Woodruff v. Choate

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

November 17, 2015

In the Court of Appeals of Georgia
A15A0452. WOODRUFF v. CHOATE.

MILLER, Judge.

Rita Dawn Woodruff filed a petition for modification of child custody and

visitation against her ex-husband, William Choate. The trial court dismissed

Woodruff’s petition and awarded attorney fees to Choate. Woodruff appeals,

contending that the trial court erred in (1) dismissing sua sponte her petition and (2)

awarding Choate attorney fees and expenses of litigation. For the reasons that follow,

we reverse and remand to the trial court.

“We review a trial court’s sua sponte order of dismissal de novo.” (Citation

omitted.) Haygood v. Head, 305 Ga. App. 375, 377 (1) (699 SE2d 588) (2010). “In

deciding a motion to dismiss, all pleadings are to be construed most favorably to the

party who filed them, and all doubts regarding such pleadings must be resolved in the
filing party’s favor.” (Citation omitted.) Scott v. Scott, 311 Ga. App. 726, 727 (1) (716

SE2d 809) (2011).

So viewed, Woodruff’s complaint alleged that she and Choate, who have a

sixteen-year-old child together, divorced in 2002. Under a 2010 consent order, the

parties shared joint legal custody; Choate had primary physical custody of the child;

and Woodruff, who then lived out of state, was entitled to visitation every other

weekend during the school year.

In September 2011, Woodruff purchased a home in Woodstock, near Choate’s

home. At the beginning of the 2012-2013 school year, Woodruff and Choate, with the

help of a parenting coach, agreed to deviate from the 2010 consent order and adopted

an informal joint parenting plan, whereby they alternated custody of the child every

few days during the school year and every two weeks during the summer. In July

2013, Choate ended the informal parenting plan and the parties reverted to the

custody and visitation schedule set forth in the 2010 consent order.

In August 2013, Woodruff filed the instant petition for modification of custody

and visitation, alleging changed circumstances and seeking joint legal and physical

custody and equal parenting time. Woodruff specifically alleged:

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 Since the date of the most recent modification action, . . . the
circumstances of the parties and the needs of the minor child have
changed to the degree that the [2010 consent order] is no longer in the
best interest of the child and should be modified accordingly.

Woodruff also requested child support and attorney fees. Choate filed an answer to

Woodruff’s petition, denying her allegations and requesting attorney fees.

In September 2013, the child signed an election, indicating a preference to live

with Choate. At a status conference in January 2014, the trial court ordered the parties

and their attorneys to avoid discussing the litigation with the child. Despite the

court’s order, in February 2014, the child signed a different election, indicating a

preference to live with Choate and Woodruff on an equal basis. In March 2014, after

reserving the issue of attorney fees and hearing opening arguments, the trial court

struck the child’s February 2014 election1 and, without accepting any other evidence

from Woodruff, dismissed her petition. In June 2014, Choate sought and the trial

court awarded approximately $47,000 in attorney fees and expenses of litigation

under OCGA § 9-15-14 and OCGA § 19-9-3. This appeal ensued.

1
See Sharpe v. Perkins, 284 Ga. App. 376, 378 (1) (644 SE2d 178) (2007)
(election indicating that child wishes to live with both parents is invalid because
OCGA § 9-9-3 (a) (5) requires child to choose one parent).

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 1. As an initial matter, Choate argues that Woodruff is barred from seeking

review in this Court because she failed to timely appeal from the trial court’s March

2014 dismissal of her petition to modify custody and failed to file an application for

discretionary review from the trial court’s June 2014 order awarding attorney fees

under OCGA § 9-15-14 and OCGA § 19-9-3 (g). This Court initially dismissed

Woodruff’s appeal on those grounds, but we later granted Woodruff’s motion for

reconsideration, reinstated the appeal, and directed the parties to address the issue of

jurisdiction. Woodruff argues that she is entitled to a direct appeal under OCGA § 5-

6-34 because the trial court’s June 2014 order was a final judgment in a child custody

case. After careful consideration, we conclude that we have jurisdiction over this

direct appeal.

(a) The Appellate Practice Act “shall be liberally construed so as to bring about

a decision on the merits of every case appealed and to avoid dismissal of any case[.]”

