Atlanta Divorce Attorney Blog

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.