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.

Recently, the Supreme Court of Georgia affirmed a Gwinnett Superior Court’s granting of a wife’s motion to strike the husband’s demand for a jury trial in the parties’ divorce action. In a divorce case, either party can demand a jury trial. Generally, “when a party makes a timely demand for a jury trial, the trial court cannot proceed without a jury unless the parties consent to a bench trial by a written stipulation filed with the court or an oral stipulation made in open court and entered in the record.” OCGA § 9-11-39 (a). One exception to this general rule is that “a party in a divorce case can, by [his] voluntary actions, impliedly waive a demand for a jury trial.” Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998).

In Kauttner v. Kauttner, the wife filed for divorce and the husband requested a jury trial. Kautter v. Kautter, 286 Ga. 16 (2009). When the case was called for trial, the husband deliberately chose not to attend and instructed his attorney not to participate in the proceedings. As a result, the wife filed a motion to strike the jury demand. The Gwinnett Superior Court granted the wife’s motion and conducted a bench trial, and the husband appealed.

The Supreme Court of Georgia affirmed the granting of the motion to strike the husband’s demand for jury trial. The Court emphasized that the husband knew of the trial date and had no legitimate reason for not attending. Though the husband argued that by not attending he did not intend to waive the demand for jury trial, the Court stated that his actions were an implicit waiver and the trial court was authorized to strike his demand.

One of the most confusing aspects of child custody cases can be where the case should be filed when the parents live in different states. Generally, in regards to custody modification actions, the law limits a parent’s ability to terminate the continuing jurisdiction of the court that made the original custody determination in order to prevent the noncustodial parent from trying to use his or her “home jurisdiction advantage” to modify custody to the disadvantage of the custodial parent. There is, however, one exception to this general rule which provides that a Georgia court "has temporary emergency jurisdiction [to make a child custody determination] if the child is present in this state and . . . it is necessary in an emergency to protect the child because the child . . . is subjected to or threatened with mistreatment or abuse." O.C.G.A. §19-9-64(a).

The Georgia Court of Appeals recently addressed this issue in Taylor v. Curl (A09A0749). In that case, subsequent to the parties’ Jackson County divorce, the mother moved with the children to Florida and the father moved to Walker County. While the children were visiting the father, he filed a petition for temporary and emergency custody of his children in the Superior Court of Walker County, citing mistreatment and abuse of the children by their mother. The mother appealed arguing that Walker County was not the proper venue for the custody modification. The Court of Appeals affirmed the trial court’s ruling granting temporary custody to the father, thereby affirming jurisdiction. Since the father met the two requirements outlined in O.C.G.A. §19-9-64(a), the trial court properly exercised temporary, emergency jurisdiction.

On April 28, 2009, the Georgia Supreme Court reversed an Order of the Dekalb County Superior Court finding a wife in contempt of the equitable distribution portion of the parties’ divorce decree. Farris v. Farris (S09A0302). Following a November 13, 2007 bench trial, Judge Castellani made an oral ruling regarding equitable distribution of the parties’ assets, but did not formalize this ruling until over a month later. The divorce decree provided that the wife shall place the marital residence on the market and shall control all aspects of the listing and sale for six months. If the residence did not sell within six months, the husband would take over control of the listing and sale, and this process shall repeat every six months until the house sold. The parties were to equally split the proceeds from the sale and the house was not to be sold for less than $650,000.00.

After the oral ruling but before entry of the final decree of divorce, the husband offered to purchase the wife’s interest in the house for $325,000, but the wife rejected this offer. Shortly after the final decree was entered, the wife accepted an offer on the house from the parties’ daughter in the amount of $650,150, which the husband rejected. The wife then filed a motion to hold the husband in contempt for rejecting this offer and the husband filed a motion for contempt against the wife for rejecting his offer. The Judge found the wife in contempt.

The Georgia Supreme Court reversed, stating adamantly that the wife could not be held in contempt of the divorce decree because there was no divorce decree entered at the time of husband’s offer. “Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. [Cit.]" (Punctuation omitted.) Hall v. Nelson, 282 Ga. 441, 444 (3) (651 SE2d 72) (2007).” Simply put, an oral Order is not sufficient for contempt. A person is not bound by a divorce decree until it is in writing and entered by the court.

