Wesley B. Allen v. Kimberly M. McGuire
339 Ga. App. 219
| Ga. Ct. App. | 2016Background
- Allen and McGuire divorced in 2007; their decree awarded joint legal and physical custody with no primary custodian.
- McGuire (mother) moved to DeKalb County; Allen (father) remained in Fulton County.
- McGuire filed a custody modification in Fulton County (2010); Allen counterclaimed there, and Fulton initially awarded primary physical custody to Allen but later vacated that judgment for lack of jurisdiction over Allen’s counterclaim.
- Allen filed a separate custody petition in DeKalb County (McGuire’s county); DeKalb denied Allen’s motion to transfer the case to Fulton.
- Fulton ultimately denied McGuire’s petition in a Final Order and issued a Clarifying Order finding current joint schedule unworkable and noting Allen was more willing to facilitate the other parent’s relationship with the child.
- In DeKalb, the trial court denied Allen’s partial summary-judgment motion, limited admissible evidence to events after the Fulton decision, granted McGuire’s directed verdict dismissing Allen’s petition, and awarded attorney fees against Allen and his counsel; appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusive effect of Fulton ruling on material change issue | Allen: Fulton ruling precludes re-litigation and establishes material change in circumstances favoring Allen | McGuire: Additional events after Fulton create genuine issues of material fact | Court: Fulton ruling has preclusive effect on issues actually decided, but evidence of post-Fulton changes precludes summary judgment; directed verdict reversed and new trial ordered |
| Scope of admissible evidence at DeKalb trial | Allen: All facts since 2007 decree are relevant; Fulton decision should not limit evidence | McGuire: Only facts after Fulton decision should be admissible | Court: Trial court erred; relevant facts from after 2007 decree (including those the Fulton court considered) must be admitted so comparative analysis is possible |
| Directed verdict/dismissal at close of plaintiff’s case | Allen: He met burden via Fulton ruling and other evidence presented | McGuire: Allen failed to prove material change in welfare since last custody award | Court: Directed verdict was error because Fulton ruling in plaintiff’s favor was sufficient to overcome directed verdict; new trial required |
| Attorney-fee award against Allen and counsel | Allen/Miller: Fees improper given errors and need for retrial | McGuire: Fees justified by conduct, frivolous positions, discovery abuses, and financial disparity | Court: Fee award vacated and remanded for reconsideration after new trial |
Key Cases Cited
- Simmons v. State, 276 Ga. 525 (explaining collateral estoppel/issue preclusion)
- Cost Mgmt. Group, Inc. v. Bommer, 327 Ga. App. 164 (defining collateral estoppel scope)
- Fox v. Korucu, 315 Ga. App. 851 (summary-judgment review and custody evidence principles)
- Miller v. Rieser, 213 Ga. App. 683 (custody determinations generally unsuitable for summary judgment)
- Driver v. Sene, 327 Ga. App. 275 (material-change standard for custody modification)
- First Southern Bank v. C & F Svcs., Inc., 290 Ga. App. 305 (dismissal of redundant appellate cases)
- Bailey v. Bailey, 283 Ga. App. 361 (venue provisions may be waived)
- Ganny v. Ganny, 238 Ga. App. 123 (venue waiver discussion)