                                   WHOLE COURT

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                                http://www.gaappeals.us/rules


                                                                     March 16, 2020




In the Court of Appeals of Georgia
 A19A1936. RAZI v. BURNS.

      RICKMAN,   Judge.

      In this child custody action, Father filed a petition to modify child custody in

the Superior Court of DeKalb County (the “Georgia Court”) and litigated the case for

over three years before attempting, unsuccessfully, to voluntarily dismiss the action

after several hearings and numerous court orders. He now asserts, among other things,

that the Georgia Court failed to establish that it had jurisdiction under the Uniform

Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) to consider his

modification petition and erred in denying his attempt to voluntarily dismiss the case.

Because we conclude that the undisputed record fully supports the Georgia Court’s

determination that it had jurisdiction under the UCCJEA, and further that the only
conflict in this case has been created by Father’s own actions and his legal arguments

lack merit, we affirm.

      The following facts are undisputed. Father and Mother are the parents of two

minor children. Although they never married, Father’s paternal rights were

established by a legitimation action in California. In 2013, the parties entered into a

conciliation agreement and stipulated order for joint physical and legal custody of the

children in the Superior Court of California (the “California Court”). In the

agreement, the parties stipulated that Father was the biological father of the children

and that California was their home state.

      In January 2016, the parties and both minor children relocated to Georgia. That

same month, the children were enrolled into a public school in Atlanta.

      On November 7, 2016, Father unilaterally disenrolled the children from school

and absconded with them to California without Mother’s knowledge or consent.

Three days later, Father filed a ex parte petition for modification of child custody1 in

the California Court and obtained an emergency order granting him sole legal custody

of the children to enroll them into a California school under the guise that the Atlanta


      1
        Father’s petition for modification of child custody is not contained in the
record but is referenced in the California Court’s December 2016 order.

                                            2
school had refused to do so. Mother filed an application in the California Court

seeking an immediate return of the children to Georgia and to her sole custody, and

further requesting a transfer of the case to a Georgia court.

      Following a hearing, the California Court exercised temporary jurisdiction to

issue an emergency order under the UCCJEA.2 In the emergency order, the California

Court declared Father’s application for ex parte relief “duplicitous” and explicitly

stated that both the application and his statements made during the hearing lacked

candor and were “not credible.” The California Court expressed doubt that California

was the home state of the children under the UCCJEA, noting that “[i]t appears that

Georgia is the home state because this proceeding was initiated only days after . . .

Father brought the children to California.” It further granted Mother sole legal and

physical custody of the children “until further order of a court with jurisdiction under

the [UCCJEA].”

      The following month, in December 2016, Father started the instant proceedings

by filing a verified petition to modify custody in the Georgia Court. In the verified

petition, he affirmatively asserted that he was a resident of Fulton County, Mother

was a resident of DeKalb County and had been for a period of more than six months

      2
          See OCGA § 19-9-64; Cal. Fam. Code §3447.

                                           3
preceding the date of the petition, and Georgia was the home state of the minor

children.

      Mother filed a verified answer in which she also admitted that she was a

resident of DeKalb County and had been for a period of more than six months

preceding the date of the petition, and that Georgia was the home state of the

children. She not only posed no objection to the Georgia Court’s exercise of

jurisdiction, but specifically requested that the court “immediately” obtain jurisdiction

over the case.

      In May 2017,3 the Georgia Court conducted a hearing on Father’s modification

petition, a transcript of which is not contained in the record. Following the hearing

– and contrary to the position taken by the dissent – the Georgia Court issued a

temporary modification order in which it considered its jurisdiction, explicitly finding

that both Father and Mother – and thus the children4 – resided in Georgia and that

jurisdiction and venue were proper in its court. The Georgia Court ordered that



      3
        In the interim, the Georgia Court ordered the parties to mediation, and in
April 2017, they entered into a temporary mediation agreement.
      4
        Although the trial court’s order does not explicitly state that the children
resided in Georgia, it is undisputed that the children lived with and between their
parents and according to the parties’ verified pleadings, Georgia was their home state.

                                           4
Mother retain primary physical and legal custody of the children and granted Father

visitation.

       A follow-up hearing was scheduled to occur in November 2017, although it

was continued several times on Father’s motion. Meanwhile, the infighting between

Father and Mother continued, with each parent lodging various allegations of

misconduct against the other, and Father filing a motion for the appointment of a

guardian ad litem (“GAL”) to investigate the claims.