On June 1, 2009, the Georgia Supreme Court reaffirmed the great discretion of the trial courts in determining the amount and length of alimony. In Sprouse v. Sprouse (S09F0709), the parties entered into a common law marriage in Alabama in 1996, which was terminated by divorce in 2001. Subsequently, the parties resumed living together and married on March 5, 2005. Approximately two years later, the husband filed for divorce and, after a bench trial, the wife was awarded alimony for 13 years. The husband appealed, contending that the alimony award was excessive in amount and duration in light of the parties’ relatively short marriage. Specifically, the husband argued that the trial court abused its discretion in considering the entire length of time the parties had been together, rather than just the length of the marriage.

Unlike child support, there is no statutory formula for determining alimony. Rather, there are eight statutory factors that the Judge can consider in awarding the amount and length of alimony, if any. O.C.G.A. §19-6-5(a). http://www.atlantadivorceattorneyblog.com/2008/10/what_are_the_factors_in_determ.html#more Here, the Supreme Court found that the trial court had discretion to consider length of the parties’ entire relationship as a factor in determining alimony under O.C.G.A. §19-6-5(a)(8), a catch-all provision allowing the court to consider “such other relevant factors as the court deems equitable and proper.” Thus, the Georgia Supreme Court reaffirmed that “[i]n the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony . . . and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case.” Arkwright v. Arkwright, 284 Ga. 545, 546 (2) (a) (668 SE2d 709) (2008).

On March 23, 2009, the Supreme Court of Georgia affirmed the trial court’s denial of the wife’s motion for new trial in her divorce action in Rembert v. Rembert (S08F1582). Specifically, the wife alleged that the trial court erred in granting final decision making authority to the husband, who was the primary physical custodian of the parties’ children, and in awarding primary physical custody to the husband.

In regard to decision making, the wife argued that the parties did not truly have joint legal custody because the husband had final decision making authority. The Supreme Court disagreed, reaffirming a prior holding that the language of the statute governing legal custody “clearly vests in the trial court discretion to decide which parent should be empowered to make final decisions where the parents are unable to agree.” Citing Frazier v. Frazier, 280 Ga. 687, 690 (2006). As the primary physical custodian, it was appropriate that the father had final decision making authority in the likely event that the parties would not agree.

In regard to primary physical custody, the Supreme Court held that it would not disturb the trial court’s judgment awarding custody to the father, who had a stable home and a job with a regular schedule, instead of the mother, who was dating a married man, was a full time student with substantial debt, and had threatened the life of a neighbor.

On March 5, 2009, the Georgia Court of Appeals reversed the trial court’s grant of a grandmother’s adoption petition in Owen v. Watts (A08A2012), something the appellate courts rarely do. The child had been removed from her home with her mother and grandmother and placed with a foster family. The grandmother then filed a petition to adopt the child and the foster parents, who had previously filed a petition to adopt the child, intervened in that action. The trial court granted the grandmother’s petition to adopt the child and the Court of Appeals reversed, finding that “there was no record evidence that supported a finding that the adoption was in the best interest of the child.” The grandmother’s testimony that she loved the child, had taken her to doctor’s appointments and had an appropriate house for the child to live in was held to be insufficient to meet this standard.

The Court of Appeals acknowledged that reversing the grant of adoption is something that the appellate courts rarely do, but rested its decision on the “plethora of evidence…from which the trial court could have concluded that an adoption by Watts was not in [the child’s] best interest.”

On March 13, 2009, the Georgia Court of Appeals affirmed the juvenile court’s termination of a father’s parental rights in In the Interest of D.F. (A08A2371). The father challenged the sufficiency of the evidence of his parental misconduct or inability, or that termination of parental rights would be in the children’s best interests. The Court of Appeals disagreed with the father, holding that “[t]he evidence authorized the juvenile court to find that although the father has not engaged in any abuse or intentional misconduct whatsoever toward his children, and although he has made a sincere and food faith effort to obtain reunification with the children by meeting his parental responsibilities, his mental infirmities simply render him incapable of parenting the children without the full-time assistance that is unavailable to him.” The Court, thus, found that terminating the father’s parental rights was in the best interests of the children.

