Atlanta Divorce Attorney Blog

The Court of Appeals of Georgia recently heard a case which emphasizes the importance of having a transcript for the Court to refer to on appeal in family law cases. Johnson v. Ware, A11A1559 (2012). In that case, the trial court consolidated two actions concerning custody and visitation of the children, one action filed by each party. In one action (the “Ware Action”), the mother sought a modification of the father’s visitation. In the other action (the “Johnson Action”), the father sought primary physical custody of the children. The cases were tried together by agreement of the parties. Id. at 2. After the trial (in which there was no transcript takedown), the trial court held that the mother should remain the primary physical custodian and included a Parenting Plan, which specifically outlined visitation. Id. at 3.

The father appealed, arguing that the trial court erred in modifying custodial rights he was given under the parties’ settlement agreement and divorce decree. Id. at 4. According to the Court of Appeals, however, he could not show reversible error because neither the settlement agreement nor the divorce decree was in the record on appeal. Id. In addition, there was no transcript so there was no evidence regarding how that issue was treated at trial. Id. at 5. The Court of Appeals held: “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” Id. at 5. The Court, therefore, affirmed the trial court’s decision. The father also asserted that the trial court erred by refusing to hear all the evidence he offered at trial. Id. However, again, without a transcript, the father was unable to prove this assertion and the trial court’s order was affirmed. Id. at 6.

This case shows the importance of having the court reporter takedown the proceedings. The expense involved is likely worth it as it is nearly impossible to be successful on appeal without having evidence of what happened at the trial court level to which the Court of Appeals of Georgia or Supreme Court of Georgia can refer.

The Supreme Court of Georgia recently heard an interesting case regarding separate property in a Georgia divorce. Shaw v. Shaw, S11F1586 (2012). In that divorce case, the only issue was equitable distribution of certain property, particularly property in Florida inherited from Husband’s mother, and two accounts established by the Husband with inherited funds. Id. From the outset, the Husband directed that the property be deeded to him and his wife as tenants in common and established both accounts in the name of him and his wife, with a right of survivorship. Id. at 3-4. As a result, the trial court characterized these assets as martial property and divided them equally between the parties. Id. at 1.

The Husband appealed contending that the trial court erroneously characterized these inherited assets as martial property. Id. at 2. The Husband argued that the assets were established with funds he inherited from his mother and, thus were separate property not subject to equitable division. Id. Husband further argued that the Wife never contributed to the value of these assets, nor were they commingled with other marital funds so they should not have been transformed into marital property. Id. The Supreme Court of Georgia disagreed, holding that the accounts were “transformed into marital property when Husband gave Wife an ownership interest” on the accounts, specifically by putting her name on the accounts/deed. Id. at 3 and 4. Thus, the trial court properly characterized these assets as marital and there was no error in dividing them between the parties.

This case highlights the importance of how you treat inherited funds after you receive them. Inherited property doesn’t always equal separate property if it has not been treated as such.

The Georgia Court of Appeals recently affirmed the grant of a petition for legitimation over the mother’s appeal. Murray v. Hooks, A11A1824 (2012). In that case, the father filed a petition for legitimation and was awarded temporary custody due to the mother’s incarceration. Id. at 1-2. A few months later, after a hearing that the mother failed to attend, the trial court entered a final order of legitimation and awarded custody to the father. Id. The trial court subsequently granted the mother’s motion to vacate the final order and scheduled a bench trial in the case. Both parties appeared at the trial where the trial court awarded joint legal custody, with primary custody to the father and visitation to the mother. Id.

The mother appealed, alleging “the trial court erred in its custody award and violated her due process rights by failing to provide her an adequate opportunity to be heard.” Id. at 1. The Georgia Court of Appeals affirmed, noting that the mother received adequate notice of the trial and the trial court’s final order indicated that she attended the trial. Id. at 3. Though there was no transcript included in the record, the Court noted that“[i]n the absence of a transcript, we must assume the trial court’s findings were supported by evidence presented, and the actions taken by the trial court during the hearing were appropriate.” Id. at 3, citations and punctuation omitted. The Court further pointed out that there were no due process violations based on the court’s prior hearings held in the mother’s absence because the original final order was vacated and the temporary order was replaced by the order coming from the trial, which she did attend. Id. at 3-4.

The Supreme Court of Georgia recently heard a case addressing the issue of retroactive alimony modification in Georgia. Branham v. Branham, S11A1896 (2012). In that case, under their divorce decree, the husband was required to pay periodic alimony to the wife for 120 months “unless and until Wife dies, remarries, or cohabitates with someone else in a meretricious relationship,” and the wife was required to pay the monthly mortgage on the marital home that she was awarded. Id. Both parties quickly fell behind on these obligations. Id. The husband filed a contempt action against the wife for failing to pay the mortgage and also filed a separate action to cease his alimony obligation, alleging that the wife was cohabitating with someone in a meretricious relationship. Id. The wife subsequently filed a contempt action against the husband for his failure to pay alimony. Id. The trial court heard all three actions together and found both parties in contempt. Id. at 2. In addition, the trial court denied the husband’s motion to cease his alimony obligation, but reduced his obligation for past due alimony to zero. Id.

The wife appealed, contending that the trial court erred by retroactively reducing the husband’s alimony obligation and the Supreme Court of Georgia agreed. Id. The Court quoting long standing Georgia law in its holding: “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment…[A] judgment modifying an alimony obligation is effective no earlier than the date of the judgment.” Id. at 2-3, quoting Hendrix v. Stone, 261 Ga. 874, 875 (1992). In this case, the ruling that husband’s alimony arrearage be extinguished clearly violates this rule, as it modifies a past obligation (i.e. one that had already come due). Thus, the Supreme Court of Georgia reversed the ruling.

The Supreme Court of Georgia recently heard an interesting case regarding visitation rights for grandparents whose son’s parental rights had been terminated. Kunz v. Bailey, S11G0867 (2012). In that case, the child’s stepfather adopted the child after the biological father’s rights were terminated. Id. After being denied access to the child, the paternal grandparents (parents of the biological father whose rights were terminated), petitioned for visitation rights with the child. Id. Under Georgia law, a petition for grandparent visitation is not authorized where “the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b). Therefore, the child’s mother and adoptive father (“Parents”) moved to dismiss the action and, after the motion was denied, filed a direct appeal to the Court of Appeals of Georgia. Id. at 2. The Court of Appeals reversed the trial court’s denial of the Parents’ motion to dismiss, determining that the term “parent” in the grandparent visitation statute “was not limited to natural parents, but included adoptive parents as well.” Id.

The grandparents then filed a petition for certiorari with the Supreme Court of Georgia to determine whether the language of the grandparent visitation statute cited above includes adoptive parents. Id. at 3. The Supreme Court of Georgia held that the statute did include adoptive parents. Any other interpretation would “allow grandparents, by court action, to intrude upon the ‘constitutionally protected interest of parents to raise their children.'” Id. at 4, quoting Brooks v. Parkerson, 265 Ga. 189, 191 (1995). In addition, there was no limiting language in the statute that distinguished between any class of parents. Kunz, at 4.

The Court also agreed that the trial court’s denial of the original motion to dismiss was error. Since the adoptive father was the father of the child at the time the grandparent visitation was filed and the child was living with both parents, there was no basis for an original action for visitation by the grandparents. Id. at 5. Thus, dismissal of the grandparents’ visitation petition “was the proper outcome.” Id.

The Supreme Court of Georgia recently heard a case regarding a self-executing modification in a final decree of divorce. Johnson v. Johnson, S11F1856 (2012). In that divorce case, the final decree of divorce awarded primary physical custody of the parties’ daughter to the mother, with supervised visitation to the father. Id. The parenting plan further provided that the father’s overnight visitation must be supervised by “a reasonable adult approved by [a therapist treating the child], until such time as [the therapist] determines that supervision is not necessary.” Id. Under the parenting plan, the therapist had the additional authority “to determine how supervised visitation should be phased out over time and when supervision may end.” Id. The father appealed, contending that the “provisions concerning the termination of the supervised visitation constituted an improper self-executing modification contingent on the determination of the therapist.” Id. at 2.

The Supreme Court of Georgia agreed with the father that the provision is an improper self-executing change of visitation because it allows for an automatic change in his visitation based on a future event, without any additional judicial scrutiny. Id. at 2-3. The Court held that “a self-executing change in custody/visitation that constitutes a material change, i.e. is one ‘that is allowable only upon a determination that it is in the best interests of the [child] at the time of the change,’ generally violates Georgia’s public policy founded on the best interests of the child.” Id. at 3. The responsibility for making this decision must be made by the court and cannot be delegated to another person or entity. Id. In this case, the provision regarding the change in the father’s visitation is considered a material change. Since, under this provision, it will occur automatically without any judicial scrutiny, “it is an invalid self-executing change of visitation” and must be stricken from the final divorce judgment. Id. at 4.

The Supreme Court of Georgia recently affirmed a divorce action where the husband was awarded primary physical custody of the children despite evidence of alleged family violence. Finklea v. Finklea, S11F1804 (2012). At the final hearing in that divorce case, the parties “each testified extensively about acts of family violence committed by the other spouse, which led to multiple police reports filed against each other.” Id. at 2. In its final judgment, the trial court said it was making its decision “[a]fter hearing testimony of the parties and considering all the evidence tendered at trial.” Id. Neither party asked for written findings of fact supporting the custody award. Id. The trial court ultimately awarded primary physical custody to the husband.

