Venue and Attorneys’ Fees in Custody Modification Actions – New Case Law
This week, the Georgia Supreme Court decided Viskup v. Viskup, holding that venue is still proper when a petition is filed prior to respondent moving out of the county, but service is not perfected until after respondent has already moved. More notably, the Court further determined that an award of attorneys’ fees in a child custody modification action is proper pursuant to OCGA § 19-9-3(g), even where the action is not qualified under OCGA § 19-6-2(a)(2).
Mother filed her modification petition in Cherokee County on October 17, 2008, and Father was served October 24. Father had decided in September to move from Cherokee to Cobb County, but did not physically move until October 21. The trial court ruled, and the Supreme Court agreed, that Father was still a resident of Cherokee until his physical presence actually changed counties on October 21, and so long as the petition was filed before then, venue was appropriate.
Father also argued that the trial court improperly awarded attorneys’ fees to Mother, because the final order did not state a statutory basis for the award. The Court found that the trial court’s order on attorneys’ fees in fact contained language set forth in both OCGA § 19-9-3(g) and OCGA § 19-6-2(a)(2). Previously, Georgia law limited the application of § 19-9-3(g) only to actions covered by § 19-6-2(a)(2). Harris v. Williams, 304 Ga. App. 390 (2010). However, the Supreme Court ruled that to the extent that Harris v. Williams held that § 19-9-3(g) did not authorize an award for attorneys’ fees in an action seeking modification of child custody, it is now overruled. Finally, the Court held that because Mother’s petition fell within the parameters of § 19-9-3(g), the case did not need to be remanded for clarification of the statutory basis of the award.