Atlanta Divorce Attorney Blog

In Georgia, a child born out of wedlock is considered the biological child of both his mother and father, but only the mother is immediately considered to be the “legal parent.” Thus, the mother is the only parent with “parental control” over the child. OCGA §19-7-25. In situations such as this, the father may desire to render his relationship with the child legitimate or legal. To do so, the father must file a petition for legitimation in the county of residence of the child’s mother (or other party having custody or guardianship of the child). OCGA §19-7-22(a). If the mother resides outside of Georgia, or cannot be found in Georgia, the petition should be filed in the county of the father’s residence. Id. The petition must include “the name, age, and sex of the child, the name of the mother, and, if the father desires the name of the child to be changed, the new name.” OCGA §19-7-22(b). The mother must be named as a party and must be served with the petition so that she may have the opportunity to contest the legitimation if she chooses to do so. Id. For example, the mother may present evidence that the father is not the child’s biological father, or may present evidence that he is an unfit parent and the legitimation would not be in the child’s best interest.

Petitions for legitimation may also include claims for visitation, parenting time, and/or custody, which the court may order based upon the best interests of the child standard. OCGA §19-7-22(f.1). In addition, it is important to keep in mind that if the legitimation petition is granted, the court is required to establish a duty of the father to support the child in accordance with the Georgia child support guidelines. OCGA §19-7-22(e).

The Supreme Court of Georgia recently upheld a monetary judgment against a third party in a divorce action. Huling v. Huling, S10F1591 (2011). In that case, the husband filed for divorce after 23 years of marriage. Husband’s father, sister, and two companies (“third-party plaintiffs”) were joined as indispensible parties after the wife alleged “marital property had been transferred to these parties in an attempt to defraud Wife of her claim to equitable division of such assets.” Id. After the jury charge conference in which counsel for husband and wife engaged in a “lengthy discussion” regarding the formal and content of the jury form, the jury returned a verdict finding that husband and the other joined parties (“appellants”) “had conspired to defraud Wife” and awarded her a substantial sum, entered jointly and severally against the appellants. Id. at 2. The appellants then appealed, contending that “the judgment against the third-party plaintiffs cannot stand because…an equitable division claim cannot be brought against a third party to the marriage, and,…a money judgment against a third party cannot be entered under such circumstances.” Id. at 3.

The Supreme Court of Georgia rejected this argument, holding that “any error in the judgment against the third-party plaintiffs was induced by appellants” and they cannot now complain about it. Id. at 4-5. Specifically, the Court pointed out that, in the jury charge conference, the Husband’s attorney stated that any judgment would be jointly and severally against all of the appellants, and that they all stood together. Id. at 4. The attorney for the third-party plaintiffs later agreed with this statement. Id. Thus, they cannot now complain about it and are held to the judgment against them.

It is extremely unlikely that this ruling will be extended to third parties in general, as it is wholly based upon the particular circumstances surrounding the charge conference.

The Supreme Court of Georgia recently clarified the meaning of "attends school" as it relates to child support obligations. Draughn v. Draughn, S10A1599 (2011). In that case, the parties’ divorce decree stated that the father was to pay child support until the child “reaches the age of eighteen…; provided that if [the child] becomes eighteen years old while enrolled in and attending a secondary school on a full time basis, then the child support shall continue for [said child] until he has graduated from secondary school or reaches the age of twenty, whichever comes first.” Id. Shortly before the child turned 18, he stopped attending private high school and enrolled in an online high school equivalency program, but he failed to complete the online program and did not graduate. Id. at 2. After the father subsequently stopped paying child support, the mother filed a motion for contempt.

An issue addressed by the Supreme Court of Georgia on appeal was whether online schooling satisfies the requirement that the child “attends” a secondary school. The trial court found that online classes were not considered to be “attending school”, but the Supreme Court of Georgia disagreed. (Interestingly, the trial court did not base its contempt judgment on this finding, but the Supreme Court of Georgia was concerned as to whether the trial court’s assertion was correct and, therefore, asked the parties to address the issue so it could rule.)

