Woodruff v. Choate
334 Ga. App. 574
| Ga. Ct. App. | 2015Background
- Rita Woodruff filed to modify custody/visitation seeking joint legal and physical custody and equal parenting time; original 2010 consent order gave Choate primary physical custody and Woodruff alternating weekend visitation while she then lived out of state.
- From 2012–2013 the parties informally adopted an equal/alternating parenting schedule; Choate ended that arrangement in July 2013 and the parties reverted to the 2010 order.
- Woodruff filed the modification petition in August 2013 alleging changed circumstances; Choate denied the allegations and sought attorney fees.
- The trial court struck a February 2014 child election, dismissed Woodruff’s petition (without taking her evidence), reserved attorney fees, then in June 2014 awarded Choate about $47,000 under OCGA § 9-15-14 and OCGA § 19-9-3.
- Woodruff appealed; this court held it had jurisdiction to hear the June 2014 final order and reversed, finding the dismissal improper and vacating the fee award for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court had appellate jurisdiction over the June 2014 fee order | Woodruff: June 2014 order is final in a custody case and directly appealable under OCGA § 5-6-34 | Choate: Woodruff failed to timely appeal March dismissal and needed discretionary application for the fee award | Court: June 2014 order was final and directly appealable; therefore appellate jurisdiction exists |
| Whether dismissal of Woodruff’s petition for failure to state a claim was proper | Woodruff: petition alleged changed circumstances and best interests sufficient to survive dismissal; she should have been allowed to present evidence | Choate: the child’s earlier election favored Choate and there was no material change since the prior custody award | Court: dismissal improper—petition sufficient and court improperly considered election (outside pleading) without giving Woodruff opportunity to respond; reverse and remand |
| Whether trial court could treat child’s election as dispositive | Woodruff: election is presumptive but not conclusive; best interest inquiry remains; timing of material-change inquiry matters | Choate: child’s election favored him and supported dismissal | Court: child’s election is presumptive; material-change must be measured since last custody award; court erred by relying on election and denying Woodruff chance to present evidence |
| Whether attorney-fee award under OCGA § 9-15-14 and § 19-9-3 was proper | Woodruff: fee award inappropriate because dismissal was erroneous and she was deprived of chance to respond; fee allocation unclear | Choate: fees warranted based on asserted misconduct and lack of merit | Court: vacated fee award and remanded for reconsideration in light of reversal (including proper allocation and opportunity to respond) |
Key Cases Cited
- Haygood v. Head, 305 Ga. App. 375 (review of sua sponte dismissal is de novo)
- Scott v. Scott, 311 Ga. App. 726 (pleadings construed favorably to claimant; complaint survives if evidence may sustain relief)
- Mays v. Rancine-Kinchen, 291 Ga. 283 (policy against multiple, piecemeal appeals)
- Miller v. Miller, 288 Ga. 274 (reserved attorney-fee issues prevent final judgment in family cases)
- Mitcham v. Blalock, 268 Ga. 644 (appeal of § 9-15-14 fees need not be separately applied for when part of directly appealable judgment)
- Aycock v. Calk, 222 Ga. App. 763 (sua sponte summary judgment requires notice and opportunity to respond)
- Viskup v. Viskup, 291 Ga. 103 (material-change inquiry measured since last custody award)