342 Ga. App. 605
Ga. Ct. App.2017Background
- Parents divorced in Camden County, GA (Dec. 12, 2013); they were awarded joint legal custody and mother received primary physical custody.
- At divorce mother and child lived in Florida; father remained in Georgia and later obtained a contempt ruling (Apr. 30, 2015).
- Father filed a custody-modification action in Camden County (May 21, 2015); the court entered a temporary order increasing father's visitation (July 8, 2016).
- Father relocated to Virginia for military service (July 1, 2016); father alleged mother later moved with the child to Arizona (Aug. 29, 2016).
- Mother moved to dismiss for lack of jurisdiction under OCGA § 19-9-62(a)(2) (Aug. 19, 2016); the superior court concluded neither child nor parents resided in Georgia and dismissed the modification action.
- Father appealed, arguing subject-matter jurisdiction attached when he filed the petition and could not be lost by subsequent moves.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Georgia retained exclusive, continuing jurisdiction over a custody modification after neither the child nor parents resided in Georgia | Plummer: jurisdiction attached at commencement of modification proceeding and cannot be lost by parties moving out | Mother: under OCGA § 19-9-62(a)(2) Georgia lost continuing jurisdiction once neither child nor parents resided in state | Court: OCGA § 19-9-62(a)(2) applies; once court determined neither child nor parents presently resided in Georgia it lost exclusive, continuing jurisdiction and dismissal was proper |
| Whether the superior court could nonetheless modify custody under OCGA § 19-9-62(b) (i.e., had initial-jurisdiction bases under § 19-9-61) | Plummer: (implicit) Georgia retained or could exercise jurisdiction to modify | Mother: no initial-jurisdiction basis exists under § 19-9-61 because Georgia was not home state and no significant-connection/substantial-evidence bases apply | Court: § 19-9-62(b) requires initial-jurisdiction under § 19-9-61; none of § 19-9-61’s bases applied, so court could not modify |
Key Cases Cited
- Fish v. Fish, 266 Ga. App. 224 (Ga. Ct. App.) (explaining UCCJEA creates continuing, exclusive jurisdiction in state that made initial custody determination)
- Hall v. Wellborn, 295 Ga. App. 884 (Ga. Ct. App.) (confirming continuing jurisdiction under OCGA § 19-9-62 and its termination triggers)
- Kogel v. Kogel, 337 Ga. App. 137 (Ga. Ct. App.) (recognizing use of other jurisdictions’ UCCJEA decisions when Georgia authority is sparse)
- State Farm Fire & Cas. Co. v. American Hardware Mut. Ins. Co., 224 Ga. App. 789 (Ga. Ct. App.) (other jurisdictions’ decisions are persuasive but not binding on Georgia courts)