OCGA § 5-6-30. “The policy of the Appellate Practice Act is against multiple appeals

and piecemeal litigation.” (Citation omitted.) Mays v. Rancine-Kinchen, 291 Ga. 283,

283-284 (729 SE2d 321) (2012).

“Two Code sections determine the method for pursuing appeals to this Court:

OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be

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appealed directly, and OCGA § 5-6-35, which lists cases in which an application for

appeal is required.” Collins v. Davis, 318 Ga. App. 265, 266 (1) (733 SE2d 798)

(2012).

Pursuant to OCGA § 5-6-34 (a) (1), “[d]irect appeals are generally authorized

from lower court orders that are final, meaning that there are no issues remaining to

be resolved in the lower court.” Mays, supra, 291 Ga. at 284. Here, in its March 2014

order, the trial court specifically reserved the issue of attorney fees. In its June 2014,

the trial court awarded Choate attorney fees under OCGA § 9-15-14 and OCGA § 19-

9-3. Thus, contrary to Choate’s assertion, the trial court’s March 2014 order was not

a final judgment because it did not adjudicate all the pending claims.2 See Miller v.

Miller, 288 Ga. 274, 282 (4) (705 SE2d 839) (2010) (holding that there was no final

judgment in a divorce action until the reserved issue of attorney fees was resolved).

Moreover, the March 2014 order did not terminate the custody action, and the trial

court’s custody order was subject to revision at any time before the entry of final

2
The trial court’s March child custody order was directly appealable pursuant
to OCGA § 5-6-34 (a) (11), even though it was not a final judgment in the case. See
Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009).

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judgment.3 OCGA § 9-11-54 (b). Rather, the June 2014 order, which awarded

attorney fees under not only OCGA § 9-15-14 but also OCGA § 19-9-3, disposed of

all the claims in this case, and thus was the final judgment. Accordingly, the June

2014 order was subject to direct appeal under OCGA § 5-6-34 (a) (1).

(b) We must also consider, however, whether an application is nonetheless

required based on the “underlying subject matter” at issue. See Todd v. Todd, 287 Ga.

250, 251 (1) (703 SE2d 597) (2010). Here, the underlying subject matter is

Woodruff’s petition for modification of custody.

Both of our jurisdictional statutes, OCGA § 5-6-34 and OCGA § 5-6-35, have

been substantially amended in recent years and those amendments bear directly on

this issue. Prior to 2007, child custody cases were explicitly identified as domestic

relations cases for appellate purposes and a party was required to file an application

for discretionary review. See Collins, supra, 318 Ga. App. at 266 (1) (“Prior to 2007,

there was no right to a direct appeal in any domestic relations or child custody case[;]

former OCGA § 5-6-35 (a) (2) . . . provided that applications for discretionary review

3
The mere designation by the trial court of its March 2014 order as a “Final
Order” is not controlling and does not equate to an express determination that there
was no just reason for delay and an express direction for the entry of final judgment
under OCGA § 9-11-54 (b). See Sotter v. Stephens, 291 Ga. 79, 82-83 (727 SE2d
484) (2012).

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were to be filed from appeals from judgments or orders in divorce, alimony, child

custody, and other domestic relations cases.”) (punctuation omitted).

The 2007 amendment to OCGA § 5-6-34 (a) (11) stated that parties could file

direct appeals from all judgments and orders in child custody cases and the 2007

amendment to OCGA § 5-6-35 (a) (2) removed child custody cases from the list of

cases that required an application for discretionary review. See Ga. L. 2007, p. 554,

§ 2; Ga. L. 2007, p. 555, § 3 (requiring applications for discretionary review in

“[a]ppeals from judgments or orders in divorce, alimony, and other domestic relations

cases”). With the 2007 amendments, “the legislature intended for child custody cases

to be treated differently from other domestic relations cases for purposes of appeals”

and intended that such cases no longer be subject to discretionary review. Moore v.

Moore-McKinney, 297 Ga. App. 703, 707 (1) (678 SE2d 152) (2009). Accordingly,

following enactment of the 2007 amendments, appellants were no longer required to

file applications for discretionary review to appeal any judgment or order in a child

custody case.

