Atlanta Divorce Attorney Blog

The Supreme Court of Georgia recently reemphasized long standing Georgia law prohibiting a petition for modification of child support from being filed within two years of a previous petition for modification by the same parent. Bagwell v. Bagwell, S11A1316 (2012). In that case, the father filed a petition for downward modification of child support in May 2010, “alleging a substantial decrease in his income and financial status since the divorce, which decreased his ability to pay the previously awarded child support.” Id. After a hearing, the trial court granted the mother’s motion for sanctions due to the father’s failure to respond to discovery and dismissed the modification petition. Id. at 2. Two weeks later, the father filed another petition for downward modification of child support, with the same allegations as the previous petition. Id. at 2-3. The mother moved to dismiss the second petition in accordance with OCGA §19-6-15(k)(2) which states: “No 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 except where (A) A noncustodial parent has failed to exercise the court ordered visitation; (B) A noncustodial parent has exercised a greater amount of visitation than was provided in the court order; or (C) The motion to modify is based upon an involuntary loss of income.”

Despite this clarity in this statute, the trial court allowed the second petition to continue “in the interest of fundamental fairness and judicial economy,” since it characterized the first order as a sanction, rather than a dismissal. Id. at 3. The mother appealed, and the Supreme Court of Georgia agreed with the mother.

The Court first held that the trial court’s dismissal of the father’s first petition was a final order for the purpose of OCGA §19-6-15(k)(2) because it was an involuntary dismissal, which “constitutes an adjudication upon the merits of a claim, unless the trial court in its order of dismissal specifies otherwise.” Id. at 4; OCGA §9-11-41(b). Further, the Court stated that classifying the dismissal as a sanction does not make a difference, as a dismissal for this reason is still adjudication on the merits. Id. at 5.

The Court additionally struck down the father’s argument that he had an involuntary loss of income and should, thus, fall under an exception to the two-year rule for two reasons. First, the father did not specifically invoke this exception in his second petition. Second, he would have had to have an involuntary loss of income in the two weeks between the dismissal of his first petition and the filing of his second petition. Id. at 7-8.

In reversing the trial court’s ruling, the Supreme Court of Georgia also held that there was no merit to the trial court’s judicial economy argument. Allowing the second modification action to proceed under these circumstances, it held, “is tantamount to abuse of the judicial system.” Id. at 9.

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.

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 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.

The Supreme Court of Georgia recently made a ruling that has the potential to affect every member of the military going through a divorce and dividing assets. In Michel v. Michel, the parties were married from September 1995 to February 2002, and then remarried from September 2002 until June 2009. Michel v. Michel, 286 Ga. 892, 893 (2010). In the 2009 divorce action, the wife sought a portion of the husband’s military retirement benefits as equitable division. Id. The Cherokee County trial court denied the wife’s request, finding that the current marriage at issue was only seven years and, pursuant to a code section of the Uniformed Services Former Spouses’ Protection Act, it could not award the wife an equitable portion of these benefits since the marriage was not ten years or more. Id.

The wife appealed, alleging that the trial court erred in ruling that it had no authority to award her a portion of these benefits, and the Supreme Court of Georgia agreed. Id. The Court held that “the Former Spouses’ Protection Act affirmatively grants state courts the power to treat military retirement benefits as marital property that is subject to equitable division upon a divorce.” Id., citing 10 USC §1408 (c)(1); Mansell v. Mansell, 490 U.S. 581, 584 (1989).

In addressing the ten year marriage requirement, the Court held that the requirement “is simply a limitation on the direct payment” of funds from the Federal Government to the former spouse, and “it has no bearing on a state court’s authority to treat military retirement benefits as marital property subject to equitable division, even when a marriage lasted less than ten years.” Id. at 894.

In divorce and other family law cases, it is very important to follow the letter of the law in filing pleadings with the court so that you do not miss out on any hearings or other notices. In a recent case, the husband filed a Complaint for Divorce and the wife, who had no attorney at the time, acknowledged service of the Complaint, but did not file an Answer or any other responsive pleading. Ellis v. Ellis, 286 Ga. 625 (2010). Shortly thereafter, the wife retained an attorney who filed an entry of appearance, but did not file any responsive pleading on the wife’s behalf. Id. The final hearing, of which the husband’s attorney provided notice to the wife’s attorney, was rescheduled, and the husband’s attorney agreed to inform the wife’s attorney of the rescheduled date for the final hearing. Id. The husband subsequently retained a new attorney who moved the trial court to enter a final judgment of divorce on the pleadings, without holding a final hearing. Id. After the trial court granted the husband’s motion and entered a final judgment of divorce, the wife filed a notice for new trial, alleging an agreement by the husband’s former attorney to provide notice of a final hearing date. Id. at 626. The superior court refused to grant wife a new trial, holding that the wife waived notice by failing to file any responsive pleading and any alleged agreement did not change this fact. Id.