       In May 2018, the Department of Family and Children Services (“DFCS”)

removed the children from their Mother’s home and placed them into Father’s

custody following an allegation of abuse against one of the children. Pursuant to a

“safety plan” implemented by DFCS, the children were to have no contact with

Mother. Both parents filed motions in the Georgia Court seeking an immediate

hearing, with the Father asking to terminate Mother’s visitation for the alleged acts

of violence, and the mother seeking to hold Father in contempt for “vilify[ing] and

defam[ing]” her character with “unfounded” abuse allegations resulting in her loss

of custody.

       In June 2018, the Georgia Court held an emergency hearing – which also

constituted the follow-up hearing – to address all outstanding motions. Noting that

                                         5
it was “not persuaded that either party [was] being entirely truthful” due to their “very

contentious relationship,” the court held that it “[could not] make a wholly informed

custody decision without the benefit of a full investigation.”5 The court, therefore,

directed that the safety plan would be honored, but it appointed a GAL to conduct an

investigation and make recommendations concerning child custody and visitation

based upon the best interests of the children.

      Two months later, the GAL filed a motion in which she stated that it was

“imperative” that the court order the children to begin therapy, and that Mother

“immediately” be granted weekly visitation. She further requested that she be given

an extension of time in which to complete a report so that she may have the

opportunity to consult with the children’s therapist and observe their visitation with

Mother before making a custody recommendation. The GAL also called into question

the Father’s allegations of abuse, noting that they were “unsubstantiated,” and stated

that Mother had been kept from having any meaningful interactions with the children

for over six months.




      5
       The order containing its written ruling from the June 2018 emergency hearing
was dated February 7, 2019, nunc pro tunc to June 26, 2018.

                                           6
      The Georgia Court scheduled a hearing to consider the GAL’s motion on

January 22, 2019.6 In the week before the hearing, Father filed a motion for a

continuance and his attorney filed a motion to withdraw as counsel, citing

“disagree[ments] on litigation strategy.” The Georgia Court denied the motion for

continuance and objected to the motion for withdrawal – taking notice that it was

Father who requested the appointment of the GAL – and directed both Father and his

counsel to appear at the hearing.7

      Father appeared on the day of the hearing and filed a notice of voluntary

dismissal without prejudice. The Georgia Court vacated Father’s voluntary dismissal.

In so doing, the court held, among other things, that it “ha[d] held multiple hearings

in this case at which witnesses testified,” that “it appear[ed] from [Father’s] testimony

at the most recent hearing that he [was] dissatisfied with the preliminary investigation

conducted by the GAL,” and that “the filing of the dismissal prior to the hearing was

an attempt to halt any further investigation.” In a separate order, the court granted the

GAL’s motion that the children begin therapy immediately; Mother be given limited,

unsupervised visitation with the children; and the GAL receive additional time in

      6
          The record does not contain a transcript of the January 22, 2019 hearing.
      7
          The Georgia Court later granted the attorney’s motion to withdraw.

                                           7
order to conduct her investigation. Father now challenges the Georgia Court’s

authority to issue those orders.

          1. Father argues that the Georgia Court erred in holding that it had subject

matter jurisdiction under the UCCJEA to consider the modification petition that

Father himself filed in the Georgia Court. Specifically, he contends that the trial court

failed to make express findings that Georgia is the “home state” of the children. As

set forth below, the Georgia Court properly determined that it had jurisdiction under

the UCCJEA to consider the modification petition, and the UCCJEA did not require

that the court include in its order express factual findings as to the children’s “home

state.”

          The UCCJEA has been adopted and codified in both Georgia and California.

See OCGA § 19-9-40 et seq.; Cal. Fam. Code § 3400 et seq. The pertinent provision

of the UCCJEA provides that a Georgia court may not modify a child-custody

determination made by a court in another state unless

          a court of this state has jurisdiction to make an initial determination
          under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and
          . . . [a] court of this state or a court of the other state determines that
          neither the child nor the child’s parents or any person acting as a parent
          presently resides in the other state.


                                              8
OCGA § 19-9-63 (2) (emphasis supplied)8; see also Cal. Fam. Code § 3423 (b). As

to the first of these requirements, a court of this state has jurisdiction to make an

initial custody determination under OCGA § 19-9-61 (a) (1) if Georgia was “the home

state of the child on the date of the commencement of the proceeding.” See also Cal.

Fam. Code § 3421 (a) (1). “Home state” is defined as “the state in which a child lived

with a parent or a person acting as a parent for at least six consecutive months

immediately before the commencement of a child custody proceeding.” See OCGA

§ 19-9-41 (7); Cal. Fam. Code § 3402 (g). As shown below, both requirements of

OCGA § 19-9-63 (2) have been satisfied.