The wife appealed, alleging that “in awarding primary physical custody of the parties’ two children to Husband, the trial court abused its discretion in failing to cosider evidence of alleged family violence perpetrated by Husband against her." Id. at 1. The Supreme Court of Georgia disagreed, holding that, under the circumstances described above, the trial court did consider evidence of family violence presented at the final hearing. Id. at 3. In addition, the Court found no abuse of discretion in the trial court’s award of primary physical custody to the husband. The trial court exercised its discretion in awarding custody to one parent over the other and “[w]here there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.” Id. at 3, quoting Haskell v. Haskell, 286 Ga. 112, 112 (2009).

The Supreme Court of Georgia recently reversed a trial court’s decision in a custody modification case because the trial court erroneously relied on evidence from the temporary hearing in making its final custody determination. Vaughn v. Davis, S11A1950 (2012). In that case, the parties had been granted joint legal and physical custody of their children in their divorce action. Neither was required to pay child support to the other, but they were ordered to split the children’s expenses. Id. The mother later filed a motion for change of custody and child support. Id. At the temporary hearing at which both parties appeared pro se, the trial court entered a temporary order awarding primary physical custody to the father, with the visitation to the mother. The mother was also ordered to pay child support to the father. Id.

The mother retained an attorney prior to the final hearing in the case. At the final hearing, the trial court again granted primary physical custody to the father, with visitation for the mother. Id. at 2. After her motion for a new trial was denied, the mother appealed, contending “that the trial court erred by relying on evidence adduced at the temporary hearing.” Id.

The Supreme Court of Georgia agreed with the mother, citing a case from 2010 which held that “[t]he nature and quality of the evicence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing, and parties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award…Accordingly, we now hold that, absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 2-3, quoting Pace v. Pace, 287 Ga. 899, 901 (2010).

Here, it is clear that the trial court relied on evidence from the temporary hearing in reaching its final custody decision, and “there is no indication that the parties were notified in advance that this was going to happen.” Vaughn at 3. Thus, the trial court’s order must be reversed and remanded for further proceedings.

The Supreme Court of Georgia recently heard an appeal of a divorce case, which highlights the security, or risk (depending on which side you are on), of entering into a prenuptial agreement in Georgia. Sides v. Sides, S11F1140 (2011). In that case, the parties began dating in 1989 and, shortly thereafter, the Wife became pregnant. Id. Due to the great disparity in assets and income between the parties, they negotiated and signed a prenuptial agreement before marrying in 1990. Id. Under the agreement, “Wife would have been entitled to substantially more resources if the parties divorced after their twenty-year anniversary, and substantially less if the parties divorced prior to their twenty year anniversary.” Id. at 2. Nearly twenty years later, the Husband filed a Compliant for Divorce and Motion to Enforce the Prenuptial Agreement, which the trial court granted a mere 62 days prior to the couple’s twenty year anniversary, and the WIfe appealed. Id.

The Supreme Court of Georgia affirmed the enforcement of the prenuptial agreement. The Court first laid out the factors to be considered by the trial court in deciding the validity of the prenuptial agreement: “(1) [W]as the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts? (2) [I]s the agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?” Id., quoting Scherer v. Scherer, 249 Ga. 635, 641 (3) (1982).

In this case, both attorneys “deposed that they would not have allowed their clients to enter the agreement without full financial disclosures being made,” and Wife was long aware of the “vast disparity” between their incomes. Id. at 3. Thus, the evidence supported that full financial disclosures were made prior to signing and the agreement was not unconscionable. In addition, the increase in Husband’s net worth was anticipated and, therefore, it was not a “change of circumstance that would make the enforcement of the agreement unfair and unreasonable.” Id. at 4. The trial court, thus, did not abuse its discretion in upholding the prenuptial agreement.

In Georgia, even in divorce cases with two fit parents, one parent will be awarded primary physical custody. In a recent divorce case with two fit parents, the trial court awarded primary physical custody of the parties’ two minor children to the Wife, and the Husband appealed. Rowden v. Rowden, S11F0812 (2011).

In affirming the trial court’s ruling, the Supreme Court of Georgia stated that: “In a contest between parents over the custody of a child [or children], the trial court has very broad discretion, looking always to the best interest of the child[ren], and may award the child[ren] to one even though the other may not be an unfit person to exercise custody or had not otherwise lost the right to custody.” Id. at 2, quoting LaFont v. Rouviere, 283 Ga. 60, 62 (2) (2008). Here, the trial court found that both parents were fit and spent quality time with the children. Id. at 3. However, “Husband did not have a concrete childcare plan for the children, nor did he engage his children in age-appropriate activities with other children that could have assisted in their social development. Wife, on the other hand, got the children involved in summer camps, lived near her own parents (who could help her with the children), and, unlike Husband, planned social events for the children such as birthday parties.” Id. The Supreme Court of Georgia therefore held that the evidence supported the trial court’s decision to award primary physical custody to the mother.

It is important to note that the trial court was not saying that the father was not a fit or good parent. Rather, it relied on the evidence above to tip the scales in favor of the mother for primary physical custody.

The Georgia Court of Appeals recently heard an appeal of the grant of a legitimation petition, where the father was absent during the majority of the pregnancy, but in the child’s life from the moment he was born. Caldwell v. Meadows, A11A1031 (2011). In that case, the parties had a short relationship and then had virtually no contact during the pregnancy. Id. at 3. Toward the end of the pregnancy, the parties reconnected and even went shopping together for the baby. Id. The father visited the child in the hospital after he was born, and the mother and child moved in with the father for several days after coming home from the hospital. Id. at 4. After the mother moved to Georgia with the child, the father voluntarily paid child support, provided health insurance, and visited the child 22 times over two years. Id. at 4. After being asked by the mother’s attorney not to contact the child anymore, the father filed a petition for legitimation, which was granted by the trial court, along with joint legal custody and visitation for the father. Id. at 1 and 4.

The mother appealed, asserting that the trial court erred in excluding the issue of the father’s abandonment during the pregnancy. Id. at 1. The Georgia Court of Appeals disagreed, holding that “[w]hile a father’s lack of involvement prior to a child’s birth ‘is as significant as such a disregard after the child is born,’ we are aware of no authority limiting a trial court’s inquiry into whether a father has abandoned his opportunity interest to the period before the child’s birth especially where, as here, the father evinced such a clear intent to be involved in his child’s life following his birth.” Id. at 6-7; quoting Turner v. Wright, 217 Ga. App. 368, 369 (1995). The question in considering whether the father had legally abandoned his child is not whether “the father could have done more,” but rather whether the father “has done so little as to constitute abandonment.” Id. at 7; quoting Binns v. Fairnot, 292 Ga .App. 336 (2008). In this case, this father was more involved than many out of town parents in his child’s life. Thus, there was clearly no abandonment.

The Georgia Court of Appeals recently heard a case addressing an alleged modification of a divorce decree in a contempt case. In that case, the parties had joint legal and physical custody of their children. Earle v. Earle, A11A1450 (2011). The father had final decision-making authority over extracurricular activities. Id. at 2. The father later filed a motion for contempt, alleging that the mother refused “to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that [the father] had previously fired.” Id. at 2-3. After a hearing, the court denied the father’s motion, holding that “the mother could use her custodial time with the children ‘in any way she deems appropriate.’” Id. at 3.

The father appealed, contending that “the trial court improperly modified the original divorce decree” by adding the new language above “which results in a material modification of the decree’s provision regarding his final decision making authority concerning the children’s extracurricular activities.” Id. at 4. The Georgia Court of Appeals disagreed with the father, stating that though a court cannot modify a divorce decree in a contempt order, it can interpret and clarify its own orders. Id. at 5. The Court held that, in this case, “the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time.” Id.

This case addresses an interesting issue that can come up post-divorce. If you have final decision making regarding extracurricular activities, it now seems that you must take your former spouse’s custodial time into consideration in scheduling these activities. After this case, one probably should not over schedule the children during the times in which they are in the custody of the other parent.

The Supreme Court of Georgia recently heard a case dealing with supervised visitation that was to be phased out through a transition period. In Sigal v. Sigal, before filing for divorce, the mother first filed a petition for separate maintenance. Sigal v. Sigal, S11F0835 (2011). In the decree from that case, the mother was granted primary custody and the father’s visitation was required to be supervised as a result of his documented drug and alcohol abuse problems. Id. at 2. The mother subsequently filed for divorce and “asserted that all issues regarding custody, visitation and support of the children were fully adjudicated in the decree of separate maintenance.” Id. The father disagreed and sought “reasonable and fair unsupervised visitation” with the children. Id. After hearing testimony from both parties, the trial court orally announced its ruling, holding that the father could have unsupervised visitation provided that he took and passed a drug test within the next 45 days and provided that the unsupervised visitation be phased in over a three month transition period. Id. at 3-4.

For reasons unknown, the final divorce decree was not entered for several months, though the visitation provision was entered nunc pro tunc from the date of the hearing. (This means that the visitation provision went into effect as of the date of the hearing, rather than the date of the final divorce decree). Id. at 4-5. As a result, the three-month transition period had already expired by the time the final decree was entered. Id.