Unfortunately for the wife, the Supreme Court of Georgia agreed with the superior court, as Georgia law is clear on this matter. OCGA §9-11-5(a) states: [T]he failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief. . . .”

Thus, in any divorce case, it is prudent to use the motto “better safe than sorry” so that you do not end up like the wife in this case. Even if you think you have an agreement with your spouse or his/her attorney, it is best to file all pleadings necessary with the court and look out for yourself.

Paternity testing during a divorce case is not extremely common, but this issue does arise. The Georgia Court of Appeals recently affirmed a trial court’s denial of a mother’s motion to compel paternity testing of her husband. Williamson v. Williamson, 302 Ga. App. 115 (2010). In that divorce case, the wife alleged that the child born during the marriage might not be the biological child of the father and requested paternity testing. Id. at 116. After a temporary hearing in which the parties were awarded joint legal custody, the wife’s attorney sent a letter to the husband’s attorney confirming the parties’ agreement that paternity was no longer an issue. Id. Subsequently, the wife retained a new attorney and filed a motion requesting a paternity test, which the husband opposed. Id. The child’s guardian ad litem testified that a paternity test would not be in the child’s best interest and the court denied the wife’s motion. Id.

In her appeal, the wife alleges “she is not precluded from contesting paternity.” Id. The Georgia Court of Appeals agreed with her, stating neither the purported agreement nor the temporary order determined the issue on a final basis as there was not yet a final order in the case. Id. at 177.

However, even the Georgia Court of Appeals held that the wife had the right to contest paternity, it agreed with the trial court’s denial of her motion, which was based on the “best interest of the child” standard. Id. The wife had a huge hurdle to overcome since “[a]ll children born in wedlock are deemed under law to be legitimate.” Id. Further, “[t]he public policy favoring the presumption of a child’s legitimacy is one of the most firmly-established and persuasive precepts known in law.” Id., quoting Baker v. Baker, 376 Ga. 778, 779 (1) (582 SE2d 102) (2003). In affirming the denial of the wife’s motion to compel paternity testing, the Court of Appeals followed established Georgia law and held, “…even when the child's legal father may not be the biological father, a mother who wishes to delegitimate her child is not automatically entitled to compel the legal father to submit to genetic paternity testing but must first come forward with evidence sufficient to show that delegitimating the child is in the child's best interest. The record in this case contains no such threshold showing.” Williamson, 302 Ga. App. at 118.

The Supreme Court of Georgia recently affirmed a case from Gwinnett County Superior Court regarding relocation and child custody. Almon-Davis v. Davis, 286 Ga. 456 (2010). In that divorce case, both parties requested primary physical custody of their three minor sons. At the request of the husband, the court appointed a Guardian ad Litem (“GAL”) to investigate and make a custody recommendation. Id. at 457. After conducting his investigation, the GAL recommended that the father, who was living in Denver at the time, have primary physical custody, and the trial court entered a final judgment and decree of divorce to this effect. Id.

The mother appealed, contending “the trial court abused its discretion in adopting the GAL's report and recommendation… without considering the impact on the children of the Husband's out-of-state move.” Id. The Georiga Supreme Court disagreed, quoting a seminal relocation case, which states: “When exercising its discretion in relocation cases, as in all child custody cases, the trial court must consider the best interests of the child and cannot apply a bright-line test…[T]he primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis. This analysis forbids the presumption that a relocating custodial parent will always lose custody and, conversely, forbids any presumption in favor of relocation.” Id., quoting Bodne v. Bodne, 277 Ga. 445 (2003). The Supreme Court of Georgia reviewed the transcript and found that the trial court’s consideration of the father’s move “in regard to the children’s welfare and its pragmatic consequences were pivotal” in its custody determinations. Almon-Davis at 458.

Thus, in relocation cases, there is not a presumption that someone will win or lose custody due to a party moving out of the city or state. The court will always look at the specific facts of the case and determine the best interests of the children involved.

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.

The Court of Appeals recently addressed a custody modification in a military family. In Mitcham v. Spry, the parents’ divorce settlement agreement provided that the parties would have “joint legal and physical custody, with each parent having the minor child for six months and the custodial parent having final decision making authority.” Mitcham v. Spry, 300 Ga. App. 386 (2009). At the time of the divorce both parents were in the military, so they agreed that the child would reside with his paternal grandparents in Missouri during the parents’ periods of active duty. Id. at 387.

After both parents separated from the military, the father filed a Petition for Modification of Custody and the trial court found that there had been a material change in circumstances warranting a change of primary physical custody to the father. Id. at 388. The mother appealed, arguing that the grounds upon which the trial court relied were equally weighted and, thus, custody should remain the same.