       The Georgia Court conducted a untranscribed, evidentiary hearing and based

on the evidence and argument of the parties, issued the temporary modification order

in which it explicitly found that Father and Mother resided in Georgia and that

jurisdiction was proper in its court. Although the dissent takes issue with the fact that

the order did not explicitly reference the children in its order, it is undisputed that the

children lived with and between their parents throughout the duration of these

proceedings, and there is no allegation or record evidence to the contrary. Rather, as

       8
       OCGA § 19-9-63 excepts jurisdiction otherwise allowed by its temporary
emergency jurisdiction, such as that which the California Court exercised in its 2016
emergency order. See OCGA § 19-9-64. See also Cal. Fam. Code §3447.

                                            9
illustrated below, the Georgia Court’s determination that jurisdiction was proper in

its court is at least supported – if not demanded – by the evidence.

          As to the children’s “home state,” i.e., the state in which they lived for at least

six consecutive months before Father filed the modification petition in the Georgia

Court, both parties attested to that fact in their verified pleadings. Their sworn

statements are corroborated by evidence that the children had been enrolled in a

public school in Georgia from January 2016 through November 2016, when Father

unilaterally disenrolled them and absconded with them to California, only to return

to Georgia to file the modification petition in the Georgia Court the following month.

See OCGA §§ 19-9-41 (7), 19-9-61 (a) (1); Cal. Fam. Code §§ 3421 (a) (1), 3402 (g).

See generally Black v. Black, 292 Ga. 691, 694 (2) (a) (740 SE2d 613) (2013)

(holding that Georgia was the “home state” of the children under the UCCJEA

because the mother and children had lived in Georgia for more than six months prior

to the filing of the child custody petition and continued to live there at the time it was

filed).

          As to the requirement that the court find neither the children nor their parents

“presently reside[d]” in California, again, both Father and Mother swore in their

verified pleadings that they and their children resided in Georgia, a fact that is also

                                              10
corroborated by the children’s school enrollment in Georgia. See OCGA § 19-9-63

(2); Cal. Fam. Code § 3423 (b). See generally Hall v. Wellborn, 295 Ga. App. 884,

885-886 (673 SE2d 341) (2009) (holding that Georgia lost original, exclusive

jurisdiction over child custody case when a Florida court determined that both the

parents and the child “presently reside[d]” in Florida).

      It follows that the record fully supports the Georgia Court’s determination that

it had jurisdiction to modify the child custody order under the UCCJEA. See OCGA

§ 19-9-63 (2); Cal. Fam. Code § 3423 (b). Although the Georgia Court was required

to consider its own jurisdiction, as it did, nothing in the UCCJEA required that it

specifically include in its order factual findings as to the children’s “home state.” See

Wondium v. Getachew, 289 Ga. 208, 210 (2) (710 SE2d 139) (2011) (rejecting

father’s argument that the UCCJEA required “jurisdictional findings regarding the

children’s home state” in the body of the court’s custody modification order because

the Court found “no such authority”). Likewise, the Georgia Court’s explicit finding

following a hearing that both Father and Mother “presently reside[d]” in Georgia was

sufficient to include a finding as to the children when there is not a scintilla of record

evidence suggesting that the children resided anywhere but with their parents.



                                           11
      Consistent with our holding, we note that the official comment §101 to the

UCCJEA states that it was intended, in part, to prevent the very type of

gamesmanship at play in this case by “[d]iscourag[ing] the use of the interstate system

for continuing controversies over child custody.” UCCJEA § 101 cmt; see generally

Bowman v. Bowman, 345 Ga. App. 380, 383 (2) (a) (811 SE2d 103) (2018)

(recognizing that “[w]e construe the UCCJEA liberally so as to carry out the remedial

aspects of the law”).

      2. Father argues that the Georgia Court erred in vacating his voluntary

dismissal. In support of his argument, he relies on OCGA § 9-11-41 (a) (1) (A), which

provides that, “an action may be dismissed by the plaintiff, without order or

permission of court . . . [b]y filing a written notice of dismissal at any time before the

first witness is sworn.”

