Terry v. Garibaldi , 274 Ga. App. 405 ( 2005 )

BARNES, Judge,

concurring specially.

Because I cannot see any ambiguity in OCGA § 19-9-23 (a)’s language providing that “any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action,” I am constrained to agree with the majority that Garibaldi should have filed a separate action in this case. “The language of the statute is plain and it is not illogical.... A court cannot by construction add to, take from, or vary the meaning of unambiguous words in the statute.” (Citation and punctuation omitted.) Gordon v. Atlanta Cas. Co., 279 Ga. 148, 149 (611 SE2d 24) (2005).

The statute apparently does not contemplate a situation such as this in which the parents share custody and reside in the same county, and the initiating action is not one seeking enforcement of a court order, and its application here is unfortunate. The minor child has been living with his mother during the week and visiting his father on weekends for almost three years, and the parties must now revisit the custody issue, incurring additional expense and upheaval. Unfortunately, we are not permitted to interpret the statute to allow the counterclaim for custody modification in this case. “Courts of last resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.” Frazier v. Southern R. Co., 200 Ga. 590, 593 (37 SE2d 774) (1946).

Decided May 13, 2005 Reconsideration denied July 14, 2005 Celeste F. Brewer, for appellant. Bogart & Bogart, Jeffrey B. Bogart, George R. Ference, Susan A. Hurst, for appellee.