FIFTH DIVISION

RICKMAN, C. J.,

MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

September 22, 2021

In the Court of Appeals of Georgia

A21A0913. PASCAL v. PINO.

PHIPPS, Senior Appellate Judge.

This custody dispute arose when Diana Marie Pascal (the “mother”) petitioned

to modify the custody arrangement previously agreed to by her and her ex-husband,

Jose Gonzalez Pino (the “father”). The father counterclaimed tomodify child support.

Following a bench trial at which the father also sought to modify custody, the trial

court awarded primary physical custody of the minor children to the father. The

mother contends on appeal that the trial court abused its discretion by granting relief

not sought in the father’s counterclaim and finding that the evidence was sufficient

to support a modification of physical custody to the father. Because we conclude that

the trial court erred by considering the father’s request for primary physical custody
when that request was not properly before the court, we vacate the trial court’s order

and remand this case to the trial court for a hearing on the mother’s complaint only.

Georgia law is well settled, 

[a] trial court faced with a petition for modification of child custody is

charged with exercising its discretion to determine what isin the child’s

best interest. Our standard of review is deferential: we will uphold the

trial court’s decision unless the court abused its discretion, and where

there is any evidence to support the trial court’s ruling, a reviewing

court cannot say there was an abuse of discretion.

Lester v. Boles, 335 Ga. App. 891, 892 (1) (782 SE2d 53) (2016) (citations and

punctuation omitted). When, however, the argument asserted presents a question of

law, as here, “we owe no deference to the trial court’s ruling and apply the ‘plain

legal error’ standard of review.” Seeley v. Seeley, 282 Ga. App. 394, 395 (1) (638

SE2d 837) (2006) (citation and punctuation omitted); accord Borgers v. Borgers, 347

Ga. App. 640, 645 (1) (b) (820 SE2d 474) (2018).

The undisputed evidence in this case shows that the parties have two minor

children, born in 2011 and 2015. The parties divorced in 2018 and agreed that they

would have joint legal and physical custody of the minor children. The final decree

of divorce incorporated the parties’ signed settlement agreement and parenting plan. 

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In August 2019, the mother petitioned to modify custody, visitation, and child

support. Specifically, she sought to be named the children’s primary physical

custodian, to adjust the parenting time schedule, and to obtain final decision-making

authority over all decisionsregarding the children, including where theywould attend

school. The mother also requested a modification of child support to account for any

change in custody and parenting time. Prior to filing his answer and counterclaim, the

father filed an emergency motion for custody based on his assertions that the mother

made “highly troubling” statements to him and exhibited unusual behavior during a

custody exchange. The trial court held a hearing, and granted the father’s motion,

temporarily awarding himsole legal and physical custody of the children and limiting

the mother’s visitation. 

Approximately one month later, the father answered the mother’s petition and

counterclaimed. Although the pleading’s title identified it as “Answer and

Counterclaim to Modify Custody, Visitation, and Support,” the counterclaim itself

was titled “Counterclaim to Modify Child Support,” and the father did not request a

modification of child custody within the pleading. In fact, the father specifically

prayed “[t]hat the relevant portions of the FinalJudgment and Decree, and Permanent

Parenting Plan governing child custody remain unchanged.” 

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In August 2020, the trial court conducted a bench trial on the mother’s petition

and the father’s counterclaim. In the father’s opening statement, his counsel indicated,

for the first time, that the father was seeking permanent primary physical custody of

the children. In that regard, counsel asserted, “[W]e believe the evidence is going to

show that it’s not appropriate for [the mother] to continue to have primary custody

[sic] of these kids. It’s in their best interest to be in a home with a parent who is

stable. . . . The children are better off with my client in a stable, safe household.”

Although the father testified that he was not seeking sole physical custody of the

children, he nevertheless requested that custody “remain as close as possible to how

[it has] been since the emergency hearing,” where he received sole legal and physical

custody. He then testified about what he would do if granted primary physical custody

of the children. On cross-examination, however, the father acknowledged that his

only request for a change in custody had been in conjunction with the emergency

motion he filed in this proceeding. The mother objected to the father’s custody

modification request, arguing that he never counterclaimed for such a modification. 

The trial court issued a final order concluding that it was in the best interests

of the children for the parties to have joint legal custody, with the father having

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primary physical custody. The court then entered a permanent parenting plan to that

effect. The mother appeals from the trial court’s final order. 

