Viskup v. Viskup
291 Ga. 103
| Ga. | 2012Background
- Viskup v. Viskup involves modification of child custody petition filed by Mother in Cherokee County in Oct 2008; Father was the prior custodial parent.
- Trial court granted temporary custody to Mother in Dec 2008 and permanent primary custody and child support to Mother in Feb 2011; attorney fees awarded to Mother in Apr 2011; Father’s new-trial motion denied in May 2011.
- Venue/ residence issue: Mother filed in Cherokee County; service on Father in Cherokee; dispute whether Father resided in Cherokee County when petition filed.
- Evidence showed Father’s actions surrounding a Cobb/Cherokee line boundary, including moving homes, school enrollment, vehicle registration, and driver’s license changes in Oct 2008.
- Court ultimately affirmed modification awarding custody to Mother and awarded attorney fees; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Cherokee County proper venue for the modification petition? | Viskup contends he resided in Cobb County; venue improper. | Mother filed in Cherokee; service timely; Cherokee proper if residence remained there at filing. | Venue proper; Father resided in Cherokee County at filing. |
| Was there a material change in circumstances justifying modification and was it in the child's best interests? | No material change; modification not in child’s best interests. | Mother’s circumstances improved; child’s welfare benefits from change; best interests favor custody to Mother. | Yes, there was a material change; best interests favored Mother. |
| Whether attorney fees awarded to Mother were properly based on statutory authority? | No clear statutory basis; potential financial inability factors ignored. | Attorney fees authorized under OCGA 19-9-3(g) (modification actions); other bases not applicable. | Award upheld under OCGA 19-9-3(g); Harris v. Williams overruled to the extent inconsistent. |
Key Cases Cited
- Franek v. Ray, 239 Ga. 282 (1977) (residence at filing governs venue when service follows)
- Cartwright v. Fuji Photo Film USA, 312 Ga. App. 890 (2011) (change of residence after filing does not alter proper venue)
- Oglesby v. Deal, 311 Ga. App. 622 (2011) (any evidence test for venue findings)
- Lynch v. Horton, 302 Ga. App. 597 (2010) (material change of conditions and best interests guidance)
- Gallo v. Kofler, 289 Ga. 355 (2011) (standard for best interests in custody modification)
- Haskell v. Haskell, 286 Ga. 112 (2009) (abuse of discretion in custody determinations)
- Moore v. Moore-McKinney, 297 Ga. App. 703 (2009) (modification of custody standards for evidence)
- Harris v. Williams, 304 Ga. App. 390 (2010) (overruled regarding attorney-fee basis in modification actions)