FIFTH DIVISION
RICKMAN, C. J.,
MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
September 22, 2021
In the Court of Appeals of Georgia
A21A0913. PASCAL v. PINO.
PHIPPS, Senior Appellate Judge.
This custody dispute arose when Diana Marie Pascal (the “mother”) petitioned
to modify the custody arrangement previously agreed to by her and her ex-husband,
Jose Gonzalez Pino (the “father”). The father counterclaimed to modify child support.
Following a bench trial at which the father also sought to modify custody, the trial
court awarded primary physical custody of the minor children to the father. The
mother contends on appeal that the trial court abused its discretion by granting relief
not sought in the father’s counterclaim and finding that the evidence was sufficient
to support a modification of physical custody to the father. Because we conclude that
the trial court erred by considering the father’s request for primary physical custody
when that request was not properly before the court, we vacate the trial court’s order
and remand this case to the trial court for a hearing on the mother’s complaint only.
Georgia law is well settled,
[a] trial court faced with a petition for modification of child custody is
charged with exercising its discretion to determine what is in the child’s
best interest. Our standard of review is deferential: we will uphold the
trial court’s decision unless the court abused its discretion, and where
there is any evidence to support the trial court’s ruling, a reviewing
court cannot say there was an abuse of discretion.
Lester v. Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (citations and
punctuation omitted). When, however, the argument asserted presents a question of
law, as here, “we owe no deference to the trial court’s ruling and apply the ‘plain
legal error’ standard of review.” Seeley v. Seeley, 282 Ga. App. 394, 395 (1) (638
SE2d 837) (2006) (citation and punctuation omitted); accord Borgers v. Borgers, 347
Ga. App. 640, 645 (1) (b) (820 SE2d 474) (2018).
The undisputed evidence in this case shows that the parties have two minor
children, born in 2011 and 2015. The parties divorced in 2018 and agreed that they
would have joint legal and physical custody of the minor children. The final decree
of divorce incorporated the parties’ signed settlement agreement and parenting plan.
2
In August 2019, the mother petitioned to modify custody, visitation, and child
support. Specifically, she sought to be named the children’s primary physical
custodian, to adjust the parenting time schedule, and to obtain final decision-making
authority over all decisions regarding the children, including where they would attend
school. The mother also requested a modification of child support to account for any
change in custody and parenting time. Prior to filing his answer and counterclaim, the
father filed an emergency motion for custody based on his assertions that the mother
made “highly troubling” statements to him and exhibited unusual behavior during a
custody exchange. The trial court held a hearing, and granted the father’s motion,
temporarily awarding him sole legal and physical custody of the children and limiting
the mother’s visitation.
Approximately one month later, the father answered the mother’s petition and
counterclaimed. Although the pleading’s title identified it as “Answer and
Counterclaim to Modify Custody, Visitation, and Support,” the counterclaim itself
was titled “Counterclaim to Modify Child Support,” and the father did not request a
modification of child custody within the pleading. In fact, the father specifically
prayed “[t]hat the relevant portions of the Final Judgment and Decree, and Permanent
Parenting Plan governing child custody remain unchanged.”
3
In August 2020, the trial court conducted a bench trial on the mother’s petition
and the father’s counterclaim. In the father’s opening statement, his counsel indicated,
for the first time, that the father was seeking permanent primary physical custody of
the children. In that regard, counsel asserted, “[W]e believe the evidence is going to
show that it’s not appropriate for [the mother] to continue to have primary custody
[sic] of these kids. It’s in their best interest to be in a home with a parent who is
stable. . . . The children are better off with my client in a stable, safe household.”
Although the father testified that he was not seeking sole physical custody of the
children, he nevertheless requested that custody “remain as close as possible to how
[it has] been since the emergency hearing,” where he received sole legal and physical
custody. He then testified about what he would do if granted primary physical custody
of the children. On cross-examination, however, the father acknowledged that his
only request for a change in custody had been in conjunction with the emergency
motion he filed in this proceeding. The mother objected to the father’s custody
modification request, arguing that he never counterclaimed for such a modification.
The trial court issued a final order concluding that it was in the best interests
of the children for the parties to have joint legal custody, with the father having
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primary physical custody. The court then entered a permanent parenting plan to that
effect. The mother appeals from the trial court’s final order.
