Roberts v. Kinsey
308 Ga. App. 675
| Ga. Ct. App. | 2011Background
- Roberts and Kinsey divorced in 2008; settlement incorporated a handwritten MOU granting joint legal and physical custody of their five-year-old son.
- The MOU required Roberts to enroll the child in Henry County School District and provided for reevaluation of custody if Roberts relocated without agreement.
- Kinsey moved for contempt in 2008 alleging Roberts resided in Maryland, enrolled the child elsewhere, and refused to return the child to Georgia.
- The court issued a December 2008 ex parte order granting Kinsey temporary sole custody and ordering the child returned to Georgia.
- A 2009 petition to change custody was filed by Kinsey; Roberts answered, and venue issues later arose and were litigated; hearings occurred in 2009.
- In October 2009, the superior court granted Kinsey’s petition, awarding her sole custody, child support, and visitation, and the trial court found Roberts in contempt for failing to enroll the child and other violations; appellate review affirmed the custody determination and contempt finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt for failing to enroll child in Henry County | Roberts contends no willful contempt; claims compliance with the MOU. | Kinsey argues Roberts wilfully defied the court order by moving to Maryland and not enrolling. | Supported: Roberts wilfully failed to enroll as required. |
| Validity of self-executing custody provision | Roberts claims the clause is invalid under Scott v. Scott. | Kinsey argues the provision, read with reevaluation language, preserves judicial scrutiny. | No error: there was no self-executing provision; reevaluation triggered by move satisfies Scott. |
| Restriction of residence and retention of jurisdiction | Roberts claims the provision unlawfully restricted residence. | Kinsey maintains reevaluation upon relocation prevents improper jurisdiction retention. | No authority violation; provision contemplates court-ordered reevaluation. |
| Best interests and custody award discretion | Roberts claims trial court abused its discretion by mischaracterizing facts. | Kinsey argues facts support unstable environment if Roberts remains custodian. | No abuse; evidence supports best-interest determination and shift to mother. |
| Venue-related errors in Kinsey's petition | Roberts asserts improper venue affected the order. | Kinsey contends venue issues were waived or resolved. | Waived/untimely; cannot be reviewed on these grounds. |
Key Cases Cited
- Scott v. Scott, 276 Ga. 372, 578 S.E.2d 876 (Ga. 2003) (invalid automatic custody provisions without timely judicial review; requires best-interest consideration)
- Facey v. Facey, 281 Ga. 367, 638 S.E.2d 273 (Ga. 2006) (limits on attempting to retain jurisdiction; not unlawful when reevaluation is triggered by relocation)
- Edwards v. Edwards, 226 Ga. 875, 178 S.E.2d 168 (Ga. 1970) (final custody order can moot issues arising from temporary orders)
- Haskell v. Haskell, 286 Ga. 112, 686 S.E.2d 102 (Ga. 2009) (clear abuse of discretion standard; deference to trial court credibility findings)
- Harris v. Williams, 304 Ga.App. 390, 696 S.E.2d 131 (Ga. App. 2010) (factors for reviewing custody determinations; factual findings reviewed for clarity)