      As correctly held by the Georgia Court, Father’s voluntary dismissal was not

filed “before the first witness [was] sworn.” OCGA § 9-11-41 (a) (1) (A). Rather, it

was filed after the Georgia Court “held multiple hearings in this case at which

witnesses testified and [after the court] issued a temporary order regarding custody

and visitation,” among other orders. Indeed, the transcript of the emergency hearing

conducted in June 2016 shows that, at the very latest, witnesses were sworn on that

                                           12
date. Thus, under a plain reading of the statute, Father was not entitled to voluntarily

dismiss the case without order or permission of the court. See Arby’s Restaurant

Group v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (“[W]e must presume

that the General Assembly meant what it said and said what it meant.”) (citation and

punctuation omitted); see also Durrance v. Schad, 345 Ga. App. 826, 829-830 (1)

(815 SE2d 164) (2018).

      Father’s tactic in this litigation is similar to that of the wife in Groves v.

Groves, 250 Ga. 459, 459 (298 SE2d 506) (1983), as summarized by our Supreme

Court:

      the wife initiated the litigation, invoked the aid of the court in
      determining custody and temporary support, appeared at a hearing, and
      obtained partial relief in the form of the award of temporary custody of
      one of the three children, along with child support. Being dissatisfied
      with the grant of temporary custody of two other children to the
      husband, she filed notice of dismissal, and, according to the findings of
      the trial court, removed to another county.


Id. at 459. The Groves Court held that the wife’s voluntary dismissal of her case was

ineffective because it violated a prior version of OCGA § 9-11-41 (a), which

permitted a voluntary dismissal “any time before verdict.” Id. The Court determined

that a “decision relative to temporary custody of the children is a ‘verdict’ within the

                                          13
contemplation of the Civil Practice Act.” Id. Consistent with that analogy, a sworn

witness in a custody hearing resulting in a temporary custody determination is a

“witness” within the contemplation of the Civil Practice Act. See OCGA § 9-11-41

(a) (1) (A). Cf. Groves, 250 Ga. at 459. Compare Target Nat. Bank v. Luffman, 324

Ga. App. 442, 444 (750 SE2d 750) (2013) (holding that OCGA § 9-11-41 (a) does not

bar a voluntary dismissal after sworn testimony is given in a magistrate court not

governed by the Civil Practice Act and in which there was no record).

       Our conclusion in this regard is further buttressed by the fact that since Groves,

the legislature has further constricted the time in which a plaintiff may voluntarily

dismiss his or her action. Compare OCGA § 9-11-41 (a) (1) (A) (2019) (allowing

dismissal “any time before the first witness is sworn”) with OCGA § 9-11-41 (a)

(2002) (allowing dismissal “any time before the plaintiff rests his case”) with Code

Ann. § 81A-141 (1982) (allowing dismissal “any time before verdict”). Thus, we see

no basis on which to hold that the principles stated in Grove would not apply to the

facts of this case.

       3. Father asserts that every order issued by the Georgia Court must be vacated

because he never had standing to bring this action in the first place. In so arguing, he

does not dispute that he is the legal father of the children; indeed, he admits it. Rather,

                                            14
he contends only that the order from the California Court – which he admits exists –

legitimating the children and granting him custodial rights was never domesticated

in Georgia.

       Suffice it to say, the record is replete with Father’s sworn averments that he is

the legal father of the children, a fact that is otherwise stipulated to by the parties and

uncontested throughout the history of the case. See Foster v. State, 157 Ga. App. 554,

555 (278 SE2d 136) (1981) (“Statements in pleadings are considered as judicial . . .

admissions, and . . . until withdrawn or amended, are conclusive.”). Nothing in

Georgia law provides that a sworn, stipulated, and undisputed fact regarding paternity

cannot be considered such in the absence of a domesticated order from a foreign

court. Cf. OCGA § 19-9-85 (recognizing that a child custody orders from foreign

courts “may” be registered in this state).

       4. Lastly, Father argues that the case should be dismissed because the Georgia

Court filed its order appointing the GAL and its order granting the GAL’s motion for

therapy, visitation, and an extension of time before it filed the nunc pro tunc order

from the emergency hearing in which it held that the GAL would be appointed. Any

argument that Father was harmed by the sequence in which the Georgia Court filed

its orders lacks merit. See Reder v. Dodds, ___, Ga. App. ___ (5) (Case No.

                                             15
A19A1668, decided Feb. 24, 2020). (“In order to constitute reversible error, both

error and harm must be shown.”) (citation and punctuation omitted).


     Judgment affirmed. McFadden, C.J., Barnes, P.J., Doyle, P.J., Dillard, P.J.,
McMillian, P.J. and Mercier, Gobeil, Coomer and Hodges, JJ. concur. Brown, J.
concurs in judgment only. Miller, P.J., Reese, Markle, JJ. and Senior Appellant Judge
Herbert E. Phipps, dissent.*




                                         16
In the Court of Appeals of Georgia
 A19A1936. RAZI v. BURNS.

      MILLER, Presiding Judge, dissenting.