1. In her first enumeration of error, the mother asserts that the trial court abused
its discretion in granting the father relief not sought in his counterclaim. Specifically,
the mother argues that the trial court had no authority to award the father primary
physical custody of the children because the father did not request a change in
custody in his counterclaim and, in fact, specifically requested that the provisions of
the original parenting plan – in which the parties had joint legal and physical custody
– remain unchanged. We agree.
OCGA § 19-9-23 governs actions to obtain a change of legal or physical
custody. Under the current version of that statute – which was in effect at the time the
mother filed her petition for modification of custody, visitation, and support – a party
must request a change of legal or physical custody in one of two ways: (a) by
initiating a complaint seeking such relief in the appropriate venue, or (b) by bringing
a counterclaim for modification of legal or physical custody in response to a
complaint seeking to modify custody. OCGA § 19-9-23 (a), (d) (2019). This Court
repeatedly has noted that “the language of OCGA § 19-9-23 [requiring a party to
bring a separate complaint to change custody] is clear and unequivocal and is
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mandatory.”1 Bailey v. Bailey, 283 Ga. App. 361, 362 (641 SE2d 580) (2007)
(citations and punctuation omitted); accord Seeley v. Seeley, 282 Ga. App. 394, 396
(1) (638 SE2d 837) (2006); Terry v. Garibaldi, 274 Ga. App. 405, 408 (1) (618 SE2d
6) (2005). Likewise, the 2019 statutory revision permitting a party to bring “a
counterclaim for modification of legal custody or physical custody in response to a
complaint” for modification of the same, similarly is clear and unambiguous.2 See Ga.
L. 2019, p. 904, § 2; OCGA § 19-9-23 (d) (2019).
In this case, it is undisputed that the father did not initiate a complaint, and he
implicitly concedes that he did not bring a counterclaim to modify custody in
1
OCGA § 19-9-23 was enacted in 1978, Ga. L. 1978, p. 1957, § 4, and its
language regarding the filing of a separate complaint to change custody essentially
has remained unchanged. From 1978 until the statute was revised in 2019, the law
stated that “[a] complaint by the legal custodian seeking a change of legal custody or
visitation rights shall be brought as a separate action” in the appropriate venue. Ga.
L. 1978, p. 1957, § 4 (b); see Ga. L. 1983, p. 3, § 52 (revising statute to reflect correct
constitutional provision regarding venue). The current law states that “[a] complaint
seeking a change of legal custody or physical custody shall be initiated” in the
appropriate venue. OCGA § 19-9-23 (a) (2019).
2
From 1978 until the 2019 statutory revision, the law mandated that filing a
separate action was the only method to seek a change in custody; the law did not
allow a party to counterclaim for such relief. Ga. L. 1978, p. 1957, § 4 (c). See also
Terry, 274 Ga. App. at 407. However, effective July 1, 2019, the statute was revised
to explicitly authorize a party to bring a counterclaim for modification of legal or
physical custody in response to a complaint initiated to change custody. Ga. L. 2019,
p. 904, § 2; OCGA § 19-9-23 (d) (2019).
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response to the mother’s petition by failing to make any such claim in his appellate
brief. In fact, the father specifically states in his appellate brief that he “was not
required to file a counterclaim for modification before being permitted to argue the
best interest of the minor children were served by an alternative to the one suggested
by [the mother].”3 Because the father failed to properly seek a change of legal or
physical custody under OCGA § 19-9-23, he was precluded from obtaining such an
award. See generally Bailey, 283 Ga. App. at 362; Seeley, 282 Ga. App. at 395-396
(1); Terry, 274 Ga. App. at 407.
In an attempt to avoid the requirements of OCGA § 19-9-23, the father argues
that “[t]rial courts are not limited by pleadings in determining the best interests of
children.” He claims that “[w]hether a trial court has the discretion to order what it
determines is in the best interests of a child if it runs counter to the relief prayed for
3
The record shows that the father never filed a counterclaim for a change of
custody, but, rather, filed a counterclaim seeking to modify his child support
obligation. We decline to construe the father’s filing of an emergency motion for
custody within the mother’s modification action as a counterclaim for permanent
custody in this case because the pleading he subsequently filed plainly requested that
“the relevant portions of the Final Judgment and Decree, and Permanent Parenting
Plan governing child custody remain unchanged.” In addition, we decline to construe
the father’s oral request for a modification of custody at trial as “bring[ing] a
counterclaim for modification of . . . custody in response to a complaint” as required
by OCGA § 19-9-23.