On February 10, 2009, in Hall v. Wellborn (A08A1800), the Court of Appeals affirmed the trial court’s dismissal of a mother’s Petition to Enforce Custody due to lack of jurisdiction. In December 2003, the mother divorced her former husband and was awarded custody of the minor child who, through paternity testing, was found not to be the child of the former husband. Shortly thereafter, the mother and child moved to Florida where the child’s biological father lived. The father filed a paternity action in Florida seeking sole custody and was awarded primary physical custody of the child.

Shortly thereafter, the mother filed an action in Georgia seeking to enforce the original Georgia custody Order. The Court of Appeals affirmed the trial court’s dismissal of this action because the Georgia court had lost continuing, exclusive jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Under the UCCJEA, a Georgia court that makes an initial child custody determination maintains continuing, exclusive jurisdiction over subsequent custody matters except when neither the child nor the child’s parents have a significant connection to the state, or when neither the child nor the child’s parents presently reside in the state. Thus, Georgia lost jurisdiction and Florida was the proper state in which to bring this custody action.

On February 23, 2009, the Georgia Court of Appeals affirmed the Dekalb county juvenile court’s deprivation ruling in In the Interest of Z.D. (A09A0487). The Dekalb juvenile court based its deprivation finding on the following evidence: (1) one child was punished for bedwetting by “either sitting on the toilet for prolonged periods of time or being made to sit in cold bath water;” (2) the father did not seek medical treatment for the children’s extremely unusual eating behaviors and, instead, beat the children with a belt if they ate school cafeteria food; (3) the father refused to agree to a home visit; (4) the father tried to withdraw the children from school after reports of suspected abuse; and (5) the father did not follow the DFCS safety plan. Based on the above, the Court of Appeals found that the deprivation finding by the juvenile court was supported by clear and convincing evidence.

On February 23, 2009, the Georgia Court of Appeals affirmed the Dekalb county juvenile court’s deprivation ruling in In the Interest of N.H. (A08A1759). During the course of DFCS’ investigation of a teenage mother and her child which raised significant concerns, the DFCS case worker secured the services of a parenting support company to instruct the mother on what to feed infants and, generally, how to care for infants. During the parenting specialist’s visit to the home, she noted that the mother fed the infant inappropriate food despite instruction that it was inappropriate. As a result of the investigation, the juvenile court found that the mother “had intellectual limitations evidenced by her continued improper feeding of the child.” Despite the mother’s objection to the deprivation finding because the parenting specialist assigned by DFCS only visited the home once, the Court of Appeals found the evidence sufficient to support a finding of deprivation.

On January 30, 2009, the Court of Appeals vacated the trial court’s award of custody to the child’s maternal grandmother instead of her father. In Galtieri v. O’Dell (A08A1822), the biological father, who had legitimated the child, contended that the trial court erred in its determination because it failed to find that awarding custody to him would harm the child.

The Court of Appeals agreed and vacated the trial court’s ruling, stating that “it is clear that the trial court failed to apply the proper legal analysis for determining whether custody should be awarded to…the maternal grandmother, rather than…the biological father.” Specifically, the Court pointed to O.C.G.A. §19-7-1(b.1), which establishes a rebuttable presumption in custody disputes between a biological parent and a third party relative that it is in the child’s best interest to award custody to the parent. To win custody, the third party relative must show by clear and convincing evidence that awarding custody to the parent would harm the child. The Court of Appeals found that the trial court’s statement that “from the personal experience of the court…it would be detrimental to the child to move from Georgia” was insufficient to meet this standard.

On January 28, 2009, the Georgia Court of Appeals affirmed the decision of the Gwinnett County Juvenile Court regarding the modification of a temporary child support award in a deprivation case. In In the Interest of R.F. (A08A1683), a biological mother’s five children were found to be deprived and removed from her custody, and she was ordered to pay child support to the temporary custodians. She alleged that the trial court erred by treating her motion as one for modification of child support rather than a final child support order, ignoring statutory guidelines in determining the child support amount, and in refusing to modify the previous order.

