenario. |
Key Cases Cited
- Brandt v. Brandt, 268 P.3d 406 (Colo. 2012) (court adopts burden shift for showing loss or decline of exclusive jurisdiction under UCCJEA)
- Hall v. Wellborn, 295 Ga.App. 884, 673 S.E.2d 341 (Ga.App. 2009) (Georgia home-state analysis under UCCJEA)
- In re Custody of A.C., 200 P.3d 689 (Wash. 2009) (state with initial custody decree bears continuing jurisdiction unless clearly divested)
- Friedman v. Eighth Judicial Dist. Ct., 264 P.3d 1161 (Nev. 2011) (discussion of exclusive venue and jurisdiction under UCCJEA for initial determinations)
- Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 690 S.E.2d 397 (2010) (home-state and forum considerations under Georgia UCCJEA)
- Creighton v. Lazell-Frankel, 178 N.C.App. 227, 630 S.E.2d 738 (N.C. Ct. App. 2006) (interpreting enforcement/fees aspects under UCCJEA)
- Tyszcenko v. Donatelli, 53 Va.App. 209, 670 S.E.2d 49 (Va. App. 2008) (awards of fees/expenses limited to enforcement context under UCCJEA)