Atlanta Divorce Attorney Blog

In child support case, the court may order a parent, or both parents, to obtain and maintain a life insurance policy (or policies) for the benefit of the minor children. OCGA 19-6-34(a). The purpose of the policy is to cover a parent’s child support obligation if he or she passes away while the children are still minors. Under the child support guidelines, both parents have an obligation to support the minor children. Thus, the court often orders both parents to obtain policies because, if either parent passes away while the children are still minors, the other parent will bear the entire obligation to support the children. The parent or parents who pay the premium on the life insurance policy may receive a deviation to the presumptive amount of child support, if the court finds the amount of the premium to be reasonable and in the child’s best interest. OCGA 19-6-34(b). Parents can also agree to maintain life insurance policies for the benefit of the minor children in a settlement agreement. OCGA 19-6-34(e).

Recently, the Georgia Court of Appeals affirmed the enforcement of a divorce settlement agreement over the wife/mother's objection. In that case, the father filed for divorce and sought legal and physical custody of the parties’ children. Martinez v. Martinez, 301 Ga. App. 330 (2009). While the divorce proceedings remained pending, the father filed a motion to enforce a settlement agreement. He contended that the parties had reached the agreement wherein he would be the primary custodial parent and the mother would have visitation rights. Id. The trial court granted the father’s motion and entered a “Final Order on Custody and Visitation” in accordance with the terms of the settlement agreement. Id.

The mother appealed, alleging that the trial court erred in enforcing the settlement agreement “because she did not assent to the terms of the settlement and lacked capacity to contract at the time in question due to her medical condition,” and argued that the trial court “refused to receive any evidence from the parties” at the hearing on the father’s motion. Id. at 332. The mother’s allegations regarding evidence at the hearing, however, were disputed by the father and inconsistent with the trial court’s order on the motion. The Georgia Court of Appeals, therefore, affirmed, citing well established case law stating that “'[i]n order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings.'" Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) (511 S.E.2d 232) (1999). Id. at 332-333. Further, "'where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.'" Enchanted Valley RV Park Resort v. Weese, 241 Ga. App. 415, 417 (1) (c) (526 SE2d 124) (1999). Id. Because there was no transcript or other evidence in the record on appeal, the Georgia Court of Appeals was bound to presume that the trial court was correct.

The trial courts in Georgia have the power to punish a person who is in contempt, or fails to pay child support or alimony, “to the same extent as is provided by law for contempt of the court in any other action or proceeding cognizable by the court.” OCGA 19-6-28(a). In addition to other possible punishment, such as jail time, the Georgia Code specifically allows the court to suspend a license or registration, or deny an application for same, if the respondent “has accumulated support arrears equivalent to or greater than the current support due for 60 days.” OCGA 19-6-28.1(b). This applies to a number of licenses and registrations: the license to conduct a trade, business, profession or occupation; the license to hunt or fish; the license to drive a motor vehicle; and the registration of a vehicle in Georgia. Id. In order for the license or registration to be reissued, the respondent must prove to the licensing or registering entity, by “written proof of payment by cash or certified check, notice issued by the court, or notice from a child support receiver,” that he/she is in compliance with the order for support. OCGA 19-6-28.1(c)

Recently, the Georgia Court of Appeals addressed the issue of a parent not being properly served with a custody modification action. In that case, pursuant to their Dekalb county divorce decree, the parties were granted joint legal and physical custody of their son. Hudson v. Easterling, 301 Ga. App. 207 (2009). Shortly after the divorce was final, the mother filed a petition for contempt against the father alleging several violations of the divorce decree. Id. While the contempt petition was still pending, the mother filed a petition to modify visitation but the father was not served with this action due to an incorrect address. Id. The Dekalb county trial court held a hearing on both the contempt and modification actions, for which the notice was sent to the father’s correct address. Both parties appeared at the hearing where the court granted the mother’s modification petition. Id.

The father appealed, contending that “trial court lacked personal jurisdiction over him because he was not personally served with the modification petition,” but the Georgia Court of Appeals rejected his argument. Id. at 208. The Court affirmed long standing Georgia law holding that the father “personally appeared at the hearing on the modification petition,” and “[n]othing in the record shows that [he] raised the issue of insufficient service of process at that time.” Id. The father, therefore, implicitly consented to jurisdiction and waived any claim of insufficient service of process. Id.