Edge v. Edge
290 Ga. 551
Ga.2012Background
- Husband and Wife divorced on December 19, 2007.
- Husband filed for downward modification of child support on March 17, 2008; Wife counterclaimed upward modification on March 25, 2008.
- Wife sought contempt on July 7, 2009 for purported failure to pay support.
- Husband traveled to Afghanistan January 12, 2009; attorney had correct address before departure but June 15, 2009 withdrawal motion contained an incorrect address.
- Court allowed withdrawal; October 26, 2009 hearing set; notice for that hearing sent to the incorrect address.
- October 26, 2009 final order awarded Wife custody, eliminated Husband’s visitation, increased support, found Husband in contempt, and awarded attorney fees; Husband learned of ruling via income deduction order dated November 5, 2009.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the case is directly appealable as a child custody case. | Edge argues direct appeal under OCGA § 5-6-34(a)(11). | Edge contends the matter fits child custody direct-appeal exception. | Yes; it is a direct-custody-appeal case. |
| Whether the trial court erred in setting aside its final order under OCGA § 9-11-60(d)(2). | Edge contends misnotice due to attorney's address mistake justifies setting aside. | Edge asserts counsel’s mistake falls within § 9-11-60(d)(2) grounds for relief. | No; mistake of counsel cannot justify under § 9-11-60(d)(2); judgment is reversed. |
Key Cases Cited
- White v. White, 274 Ga. 884 (Ga. 2002) (direct appeal for child custody orders; interlocutory path not required)
- Todd v. Todd, 287 Ga. 250 (Ga. 2010) (affirms direct appealability of custody-related orders)
- Taylor v. Curl, 298 Ga. App. 45 (Ga. App. 2009) (temporary custody distinguished from interlocutory appeal)
- Dennis v. Dennis, 302 Ga. App. 791 (Ga. App. 2010) (visitation changes treated as custody for appeal purposes)
- Cates v. Jamison, 301 Ga. App. 441 (Ga. App. 2009) (custody/visitation considerations in appellate context)
- Facey v. Facey, 281 Ga. 367 (Ga. 2006) (visitation affects custody; custody concepts include visitation)
- Nodvin v. Nodvin, 235 Ga. 708 (Ga. 1975) (considerations of visitation as custody issue)
- Munday v. Munday, 243 Ga. 863 (Ga. 1979) (habeas context and custody distinctions)
- Arnold v. Ga. Dept. of Human Resources, 169 Ga. App. 689 (Ga. App. 1984) (counsel's neglect and consequences per § 9-11-60(d)(2) analysis)