Allen v. McGuire

The Court partially reversed the trial court's ruling in a child custody action, finding that father was entitled to a new trial on his petition for modification of custody.

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In this child custody action, Wesley B. Allen and his attorney, Jody Ann Miller, appeal from the trial court’s denial of Allen’s motion for partial summary judgment, the dismissal of the action by directed verdict, and the imposition of attorney fees. As these appeals are based on the same record, the separate appeals have been consolidated for the purposes of review. In Case No. A13A1301, we affirm the trial court’s denial of the motion for partial summary judgment, but we reverse its directed verdict and dismissal of the custody action, vacate the award of attorney fees assessed against Allen, and remand the case for further proceedings. In Case No. A16A1302, we incorporate our holdings in Case No. A16A1301, vacate the award of attorney fees assessed against Miller, and remand the case for further proceedings. We dismiss Case No. A16A1303 as redundant.

The record shows that Wesley Allen and Kimberly McGuire were divorced in Fulton County in December 2007. Pursuant to the divorce decree, the parties shared joint legal and physical custody of their minor child, with neither parent being designated as the primary custodian. Thereafter, McGuire moved to DeKalb County and Allen remained in Fulton County. In August 2010, McGuire filed a petition in Fulton County, Allen’s county of residence, seeking a modification of child custody and support. Allen answered and counterclaimed, likewise requesting a modification of child custody and support. Following a hearing, the Fulton County Superior Court entered an order awarding primary physical custody to Allen. However, on McGuire’s motion for new trial, the Fulton County Superior Court vacated its judgment, finding that it lacked jurisdiction to address Allen’s request for change of custody because his counterclaim was not brought as a separate action in McGuire’s county of residence pursuant to OCGA § 19-9-23 a.1 . The superior court further found that a new trial on McGuire’s petition for modification of custody was warranted.

Allen v. McGuire

The Court partially reversed the trial court's ruling in a child custody action, finding that father was entitled to a new trial on his petition for modification of custody.

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