In 2013, the legislature again amended OCGA § 5-6-34 (a) (11), thereby

clarifying that this subdivision extended a right of direct appeal only to “judgments

or orders in child custody cases awarding, refusing to change, or modifying child

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custody or holding or declining to hold persons in contempt of such child custody

judgment or orders[.]” (Emphasis supplied.) Murphy v. Murphy, 295 Ga. 376, 377

(761 SE2d 53) (2014); see also Ga. L. 2013, p. 736, § 1. Although the 2013

amendment limited the scope of OCGA § 5-6-34 (a) (11) to those orders — such as

the trial court’s March 2014 order — that changed or refused to change child custody,

the legislature did not amend OCGA § 5-6-35 (a) (2).4 Rather, the current version of

OCGA § 5-6-35 (a) (2), which requires applications for discretionary review in

domestic relations cases and explicitly includes divorce and alimony cases in that

designation, is silent as to child custody cases.

The legislature is presumed to know that, based on its 2007 amendments to

OCGA § 5-6-35 (a) (2) and our decision in Moore v. Moore-McKinney, supra, 297

Ga. App. at 707 (1), child custody cases are no longer considered domestic relations

cases for purposes of discretionary appellate review and, thus, final judgments in

child custody cases are thereby subject to direct review. See Avnet v. Wyle

Laboratories, 263 Ga. 615, 619-620 (2) (437 SE2d 302) (1993) (“All statutes are

4
The fact that Woodruff was also entitled to a direct appeal of the trial court’s
March 2014 child custody order pursuant to OCGA § 5-6-34 (a) (11) does not
necessarily limit or alter her right to directly appeal the June 2014 order under OCGA
§ 5-6-34 (a) (1).

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presumed to be enacted by the legislature with full knowledge of the existing

condition of the law and with reference to it. They are therefore to be construed in

connection with and in harmony with the existing law, their meaning and effect is to

be determined in connection, not only with the common law and the constitution, but

also with reference to other statutes and the decisions of the courts.”) (citation and

punctuation omitted). Accordingly, final judgments in child custody cases, such as

the trial court’s June 2014 order in this case, are directly appealable under the current

statutory scheme.

Choate argues that Woodruff’s appeal of attorney fees awarded pursuant to

OCGA § 9-15-14 is governed by OCGA § 5-6-35 (a) (10), which requires a party to

follow the discretionary appeals procedure to obtain review of an OCGA § 9-15-14

award. Since Woodruff’s appeal is properly before this Court as a direct appeal of a

final judgment under OCGA § 5-6-34 (a) (1), however, she was not required to also

file a discretionary application to challenge the award of attorney fees under OCGA

§ 9-15-14. See Mitcham v. Blalock, 268 Ga. 644, 646-647 (4) (491 SE2d 782) (1997)

(no application required when appeal of attorney fees under OCGA § 9-15-14 is part

of a judgment that is otherwise directly appealable); see also OCGA § 5-6-34 (d).

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Since she is properly before this Court on the child custody issue, we can also address

the attorney fees issue.

2. Woodruff contends that the trial court erred in dismissing her petition to

modify custody and visitation. We agree.

(a) A trial court should only dismiss a complaint on the ground that it fails to

state a claim upon which relief can be granted if:

(1) the allegations of the complaint disclose with certainty that the
claimant would not be entitled to relief under any state of provable facts
asserted in support thereof; and (2) the [opposing party] establishes that
the claimant could not possibly introduce evidence within the
framework of the complaint sufficient to warrant a grant of the relief
sought.

(Citation omitted.) Scott, supra, 311 Ga. App. at 727 (1).

In dismissing Woodruff’s complaint for failure to state a claim, the trial court

found that Woodruff had failed in her petition to offer details of the alleged change

in circumstances, and had not claimed a change in material conditions or

circumstances.5 Contrary to the trial court’s order,

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Confusingly, the trial court’s order both denies and dismisses Woodruff’s
petition. A review of the hearing transcript and order, however, shows that the trial
court dismissed Woodruff’s petition for failure to state a claim upon which relief

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 it is no longer necessary for a complaint to set forth all of the elements
of a cause of action in order to survive a motion to dismiss for failure to
state a claim. If, within the framework of the complaint, evidence may
be introduced which will sustain a grant of relief to the plaintiff, the
complaint is sufficient.