1. In her first enumeration of error, the mother assertsthat the trial court abused

its discretion in granting the father relief notsought in his counterclaim. Specifically,

the mother argues that the trial court had no authority to award the father primary

physical custody of the children because the father did not request a change in

custody in his counterclaim and, in fact, specifically requested that the provisions of

the original parenting plan – in which the parties had joint legal and physical custody

– remain unchanged. We agree.

OCGA § 19-9-23 governs actions to obtain a change of legal or physical

custody. Under the current version of thatstatute – which was in effect at the time the

mother filed her petition for modification of custody, visitation, and support – a party

must request a change of legal or physical custody in one of two ways: (a) by

initiating a complaint seeking such relief in the appropriate venue, or (b) by bringing

a counterclaim for modification of legal or physical custody in response to a

complaint seeking to modify custody. OCGA § 19-9-23 (a), (d) (2019). This Court

repeatedly has noted that “the language of OCGA § 19-9-23 [requiring a party to

bring a separate complaint to change custody] is clear and unequivocal and is

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mandatory.”1 Bailey v. Bailey, 283 Ga. App. 361, 362 (641 SE2d 580) (2007)

(citations and punctuation omitted); accord Seeley v. Seeley, 282 Ga. App. 394, 396

(1) (638 SE2d 837) (2006); Terry v. Garibaldi, 274 Ga. App. 405, 408 (1) (618 SE2d

6) (2005). Likewise, the 2019 statutory revision permitting a party to bring “a

counterclaim for modification of legal custody or physical custody in response to a

complaint” for modification of the same, similarly is clear and unambiguous.

2 See Ga.

L. 2019, p. 904, § 2; OCGA § 19-9-23 (d) (2019).

In this case, it is undisputed that the father did not initiate a complaint, and he

implicitly concedes that he did not bring a counterclaim to modify custody in

1 OCGA § 19-9-23 was enacted in 1978, Ga. L. 1978, p. 1957, § 4, and its

language regarding the filing of a separate complaint to change custody essentially

has remained unchanged. From 1978 until the statute was revised in 2019, the law

stated that “[a] complaint by the legal custodian seeking a change of legal custody or

visitation rights shall be brought as a separate action” in the appropriate venue. Ga.

L. 1978, p. 1957, § 4 (b); see Ga. L. 1983, p. 3, § 52 (revising statute to reflect correct

constitutional provision regarding venue). The current law states that “[a] complaint

seeking a change of legal custody or physical custody shall be initiated” in the

appropriate venue. OCGA § 19-9-23 (a) (2019).

2 From 1978 until the 2019 statutory revision, the law mandated that filing a

separate action was the only method to seek a change in custody; the law did not

allow a party to counterclaim for such relief. Ga. L. 1978, p. 1957, § 4 (c). See also

Terry, 274 Ga. App. at 407. However, effective July 1, 2019, the statute was revised

to explicitly authorize a party to bring a counterclaim for modification of legal or

physical custody in response to a complaint initiated to change custody. Ga. L. 2019,

p. 904, § 2; OCGA § 19-9-23 (d) (2019). 

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response to the mother’s petition by failing to make any such claim in his appellate

brief. In fact, the father specifically states in his appellate brief that he “was not

required to file a counterclaim for modification before being permitted to argue the

best interest of the minor children were served by an alternative to the one suggested

by [the mother].”3 Because the father failed to properly seek a change of legal or

physical custody under OCGA § 19-9-23, he was precluded from obtaining such an

award. See generally Bailey, 283 Ga. App. at 362; Seeley, 282 Ga. App. at 395-396

(1); Terry, 274 Ga. App. at 407.

In an attempt to avoid the requirements of OCGA § 19-9-23, the father argues

that “[t]rial courts are not limited by pleadings in determining the best interests of

children.” He claims that “[w]hether a trial court has the discretion to order what it

determines is in the best interests of a child if it runs counter to the relief prayed for

3 The record shows that the father never filed a counterclaim for a change of

custody, but, rather, filed a counterclaim seeking to modify his child support

obligation. We decline to construe the father’s filing of an emergency motion for

custody within the mother’s modification action as a counterclaim for permanent

custody in this case because the pleading he subsequently filed plainly requested that

“the relevant portions of the Final Judgment and Decree, and Permanent Parenting

Plan governing child custody remain unchanged.” In addition, we decline to construe

the father’s oral request for a modification of custody at trial as “bring[ing] a

counterclaim for modification of . . . custody in response to a complaint” as required

by OCGA § 19-9-23.