For this reason, the mother appealed, and the Supreme Court of Georgia reversed the trial court’s ruling. The Court held that “the nunc pro tunc action as to the gradual transition provision in the decree here did not serve to conform the decree to the truth or the justice of the situation as originally intended by the trial court.” Id. at 7. “Rather, it had the exact opposite effect by eliminating the truth and justice recognized by the trial court…regarding the need of these children for a gradual transition period from supervised to unsupervised visitation with their father.” Id. at 7-8. For this reason, the trial court abused its discretion in making the visitation provision nunc pro tunc.

A recent Georgia divorce case was appealed to the Supreme Court of Georgia due to payment of transcript costs. Kent v. Kent, S11F1035 (2011). In that case, before the trial began, the judge asked the parties who had requested the court reporter and who would be responsible for her salary. Id. The Wife’s attorney responded that he had requested the court reporter and would be responsible for her cost, but the Husband’s attorney remained silent. Id. at 1-2. Only after the trial and after the judge had left the bench did the Husband’s attorney state that he would not pay for the court reporter cost. Id. After receiving an unfavorable outcome to the case, the Husband’s attorney filed a motion “to require the court reporter to transcribe her notes and provide him with an official transcript of the trial” so he could use it on appeal, adding that he was not willing to pay the entire cost of the court reporter. Id at 2-3. The trial court denied the Husband’s motion, finding that his failure to participate in the takedown costs was intentional and he could not now “take advantage of his opponent by only agreeing to pay for the costs of the court reporter now that he is certain that he needs the transcript.” Id. at 4.

The Supreme Court of Georgia disagreed with the trial court, citing long standing Georgia law which holds that, if there is express refusal to participate in the costs of the court reporter, the opposing party cannot later “compel the reporter to transcribe his stenographic notes” even with an offer to pay for same. Id. at 7; quoting Harrington v. Harrington, 224 Ga. 305, 306 (1968). However, a “mere failure” to respond to inquiries about court reporter costs does not amount to an express refusal. Kent, at 7. The Supreme Court of Georgia justified this reasoning, explaining: “By placing this affirmative burden on the party seeking a forfeiture of the right of his opponent [to a transcript] we intend to avoid the possibility that a party will lose this important right by inadvertence or mistake.” Id. In this case, there was no express refusal but, rather, a failure to respond.

Though the Court was sympathetic to “the possible unfairness [to Wife] in this particular case,” it was not willing to replace the bright line rule with a “case-by-case inquiry into the losing party’s subjective intent based on its conduct.” Id. at 11. Parties in Wife’s situation could avoid a situation like this by ensuring that express refusal to pay by the opposing party is on the record.

The Court of Appeals of Georgia recently affirmed a modification of visitation over the appeal by the father/primary custodian. Blackmore v. Blackmore, A11A1277 (2011). In that case, the parties shared joint legal custody of their two children with the father having primary physical custody. Id. at 2. The mother later filed a Petition to Modify Visitation, seeking “more visitation and primary decision-making authority over healthcare issues and the children’s extracurricular activities.” Id. At the recommendation of the guardian ad litem and custody evaluator, the trial court at first limited the mother’s visitation and required that it be supervised. Id. at 3. However, at the final hearing, the trial court removed the visitation restrictions and granted the mother more visitation, while keeping the father as the primary physical custodian. Id. The trial court also “ordered that each parent would make decisions regarding the day-to-day care of the children...while the children were residing with that parent." Id.

The father appealed arguing, among other things, “that the court’s final order amounted to a de facto change in custody, which was impermissible because there were no changes in material circumstances.” Id. at 8. The Court of Appeals of Georgia disagreed with the father, holding that, though “[i]t is true that a trial court may not indirectly change custody by modifying the visitation schedule,” there was no such change in this case. Id. at 9, citing Martin v. Buglioli, 185 Ga. App. 702, 703 (1988); Bullington v. Bullington, 181 Ga. App. 256, 257 (2) (1986). The Court emphasized that the increased visitation provided to the mother/non-custodial parent does not exceed the time of custody provided to the father/custodial parent. Id. at 10. Thus, the increase in visitation time, even when combined with the day-to-day decision making, does not amount to a de facto change in custody. Id.

The Court of Appeals of Georgia recently heard an interesting, though extremely sad, child custody case out of Fulton County. In that case, the paternal grandparents sought custody of the two minor children after the father was brutally murdered, allegedly by the mother. Scott v. Scott, A11A1206 (2011). After the mother’s murder trial resulted in a hung jury, she filed a motion to dismiss the grandparents’ custody petition for failure to state a claim. Id. at 2. The grandparents responded that they filed the original petition because, had the mother been convicted, “the children would be without parental care and control.” Id. at 3. The trial court granted the mother’s motion to dismiss, concluding that the grandparents failed to show “by clear and convincing evidence that parental custody would harm the child and that the award of custody to the parent is not in the best interest of the child.” Id. at 4.

The Georgia Court of Appeals disagreed, holding that “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient” to withstand a motion to dismiss. Id. at 5; citing Georgia Farm Bureau Mut. Ins. Co. v. Fowler, 177 Ga. App. 834 (1986). Since the petition “gave fair notice that they sought custody of the child under OCGA §19-7-1(b.1) and 19-9-2 based upon the mother’s alleged murder of the father,” it was sufficient to survive a motion to dismiss. Id. at 5. It should be noted that this does not mean that the grandparents would necessarily win custody, but they will be given an opportunity to present their case. Since the burden to prove parental fitness is lower than the burden required to prove murder, they may be able to prove the mother unfit even though she was not convicted of the murder.

The Supreme Court of Georgia recently reversed a trial court’s ruling that a Husband had waived his right to seek a modification of his child support obligation below a specified floor. Dean v. Dean, S11A0739 (2011). In that case, the parties’ settlement agreement provided a monthly child support amount, but stated that “Husband’s child support payment would be recalculated soon after the start of each year” and that “[i]n no event shall the annual recalculation of Husband’s child support result in him paying less” that the original amount stated in the settlement agreement. Id. at 1-2.

After the Husband lost his job, he filed a petition for downward modification of child support. Id. at 2. The trial court held that the Husband did not waive his right to modify his child support obligation, but the obligation could not be reduced below the floor set by the settlement agreement. Id.

The Husband appealed and the Supreme Court of Georgia agreed, emphasizing the “straightforward rule that parties to an alimony [or child support] agreement may obtain modification unless the agreement expressly waives the right of modification by referring specifically to that right; the right to modification will be waived by agreement of the parties only in very clear waiver language which refers to the right of modification.” Id. at 1, citing Varn v. Varn, 242 Ga. 309, 311 (1978). Here, there was no express mention of a “waiver,” nor is there any “express reference to the right of alimony modification.” Id. at 3-4. Not allowing the Husband to modify below a certain floor was essentially unlawfully limiting his right to modify. The Supreme Court of Georgia, thus, found that this case required reversal.

The Supreme Court of Georgia recently addressed a divorce case where separate property was erroneously classified as marital property and equitably divided. In that case, parties were married in 1993 and divorced in 2010. Highsmith v. Highsmith, S11F1052 (2011). In its final decree of divorce, the trial court classified some of the parties’ property as separate and some as marital. Specifically, the trial court classified an investment account in the Wife’s name as marital and subject to equitable division. Id. at 1-2. After the Wife’s motion for a new trial was denied, she appealed, alleging, “the trial court erred when it improperly designated her Scottrade account as marital property…” Id. at 3.

The Supreme Court of Georgia agreed with the Wife. The evidence from the divorce trial showed that the Wife had sold a house she owned prior to the marriage and put all of the proceeds in the Scottrade account at issue, which contained $300,000. Id. At the time of the trial, the balance of this account was $74,000, due, primarily, to the fact that she withdrew a large sum from this account and placed it into a joint account for real estate investment purposes during the marriage. Id.

The Georgia Supreme Court adamantly held that “the evidence showed Wife brought the account to the marriage.” Id. at 4. Thus, “[w]hatever as left in the account at the time the marriage ended was Wife’s separate property because no marital funds were placed into the account and its value, with the exception of Wife’s removal of $210,000, rose or fell with the market rather than being thr result of any labor or investment made by the Husband or the parties together during the marriage.” Id. at 4-5. The fact that a portion of this account was placed into a joint account during the marriage did not transform the remainder of that account into marital property.

Last week, I discussed the Gottschalk case, where the father appealed several aspects of the Georgia trial court’s order for supervised visitation. Gottschalk v. Gottschalk, A11A0565 (2011). As mentioned, several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. After alleging that the trial court erred in prohibiting the parties from showing the custody evaluation to their expert witnesses, the father then contended that, “regardless of the language in the orders about the custody evaluator’s report, prohibiting [the father’s] expert from testifying about the report denied [the father] his due process rights,” because the guardian relied on the report in making custody recommendations. Id. at 18.

The Georgia Court of Appeals rejected this allegation, holding that the father “had notice that the custody evaluator’s report was not to be distributed without permission of the court,” and did not avail himself of the option to obtain the court’s permission that would have allowed him to use the report. Id. at 19. In addition, the mother did not have notice that this expert would be called and moved to exclude his testimony altogether, but the court allowed the father to call the witness. Id. at 20. Thus, his due process rights were not denied. As mentioned in the previous blog, if the father had obtained permission for his expert to review and testify to the custody evaluation, as he had done with other witnesses, his expert would have been able to testify about it and he would have nothing about which to complain.