The Court of Appeals rejected the mother’s argument that her petition was one for a final child support order. The Court questioned whether a juvenile court was the proper jurisdiction for a final child support order, but rested its holding on the fact that there had been no final disposition of the deprivation proceedings and, thus, there could be no final order.

The mother further contended that the trial court erred in treating funds from trust proceeds as her income for purposes of a child support determination. The Court of Appeals easily dismissed this argument, citing to O.C.G.A. §19-6-15(f)(1)(A)(x), which states that both trust income and gifts that consist of cash should be included in calculating gross income for child support purposes.

In addition, the Court of Appeals affirmed the trial court’s ruling in refusing to modify the child support amount. Interestingly, though the mother was trying to modify her support obligation downward, she argued that the substantial change warranting modification was the fact that the children had increased educational expenses. The Court simply stated that “the fact that the needs of the children have increased cannot serve as the basis for decreasing the amount of child support a parent is obligated to pay” and found no other basis for downward modification, based upon the evidence presented at trial.

In In the Interest of R.J.M. (A08A1919), a mother appealed the Order of the Fulton county juvenile court sustaining a petition for deprivation to which she stipulated and which keeps the child in the custody of Fulton county DFCS. After the minor child was sexually abused by her father, DFCS filed a Petition for Deprivation and the child was removed from the home. Subsequently, an Amended Petition for Deprivation was filed, wherein the mother stipulated that the child was deprived, and the parties submitted a proposed Protective Order to the Judge that would allow the child to remain living with her mother. The court reviewed the evidence and the proposed Protective Order, but decided not to return custody to the mother.

The mother appealed, contending that she stipulated to the deprivation only because the agreement was for the child to be returned to her. On February 10, 2009, the Georgia Court of Appeals affirmed the Order of the juvenile court, holding that “[h]ad the juvenile court merely followed the parties’ recommended disposition despite reservations it had about immediately returning R.J.M. to the mother, the juvenile court would have acted contrary to its fundamental obligation in deprivation proceedings to protect the welfare of the child.”

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.

On November 17, 2008, the Supreme Court of Georgia reaffirmed long standing case law that it will not set aside a trial court’s factual findings unless they are found to be clearly erroneous. In Vereen v. Vereen (S08F0736), the Husband in a Gwinnett County divorce action contended that the trial court failed to consider evidence in making its rulings on child support, alimony, attorney’s fees and a tax debt, and failed to enforce a temporary order in the case.

Specifically, the Husband alleged that the trial court erred in its determination of his income, determination that his age and health conditions did not affect his ability to pay child support, and allocation of responsibility for a $27,000 tax debt to him. The Supreme Court found that the trial court specifically considered extensive evidence on these issues including testimony from the Husband regarding his income and health, evidence regarding his payment of the mortgage and other bills, evidence of his major cash purchases, and evidence that the tax debt was his alone. Satisfied that the trial court did not err, the Supreme Court declined Husband’s request that the trial court’s Order be overturned.

The Husband further alleged that the trial court erred in failing to enforce a temporary order in the case. To this allegation of error, the Supreme Court simply states that “the record reflects no motion by Husband to hold Wife in contempt for having allegedly failed to comply with this order” and “[w]ithout a ruling from the trial court on this issue, there can be no finding of error.”

On January 26, 2009, the Supreme Court of Georgia issued a ruling in Amerson v. Vandiver (S08A1707) regarding a Father’s agreement to termination of his parental rights in a divorce action. In March 2004, the parties entered into a settlement agreement in their divorce action wherein the Mother would have sole, permanent custody of the children and the Father agreed to the termination of his parental rights. Four years later, the Father moved to set aside the Final Judgment and Decree of Divorce alleging that the superior court lacked jurisdiction to terminate his parental rights.

