Seeley v. Seeley

O.C.G.A. § 19-9-23 provides that 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 legal custodian.

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Following the grant of his application for discretionary review, Kirk DeYoung Seeley “the father” appeals from an order of the Superior Court of Gwinnett County that modified a prior custody order by placing primary physical custody of Seeley’s daughter with his former wife, Kerol Diane Seeley “the mother”. The father contends the trial court erred in denying his motion to dismiss the mother’s counterclaim pursuant to OCGA § 19-9-23 and in finding that the evidence was sufficient to support a modification of physical custody. Because we find the trial court erred by denying the father’s motion to dismiss, we vacate the trial court’s order and remand this case to the trial court for a hearing on the father’s complaint only. 1. In his first enumeration of error, the father contends the trial court erred in permitting the mother to seek a change of custody by way of a counterclaim in violation of OCGA § 19-9-23. “When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” Citation omitted. Suarez v. Halbert , 246 Ga. App. 822 543 SE2d 733 2000. The undisputed facts relevant to the resolution of this question of law are as follows.

On October 3, 2003, the Superior Court of DeKalb County entered a Consent Final Judgment and Decree of Divorce to the Seeleys. The decree states that “the parties shall share joint legal and physical custody” of their minor child. The decree does not provide for child support or for a primary physical custodian, but sets forth a plan for “co-parenting” the child, equally dividing custody, visitation, and financial responsibilities between the parents. The decree does, however, provide that if the parties are unable to agree upon matters pertaining to the child’s medical care, education, religion, or social activities, the mother shall have final decision-making authority.

Seeley v. Seeley

O.C.G.A. § 19-9-23 provides that 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 legal custodian.

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