The Georgia Court of Appeals recently upheld an order for supervised visitation, despite the father's allegations of 17 errors by the trial court. Gottschalk v. Gottschalk, A11A0565 (2011). In that case, the parties consented to joint legal and physical custody of their children in their divorce action, with detailed visitation provisions in the final decree. Id. at 3. About a year later, after the father’s arrest, the mother filed a petition seeking supervised visitation for the father. Id. The trial court appointed a custody evaluator, who was to write a report to be distributed ONLY to the court, guardian ad litem and the parties, except upon the court’s express permission otherwise. Id. at 4. During the hearing, the trial court discovered that the father’s expert witness had received a copy of the custody evaluation, and barred the expert from testifying about it since the father had not received express permission to disclose it to him. Id. at 7. The trial court ultimately granted the petition for supervised visitation, holding, with significant factual support, that the father’s “conduct was potentially dangerous for the children.” Id. at 9. After the father’s motion for a new trial was denied, he appealed.

Several of the father’s allegations of error were based upon the trial court’s order prohibiting dissemination of the custody evaluation. In one enumeration of error, he alleges “the trial court erred in interpreting the court’s prior orders as forbidding the parties from allowing their expert witnesses to review the custody evaluator’s report to testify about problems with the methodology used.” Id. at 17-18. The Georgia Court of Appeals disagreed, holding that the orders were “very clear that the report could be disseminated only to the parties, attorneys, and guardian unless otherwise allowed by the court,” and the language “is not susceptible to any other interpretation.” Id. The Court of Appeals also pointed out that parties consented to the order, and “both sides had previously sought and obtained permission to reveal the contents for the report to specific people.” Id. Thus, the Court was not at all sympathetic to this allegation. If the father had just gone through the proper procedure, his expert likely would have been permitted to review the report and testify about it.

The Court of Appeals of Georgia recently heard a legitimation case that highlights the importance of including a hearing transcript with the appeal in Georgia. Charlot v. Goldwire, A11A0684 (2011). In that case, the trial court granted the father’s petition, awarding the father joint physical and legal custody of the one year old child with the mother designated as the primary physical custodian. Id. at 2. In addition, the trial court ordered the father to pay child support in accordance with the parties’ respective incomes and the child support worksheet, and awarded attorney’s fees to the mother. Id.

The father appealed the custody/visitation determination, the child support amount, and the award of attorney fees. The Court of Appeals of Georgia quickly dismissed the father’s arguments as to custody/visitation and child support, as there were no hearing transcripts included with the appeal that would detail what happened at the hearings. (Child support worksheets were included.) Id. at 3. Therefore, the Court of Appeals had to assume that the evidence was sufficient to support the trial court’s findings.

The lack of a transcript helped the father on the attorney fees issue, however, as the award was vacated. According to Georgia law, a court is authorized to award attorney fees in cases involving paternity, but the fees must be supported by statute of contract. Id. at 5; OCGA §19-7-50. In this case, “the trial court failed to identify in its order assessing attorney fees the basis on which the fees were granted,” and there is no transcript of the hearing to support the reason behind the attorney fees award. Charlot, at 6. The Court of Appeals held: “Where the record does not contain the basis for the award in either the order awarding attorney fees, or a transcript of the attorney fees hearing, we are unable to properly review the claim, and the attorney fees award can not be sustained.” Id.

The Georgia Court of Appeals recently re-emphasized long standing Georgia case law that prohibits custody from being modified in a contempt action. Coker v. Moemeka, A11A0005 (2011). In that case, the father filed a contempt action against the mother. Shortly before the court was scheduled to hear the case, the father filed a motion for change of custody, which the trial court granted at the hearing, along with the father’s contempt petition. Id. at 4.

The mother appealed, alleging that she was not properly served, and because the father improperly added the custody issue to the contempt proceeding. Id. at 5. As to the custody issue, the Court of Appeals agreed with the mother. Georgia case law clearly states that “[i]n a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action.” Id. at 6, quoting McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000). Since this was a question of law, rather than fact, the Court owed no deference to the trial court’s ruling and vacated the custody order as plain legal error by the trial court. Coker, at 5.

The Supreme Court of Georgia recently addressed a divorce case, which highlights what can happen when the final divorce decree is signed by the judge, but not filed in the clerk’s office. Maples v. Maples, S11F0919 (2011). In that case, the trial court signed a final decree of divorce on June 1, 2000, but the divorce decree was not filed with the clerk until August 1, 2002. Id. Meanwhile, the parties, believing they were already divorced, remarried each other on June 25, 2000. Id. Ten years later, the wife filed a complaint for divorce and the parties thereafter learned that their original divorce decree was not filed until two years after they had remarried. Id. Upon the wife’s motion, the trial court amended the judgment in the 2000 case “by entering an order nunc pro tunc to ensure that the order reflected the true judgment rendered by the court, i.e., that the parties were to be divorced on June 1, 2000. Id. ("Nunc pro tunc" basically means that the order is backdated.) The husband appealed the entry of the nunc pro tunc order, asserting that a nunc pro tunc order cannot be used to backdate the entry of a divorce decree. Id. at 2. (Presumably, he wanted the 2010 divorce case to just be dismissed.)

The Supreme Court of Georgia affirmed the trial court’s holding, “[e]very court has the inherent power – and it is the court’s duty – to correct its own records to make them speak the truth. [Cits.] Where based solely on the record, and without the necessity for the introduction of extrinsic evidence, the court may, on its own motion and without notice, enter such judgment and decree nunc pro tunc at a later date.” Id.; quoting Norman v. Ault, 287 Ga. 324, 330 (5) (695 SE2d 633) (2010), quoting Moore v. Moore, 229 Ga. 600, 601 (2) (193 SE2d 608) (1972), overruled on other grounds. Here, the judgment had already been rendered and the divorce decree signed by the judge. There was nothing else to be done other than file the decree. The Court ended its opinion by pointing out that “[e]ntry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000.” Maples, at 5-6.

A Georgia mother recently lost primary physical custody of her child when the court found that her planned move to New York was not in the child's best interest. In that case, shortly after their divorce in which the Mother received primary physical custody of the parties’ child, the Mother notified the Father that she planned to move with the child to New York. Gallo v. Kofler, S11A0185 (2011). The Father filed a Petition for Modification of Custody and, after a hearing, the trial court issued an order giving the Father primary physical custody. Id. The Mother appealed, arguing that the trial court erred in modifying custody solely because of her planned move. Id.

The Supreme Court of Georgia disagreed with the Mother. Generally, in looking at a possible custody change, the trial court must be guided by the best interests of the child. Id. Though “self-executing change of custody provisions that would automatically change custody to a non-custodial parent in the event that the custodial parent moved to another location at some point in the future are invalid,” that does not mean that the trial court is required to wait until the Mother moved to New York to determine whether a modification of custody was in the child’s best interest. Id. at 3. There was evidence at the hearing that “the child had been thriving in Georgia,” the child would have a better quality of life in Georgia than in New York, the child’s relationship with the Father could be harmed by a move, and the Mother was financially instable. Id. at 3-4. The Supreme Court of Georgia found this evidence to sufficiently support the trial court’s decision to change physical custody to the father. Id. at 4.

The Georgia Supreme Court recently upheld an alimony award for a Wife, despite the fact that the Husband was disabled and unemployed. In that case, the Husband was held in contempt of the parties’ divorce decree for failing to make alimony payments to the Wife. McDonald v. McDonald, S11F0112 (2011). Specifically, as alimony, the Husband was to keep the Wife on his health insurance for 24 months and make her car payment for 12 months. Id. at 3. The Husband appealed, arguing that “the trial court erred in awarding Wife alimony because she failed to show a need for alimony, he had no ability to pay alimony because he is disabled and unemployed, and Wife’s alleged misconduct and the short duration of the marriage made alimony inappropriate.” Id. at 3-4. The Supreme Court of Georgia disagreed with the Husband.

The Court held that the trial court was authorized to make the alimony award because Wife’s disability caused her to need the alimony, and Husband’s disability income, future earnings, and property awarded in the divorce would enable him to satisfy the alimony award. Id. at 4. Thus, the “need for alimony” and “ability to pay alimony” requirements were satisfied. Though Husband’s disability may make it more difficult for him, the Supreme Court of Georgia found that the evidence supported the award, and the trial court did not abuse its discretion in awarding alimony to the Wife. Id.

The Supreme Court of Georgia recently reversed a trial court's decision regarding a restriction on overnight guests during a parent's visitation time. Ward v. Ward, S11A0437 (2011). In that case, the parties’ Final Judgment and Decree of Divorce awarded primary physical custody of the children to the father, with the mother receiving substantial visitation. Id. About a year after the divorce, the parties each filed modification actions and the divorce decree was amended to include a visitation provision providing that the mother “shall not have any overnight male guests while the minor children are present.” Id.

The mother appealed, arguing that the amended visitation provision was overbroad, and the Supreme Court of Georgia agreed. Id. at 2. Presumably, this provision was included to prohibit the mother from having a boyfriend spend the night, but the Court was moved by the mother’s argument that, as written, the provision “prohibits her from having her father, a brother, a new spouse, or even the children’s father spend the night at her house while the minor children are present.” Id. Generally, “a trial court has discretion to place restrictions on custodial parents’ behavior that will harm their children,” but here, the restriction prohibits the mother from having non-romantic male visitors, which were not shown to be harmful to the children. Id. at 3. Thus, the Supreme Court of Georgia held that the trial court abused its discretion in amending the divorce decree in this manner.