After the superior court agreed with the Father and set aside the part of the judgment terminating his parental rights, the Mother appealed. The Supreme Court of Georgia pointed out that the juvenile courts, not the superior court, have sole jurisdiction for terminating parental rights, except in the case of adoption proceedings. Nonetheless, the Court went on to say that “[t]he stability of the family and of society demands that one who intends to attack an apparently valid decree of divorce should proceed with the utmost promptness.” The Court reversed the superior court’s ruling and held that the Father’s acts of invoking superior court jurisdiction for his divorce and entering into a settlement agreement which the superior court incorporated into its final decree, coupled with the Father’s four year delay in trying to set the decree aside, prevented him from attacking the agreement.

On November 13, 2008, the Georgia Court of Appeals issued a ruling in Kean v. Marshall (A08A0828) regarding the issue of proper jurisdiction for a child support modification action. The original child support Order was in Alabama, but the Mother sought to record and modify the Order in Georgia pursuant to the Uniform Interstate Family Support Act (UIFSA). The Mother filed her Petition in Henry County, Georgia, contending that the Father resided there and was, therefore, subject to jurisdiction. The trial court denied the Father’s motion to dismiss the action due to lack of jurisdiction and entered an Order modifying the child support amount.

The Court of Appeals reversed this ruling finding that the evidence reflected that the Father was domiciled in Alabama. The Court of Appeals placed emphasis on the fact that the Father “was registered to vote in Alabama, has always paid Alabama income taxes, has an Alabama driver’s license, and cares for his elderly father in Alabama.” There was also extensive evidence that the Father considered Alabama to be his home and intended to remain there, despite his military placement. Though the Mother argued that he resided in Georgia because he spent time there in the military and entered into an apartment lease while he was there, the Court of Appeals specifically found that the term “reside” does not mean “domiciled,” and that a person’s domicile is the place where the person resides with an intent to remain permanently or for an indefinite period of time. In reversing the trial court’s ruling, the Court of Appeals held that “[t]he proper focus is whether the record contained evidence that [the Father] took any action to change his residence from Alabama to Georgia, and the record is devoid of evidence showing any such action.”

Interestingly, in this case, the Order modifying child support was based upon an agreement by the parties with the Father reserving his right to appeal based on lack of jurisdiction.

In the Georgia Court of Appeals finding of deprivation in In the Interest of B.H. (A08A1102) on November 17, 2008, the Court addressed several procedural issues in juvenile court proceedings. First, The Court of Appeals affirmed the juvenile court’s excluding of testimony by the child’s former court-appointed special advocate (CASA). The parents wanted the CASA to testify to dispute the child’s previous allegations. Georgia law defines the CASA role as to advocate for the best interests of the child and protects the CASA/child relationship by keeping information acquired by the CASA confidential. Though confidential information could be disclosed with a court order, the Court of Appeals agreed with the trial court that requiring this CASA to testify would be “inconsistent with the purpose of the CASA program” especially because the parents had multiple other witnesses to impeach the child.

Next, the Court of Appeals upheld the trial court’s ruling limiting the scope of discovery requested by the parents, since the parents had already obtained the requested information in other formats.

In addition, the Court of Appeals upheld the trial court’s requirement that the Father view the child’s testimony from a television monitor in another room. Though there is a constitutional right to confront one’s witnesses, the Court of Appeals addressed the importance of protecting a child witness from trauma and held that, since the Father could view the testimony as it occurred and the court provided a person to run notes from the Father to his attorney, the Father’s constitutional rights were not violated.

Continue reading "Deprivation (Procedural Issues) - Georgia Case Law Update" »

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.

In Rumley-Miawama v. Miawama (S08F1541), the Supreme Court of Georgia heard a Wife’s appeal from the judgment in her divorce case. The Wife was unhappy with the visitation, child support and equitable division of property portions of the trial court’s judgment.

In regard to child support, the Supreme Court affirmed the trial court’s decision not to apply a deviation from the child support guidelines for equal parenting time and held that the trial court did not abuse its discretion in choosing not to apply this deviation. The Supreme Court pointed out that the trial court did use its discretion to give the Wife a deviation for travel expenses.

The Supreme Court of Georgia did agree with the Wife that the trial court erred in including a self-executing change of visitation provision in its judgments. The visitation portion of the judgment, which takes effect if Wife moves out of state and significantly limits her visitation, was reversed, as the Supreme Court held that it failed to reflect consideration of the best interests of the children, which is of paramount importance in Georgia.

