MODIFICATION PENDING APPEAL GENERALLY
Child Custody Prac. & Proc. § 14:16
Generally, a trial court is without jurisdiction to alter an order or judgment once an appeal has been filed.1 Some jurisdictions, however, authorize the trial judge to modify the custody award in the child's best interests based upon a sudden change of circumstances.2 For example, while an appeal of an award of custody to the mother is pending, the mother has a car wreck and becomes critically ill. Even though the father has an appeal pending in the original action, he may move for modification to award him custody based on the mother's inability to care for the child.
Some states, however, find that the trial court lacks the jurisdiction to modify an order for child custody pending appeal.3 In such a jurisdiction, the person seeking modification would have to apply to the appellate court. If the appellate court found the facts sufficient to allege a change of circumstances which could require a change of custody, the appellate court could then remand to the trial court for a determination. If the trial court changed the custody, the appeal might then be rendered moot.
The question of fitness of the parties in a custody contest is always a proper subject of inquiry. However, it is not necessary that the parent originally awarded custody be found to be an unfit parent in order to change the custody.15 There can be a showing either that the original custodian is no longer able or suited to retain custody or that the conditions and circumstances surrounding the child have so changed that its welfare would be enhanced by modifying the original judgment.16
MODIFICATION PENDING APPEAL IN GEORGIA
Ga. Code Ann. § 19-9-45 (West)
A child custody determination made by a court of this state that had jurisdiction under this article binds all persons who have been served in accordance with the laws of this state or notified in accordance with Code Section 19-9-47 or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.
Ga. Code Ann. § 19-9-23 (West)
(a) Except as otherwise provided in this Code section, after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian of the child.
WHAT HAPPENS TO MODIFICATION PROCEEDING IF CASE ON APPEAL IS DECIDED?
Summary: If the case is reversed and a new trial granted, the modification proceeding must be dismissed. If the case is affirmed, the modification proceeding may continue.
Wilson v. Wilson, 279 Ga. 302 (2005)
This marks the second appearance of this case in our Court. See Wilson v. Wilson, 277 Ga. 801, 596 S.E.2d 392 (2004). While that appeal from a Spalding County order was pending, appellant Brenda Wilson filed an action to modify custody in Fulton County, which was appellee E.D. Wilson's new county of residence, and appellee counterclaimed. Both parties discussed the effect of the pending appeal during their first appearance in Fulton Superior Court. The Fulton County trial court determined that the custody modification hearing could continue because appellant sought to reverse only financial elements of the initial judgment. Prior to any decision by the Fulton Superior Court on the motion to modify custody, however, we reversed the [original] Spalding County judgment on the ground that the trial court committed reversible error in refusing to allow appellant's counsel to make a closing argument. Id. After the filing of the remittitur, Spalding County reinstated the divorce case.
Post-reversal, appellant filed a motion to dismiss the Fulton County action claiming that total reversal in the first appeal *303 returned jurisdiction to the Spalding Superior Court and left no final judgment for modification by the Fulton Superior Court. The Fulton Superior Court ruled that it retained jurisdiction to modify matters not specifically enumerated in the original appeal. Appellant thereafter filed an application for interlocutory appeal which we granted to determine whether the Fulton Superior Court erred in refusing to dismiss the modification petition after reversal of the final judgment of the Spalding Superior Court.
12 As a general rule, where there is a judgment of reversal but no express direction of this Court to the lower court, the case stands as reversed, and a new trial must be had on the issues therein raised. Rawdin v. Conner, 211 Ga. 52, 84 S.E.2d 50 (1954); American Associated Companies v. Vaughan, 210 Ga. 141(2), 78 S.E.2d 43 (1953); Schley v. Schofield & Son, 61 Ga. 528, 530 (1878). See OCGA § 5-5-49. In the absence of more specific direction by this Court, our reversal of the judgment of the Spalding County judgment was the grant of a de novo trial on all issues contained within the judgment. Because in this case the trial court's refusal to allow closing argument denied appellant her rights as to all issues being tried before the Spalding Superior Court, the Spalding County judgment was vacated and it was error for the Fulton Superior Court to refuse to dismiss the modification action.
Durden v. Barron, 155 Ga. App. 529 (1980)
Plaintiff brought suit in juvenile court to regain custody of her natural child, alleging a change of condition. Custody of the child had previously been awarded to defendants, the paternal grandparents of the minor child.
Plaintiff appeals the juvenile court's refusal to conduct an evidentiary hearing on plaintiff's claim of a change of condition, which refusal was premised on the court's application of the doctrine of res judicata. We reverse.
The facts show that the present action was brought on the same day that the Supreme Court's judgment affirming the superior court's award of custody was made the order of the superior court. Although a year had elapsed pending appeal of the superior court's determination of custody, the court below (the juvenile court) nevertheless concluded that the same issues presently brought before it had been heard and disposed of by the superior court. Therefore, the superior court concluded that the issue of a change in condition was res judicata. We cannot agree.
Since a year had elapsed from the time in which the original award of custody was made (finding plaintiff unfit to regain custody of her child), it is possible that, in the interim period, conditions or circumstances could have changed so as to presently authorize a modification of the superior court's award of custody. The decision of the Supreme Court to affirm the original award of custody was based upon facts and conditions existing at the time of the superior court's adjudication of custody and thus does not imply or necessitate a finding that conditions have not subsequently changed. We find, then, that in view of the fact that plaintiff was asserting a change of condition subsequent to the superior court's adjudication of custody, res judicata would not preclude the present action. See in this regard Robinson v. Ashmore, 232 Ga. 498(2), 207 S.E.2d 484.
The issue of child custody, especially where a child is taken from a natural parent, calls for judicial soul searching under the most difficult circumstances. Therefore, we cannot agree that an evidentiary hearing should be denied, and the trial court erred in so holding.