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in the petition . . . appears to be a matter of first impression in Georgia.” However,

these arguments run counter to the clear statutory mandates of OCGA § 19-9-23. In

construing the prior version of OCGA § 19-9-23, thisCourt repeatedly noted that trial

courts cannot entertain a request to modify custody if not properly brought pursuant

to OCGA § 19-9-23, even if custody – which necessarily requires a determination

regarding the best interests of the children – is before the trial court in the underlying

petition. See generally Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987)

(addressing prior version of statute); Bailey, 283 Ga. App. at 362 (same); Seeley, 282

Ga. App. at 395-396 (1) (same).

In addition, adopting the father’s argument that, regardless of the parties’

pleadings or prayers for relief, a trial court always is authorized to consider the best

interests of the children and grant an award reflecting those interests would render

OCGA § 19-9-23 meaningless. Indeed, the analysis proposed by the father would

allow any parent to argue that modification of custody in his favor is in the best

interests of the children without complying with the express statutory provisions

specifying the methods by which a party can bring a modification of custody claim.

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4 Likewise, the father’s specious argument that the trial court “granted [the]

Mother’s petition to modify” but “simply did not agree with what [the] Mother

claimed was in the best interests of the minor children” is yet another attempt to

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This we cannot do because this Court must presume that “the legislature meant

something by the passage of [a statute,] and, [we are] charged with the duty to

construe a statute so as not to render it meaningless.” Powell v. Studstill, 264 Ga. 109,

113 (3) (b) (441 SE2d 52) (1994) (citation omitted); accord Handel v. Powell, 284

Ga. 550, 554-555 (670 SE2d 62) (2008) (courts must construe a statute to give

sensible and intelligent effect to all of its provisions and to refrain from any

interpretation thatrenders any part ofthe statute meaningless). Accordingly, although

the father points to facts elicited during the hearing on his emergency motion and at

trial as support for his assertion that the trial court’s award of primary physical

custody to him was in the children’s best interests, these factors do not, themselves,

create a separate basis for jurisdiction in contravention of the clear mandates of

OCGA § 19-9-23. 

We are sympathetic to the father’s argument that a trial court is obligated to

decide what award is in the children’s best interests. And

[w]e realize that the filing of a separate change of custody suit by the

[father] could result in consolidation of the two actions in front of the

same judge, and that the trial court would have had to consider the

custody issue whether the [father] filed a counterclaim or a separate

bypass the statutory requirements of OCGA § 19-9-23.

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complaint. In terms of judicial efficiency, the [father’s] position is

understandable, even compelling.

Terry, 274 Ga. App. at 407-408 (1). However, this Court has never recognized

unfettered discretion in the trial court’s ability to craft a remedy in the best interests

of the children regardless of the requested relief before the court. “A trial court’s

discretion must be circumscribed by applicable legal principles and exercised within

appropriate lawful bounds.” McClellan v. State, 274 Ga. 819, 824 (561 SE2d 82)

(2002) (Carley, J., concurring in part and dissenting in part). In addition, asthis Court

previously noted when addressing the prior version of OCGA§ 19-9-23, “[w]e cannot

ignore the clear language of the statute, even where it appears to defy logic.” Bailey,

283 Ga. App. at 363 (citation and punctuation omitted); accord Seeley, 282 Ga. App.

396 (1).

Here, because the father did not comply with the mandates of OCGA § 19-9-23

by initiating a complaint or bringing a counterclaim to modify custody, he was

precluded from seeking to modify custody in this action. The trial court, therefore,

lacked authority to consider the father’s request for modification of custody and to

award the father primary physical custody of the children; the court was bound to

consider only the mother’s petition for modification and not take evidence on any

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claim for modification by the father. See Seeley, 282 Ga. App. at 396 (1).

Consequently, we vacate the trial court’s order and remand the case with instruction

that the trial court consider only the mother’s modification petition, as the issues

contained in that petition are the only issues properly before the trial court in this

case. See id. 

2. In separate enumerations of error, the mother contends that (i) trial court

abused its discretion in awarding primary physical custody to the father absent a

showing of a substantial change in circumstances necessitating a change in custody,

(ii) the trial court abused its discretion by modifying custody based on sleepdeprivation issues the mother experienced nearly a year before the final hearing,

which have not since recurred, and (iii) the evidence wasinsufficient to establish that

granting the father primary physical custody was in the best interests of the children.

Based on our holding in Division 1, we need not reach these arguments.

Judgment vacated and case remanded. Rickman, C. J., and McFadden, P. J.,

concur.

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