Provisions such as the one addressed in this case are fairly common in divorce decrees. A better way to write this provision would be that the mother shall not have any overnight male guest that is not related by blood or marriage while the minor children are present.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.

The Supreme Court of Georgia recently heard an appeal regarding final decision making authority in a Georgia divorce decree. Avren v. Garten, S11A0064 (2011). In that case, the parties were divorced, and the final order awarded the father final decision making authority for the child regarding health and medical issues. Id. at 2. The trial court subsequently found the mother in contempt for taking the parties’ minor child to counseling over the father's objection, and the mother appealed. Id.

The Supreme Court of Georgia disagreed with the mother’s assertion that the trial court abused its discretion in finding her in contempt. The Court specifically noted that “[m]other acknowledged at the contempt hearing that she had taken the child to a therapist that Father disapproved,” despite the fact that the father had final decision making authority on this issue. Id. at 3. These facts provided sufficient evidence “to support the trial court’s determination that Mother willfully disobeyed a prior court order” and, thus, the finding of contempt was upheld. Id.

The Supreme Court of Georgia often hears appeals of custody determinations, though the standard to overturn a trial court's ruling on this issue is very high. In a recent case, the parties’ Final Judgment and Decree of Divorce awarded the parties joint legal custody of their eight-year-old daughter, with the Wife receiving primary physical custody and the Husband receiving visitation. Reed v. Reed, S11A0085 (2011). The Husband appealed, challenging the trial court’s custody determination. Id.

The Supreme Court of Georgia disagreed with the Husband, emphasizing long standing Georgia law that, so long as the trial court used its discretion “to determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness,” the Court will not interfere. Id. at 1-2; OCGA §19-9-3(a)(2). The Court found that there was “ample evidence” to support the trial court’s custody award, specifically that “...Wife had served as primary caregiver since the child’s birth and had a strong, loving relationship with the child, and that Husband had on occasions both before and during the divorce proceedings exhibited conduct casting doubt on his trustworthiness, truthfulness, and judgment.” Reed, at 2. The Supreme Court of Georgia touched on the Husband’s argument that the trial court “failed to consider the Wife’s anticipated move to North Carolina,” but held that the trial court considered this fact and “did not find it dispositive with regard to the child’s best interests.” Id. Thus, the trial court did not abuse its discretion and the judgment was affirmed.

If you are considering appealing a Georgia custody order, it is important to consider the timing of your appeal. In a recent custody modification case, the trial court modified the parties’ divorce decree, changing custody from the mother to the father and ordering the mother to commence paying child support. Francis-Rolle v. Harvey, A11A0357 (2011). The mother appealed, arguing that the trial court erred in granting custody of the parties’ 17-year-old child to the father. Id.

Shortly after the appeal was docketed, the child turned 18 years of age. Id. at 2. The Georgia Court of Appeals dismissed the mother’s appeal of the custody order as moot since “at 18 years of age the child has reached the age of legal majority and is no longer subject to the custody order.” Id.

Though it is understandable that the mother was upset about the outcome of the custody modification case, her attorney should have advised her that her time and money would have been better spent on the other issues she raised on appeal.

The Georgia Court of Appeals recently reaffirmed long standing law in limiting court ordered visitation to parents and grandparents. Morris v. Morris, A11A0013 (2011). In that legitimation case, the biological mother appealed the legitimation order, not because the trial court granted the legitimation petition, but because the trial court granted visitation rights to the father’s sister. Id.

After the father testified that he wanted his sister “to be available to help him with child visits but not to replace him on the visitations,” the trial court awarded visitation to the father “and/or [the father’s sister],” over the mother’s objection. Id. This essentially amounted to the possibility of separate visitation for the father’s sister since, according to the wording of the order, the father was not required to be there.

The Georgia Court of Appeals agreed with the mother that it was error for the trial court to grant these visitation rights. (Interestingly, the father conceded that the trial court erred in this regard.) Id. at 2. Generally, “[t]he right to determine whom the child shall visit and associate with, and when, where, and how often these visits and associations shall take place, is an inseparable and inalienable ingredient of the right of a parent to custody and control of a minor child.” Id. at 2-3. According to Georgia law, only grandparents have the right to sue and obtain for visitation rights. OCGA §19-7-3(c). Though certain other family members may seek custody (OCGA §19-7-1(b.1)), the father’s sister was not doing so. Therefore, since no Georgia law exists to award visitation in this circumstance, the order awarding visitation rights to the father’s sister was vacated.

The Supreme Court of Georgia recently upheld an award of attorney’s fees based upon Wife’s conduct during the divorce litigation that caused the Husband to incur unnecessary attorney’s fees. Abt v. Abt, S11F0670 (2011). In that case, after a temporary hearing, the parties were awarded joint legal custody of their two children, with the Wife being named primary physical custodian. Id. Subsequently, the Wife’s boyfriend moved into the marital residence, and “the children revised their election of custodial parent several times, related in part to wife’s new boyfriend and his residence in the home.” Id. Just prior to the final trial, the wife moved for appointment of a guardian ad litem, and the trial was delayed so a guardian could be appointed “to address the custodial fluctuations of the children.” Id. After the final hearing, the trial court ordered the Wife to pay Husband $14,862.50 in attorney’s fees and the Wife appealed. Id. at 2.

The attorney’s fees were awarded pursuant to OCGA §9-15-14(b), which authorizes “an award of reasonable and necessary attorney fees upon a finding that an action or any part thereof lacked substantial justification, was interposed for delay or harassment, or an attorney or party unnecessarily expanded the proceeding by other improper conduct.” Id. at 3. The Supreme Court of Georgia held that the trial court did not abuse its discretion in the award of attorney’s fees to Husband, as the trial court found that the Wife’s actions during the divorce proceeding “caused the children to vacillate in their respective custodial elections and resulted in the necessity for the appointment of a guardian ad litem, the need to conduce emergency hearings, the entry of an order restraining wife from approaching husband’s residence or business location, and the overall expansion of litigation.” Id. at 4. These findings supported the trial court’s holding that wife’s actions unnecessarily expanded the litigation and, thus, there was no error in the award of attorney’s fees. Id.

The Supreme Court of Georgia recently held a Husband to the exact language in his divorce decree, even though it may cause him hardship. Greenwood v. Greenwood, S11A0611 (2011). In that case, the parties’ final judgment and decree of divorce awarded the marital residence to the Husband, and required him to “timely refinance the marital residence...so as to completely remove the Wife from any liability relating to the underlying mortgage.” Id. If the Husband did not refinance the mortgage by the deadline, he was required to immediately pay $10,000 to the Wife as a penalty. Id. at 2. After the Husband failed to refinance the mortgage and/or pay the penalty, the Wife filed a motion for contempt. Id. The trial court found the Husband in contempt, but converted the monetary penalty into a lien against the marital residence and stated in its order that, due to current market conditions, it would give the Husband a reasonable time to sell the house to remove Wife from the mortgage. Id. at 3.

The Wife appealed, alleging that the trial court improperly modified the divorce decree, and the Supreme Court of Georgia agreed. In general, “[w]hile the trial court has broad discretion to determine whether [a divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the…decree.” Id. at 4; quoting Dohn v. Dohn, 276 Ga. 826 (2003). Here, the Supreme Court of Georgia held that it was “clear that the trial court improperly modified the divorce decree by converting Husband’s penalty for failure to remove Wife from the mortgage by an explicitly-stated deadline into a lien on the marital residence.” Id. at 4. A lien “that may possibly be recouped at some indeterminate time in the future” is contrary to a monetary penalty which became due on October 2, 2009 and, thus, the Supreme Court of Georgia reversed this portion of the order. Id. at 5. Though the Court was sympathetic to the hardship the market may place on Husband, allowing him a reasonable time to sell was also an impermissible modification of the divorce decree. Id. at 6.

The Supreme Court of Georgia recently reversed a decision of the trial court in a divorce case, which made certain directives regarding the parties’ tax liability. Symms v. Symms, S10F1783 (2011). During the final hearing in that divorce case, there was testimony that “the parties had failed to report income from the [wife’s] photography business for the purpose of the assessment and payment of income tax.” Id. at 2. The trial court's final judgment and decree of divorce included several provisions addressing tax issues, including, but not limited to, ordering the parties to amend four years of income tax returns (for which the court specified exact dollar amounts to be used for income) and ordering that the parties be equally responsible for any tax liability and/or penalties. Id. The husband appealed, arguing, “the superior court exceeded its authority in ordering the filing of amended tax returns reflecting the legal determination of joint and several liability and the factual determinations of income.” Id. at 3.

The Supreme Court of Georgia agreed, stating generally “our State Courts are not authorized to impose income tax liability.” Id., quoting Blanchard v. Blanchard, 261 Ga. 11, 15 (1991). Specifically, the Court held that ordering the parties to be jointly and severally liable for any tax liability or penalties was “premature because of the Husband’s contested claim that he qualifies as an ‘innocent spouse’,” and that he is entitled to an IRS determination of his status as such. Id. at 3. In addition, the Court held that the dollar amounts that the trial court ordered be reported on the amendment of the previous tax returns were “either largely speculative…or blatant misrepresentations” with no accurate documentation backing them up. Id. at 4. Thus, the portion of the final judgment and decree of divorce related to the parties’ taxes could not stand.

