Roach v. Breeden

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
September 21, 2015
In the Court of Appeals of Georgia
A15A0891. ROACH v. BREEDEN.
MILLER, Judge.
Brittany Breeden filed a petition to establish paternity and legitimation and to
obtain sole custody of her minor child, I. R. Curtis Roach, I. R.’s father, moved to
dismiss the petition and to enforce a Tennessee custody order. The trial court denied
Roach’s motion, and thereafter legitimated I. R. and granted sole physical custody to
Breeden. On appeal, Roach contends that the trial court erred in denying his motion
to dismiss Breeden’s petition and to enforce the Tennessee custody determination
because Tennessee had exclusive, continuing jurisdiction over custody matters. We
agree and reverse.
The record1 shows that in September 2013, the Juvenile Court of Knox County,
Tennessee (the “Tennessee Juvenile Court”) entered an order accepting a parenting
plan agreed to by Breeden and Roach. The order provides that I. R. would primarily
reside with Breeden, and Roach would have custody of the child every other week.
The order also provides that each parent is authorized to make day-to-day decisions
affecting the child while the child is residing with that parent, Roach and Breeden
have joint decision-making power regarding non-emergency health care for the child,
and Breeden is authorized to make decisions about the child’s education.
In April 2014, Breeden filed a petition for contempt of court in the Tennessee
Juvenile Court, alleging that Roach violated the parenting agreement by refusing to
return I. R. to her care after Roach’s designated week, and asking the court to order
Roach to return the child to her. In her petition, Breeden admitted that she and Roach
had joint custody of I. R.
1
Breeden did not file a responsive brief in this appeal. Accordingly, Breeden
is deemed to have admitted the statement of facts as set out by Roach in his brief, to
the extent that statement of facts is supported by the record. See, e.g., Payless Car
Rental System, Inc. v. Elkik, 306 Ga. App. 389, 390, n.4 (702 SE2d 697) (2010); see
also Court of Appeals Rule 25 (b) (1).
2
By this time, Breeden was living in Georgia. Two weeks after filing her
petition for contempt, Breeden filed the instant petition in the Superior Court of
Walker County.
The Tennessee Juvenile Court ordered an expedited hearing to address
Breeden’s petition for contempt, but did not reach the merits of Breeden’s petition
because she was unable to attend.2 The Tennessee Juvenile Court did, however, hear
evidence that Breeden did not abide by the co-parenting plan, and that Roach had
reported Breeden to the Tennessee Department of Children’s Services (“Tennessee
DCS”) based on a concern that Breeden was not providing I .R. with necessary
medical care. Consequently, in May 2014, the Tennessee Juvenile Court issued an
“Expanded Order Asserting Protective Jurisdiction and Order of Continuance,” (the
“Expanded Order”) asserting protective jurisdiction over I. R. to address risks of harm
raised by Breeden’s petition for contempt and by the Tennessee DCS reports, and
ordering Breeden to return the child to Roach for resumption of the co-parenting plan.
Thereafter, Roach filed a motion to dismiss Breeden’s instant petition, arguing
that the Georgia trial court had jurisdiction to enforce, but not modify, the Tennessee
2
Breeden was hospitalized at the time, as she had recently given birth to her
second child.
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custody order. Roach also requested that the trial court enforce the Tennessee custody
order directing the county sherif to assist Roach in obtaining physical custody of I.
R.
The trial court denied Roach’s motion to dismiss and motion to enforce,
concluding that Roach did not have standing to challenge a custody determination as
to the child because the child had not been legitimated and Roach’s paternity had not
been established. The trial court also found that Georgia was the more appropriate
and convenient forum to try the issues in the case. Thereafter, the trial court held a
hearing on Breeden’s petition, and entered an order legitimating I. R. and granting
Breeden sole custody of the child. This appeal ensued.
On appeal, Roach contends that the trial court erred in addressing the merits
of Breeden’s petition and granting her sole custody because the Tennessee Juvenile
Court had continuing and exclusive jurisdiction over custody because it made the
initial custody determination and took no action to relinquish its jurisdiction. We
agree.
The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
was promulgated to address
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problems of competing jurisdictions entering conflicting interstate child
custody orders, forum shopping, and the drawn out and complex child
custody legal proceedings often encountered by parties when multiple
states are involved.