      I respectfully dissent because the trial court failed to make the proper findings

to support its exercise of jurisdiction under the UCCJEA.

      Under OCGA § 19-9-63, for a court in Georgia to exercise jurisdiction over a

child custody order entered in another state, it must first determine that it has

jurisdiction to make the initial child custody order under sections (1) or (2) of OCGA

§ 19-9-61 (a). In addition to this determination, one of the following scenarios must

also be met:

      (1) The court of the other state determines it no longer has exclusive,
      continuing jurisdiction under Code Section 19-9-62 or that a court of
      this state would be a more convenient forum under Code Section
      19-9-67; or
      (2) A court of this state or a court of the other state determines that
      neither the child nor the child’s parents or any person acting as a parent
      presently resides in the other state.


OCGA § 19-9-63.

      It is clear that neither of the two prongs of OCGA § 19-9-63 have been

satisfied in this case. Section (1) is clearly not met in this case since the California

court has not determined that it no longer has jurisdiction, nor has it made an explicit

determination that Georgia would be a more convenient forum. Section (2) has also

not been met because the trial court has not made any affirmative determination that

the children do not reside in California. The plain language of the statute is clear that

a court must affirmatively make this determination, and the trial court has not done

so. A boilerplate statement that “jurisdiction is proper” is insufficient to meet this

explicit statutory demand, and it is not our role as an appellate court to make this

factual determination in the first instance.1 We cannot be the court of appellate review

and simultaneously make the determinations that the statute requires of the trial court.



      1
        The Supreme Court of Georgia’s holding in Wondium v. Getachew, 289 Ga.
208, 210 (2) (710 SE2d 139) (2011), is not to the contrary. In that case, the Supreme
Court was discussing a portion of the “home state” provision that did not explicitly
require the trial court to “determine” anything. See OCGA § 19-9-61 (a).

                                           2
      Even if we could, I note that the record shows that the father moved the

children to California at some point around the time that the petition in this case was

filed, and it is not clear when, or if, the children moved back to Georgia. Neither

party’s pleading in this case definitively says whether the children were residing here

in Georgia or were still residing in California at the time the petition was filed here

in Georgia.2 See Plummer v. Plummer, 305 Ga. 23, 25-29 (2) (823 SE2d 25) (2019)

(instructing us to evaluate whether a trial court has jurisdiction under the UCCJEA

by looking to the facts and circumstances at the time the petition is filed).

Accordingly, I cannot say that the trial court has made the requisite findings to

support its exercise of jurisdiction under OCGA § 19-9-63. See Delgado v. Combs,

314 Ga. App. 419, 425-428 (1) (724 SE2d 436) (2012) (concluding that the trial court

erred by exercising jurisdiction under OCGA § 19-9-63 when there was a lack of

evidence to support its conclusion that none of the parties still resided in Kansas).3

      2
         The father’s allegation in his petition that Georgia is the children’s “home
state” is not sufficient to establish the children’s residence because the technical
statutory term “‘home state’ is not synonymous with [a person’s] ‘residence.’”
(Citation omitted.) Markle v. Dass, 300 Ga. 702, 705 (797 SE2d 868) (2017).
      3
         I further note that it does not appear that the trial court could have exercised
emergency jurisdiction under OCGA § 19-9-64. Among other things, the trial court
in this case permanently modified the custody arrangement to grant sole custody to
the father, and so “the court could not use temporary emergency jurisdiction to take

                                           3
      Although the father filed the petition in Georgia and yet is challenging the trial

court’s jurisdiction, we have an independent duty to ensure that the trial court

properly exercised its subject matter jurisdiction. Barland Co. v. Bartow County Bd.

of Tax Assessors, 172 Ga. App. 61, 62 (322 SE2d 316) (1984). I share the majority’s

concern that the petitioner may be attempting to manipulate the court system to

escape a child custody order that he does not like. In my view, however, the remedy

for this situation is for Georgia courts to exercise caution, restraint, and thoroughness

before assuming jurisdiction over modification petitions like the one in this case

because the provisions of the UCCJEA are designed to address these scenarios.

Because I would vacate the trial court’s orders and remand for it to make the factual

findings that the UCCJEA demands, I respectfully dissent.

      I am authorized to state that Judge Reese, Judge Markle and Senior Appellant

Judge Herbert E. Phipps join me in this dissent.




the action that it did.” Delgado, supra, 314 Ga. App. at 425 (1).

                                           4