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 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.

The Georgia Court of Appeals recently denied paternal grandparent visitation where the biological father had given up his parental rights. In Bailey v. Kunz, the mother was married to and had a child with the biological father. Bailey v. Kunz, A10A1809 (2011). After the biological parents divorced, the mother remarried, the biological father surrendered his parental rights, and the mother’s new husband (“adoptive father” and, with the mother, “parents”) adopted the child. Id. A dispute arose between the parents of the child (the mother and the adoptive father) and the parents of the biological father (“biological grandparents”) over visitation with the child. The parents moved to dismiss the biological grandparents’ petition for visitation “arguing that such a petition was not authorized because [they] were the legal parents and lived together with the child.” Id. After the trial court denied the petition, the parents appealed and the Georgia Court of Appeals reversed the trial court’s denial of the motion to dismiss.

The statute governing grandparent visitation states: “Except as otherwise provided in this subsection, any grandparent shall have the right to file an original action for visitation rights to a minor child or to intervene in and seek to obtain visitation rights in any action in which any court in this state shall have before it any question concerning the custody of a minor child, . . . or whenever there has been an adoption in which the adopted child has been adopted by the child's blood relative or by a stepparent, notwithstanding the provisions of Code Section 19-8-19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.” OCGA §19-7-3(b).

According to the Georgia Court of Appeals, the adoptive father is a “parent” for purposes of the grandparent visitation statute because, in the adoption statute, a “parent” includes the legal father of the child. Id. at 4. It would be inconsistent to treat him as a parent in one statute but not in another. Applying this logic in this case, the parents of the minor child are not separated and the child is living with both parents, making the petition for grandparent visitation unauthorized.

The Supreme Court of Georgia recently made an interesting, if not surprising, ruling, denying a parenting time deviation in a joint custody case. Willis v. Willis, S10F1357 (January 24, 2010). In that divorce case, the parties were awarded joint legal and physical custody of their only child, with physical custody alternating weekly. Id. The trial court designated the husband as the non-custodial parent “[s]olely for purposes of calculating child support.” Id. After considering the parties’ incomes and the wife’s payment of the child’s health insurance premiums, the court ordered the husband “to pay monthly child support of $961 to Wife and to divide evenly with Wife the child’s uninsured health-care expenses.” Id. at 2.

The husband appealed, claiming, “the trial court abused its discretion and unjustly enriched Wife” when it did not give him a parenting time deviation, given the joint physical custody. Id. The Supreme Court of Georgia agreed with the trial court that in order to grant a deviation, the trial court “must find that the application of the presumptive amount of child support would be unjust or inappropriate and that the best interest of the child for whom support is being determined will be served by deviation from the presumptive amount of child support.” Id. at 4, OCGA 19-6-15(c)(2)(E)(iii). The Court found no abuse of discretion in the trial court’s holding that the presumptive amount of child support was not excessive or inadequate, nor did it unjustly enrich the wife, and that a downward deviation would not be in the best interests of the child. Id. at 4.

This case shows that a parenting time deviation is not presumed just because of a shared custody arrangement. There are certain findings necessary for the court to grant this deviation and, without those findings, the deviation will not be granted. This case might ultimately make it a little more difficult for a parent to get a parenting time deviation, but it is not impossible as long as you present the proper evidence to the court – the presumptive amount of child support is unjust or inappropriate, and the child’s best interest will be served by the deviation.

The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).

Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arrearage for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.

The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without a new order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him." Id. Thus, the portion of the trial court’s judgment as to the arrearage for the eldest child was reversed. Id. at 5. The Court also vacated the arrearage amount for the middle child, holding that “the arrearage amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court." Id.

The Supreme Court of Georgia recently heard a case regarding whether property owned by a third party can be equitably divided in a divorce. In Armour v. Holcombe, the husband’s mother purchased a house during the parties’ marriage and allowed the parties to live there. Armour v. Holcombe, S10AF0946 (2010). A few years later, the husband’s mother deeded the property to the husband as a gift. Id. The husband refinanced the property and both he and his mother made payments on the debt. Id. In March 2005, the husband deeded the property back to his mother as he was facing financial difficulty. Id. Six months later, the wife filed for divorce and added the husband’s mother as a defendant, alleging that the deed “was executed to deprive Wife of her marital interest in the property.” Id. at 2.

Despite the trial court ordering the home sold and proceeds held in escrow pending the outcome of the litigation, the wife decided not to pursue the fraudulent conveyance issue at the divorce trial. Id. Nonetheless, the trial court instructed the jury that the sales proceeds were a marital asset subject to equitable division, and the jury awarded the wife approximately 2/3 of the proceeds. Id.

The husband’s mother appealed, arguing that the trial court erred because “there was no evidence that the property was a marital asset,” and the Georgia Supreme Court agreed. Id. The Court emphasized that the wife did not cite any case law regarding property owned by a third party being subject to equitable division, “nor should authority for such a ruling be expected.” Id. at 5. The Court adamantly held “[i]t would be highly disruptive to the transfer and ownership of property to allow a divorcing spouse to claim that property held by a third party is subject to equitable division in the divorce action based merely upon that spouse’s actions regarding the property during its prior ownership by the other spouse.” Id. at 5.

The Georgia Supreme Court mentioned that the wife may have had recourse with a fraudulent conveyance claim, but the wife “chose to abandon” this avenue. Id. at 7.

The Georgia Court of Appeals recently addressed the rights of a legal father in a legitimation action brought by the child’s biological father. In Baker v. Lankford, the wife gave birth to a child during her marriage to the husband. Baker v. Lankford, A10A1211 (2010). The husband believed the child was his biological child, and was listed as the father on the child’s birth certificate, only to later find out that he was not the biological father. Id. He filed for divorce and, while the divorce was pending, the biological father filed a petition for legitimation, custody and visitation, to which the wife/mother consented. Id. at 2. Shortly thereafter, the husband/legal father moved to intervene in the legitimation proceeding. A few days later, while the motion was still pending, the trial court granted the legitimation petition and then denied the motion to intervene. Id. at 3.

On appeal, the Georgia Court of Appeals agreed that the trial court erred in denying the husband/legal father’s motion to intervene. The Court of Appeals found that the husband/legal father had an interest in the legitimation proceeding, as he was the child’s legal father (the child being born during the marriage) and, thereby had parental and custodial rights to the child. Id. at 4. In addition, the Court found that his interest as the child’s father “would be impaired by a decision of the trial court that was unfavorable to him, and his interest was not adequately represented by the parties to the action,” especially in light of the wife’s consent to the action. Id. at 6.

The Court held that “[w]here intervention appears before final judgment, where the rights of the intervening party have not been protected, and where the denial of intervention would dispose of the intervening party's cause of action, intervention should be allowed and the failure to do so amounts to an abuse of discretion.” Id. at 7. The Court, therefore, reversed the denial of the motion to intervene and vacated the judgment on the legitimation petition.

Final decision-making regarding children and religion can be an important issue for many parents going through a divorce. The Georgia Court of Appeals recently addressed this issue. In Greene v. Greene, the parties entered into a Settlement Agreement in their divorce action, which provided that the parties would have joint legal custody with the mother as the sole physical custodian. Greene v. Greene, A10A1463 (2010). In addition, the mother would have final decision-making authority on all matters related to religion. Id. The parties agreed that “the child would be raised in the Jewish faith, would attend Hebrew school, become Bat Mitzvah and follow other Jewish traditions." Id. at 4. After the father violated this provision of the Settlement Agreement, the mother filed a motion for contempt. The trial court granted the mother’s motion, and the father appealed.

On appeal the father admitted that, in spite of the agreement, he had taken the child to numerous Christian churches, shared Christian prayers with the child, read the Bible to the child, played Christian music for the child, gave the child Christian books and DVDs, and told the child that she was “Jewish on the outside and Christian on the inside.” Id. The father acknowledged that he knew the Settlement Agreement gave the mother final decision making authority on religion, but contended that the trial court’s ruling “restricted his freedom to share his religious beliefs with his child.” Id. at 2.

The Georgia Court of Appeals disagreed with the father. The Court held that when the Settlement Agreement is “clear, unambiguous, and capable of only one interpretation as written, the provision’s plain meaning must be strictly enforced.” Id. at 5, quoting Page v. Baylard, 281 Ga. 586, 587 (1) (642 SE2d 14) (2007). In affirming the trial court’s ruling, the Court said “the Settlement Agreement is clear that Wife had the right to make the final decisions about the child’s religious upbringing, and the trial court correctly concluded that the Agreement governs.” Id. at 5.

The Supreme Court of Georgia recently reinstated a bright line rule regarding a party retaining the benefits of a Georgia divorce decree that that same party is challenging. In Thompson v. Thompson, the Husband challenged the Final Judgment and Decree of Divorce, alleging that the trial court erred in its equitable division award by dividing funds and property that were his non-marital assets. Thompson v. Thompson, S10F1231 (2010). The trial court denied the husband’s motions for new trial, clarification, and reconsideration, holding that “he had availed himself of the benefits of the final order” and was, thereby, prohibited from challenging it. Id. The husband subsequently appealed the denial of his motions.

In affirming the trial court’s ruling, Supreme Court of Georgia followed long-standing principles of Georgia law. Specifically, the Court held that “one who has accepted benefits such as spousal support or equitable division of property under a divorce decree is estopped from seeking to set aside that decree without first returning the benefits.” Id. at 3. Thus, if you want to dispute a Final Judgment and Decree of Divorce in Georgia, you must either not accept any support or equitable division from that award, or you must return any portion of the award that you have accepted, before initiating any challenge.

