TERRY v. GARIBALDI
A05A0548
Court of Appeals of Georgia
Decided May 13, 2005
Reconsideration denied July 14, 2005
274 Ga. App. 405 | 618 SE2d 6
JOHNSON, Presiding Judge.
The parties were formerly married and have one minor child, who was born in 1991. When the parents divorced in 1994, their settlement agreement was incorporated into the divorce decree. The settlement agreement provided for joint legal and physical custody with the father having the child for five days a week and the mother having him for two days. The agreement did not specify which parent would have custody which days of the week. Neither parent was to pay child support. The settlement agreement did not provide a device to resolve any conflict arising between the parties upon issues involving the welfare of the child.1
In February 2002, the father brought a petition for modification and clarification of the final divorce decree. In it, he sought an award of child support and clarification of the final judgment. He alleged that the parties were unable to mutually agree on the days and times for physical custody, and that the mother had interpreted the provision of the agreement as allowing her to have physical custody every weekend. He added that the mother “selfishly and unjustly” denied him any custody or time with the child on weekends. Furthermore, the father sought to modify the divorce decree to require the payment of child support by the mother. To support that request, he alleged a
The mother filed a counterclaim for modification of custody, alleging that she should be awarded primary physical and legal custody of the child, as well as given authority to make final decisions regarding all issues upon which the parties could not agree. The mother based her counterclaim on an alleged change of condition materially affecting the welfare of the child. She did not specify in her pleadings what material change occurred, but at an August 2002 hearing to decide temporary physical custody she pointed out that the parties could not agree on whether the child should attend public or private school. Specifically, the father wanted the child to attend a neighborhood public school, and the mother wanted the child to attend private school.2
The father moved to dismiss the counterclaim based on
After a final hearing, the trial court entered a final order transferring physical custody to the mother. In its order, the superior court acknowledged that, “as a general rule,” final orders awarding child custody to one parent in a divorce action can only be modified through a separate action and not by way of counterclaim. But the court held that that rule did not apply in this case. The court stated that
[i]n a case where both parents have relatively equal rights to custody and control of decisions involving the child‘s welfare, it does not appear that there is any prohibition to the modification of conditions of custody either in [a] separate case or by way of a counterclaim where there is a change in condition affecting the welfare of the child.
The court noted that the “gridlock” between the parents concerning the child‘s education is a sufficient change in condition to warrant modification of custody. The court found further that the best interest of the child supports the change of primary physical custody to the mother, and included provisions for visitation by the father and for his payment of child support.
The father filed an application for discretionary review, asking this Court to determine, among other things, whether the superior court erred in allowing the mother to seek a change of custody by way of a counterclaim, and whether the trial court erred in ruling that the
1. The father complains that the superior court erred in allowing the mother to seek a change of custody by way of a counterclaim. The law supports his position.
In Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987), the mother (custodial parent) filed an action to modify the father‘s visitation rights and the father filed a counterclaim seeking to change custody. The Supreme Court of Georgia stated that the father violated
Nonetheless, the mother argues that Lewis v. Lewis, 252 Ga. App. 539 (557 SE2d 40) (2001) requires that we permit a counterclaim for modification of custody here. In Lewis, the father filed a complaint to modify custody, and the mother cross-petitioned for modification of custody. In that case, however, the Court did not examine the issue of whether a counterclaim was prohibited by
We realize that the filing of a separate change of custody suit by the mother could result in consolidation of the two actions in front of
We do not agree with the mother‘s position that the father‘s petition sought a change of custody. The parties had different interpretations of what the decree provided on the issue of custody. The father posited that the mother‘s interpretation of the provision was unfair because it allowed her to have physical custody every weekend. The father simply sought clarification of the meaning of a vague provision in the divorce decree. Modification was requested as to the issue of child support. In the August 2002 hearing set to decide temporary physical custody and support issues, the father‘s attorney stated that the father‘s petition did not seek a change of custody, that he was requesting that custody remain as provided in the decree, and that he simply needed the court to determine which five days he is to have custody.
Therefore, the trial court erred in allowing the mother to petition for a change of custody through a counterclaim to the father‘s petition.
2. The father contends the trial court erred in ruling that a dispute arising out of how the child is educated is a substantial change of circumstances affecting the welfare of the child that would justify a change in custody. We agree that this ruling of the trial court was erroneous.
A dispute over how a child will be educated is not a material change that will justify a change of custody. In Daniel v. Daniel, supra, this Court affirmed the trial court‘s determination that there had been no showing of a change in condition materially affecting the child where the parents could not agree whether to educate the child at home or
Furthermore, we note that the trial court in this case does not give any indication in its order that a change in condition has had an adverse effect on the child.13
Under the circumstances, the trial court erred in finding that the mother showed a material change in condition based on the parents’ differing views regarding the appropriate educational setting.14
3. In two separate enumerations, the father contends the trial court erred in refusing to give him deference as the primary physical custodian, and in finding that a change in custody was in the child‘s best interest. Based on our holding in Division 1, we need not reach these arguments.
Judgment reversed. Ruffin, C. J., concurs. Barnes, J., concurs specially.
BARNES, Judge, concurring specially.
Because I cannot see any ambiguity in
The statute apparently does not contemplate a situation such as this in which the parents share custody and reside in the same county, and the initiating action is not one seeking enforcement of a court order, and its application here is unfortunate. The minor child has been living with his mother during the week and visiting his father on weekends for almost three years, and the parties must now revisit the custody issue, incurring additional expense and upheaval. Unfortunately, we are not permitted to interpret the statute to allow the counterclaim for custody modification in this case. “Courts of last resort must frequently construe the language of a statute, but such