Upon review of the transcript and record, the Georgia Court of Appeals affirmed the ruling of the trial court. The Court of Appeals reiterated that the trial court must look at the best interests of the child in determining custody, which they did in this case. The transcript did show that “the trial court acknowledged that both parties were fit and nurturing parents; that both had established a loving relationship with the child; and that since the time of the divorce, the parties had shared equal custody of the child.” Id. at 390. However, the trial court found that the father had a strong support system by living near his family, and that the child had developed a strong bond with the paternal grandparents from spending so much time there while his parents were deployed. Id. Under the circumstances, the Court of Appeals agreed that these facts tipped the scales in favor of the father and that the trial court did not abuse its discretion in awarding the father primary custody.

Recently, the Georgia Court of Appeals heard a case where a divorce settlement agreement affected property in the estate of one of the parties after his death. In Frier v. Frier, the parties entered into a settlement agreement regarding distribution of their property, which notably stated that each party “shall have and receive any sums of money [in] their respective checking accounts, savings accounts, IRAs, retirement funds or accounts or other properties in their own individual names." Frier v. Frier, A09A1876; Frier v. Frier, A09A1877 (2010). The husband had previously established a 12 month certificate of deposit, which was payable to the wife upon his death. Id. at 2. After the execution of the settlement agreement but before the final divorce, the husband renewed the CD but did not change the wife as beneficiary. Id. The husband died shortly after the divorce was finalized and the wife alleged that, as beneficiary, she was entitled to the funds in the CD. Id.

Despite a challenge by the executor of the husband’s estate, who argued that the settlement agreement terminated the wife’s rights as a payable on death payee, the Georgia Court of Appeals held in favor of the wife. The Court stated that though the wife “relinquished the interest she may have had in the account by virtue of her marriage,” the settlement agreement language was not sufficiently broad so as to waive “her right to payment from the POD account as the death beneficiary specified by [the husband] when he created the account and so remaining on the day he died.” Id. at 4.

In this case, the facts are not clear whether the husband intended to remove his ex-wife as beneficiary. Either way, it is a lesson to those going through a divorce of how important it is to make sure your settlement agreement addresses all assets clearly and to check and/or change the beneficiaries of any accounts you may have to prevent unintended consequences.

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.

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

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

The Georgia Supreme Court recently heard a case wherein parties were divorced and the wife was awarded half of the husband’s 401K, which was to be paid to her via a Qualified Domestic Relations Order (“QDRO”). Killingsworth v. Killingsworth, 286 GA. 234 (2009). After the husband failed to comply with provisions of the parties' divorce decree, the wife filed a motion for contempt against him. The trial court found the husband in contempt, ordering him to pay the wife a cash sum which included the 401K funds. Id. at 235. The husband appealed, alleging that the trial court erred in requiring him to pay the 401K funds in cash, as that was an impermissible modification of the divorce decree.

The Georgia Supreme Court agreed with the husband, stating that “[a] trial court may interpret a divorce decree, or clarify a prior order or judgment, in the course of resolving contempt issues placed before it,” but that “a trial court has no power to modify the terms of a divorce decree in a contempt proceeding.” Id. at 236. The Georgia Supreme Court stated that, since the divorce decree specifically stated that the 401K funds were to be transferred to the wife via QDRO, “transmuting this award into a presently due cash obligation of $ 1,850 was ‘so contrary to the apparent intention of the original order as to amount to a modification.’” Id. The Court reversed the portion of the contempt order requiring the husband to pay the 401K funds to the wife in cash, but adamantly stated that the husband was not relieved of his obligation to transfer the funds to the wife via QDRO. Id.

Recently, the Georgia Court of Appeals affirmed the great discretion of the Dekalb County trial court in determining how to handle a father who was in contempt of his child support obligation. Henry v. Beacham, 301 Ga. App. 160 (2009). The father, who was a professional football player, had failed to make child support payments according to the trial court’s temporary order in the case. Id. at 161. In addition, the trial court found that, despite his significant income, he “had encountered financial problems over the course of his professional athletic career.” Id. In light of these facts, the trial court ordered an income deduction order and ordered that the father “fund a $ 250,000 trust, which would be invaded only in the event that [he] failed to pay his obligations.” Id. Any money remaining in the trust would be refunded to the father at the conclusion of his child support obligation.

The father was later found in contempt for failing to fund the trust and appealed, alleging that the trust was not authorized under the child support guidelines. Id. at 162. The Georgia Court of Appeals disagreed, quoting OCGA 19-6-15(c)(2)(B) which states that the trial court is authorized to order the "manner, how often, to whom, and until when the support shall be paid." Id. at 163. The Court further stated that OCGA 19-6-15, “as a whole establishes that the legislature has granted trial courts broad discretion when ruling on child support obligations based on the factors presented to the court at the time of the award.” Id. at 163. Looking at the facts of the case, the Court of Appeals found that the trial court did not abuse its discretion in ordering the father to fund a trust in case he, again, failed to satisfy his child support obligation.

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.