The Court clarified that a party “may collect an award of child support and still repudiate a final judgment, as those benefits belong to the child.” Id. at 3-4.

In Georgia, there is a difference between the evidence that can be presented in a temporary hearing versus a final hearing in a divorce case. In Pace v. Pace, after a temporary hearing at which both parties testified, the husband was awarded physical custody of the children and the parties were awarded legal custody. Pace v. Pace, S10F0843 (2010). About a year later, a final hearing was held, at which both parties and multiple witnesses testified, and a Final Judgment and Decree of Divorce was entered, awarding permanent physical and legal custody of the children to the husband. Id. The wife appealed after being denied a new trial.

In its review, the Georgia Supreme Court noted that “the trial court relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody,” that the parties were not on notice that this testimony would be considered for permanent custody, and that the trial court relied on its “memory and notes” rather than a transcript in reaching its decision. Id. at 2.

The Georgia Supreme Court held that the trial court erred in its reliance on evidence from the temporary hearing because an award of temporary custody “differ[s] in its nature and purpose from an award of temporary custody”. Id. at 3, quoting Foster v. Foster, 230 Ga. 658, 660 (1973). Further, temporary orders and final orders are not governed by the same rules of law. Pace, at 3. In a temporary hearing, only the parties and one additional witness for each side may testify. Uniform Superior Court Rule 24.5(A). In addition, minor children cannot testify at temporary hearings. Id. at (B). These rules do not apply at a final hearing. Thus, stated the Court, “the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing…” Pace, at 4. The Georgia Supreme Court held that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 5.

Atlanta divorce attorneys are often asked whether a party has to pay alimony or child support when the order requiring alimony/child support has been appealed. The Georgia Supreme Court recently clarified this issue. Robinson v. Robinson, S10A0929 (2010). In Robinson v. Robinson, there was an August 2007 temporary order in the divorce case requiring, among other things, that the husband pay the wife $3,000 per month in temporary alimony. Id. In November 2008, a Final Judgment and Decree of Divorce was entered in the case, providing lump sum permanent alimony to the wife, but no periodic/monthly alimony. Id. at 2. The Georgia Supreme Court denied the husband’s appeal of this award, and remittitur was entered in July 2009. Id. ("Remittitur" means that the appellate court's order goes back to the trial court for final order consistent with the appellate court's decision.) Shortly thereafter, the wife filed a motion for contempt alleging that the husband had not fully paid alimony in June, July and August 2009, while the husband’s appeal was pending. Id. at 3. The trial court found that the husband was not in contempt, and reasoned that the wife was not entitled to periodic alimony under the Final Judgment and Decree, that the Final Judgment and Decree was essentially affirmed by the denial of the husband’s appeal, and that the ruling that no periodic alimony would be due was effective as of the date of the Final Judgment and Decree (November 2008). Id. at 4.

The issue presented to the Georgia Supreme Court on the wife’s appeal was whether permanent awards in a Final Judgment and Decree of Divorce take effect as of the date of the remittitur, or whether they relate back to the date of the Final Judgment and Decree. Id. at 5. In reversing the trial court’s decision as to the alimony issue, the Georgia Supreme Court clarified previously confusing and contradicting precedent on this issue. Specifically, the Court held that “a temporary award continues in effect until the entry of the remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.” Id. at 11. Thus, the award does not relate back to the date of the FInal Judgment and Decree of Divorce.

In addition, the Court held that any payments of temporary alimony should not offset lump sum alimony because “temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce.” Id. at 10.

The Georgia Court of Appeals recently reversed a Dekalb County Superior Court’s grant of an upward child support modification. In that case, a mother filed for a modification of her child support obligation against her ex-husband, who had primary physical custody of their children. Harris v. Williams, 304 Ga. App. 390 (2010).

This trial court’s decision to increase the mother’s child support obligation is somewhat unique because the mother asked for a modification, but “did not allege any change in her income or financial status to support a modification of her child support, and [the father] did not file a counterclaim to modify child support.” Id. at 393. Yet the trial court still increased the child support obligation. In order to modify child support, a party must show “a substantial change in either parent’s income and financial status or the needs of the child[ren].” OCGA §19-6-15(k)(1). In this case, there was no evidence that the mother’s income or earning capacity had increased, and nothing was mentioned about any increased needs of the children. Harris, 304 Ga. App. at 394.

Generally, a trial court’s decision on a child support modification is reviewed for an “abuse of discretion” and, if there is evidence to support the trial court’s decision, the appellate court will affirm. Id. at 393. Here, due to the lack of evidence supporting a modification, the Georgia Court of Appeals found that the trial court abused its discretion in increasing the mother’s child support obligation, and reversed that portion of the judgment. Id. at 394.

The Georgia Supreme Court recently reversed a Cobb County Superior Court’s grant of a child support modification. In Herrin v. Herrin, the father had primary physical custody of the children and the mother was paying child support pursuant to a settlement agreement in the parties’ previous divorce action. Herrin v. Herrin, 287 Ga. 427 (2010). The father filed a petition for modification of child support alleging that the mother’s income had increased. Id. at 428. Following a hearing, the superior court found a “substantial and material change in the mother’s income,” basing its ruling, in part, on the mother’s ability to earn additional income. Id.

On appeal, the Georgia Supreme Court stated “[i]n certain circumstances, earning capacity rather than gross income may be used to determine child support, and while a party’s past income is some evidence of earning capacity, it alone is not conclusive, but must be considered along with other relevant circumstances.” Id., quoting Duncan v. Duncan, 262 Ga. 872, 873 (1993). The evidence showed that the mother’s income had actually decreased by the time of the modification hearing, that she had tried to increase her hours and find a higher paying job but was unable to do so, and, though she had a real estate license, “she was unable to pursue a career selling real estate because of the depressed real estate market and her inability to fund out-of-pocket expenses required of a real estate sales agent.” Herrin, 287 Ga. at 429.

Looking at all of these relevant circumstances, the Georgia Supreme Court agreed with the mother and reversed the child support modification, holding that the record from the trial court proceedings “is devoid of evidence that the mother had the ability or means to earn the amount found by the superior court and upon which it based the award of increased child support.” Id. at 427.

The Georgia Supreme Court recently emphasized the importance of the specific language in a Georgia divorce settlement agreement. In that case, the parties jointly purchased a 27-acre tract of land during their marriage. Gonzalez v. Crocket, 287 Ga. 430 (2010). For financing purposes, they subdivided the property into a five-acre tract upon which the marital residence was built, and a 22-acre tract. Id. In the parties' divorce settlement agreement, the husband received the marital residence, which he was to refinance into his own name, and the wife was to quitclaim her interest in that marital residence to the husband. Id. at 431.

Several years later, the husband filed a Petition for Contempt against the wife for failing to quitclaim the 22-acre tract to him. Id. The trial court denied his petition, ruling that the settlement agreement did not address the 22-acre tract and it, therefore, remained jointly owned by the parties. Id.

The husband appealed, and Georgia Supreme Court agreed with the trial court, affirming a long standing rule that “title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered.” Id. at 432, citing Messaadi v. Messaadi, 282 Ga. 126, 127 (2007). The settlement agreement only mentioned “the marital residence” and did not even mention the other property. In addition, the parties treated the properties as separate during the marriage and subsequent to the divorce. Since the 22-acre tract was not specifically described in the divorce decree, even though it was adjacent to the property on which the marital residence was located, it remained the joint property of the parties and the wife was not obligated to quitclaim her interest to the husband. Id.

The Georgia Supreme Court recently upheld a short time frame for payment of lump sum alimony and property division awards in a divorce case. Wier v. Wier, 287 Ga. 443 (2010). In that case, the parties were married for nearly 20 years and, following a jury trial, the wife was awarded $200,000 as lump sum property division to be paid within 15 days, and $600,000 as lump sum alimony to be paid within 90 days. Id. The husband appealed, arguing, among other things, that he was unable to timely make the alimony and property division payments. Id.

The Georgia Supreme Court disagreed with the husband. The Court pointed out “the evidence showed that [husband] owns property valued at more than $1.6 million and his gross monthly income exceeds $16,600.” Id. Under long standing Georgia law, “a party can be required to sell or encumber property in order to pay equitable division and alimony awards.” Id.; Hollandsworth v. Hollandsworth, 242 Ga. 790 (1979). Emphasizing that the husband did not present any evidence of his inability to pay in a timely manner, the Georgia Supreme Court held that he can “sell or encumber his property, or take any other action he deems necessary, to comply with the trial court’s order.” Wier, 287 Ga. at 443.

Though child support is generally thought of as being paid in monthly installments, the Georgia Supreme Court recently affirmed a divorce decree which ordered a father to make one lump sum child support payment. Mullin v. Roy, S10F1120 (2010). In that case, shortly after the wife filed for divorce, the husband was arrested for possession of child pornography, lost his $80,000/year job, and began living off a $422,000 inheritance. Id. The husband pled guilty to the charges and was sentenced to five years in prison the day after the divorce trial. Id. at 2.

