Lowe v. Lowe

The trial court lacked jurisdiction to consider the father's action for modification of child custody because, at the time of its filing, a separate modification action was pending in another county.

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We granted Elisa M. Lowe’s pro se application for discretionary appeal from an order entered by the Superior Court of Paulding County Paulding Court denying her motion to set aside, motion for new trial, and request for sanctions in this case arising out of a child custody dispute.1 We agree with Ms. Lowe that the Paulding Court lacked jurisdiction over the child custody modification petition filed by the father/appellee, Michael L. Lowe, and thus erred by denying the mother’s motion to set aside. Before we turn to the recitation of the facts and analysis of the issues, we note that we are troubled by the fact that the father failed to file a response to the application for discretionary appeal and has also failed to file an appellee’s brief in this ensuing appeal. By failing to file a brief on appeal, the father has failed to contravert the facts as set forth in the mother’s brief; pursuant to our Rules, this failure “shall constitute a consent to a decision based on the appellant’s statement of facts. Further, except as controverted, appellant’s statement of facts may be accepted by this Court as true.” See Georgia Court of Appeals Rule 25 b 1.

Turning now to the pertinent facts, the record and the mother’s brief disclose the following: The parties were divorced in April 2000. The divorce decree was entered by the Superior Court of Coweta County Coweta Court, and the mother was awarded sole custody of the parties’ two minor children. The mother subsequently filed a petition to modify child support and visitation and a motion for contempt in the Coweta Court, and on August 14, 2001, after noting the father had failed to appear at the hearing on those matters, the court entered an order modifying the father’s support obligations and visitation; further the father was held in contempt for willful violation of the divorce decree, and was ordered to appear and purge himself of the contempt or face the possibility of incarceration.

Lowe v. Lowe

The trial court lacked jurisdiction to consider the father's action for modification of child custody because, at the time of its filing, a separate modification action was pending in another county.

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