(Citations and punctuation omitted.) Scott, supra, 311 Ga. App. at 729 (1). Woodruff

alleged in her petition that “the circumstances of the parties and the needs of the

minor child have changed to the degree that the [2010 consent order] is no longer in

the best interest of the child.” Accordingly, the allegations in Woodruff’s petition are

sufficient to state a complaint for modification of custody. See id.; see also Carley v.

Lewis, 221 Ga. App. 540, 542 (472 SEd2d 109) (1996) (allegations in petition to

change custody need only be sufficient to give respondent fair notice of petitioner’s

claim).

(b) Moreover, the trial court also found that Woodruff had alleged no change

of circumstances since September 2014, when the child signed an election indicating

a preference to live with Choate. In dismissing Woodruff’s petition based on the

child’s September 2014 election, the trial court considered a matter outside the

pleadings, thereby converting its dismissal order into one for summary judgment. See

could be granted.

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Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274) (1993); see also Cox Enterprises,

Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000).

Although our law concerning motions for summary judgment allows a
trial court to grant, sua sponte, a summary judgment, a trial court’s
authority to do so is not unlimited. The grant of summary judgment must
be proper in all other respects. This means that in addition to ensuring
the record supports such a judgment, the trial court must ensure that the
party against whom summary judgment is rendered is given full and fair
notice and opportunity to respond prior to entry of summary judgment.

(Citations and punctuation omitted; emphasis supplied.) Aycock, supra, 222 Ga. App.

at 763-764. The party opposing summary judgment may, if she so desires, have 30

days notice in which to submit evidence in response. See Cox Enterprises, supra, 273

Ga. at 153.

Pursuant to OCGA § 19-9-3 (a) (5), “In all custody cases in which the child has

reached the age of 14 years, the child shall have the right to select the parent with

whom he or she desires to live.” Although the child’s election is presumptive, it is not

conclusive and the trial court must still consider the child’s best interest. See Driver

v. Sene, 327 Ga. App. 275, 277 (1) (758 SE2d 613) (2014); OCGA § 19-9-3 (a) (5)

(“The child’s selection for purposes of custody shall be presumptive unless the parent

so selected is determined not to be in the best interests of the child.”)

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 The relevant time period to consider in deciding whether to grant Woodruff’s

petition for modification based on a change of condition, however, is whether “there

has been a material change of condition affecting the welfare of the child since the

last custody award.” (Citation omitted; emphasis supplied.) Viskup v. Viskup, 291 Ga.

103, 105 (2) (727 SE2d 97) (2012). At the hearing, Woodruff stated, during opening

argument, that the evidence would show that the parties had deviated from the 2010

consent order for a year to engage in equal parenting time and that the equal parenting

time worked well and was in the child’s best interest. The trial court did not allow

Woodruff to submit any evidence in support of her argument prior to dismissing her

complaint.

Since Woodruff’s petition was sufficient to state a claim, and the trial court

considered evidence outside of the pleadings but did not permit Woodruff an

opportunity to respond, the trial court erred in dismissing Woodruff’s complaint. We

reverse the trial court’s order and remand for further proceedings consistent with this

opinion.

3. Woodruff contends that the trial court erred in awarding Choate

approximately $47,000 in attorney fees and expenses of litigation under OCGA § 9-

15-14 (a) and (b) and OCGA § 19-9-3 (g). We agree.

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 OCGA § 9-15-14 (a) authorizes a trial court to award attorney fees when a

party asserts a position “with respect to which there existed such a complete absence

of any justiciable issue of law or fact that it could not be reasonably believed that a

court would accept the asserted” position. OCGA § 9-15-14 (b) authorizes a trial

court to award attorney fees when a party has brought an action that “lacked

substantial justification.” OCGA § 19-9-3 (g) authorizes the trial court to “order

reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian

ad litem and other costs of the child custody action and pretrial proceedings to be paid

by the parties in proportions and at times determined by the judge.”

Although the trial court found that Woodruff failed to demonstrate that the

circumstances had changed and contravened the trial court’s order by discussing the

case with the child, it did not allocate the fee award between the statutes. Since, as set

forth above, the trial court erred in dismissing Woodruff’s petition for modification

and failed to give Woodruff an opportunity to respond to Choate’s evidence, we

vacate the award of attorney fees and remand for reconsideration in light of this

opinion.

Judgment reversed and case remanded. Andrews, P. J., and Branch, J., concur.

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