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in the petition . . . appears to be a matter of first impression in Georgia.” However,
these arguments run counter to the clear statutory mandates of OCGA § 19-9-23. In
construing the prior version of OCGA § 19-9-23, this Court repeatedly noted that trial
courts cannot entertain a request to modify custody if not properly brought pursuant
to OCGA § 19-9-23, even if custody – which necessarily requires a determination
regarding the best interests of the children – is before the trial court in the underlying
petition. See generally Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987)
(addressing prior version of statute); Bailey, 283 Ga. App. at 362 (same); Seeley, 282
Ga. App. at 395-396 (1) (same).
In addition, adopting the father’s argument that, regardless of the parties’
pleadings or prayers for relief, a trial court always is authorized to consider the best
interests of the children and grant an award reflecting those interests would render
OCGA § 19-9-23 meaningless. Indeed, the analysis proposed by the father would
allow any parent to argue that modification of custody in his favor is in the best
interests of the children without complying with the express statutory provisions
specifying the methods by which a party can bring a modification of custody claim.4
4
Likewise, the father’s specious argument that the trial court “granted [the]
Mother’s petition to modify” but “simply did not agree with what [the] Mother
claimed was in the best interests of the minor children” is yet another attempt to
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This we cannot do because this Court must presume that “the legislature meant
something by the passage of [a statute,] and, [we are] charged with the duty to
construe a statute so as not to render it meaningless.” Powell v. Studstill, 264 Ga. 109,
113 (3) (b) (441 SE2d 52) (1994) (citation omitted); accord Handel v. Powell, 284
Ga. 550, 554-555 (670 SE2d 62) (2008) (courts must construe a statute to give
sensible and intelligent effect to all of its provisions and to refrain from any
interpretation that renders any part of the statute meaningless). Accordingly, although
the father points to facts elicited during the hearing on his emergency motion and at
trial as support for his assertion that the trial court’s award of primary physical
custody to him was in the children’s best interests, these factors do not, themselves,
create a separate basis for jurisdiction in contravention of the clear mandates of
OCGA § 19-9-23.
We are sympathetic to the father’s argument that a trial court is obligated to
decide what award is in the children’s best interests. And
[w]e realize that the filing of a separate change of custody suit by the
[father] could result in consolidation of the two actions in front of the
same judge, and that the trial court would have had to consider the
custody issue whether the [father] filed a counterclaim or a separate
bypass the statutory requirements of OCGA § 19-9-23.
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complaint. In terms of judicial efficiency, the [father’s] position is
understandable, even compelling.
Terry, 274 Ga. App. at 407-408 (1). However, this Court has never recognized
unfettered discretion in the trial court’s ability to craft a remedy in the best interests
of the children regardless of the requested relief before the court. “A trial court’s
discretion must be circumscribed by applicable legal principles and exercised within
appropriate lawful bounds.” McClellan v. State, 274 Ga. 819, 824 (561 SE2d 82)
(2002) (Carley, J., concurring in part and dissenting in part). In addition, as this Court
previously noted when addressing the prior version of OCGA § 19-9-23, “[w]e cannot
ignore the clear language of the statute, even where it appears to defy logic.” Bailey,
283 Ga. App. at 363 (citation and punctuation omitted); accord Seeley, 282 Ga. App.
396 (1).
Here, because the father did not comply with the mandates of OCGA § 19-9-23
by initiating a complaint or bringing a counterclaim to modify custody, he was
precluded from seeking to modify custody in this action. The trial court, therefore,
lacked authority to consider the father’s request for modification of custody and to
award the father primary physical custody of the children; the court was bound to
consider only the mother’s petition for modification and not take evidence on any
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claim for modification by the father. See Seeley, 282 Ga. App. at 396 (1).
Consequently, we vacate the trial court’s order and remand the case with instruction
that the trial court consider only the mother’s modification petition, as the issues
contained in that petition are the only issues properly before the trial court in this
case. See id.
2. In separate enumerations of error, the mother contends that (i) trial court
abused its discretion in awarding primary physical custody to the father absent a
showing of a substantial change in circumstances necessitating a change in custody,
(ii) the trial court abused its discretion by modifying custody based on sleep-
deprivation issues the mother experienced nearly a year before the final hearing,
which have not since recurred, and (iii) the evidence was insufficient to establish that
granting the father primary physical custody was in the best interests of the children.
Based on our holding in Division 1, we need not reach these arguments.
Judgment vacated and case remanded. Rickman, C. J., and McFadden, P. J.,
concur.
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