The Supreme Court of Georgia unequivocally held that “once a child enrolls in approved online courses in an effort to graduate from secondary school, his online attendance constitutes 'attending school' for purposes of extending child support beyond the child’s attainment of the age of majority.” Id. at 4-5. The Court based its ruling on the state government’s endorsement and regulation of online learning opportunities. In doing so, the Court is keeping up with the realities of the digital age and allowing children to participate in alternative forms of education.

The 9th Judicial District (Forsyth and Cherokee counties) recently revised its April – June 2011 parenting seminar schedule as follows:

• Gainesville (New Hall County Courthouse, 225 Green Street SE) – Thursday, April 21, 5:00pm – 9:00pm; Thursday, May 5, 5:00pm – 9:00pm; Thursday, May 19, 5:00pm – 9:00pm; Thursday, June 2, 5:00pm – 9:00pm; Thursday, June 16, 5:00pm – 9:00pm
• Dahlonega (North Georgia College and State University, Continuing Education Bldg., Highway 60) –Tuesday, April 19, 9:00am – 1:00pm; Tuesday, May 17, 9:00am – 1:00pm; Wednesday, June 1, 9:00am – 1:00pm
• Blairsville (Haralson Civic Center, 165 Welborn Street) –Monday, May 9, 1:00pm – 5:00pm; Monday, June 6, 1:00pm – 5:00pm
• Clarkesville (North GA Technical College, 1500 Hwy. 197 North) – Wednesday, May 11, 1:00pm – 5:00pm; Wednesday, June 8, 1:00pm – 5:00pm
• Cumming (Hampton Park Library, 5345 Settingdown Road) – Wednesday, April 20, 4:00pm – 8:00pm
• Cumming (Sharon Forks Library, 2820 Old Atlanta Road) – Monday, May 16, 4:00pm – 8:00pm
• Ellijay (Gilmer County Library, 268 Calvin Jackson Drive) – Monday, April 25, 1:00pm – 5:00pm; Monday, May 23, 1:00pm – 5:00pm; Monday, June 13, 1:00pm – 5:00pm
• Canton (RT Jones Memorial Library, 116 Brown Industrial Parkway) – Saturday, April 30, 10:00am – 2:00pm; Saturday, May 21, 10:00am – 2:00pm; Saturday, June 11, 10:00am – 2:00pm

The cost of the seminar is currently $50.00 per person. There is no pre-registration and you must arrive 30 minutes early to register. You can find additional information about these seminars at 9th Judicial Office of Alternative Dispute Resolution website.

The Georgia Supreme Court recently clarified two issues surrounding the child support deviation for life insurance. Simmons v. Simmons, S10F1818 (2011). In Simmons v. Simmons, the parties were divorced and the Final Judgment and Decree of Divorce ordered the husband, among other things, “to maintain $150,000 in insurance on his life for the benefit of the child and establish a trust in which to place any proceeds.” Id. at 1. The husband appealed several portions of the Final Judgment and Decree of Divorce to the Georgia Supreme Court including the life insurance provision, arguing that the amount in which he is required to maintain a life insurance policy exceeds his cumulative child support obligation. Id. at 6.

The Georgia Supreme Court disagreed with the husband, holding that the statute addressing life insurance “does not limit the value of any such insurance to the future child support obligation of the parent,” but, rather, “is within the trial court’s discretion.” Id. at 6-7. The Georgia Supreme Court found no abuse of discretion by the trial court. Thus, any life insurance policy value may be acceptable as long as it can be supported by the evidence.

The husband also unsuccessfully argued that the trial court “failed to consider the cost of the life insurance in calculating his child support obligation.” Id. at 7. In dismissing this argument, the Georgia Supreme Court stated that although the statute provides that “[t]he amount of the premium for such life insurance may be considered as a deviation to the presumptive amount of child support,” the deviation is not required and the trial court did not abuse it’s discretion in declining to consider the deviation. Id.

