Gingеr Baldwin and Michael Wilson were divorced in Tattnall County and awarded joint custоdy of their daughter, with Baldwin to have physical custody. Later Baldwin moved to Monroe County with the child.
On December 9, 1997, Baldwin sued Wilson in Tattnall County for modification of сhild support, and Wilson counterclaimed for change of custody. The trial court dismissed the counterclaim pursuant to OCGA § 19-9-23 (a), which is part of the Child Custody Intrastatе Jurisdiction Act (CCIJA). We granted Wilson’s application to appeal.
OCGA § 19-9-23 (a) provides: “Except as otherwise provided in this Code section, . . . 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 lеgal custodian of the child.” Baldwin is the legal custodian under the CCIJA. OCGA § 19-9-22. Baldwin argues § 19-9-23 (a) required Wilson to file a separate action in Monroe County.
Subsection (с) of the same Code section prohibits bringing “a complaint seeking to obtain a change of legal custody” in two situations: “(1) As a counterclaim or in any оther 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?
(Emphasis supplied.) Wilson contends that because Baldwin filed a petition to modify child support and not to enforce a child custody order, subsection (c) does not prohibit him from seeking change of custody in a counterclаim, even if the action was not filed in the legal custodian’s county of residenсe. He cites
Dixon v. Dixon,
The Supreme Court in
Jones v. Jones,
The father, in filing a countеrclaim seeking to change custody, violated two provisions of OCGA § 19-9-23 (a): (1) by *328 failing tо bring a separate action to have custody changed, and (2) by failing to bring such an action in the county of residence of the legal custodian of the child.
Id. at 743. The Court did not apply subsection (c) to allow the counterclaim just because the mother filed something other than an enforcement aсtion. See also
Graves v. Graves,
The Supreme Court’s decision makes clear that subsection (c) equates the term complaint with the term counterclaim, showing the drafters of the Code sectiоn used “complaint” in its common form to mean grievance, not as a term оf art to mean the document used to commence a civil action undеr the Civil Practice Act. See American Heritage Dictionary (2nd College edition 1985), p. 301. “[A] statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.”
Houston v. Lowes of Savannah,
To eliminate any confusion, to the extent
Dixon v. Dixon
is inconsistent-with our holding it must bе disapproved. We note that the Supreme Court decided
Jones v. Jones
four months before
Dixon v. Dixon,
and that the same court denied certiorari in
Dixon v. Dixon.
However, dеnial of certiorari “should not be construed as the expression of an opinion by the appellate court on the merits of the decision.” (Emphasis omitted.)
Intl. Indem. Co. v. Coachman,
Judgment affirmed.