At issue is whether the trial court erred in failing to dismiss the complaint of Andre J. Alberti (the Father) for change of custody because his action was an impermissible response to the habeas corpus petition of Ashley R. Alberti (the Mother). We conclude
The record shows that the Father and the Mother, both residents of Columbia County, are the divorced parents of two minor children. The divorce decree designated the Mother as the custodial parent of the son as of June 2, 2010. The daughter was born after the divorce, and the superior court ordered the Father to pay child support to the Mother on account of the daughter.
On September 15, 2011, the Mother filed a petition for writ of habeas corpus in the Superior Court of Columbia County alleging that the Father was illegally detaining, restraining, and withholding custody of their minor children under pretext of a void order of the Juvenile Court of Columbia County. At the conclusion of the habeas hearing on September 26, 2011, the habeas court announced that it was going to grant the habeas petition and place the children with the Mother. The Father filed a complaint for change of custody and other relief in the Superior Court of Columbia County on September 29, 2011. The habeas court entered its writ of habeas corpus on October 5, 2011, finding that the parties’ rights to their son were governed by the divorce decree and that the Father had no custodial rights to their daughter, and accordingly ordered the children’s immediate return to the Mother.
The Mother answered the Father’s complaint for change of custody and asserted as an affirmative defense that the complaint was barred by reason of OCGA § 19-9-23 (c) (1). The trial court held a “thirty day conference” on the Father’s complaint, at which time the trial court heard argument on and overruled the Mother’s affirmative defense. Following a bench trial, the trial court entered its final judgment finding, among other things, that following the entry of the final divorce decree there had been a significant change of circumstances, and it awarded primary physical custody of the children to the Father.
On appeal, the Mother argues that the trial court erred in overruling her affirmative defense because the Georgia Child Custody Intrastate Jurisdiction Act, OCGA § 19-9-20 et seq., prohibited the Father’s complaint for change of custody inasmuch as his complaint was filed in response to her petition for writ of habeas corpus. In resolving this issue, the parties agree that the controlling statute is OCGA § 19-9-23. The interpretation of this statute is a question of law, which we review de novo. See American Gen. Life & Accident Ins. Co. v. Vance,
OCGA § 19-9-23 provides:
(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
(b) A complaint by the legal custodian seeking a change of legal custody or visitation rights shall be brought as a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state. [2 ]
(c) No complaint specified in subsection (a) or (b) of this Code section shall be made: (l)As a counterclaim or in any other manner in response to a petition for a writ of habeas corpus seeking to enforce a child custody order, or (2) In response to any other action or motion seeking to enforce a child custody order.
(d) The use of a complaint in the nature of habeas corpus seeking a change of child custody is prohibited.
(Emphasis supplied.)
The Mother argues that OCGA § 19-9-23 (c)(1) places an unequivocal restriction on the filing of a complaint — in any manner — in response to a petition for a writ of habeas corpus seeking to enforce a child custody order. We have previously said, however, that OCGA § 19-9-23, as a whole,
contemplates that “a complaint seeking to obtain a change of legal custody” theoretically could be filed as a formal complaint in a separate action or as a counterclaim. Subsection (a) requires such a complaint to be filed in a separate action in the legal custodian’s county of residence. Subsection (c) then prohibits filing such a complaint as a counterclaim under certain circumstances. Subsection (c) has meaning because it clarifies that counterclaims which may be compulsory under OCGA § 9-11-13 (a), are prohibited.
(Punctuation omitted.) Wilson v. Baldwin,
The conclusion that the Father complied with OCGA § 19-9-23 is reinforced by decisions of our Supreme Court. In Douglas v. Douglas,
Admittedly, OCGA § 19-9-23 (c) (1) prohibits more than express counterclaims in “response” to a habeas petition seeking to enforce a child custody order. For example, neither Hutto nor Douglas involved the habeas court’s consideration of a counterclaim. Rather, in Hutto, the habeas court dismissed the counterclaim to the habeas petition but erred in “allow[ing] the physical custodian to present evidence and essentially maintain an action against the legal custodian even though he was withholding custody of the child[.]” Hutto,
Given the foregoing, even if it can be said that the Father’s decision to file a petition for change of custody was predicated on the
The Mother also shows that the Father filed his complaint for change of custody six days before the habeas court entered its writ of habeas corpus. However, by its express provisions, the Father’s complaint acknowledges that his custody of the children pursuant to the order of the juvenile court was overturned by the superior court in the Mother’s action for habeas corpus. Thus, if a few days premature, the Father’s action is accurately premised on the success of the Mother in the habeas action and was adjudicated on that basis, and the Mother does not show any fatal defect in the Father’s complaint.
Judgment affirmed.
Notes
The Mother filed this appeal in our Supreme Court, which transferred her appeal to this Court because, among other reasons, “this child custody case is a separate case from the previous habeas corpus case between the parties,” and so did not come within the Supreme Court’s jurisdiction over habeas corpus cases.
Article VI, Section II, Paragraph. VI of the Georgia Constitution of 1983 states:
All other civil cases, except juvenile court cases as may otherwise be provided by the Juvenile Court Code of Georgia, shall be tried in the county where the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by law; and all criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.
We must note that although we consider the Father’s complaint to be valid under these circumstances, we are not thereby concluding that a separate action for change of custody must always be allowed during the pendency of a habeas action to enforce a custody order. See OCGA § 19-9-24 (a) (“[a] physical custodian shall not be allowed to maintain against the legal custodian any action for... child custody... so long as custody of the child is withheld from the legal custodian in violation of the custody order”).