Husband and wife were divorced in 2009. There are two children of the marriage. The decree awarded joint custody to the parties, with primary physical custody to wife. Thereafter, husband filed a contempt action in Forsyth County; he also sought a psychological custody evaluation of wife. Wife was living in Forsyth County at that time, and she was served at her residence in that county. Almost four months later, wife filed a “motion to dismiss.” She did not challenge personal jurisdiction or venue in that motion. Thereafter, husband appended a motion for change of custody to the contempt action. However, the parties entered into a settlement agreement—to resolve the custody and contempt issues—which was announced in open court. The parties abided by the settlement agreement for about eight months. Then wife moved to invalidate the agreement and to dismiss the change of custody action, arguing it should have been filed in Fulton County because she moved there at some point while the case was pending. The trial court denied wife’s motions, finding that she waived personal jurisdiction and venue defenses. It also awarded husband physical custody of the children, denied wife visitation rights with the children until she underwent and paid for a psychological custody evaluation, and ordered wife to pay child support in the amount of $704 per month. Finally, the trial court found wife in contempt for failing to pay child support in the amount of $3,168 and uncovered medical expenses for the minor children in the amount of $331. Wife sought and we granted this discretionary appeal.
1. Wife asserts husband’s motion seeking a change in custody should have been filed in Fulton County, not Forsyth County, because wife had primary physical custody of the children, OCGA § 19-9-22 2, and she resided in Fulton County when husband sought a custody change. See OCGA § 19-9-23 a. We disagree. Like the wife in Daust v. Daust, 204 Ga. App. 29 418 SE2d 409 1992, wife originally lived in the county in which this action was initiated; she moved to another county while the case was pending. Furthermore, as in Daust, wife waived any personal jurisdiction and venue defenses by entering into a consent order regarding custody and by waiting many months before asserting these defenses. Although, generally speaking, custody cannot be modified in a contempt action and must be brought as a separate proceeding, Coker v. Moemeka, 311 Ga. App. 105, 107 1 714 SE2d 642 2011, this general rule is not applicable where, as here, wife waived these defenses. Daust, supra. Compare Bailey v. Bailey, 283 Ga. App. 361 641 SE2d 580 2007 consenting to transfer of action containing change of custody counterclaim does not constitute waiver with Ganny v. Ganny, 238 Ga. App. 123, 125 2 518 SE2d 148 1999 venue of counterclaim for custody waived where no objection raised until closing argument.