The Supreme Court of Georgia recently vacated a child support order that had an unsupported deviation. Stowell v. Huguenard, S10A1700 (2011). In that case, the father filed a motion to modify his child support and alimony obligation after a substantial change in his employment. After a trial, the court reduced the father’s child support obligation to $981.25 per month plus “an annual payment of 25% of any gross commissions or other irregular income received above his $3500 monthly base salary.” Id. at 1. The father appealed, alleging that Georgia law did not support the additional 25%. The Supreme Court of Georgia agreed with the father.

In general, child support is computed using both parents’ gross incomes to get the presumptive amount of child support, and then adding to or subtracting from this amount using deviations that serve the best interests of the child. OCGA §19-6-15. Click here for a more detailed analysis of how child support is computed.

In this case, there was no question that the father’s child support obligation of $981.25 per month was correct given the parties’ respective incomes. However, the child support worksheet “contains no reference to the trial court’s requirement that [the father] pay 25% of any income over his base salary of $3500 every month” as required. Id. at 4. In addition, “the trial court declared on the worksheet that there were no deviations to the presumptive child support amounts.” Id. at 5. The 25% was addressed as a provision in the modification order, but the order lacked “the written findings or special interrogatory findings that an amount of child support other than the amount calculated is reasonably necessary.” Id. The Georgia Supreme Court held that “the trial court’s requirement that [the father] pay 25% of any income above his monthly base salary of $3500 results in a deviation from the presumptive amount of child support set forth by the child support guidelines” and, since this deviation was not support buy written findings or entered on the child support worksheet, the modification order must be vacated. Id. at 11-12.

The Georgia Court of Appeals recently heard a case regarding the implications of a signed voluntary acknowledgment of paternity. Venable v. Parker, A10A1617 (2011). In that case, shortly after the child was born, the parties signed a voluntary acknowledgement of paternity stating that Parker was the biological father. In accordance with Georgia law, the acknowledgment “expressly stated that Parker could rescind his acknowledgment within 60 days of his signature on the form, or up to the date of an order establishing paternity, whichever occurred first.” Id. at 2; OCGA §19-7-46.1(b). If he did not rescind within this time period, the acknowledgement would “constitute a legal determination of paternity” and Parker would “have given up [his] rights to DNA testing.” Id. at 2. Parker did not seek rescission and the trial court signed a Final Order incorporating the terms of the parties’ settlement on paternity and child support. Id. at 3.

Shortly thereafter, Parker moved to set aside the paternity acknowledgment and Final Order based upon fraud, alleging that he had recently learned that he may not be the child’s biological father. Id. at 4. Following a hearing in which Parker’s testimony was contradictory, the trial court denied Parker’s motion, but held that it would be in the best interests of the child to require the parties to undergo genetic testing. Id. at 5-6.

Venable appealed, arguing that “the trial court lacked authority to order genetic testing” since the motion to set aside the paternity acknowledgment was denied. Id. at 6. The Georgia Court of Appeals agreed, holding that "[u]nder Georgia law, genetic testing can only be ordered in cases ‘in which the paternity of a child or children has not been established.’” Id.; OCGA §19-7-43(d). In this case, the Final Order, which legally established paternity based upon the paternity acknowledgment, was not appealed nor modified. Id. at 7. Thus, paternity had already been established, and genetic testing was not authorized.

Under Georgia law, alimony may be awarded in a divorce action “to either party in accordance with the needs of the party and the ability of the other party to pay,” taking in account “the conduct of each party toward the other.” OCGA §19-6-1(c). There are eight factors that must be considered in determining the amount of alimony, if any, to be awarded. OCGA §19-6-5(a).

The eighth factor to be considered is “[s]uch other relevant factors as the court deems equitable and proper.” OCGA §19-6-5(a)(8). Much like the “nonspecific deviation” category in the child support guidelines, this factor is included to cover specific situations that may not have been contemplated by the Legislature. All of the factors under this statute help the court to determine the need of one party for alimony versus the ability of the other party to pay alimony. Every divorcing couple’s situation is unique so as long as any “other relevant factor” helps the determination of this analysis, the court will likely consider it.