(Punctuation and footnote omitted.) Delgado v. Combs, 314 Ga. App. 419, 424 (724
SE2d 436) (2012). Georgia adopted its version of the UCCJEA, OCGA § 19-9-40 et
seq., replacing our State’s prior child custody act,
because, in application, imprecision in the prior act’s language often
allowed for the existence of concurrent jurisdiction over custody matters
in multiple states, thereby fostering competition among jurisdictions and
forum shopping by the parties. The UCCJEA now remedies these earlier
unintended problems by establishing continuing jurisdiction in the state
in which the original custody decree was entered.
(Punctuation and footnote omitted.) Hall v. Wellborn, 295 Ga. App. 884, 885 (673
SE2d 341) (2009). Tennessee has also adopted the UCCJEA. See TCA § 36-6-201
et seq.; Staats v. McKinnon, 206 SW3d 532, 538 (I) (Tenn. Ct. App. 2006). In
applying and construing the UCCJEA, we must consider “the need to promote
uniformity of the law with respect to its subject matter among states that enact it.”
OCGA § 19-9-101.
Under both Georgia’s and Tennessee’s versions of the UCCJEA, a “child
custody determination” is defined as “a judgment, decree, or other order of a court
providing for the legal custody, physical custody, or visitation with respect to a
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child[,]” and the term includes a “permanent, temporary, initial, and modification
order.” See OCGA § 19-9-41 (3); TCA § 36-6-205 (3). The term “initial
determination” is defined as “the first child custody determination concerning a
particular child.” See OCGA § 19-9-41 (8); TCA § 36-6-205 (8).
Under the UCCJEA, a court of this State 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 [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.
(Punctuation omitted.) Delgado, supra, 314 Ga. App. at 426 (1); see also OCGA § 19-
9-63.
As a preliminary matter, there is no question that the Tennessee Juvenile Court
order adopting Roach’s and Breeden’s parenting plan was an initial custody
determination.3 Notably, the parenting plan designates Breeden as the primary
3
The fact that the Tennessee order did not, in itself, legitimate the child or
establish paternity is of no moment. Breeden conceded that Roach was the biological
father of I. R., and Breeden and Roach both signed a voluntary acknowledgement of
paternity. These actions established that Roach was the legal father under Tennessee
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residential parent, provides that the child is to reside with Roach every other week,
and details a specific holiday visitation schedule. The parenting plan also provides
that the parties share certain legal rights with respect to the child. Moreover, Breeden
conceded in her filings before the trial court that she and Roach had joint physical
custody of I. R. Since the definition of a “child custody determination” includes an
“order of the court providing for the legal custody, physical custody, or visitation” of
the child, the Tennessee order adopting the parties’ parenting plan was the initial
custody determination for purposes of the UCCJEA. See Armbrister v. Armbrister,
414 SW3d 685, 695-696 (III) (A), 703 (III) (B) (ii) (Tenn. 2013) (noting that the
designation of a “primary residential parent” is the equivalent to a custody
determination); Pippin v. Pippin, 277 SW3d 398, 407 (Tenn. Ct. App. 2008) (same).
Given that the Tennessee Juvenile Court made an initial custody determination,
we must next determine whether the Georgia trial court had jurisdiction to modify
that Tennessee custody determination. We conclude that it did not.
Even assuming arguendo that the trial court would have jurisdiction to make
an initial custody determination under OCGA § 19-9-61, the other conditions of
OCGA § 19-9-63 were not fulfilled in order to confer jurisdiction to the trial court to
law. See TCA §§ 24-7-113 (a); 36-1-102 (28) (A) (iv).
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modify the initial custody determination. First, there is no record evidence that the
Tennessee Juvenile Court ever determined that it no longer had exclusive, continuing
jurisdiction. OCGA § 19-9-63 (1). Second, while the trial court concluded that it was
the more appropriate and convenient forum to try the issues in this case, “OCGA §
19-9-63 (1) specifies that the out-of-state court must make this determination, not
Georgia, and [Tennessee] has never made such a determination.” (Footnotes omitted.)
Delgado, supra, 314 Ga. App. at 427 (1). Finally, there has been no finding either by
the Tennessee court or by the trial court that “neither the child nor the child’s parents
or any person acting as parent resides in [Tennessee].” OCGA § 19-9-63 (2). Indeed,
it is undisputed that Roach still lives in Tennessee, and the child is supposed to live
with Roach on alternate weeks.
Therefore, since the Tennessee Juvenile Court retains exclusive, continuing
jurisdiction in this matter, the trial court lacked jurisdiction to modify the initial
Tennessee custody order. Accordingly, we reverse the trial’s orders denying Roach’s
motion to dismiss and granting Breeden’s legitimation petition.
Judgment reversed. Andrews, P. J., and Branch, J., concur.
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