Continue reading "Georgia Case Law Update – Visitation, Child Support, Marital Property " »

The Georgia Court of Appeals has entered a decision on November 13, 2008 in regards to the effective date of a modification of child support award. In Hampton v Nesbit(A08A1887) the court of appeals held that the Judge Merck, DeKalb Superior Court, abused its discretion in ordering a delay in the upward modification of child support until such time as the past due child support payments have been made.

In that action, the father had filed a petition seeking joint physical and legal custody of the minor child. The mother counterclaimed for contempt due to father’s past due child support payments. After hearing evidence, the trial court entered an income deduction order against the father which ordered the father to repay the arrearages at a rate of $300 per month beginning October 1, 2007 in order to avoid jail time and increased the amount of child support from $525 per month to $800 per month starting October 1, 2008 (at which point the trial court determined that the father should be caught up with his arrearages). The mother appealed indicating that the trial court could not delay the effective date of the upward award of modification.

The Court of Appeals reversed the trial court and held that the trial court did not have the right to fully delay implementation of the upward modification. Specifically, the Court of Appeals focused its attention upon O.C.G.A. § 19-6-15(k)(3)(B) which provides:

If there is a difference of 30 percent or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Accordingly, the Court of Appeals specifically held that while the trial court did not have authority to completely delay the modification it could have phased in the modification had the statutory requirements been met. Of note, the Court of Appeals also held that past due child support cannot be considered when reducing or increasing income under the child support calculations.

On November 3, 2008, the Supreme Court of Georgia reached decision by a 4 to 3 vote, that held a party could seek a declaratory judgment as to his obligation for PAST due child support. Acevedo v. Kim f/k/a Acevedo, S08A0798 (11/3/08). While this decision is perhaps more important for lawyers handling cases to understand, it does emphasize some interesting legal principals.

Prior to discussing the case further, it is important to understand what a declaratory judgment is. A declaratory judgment is, among other things, a procedural mechanism litigants use to determine their “rights and obligations under a divorce decree that is unclear”. Acevedo. It is used to remove a party from the “risk of taking some future action that, without direction, would jeopardize his interest”. Acevedo.

The unique question before the Supreme Court in this matter was whether it was appropriate for to ask for a declaratory judgment for PAST due child support obligations. The majority opinion held that since there was a very real risk that he would be brought up on charges of contempt of court, “he needed direction from a judicial tribunal to remove the uncertainty regarding the consequences of his planned future actions.” A very strong dissent argued, however, that since the support at issue only involved previously owed arrearages, then “the logical consequence of this contrived construction would be the seeking of declaratory judgment as a defense to the payment of any found obligation or debt, thus spawning unnecessary and spurious litigation”. Acevedo.

While it remains to be seen what develops from this recent case, the close decision and unique construction of what is grounds for a declaratory judgment suggests that this will not be the last time we visit this issue in Georgia.

On July 16, 2008, the Georgia Court of Appeals issued a ruling In the Interest of J. L. C., A08A0679, that upheld a termination of parental rights. In that matter, DFCS petitioned for the termination of parental rights based upon allegations that the parents had not: 1) obtained adequate housing for the child; 2) maintained employment; 3) contributed to support for the child; 4) visited the child, and had a history of chronic, un-rehabilitated use of drugs or alcohol. The Georgia Court of Appeals agreed with the trial court noting that the criteria for terminating parental rights are well established:

"First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; 3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home."

The Georgia Supreme Court issued an order today in Pineres v. George, S08A0773, which has several implications for Georgia law. First, it held that a trial judge has no authority in a contempt proceeding to modify the obligations imposed by a divorce decree. Second, the Georgia Supreme Court held that medical expenses constitute a form a child support.

Of note in this case, the modification being sought was in regards to the psychological expenses for the minor child and there had previously been a petition for modification of child support made less than two years ago. Because Georgia law prohibits a modification of child support less than two years after an order on a previous modification petition by the same spouse, it upheld an awarded of frivolous litigation fees under O.C.G.A. § 9-15-14 against the spouse that was now seeking to modify the amount of medical expenses that they had to pay.