JEWELL v. McGINNIS Et Al.
333 Ga. App. 108
| Ga. Ct. App. | 2015Background
- Mother and father divorced in 2013; custody plan awarded joint legal custody to both parents, father had physical custody, mother had visitation.
- April 24, 2014: mother filed for modification of primary physical custody due to father’s incarceration; same day paternal grandparents filed emergency/third-party custody action.
- Emergency hearing granted temporary custody to paternal grandparents with weekly custody alternation; father barred from contact.
- June 2, 2014: temporary hearing in third-party action; arrangement continued; actions then joined under one action.
- July 14, 2014: final hearing; court merged the actions, then allowed paternal grandparents to intervene in the parent custody action; final order granted joint legal custody to Jewell and grandparents, with primary physical custody to grandparents.
- Court vacated and remanded for findings under OCGA 19-7-1(b.1) and to incorporate a permanent parenting plan under OCGA 19-9-1; issues of consolidation and admissible evidence addressed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consolidation of cases was proper and any waiver precludes review | Jewell contends improper consolidation. | Grandparents argue consolidation/merger was proper or waived. | Waived; consolidation implicit or intervened holdings prevent reversal. |
| Whether the trial court relied on temporary-hearing evidence in the final custody decision | Pace v. Pace requires express notice, improper reliance otherwise. | Court’s indication of redundancy satisfied notice. | Pace requirements met; reliance on prior testimony not error. |
| Whether the award to grandparents complied with best interests and required findings under OCGA 19-7-1(b.1) | Award lacked explicit findings and clear and convincing evidence. | Grandparents prevailed under best interests standard. | Remand for explicit findings under OCGA 19-7-1(b.1). |
| Whether the final decree incorporated a permanent parenting plan as required | No permanent parenting plan incorporated. | Judgment should stand without plan. | Remand to incorporate permanent parenting plan as required by OCGA 19-9-1. |
Key Cases Cited
- Pace v. Pace, 287 Ga. 899, 700 S.E.2d 571 (Ga. Supreme Court 2010) (trial court may not rely on temporary-hearing evidence without notice)
- Clark v. Wade, 273 Ga. 587, 544 S.E.2d 99 (Ga. 2001) (best-interest standard requires clear and convincing evidence)
- Jones v. Burks, 267 Ga. App. 390, 599 S.E.2d 322 (Ga. App. 2004) (articulates best-interest standard for third-party custody)
- Beloate v. Peden, 328 Ga. App. 64, 761 S.E.2d 487 (Ga. App. 2014) (waiver and evidentiary standards in consolidation)