In its divorce decree, the trial court acknowledged husband’s argument that he will have decreased earning capacity due to his sex offender status upon being released from prison, and calculated child support by settling “on an amount halfway between husband’s and wife’s projections for his future earnings.” Id. Based on the husband’s guilty plea and impending sentence, as well as the dwindling amount that remained of his inheritance, the trial court ordered the husband to pay his entire child support obligation within 60 days. Id. at 3.

The husband appealed, arguing that the court did not have the authority to award lump sum child support. Id. The Georgia Supreme Court agreed, holding that the child support statute “explicitly authorizes trial courts to exercise discretion in setting the amount and timing of payment.” Id.; OCGA §19-6-15(c)(2)(B). Though child support is typically paid in monthly installments, “there is no indication that the 2007 version of the guidelines statute eliminated the longstanding discretion of trial courts to order lump-sum payment under appropriate circumstances.” Id.

When presenting your divorce, custody modification, child support modification, or other family law case to the trial court, it is imperative that your Atlanta divorce attorney presents all relevant evidence in your case. The Supreme Court of Georgia recently denied an appeal by a father in a divorce case who attempted to present evidence in his appellate brief that he did not present at his hearing in front of the Dekalb County trial court. Bankston v. Lachman, 286 Ga. 459 (2010). In that divorce case, the trial court awarded primary physical custody of the parties’ two-year-old daughter to the mother and awarded visitation to the father “for four hours each weekend until the child begins kindergarten full time,” at which point overnight visitation would begin. Id. at 459. Though the father requested overnight visitation to begin immediately, the trial court denied his request, explaining that “it believed young children should not spend long periods and weekends with non-custodial parents…[b]ased on everything [the court] had read and talked to about child development experts…” Id. at 460.

The father appealed the trial court’s denial of additional visitation arguing that “the trial court is out of sync with current opinion about the need to establish a firm parental bond between a child and his or her non-custodial parent,” and referencing two models recommending “that children have more visitation time, including overnight visits, with non-custodial parents, beginning at an early age, and increasing as the child grows older.” Id. The Supreme Court of Georgia pointed out, however, “the record does not reflect that that these models were presented to the trial court; nor does it show that trial counsel made the argument which husband asserts on appeal.” Id. Thus, these arguments could not be relied upon on appeal. The father had to prove that the trial court abused its discretion in ruling on the evidence presented to it, and this the father could not do.

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.

A decision of a Fulton County judge regarding jurisdiction in a custody modification case was recently overturned in Murillo v. Murillo, 360 Ga. App. 61 (2009). A husband and wife were divorced in Fulton County in 1997 and the wife was granted custody of the parties’ child. Id. at 62. In 2002, the wife moved with the child to North Carolina. In 2008, pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the husband filed a Petition to Modify Custody in Fulton County Superior Court. Id. The trial court then granted the wife’s motion asking the court to decline jurisdiction as North Carolina was the more convenient forum for the proceeding. Id.

Generally, since Fulton County was the court that entered the original custody ruling, Fulton County had “exclusive, continuing jurisdiction” over the modification action unless the court determines that it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. OCGA §19-9-67. To make that determination, OCGA §19-9-67(b) requires the court to consider all of the following factors:

(1) Whether family violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside this state;
(3) The distance between the court in this state and the court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

In vacating the decision of the Fulton County court, the Court of Appeals did not say that the end result was incorrect per se, but rather emphasized that the court did not consider and reference ALL of the required factors in its written Order in making its decision that it was no longer a convenient forum. Id. at 64. Thus, the Court of Appeals directed the trial courts to always consider ALL of the factors in making a jurisdiction decision.

The Court of Appeals recently emphasized the due process required before incarcerating a person for contempt of a divorce decree. In Bauman v. Humphries, according to the parties’ divorce decree, the wife was required to enroll the minor children in private school and pay all associated expenses. Bauman v. Humphries, 300 Ga. App. 263 (2009). Following a hearing, the trial court found the wife in willful contempt of this provision of the divorce decree, but gave her the opportunity to purge herself of the contempt by enrolling the children at the specified school by a specified date. Id. If the wife failed to purge herself, she was to be incarcerated until she complied. Id. at 264. Shortly thereafter, the husband’s attorney sent a letter to the court alleging that the wife failed to comply by the specified date and included a proposed order for incarceration, which the trial court signed. Id.

Upon appeal by the wife, the Court of Appeals reversed, relying on well-settled Supreme Court of Georgia rulings and stating that "in Georgia, a trial court cannot order incarceration pursuant to a self-effectuating order, regarding future acts, without benefit of a hearing." (Citations and punctuation omitted.) Smith v. Smith, 280 Ga. 620, 621 (632 SE2d 83) (2006). The Court went on to state that even when a hearing has been held adjudging a person in contempt, the trial court cannot sign an order of incarceration based upon a letter from an interested individual. Bauman at 264. The Court of Appeals quoted the Supreme Court of Georgia, which held that “the court may only act, at a minimum, on an ‘affidavit . . . from a neutral and disinterested court official or other officer based upon objective information.’” Hall v. Doyle-Hall, 284 Ga. 325, 326 (667 SE2d 81) (2008).

The Georgia Supreme Court recently affirmed the Court of Appeals’ reversal of an alimony award as contrary to the evidence presented at trial. Coker v. Coker, 286 Ga. 20 (2009). The parties were married for approximately 24 years and had no children together. The only marital asset was a house. In addition, the husband had a separate asset, an interest in an LLC, which was worth approximately $100,000, but could not be converted to cash. Id. at 20, 21. The wife’s income was $45,000 and the husband’s income at the time of trial was $500/week, though the trial court determined his annual income to be $30,000. Id. Despite the husband’s meager income and assets, the trial court awarded the wife lump sum alimony in the amount of $36,500, which was to be paid within 3 months of the final decree of divorce. Id.

Generally, alimony is to be awarded based upon the needs of the party to whom it is awarded and the ability of the other party to pay. OCGA § 19-6-1 (c). In determining whether alimony should be awarded, and the amount thereof, the court looks at many factors, including the separate assets of each party and their earning capacities. OCGA § 19-6-1 (a). The Supreme Court acknowledged that the wife’s anticipated expenses justified her need for alimony, but stated that “the record is completely devoid of any evidence of Husband's ability to pay the trial court's lump sum alimony award.” Id. at 22. Without that evidence, the award must be reversed.

On February 9, 2009, the Georgia Court of Appeals affirmed the Gwinnett county juvenile court’s finding that a child was deprived under O.C.G.A. §15-11-2(8)(A), reaffirming the standard that a juvenile court’s ruling will stand if it was supported by clear and convincing evidence. In In the Interest of J.S. (A08A1993), a mother appealed the deprivation ruling, arguing that there was insufficient evidence. The Court of Appeals rejected the mother’s claim, since the evidence suggested that the mother had filed numerous unsubstantiated claims of sexual abuse against the father and a young boy at a homeless shelter where the mother and child were living. The Court held that evidence of “repeated unfounded investigations of sexual abuse” has been held to be sufficient evidence of deprivation, and that the evidence in this case authorized the juvenile court to find by clear and convincing evidence that the child was deprived.

On February 9, 2009, the Georgia Court of Appeals affirmed the Gwinnett county juvenile court’s finding that a child was deprived under O.C.G.A. §15-11-2(8)(A), reaffirming the standard that a juvenile court’s ruling will stand if it was supported by clear and convincing evidence. In In the Interest of J.S. (A08A1993), a mother appealed the deprivation ruling, arguing that there was insufficient evidence. The Court of Appeals rejected the mother’s claim, since the evidence suggested that the mother had filed numerous unsubstantiated claims of sexual abuse against the father and a young boy at a homeless shelter where the mother and child were living. The Court held that evidence of “repeated unfounded investigations of sexual abuse” has been held to be sufficient evidence of deprivation, and that the evidence in this case authorized the juvenile court to find by clear and convincing evidence that the child was deprived.

If you are unhappy with the Judge’s Order, you have a very short period of time in which to act and a limited number of options. Your options include filing a Motion to Alter or Amend the Judgment or for New Trial within thirty (30) days of the Order, or appealing the court's decision to the Court of Appeals or Supreme Court of Georgia.

If you wish to file a divorce appeal to the Court of Appeals or the Supreme Court of Georgia, it is important to contact an attorney as soon as possible as there are strict filing deadlines which, depending on your case, can range from ten (10) days to thirty (30) days from the date of the Final Decree. Failure to file one of these pleadings before the deadline causes your right to appeal to be permanently lost.

Our attorneys can help you determine if you have grounds to appeal the Final Order, which could include an abuse of discretion by the trial court. Appeals can be complex so it is important to provide ample time to an attorney to evaluate your appeal and to prepare the necessary paperwork before the deadline.

On December 1, 2008, in In the Interest of A.R., the Georgia Court of Appeals affirmed the deprivation ruling of the juvenile court over the Father’s challenge of the sufficiency of evidence and admission of evidence. The Father contended that the juvenile court erred in finding the children deprived, since there was no evidence that he was the person who hurt the children. The Court of Appeals disagreed, referring to evidence that the children were injured and became developmentally delayed while in the Father’s care, and the fact that the Father’s incarceration rendered him unable to comply with the reunification plan.

The Father further challenged the admissibility of certain testimony and documentary evidence, but failed to provide support for his appeal of these issues or to show how the admissibility was reversible. In its holdings, the Court of Appeals implicitly stressed the importance of being specific in how and why the lower court erred, which is a guideline all parties should follow in appeals.