June 18, 2012

Calculating a Spouse's Interest in a Pension in a Georgia Divorce

The Supreme Court of Georgia recently heard an appeal of a divorce case where the wife alleged error in calculating her interest in the husband’s pension and setting the alimony amount. Hammond v. Hammond, S11F1978 (2012). In that divorce case, there were very few marital assets, the most significant of which was the husband’s pension, which was vested, but had not yet matured. Id. According to Georgia law, this specific pension could not be attached, subjected to process, or assigned. Id. Thus, the trial court was limited in the ways it could be utilized for equitable division purposes. After a hearing where extensive evidence was presented, the trial court equitably divided the marital assets including an alimony award to the wife of $750 per month for 24 months. In addition, with regard to the pension the trial court ordered the husband to pay the wife alimony “in the amount of $1,250 per month, starting the first month husband receives his monthly pension benefit.” Id. at 2.

The wife appealed, arguing “the trial court erred as a matter of law in determining the amount of the award of alimony pertaining to husband’s pension benefit because it bears no relation to the correct valuation of the pension.” Id. at 3. Specifically, the wife alleged that the trial court should have used the time rule formula to quantify the value of the pension rather than distributing it as alimony. However, the trial court chose to evaluate and distribute the pension as alimony at the wife’s urging and, according to the Supreme Court of Georgia, the wife cannot now complain of error induce by her own conduct. Id. Moreover, a trial court is “given wife latitude in fixing the amount of alimony and child support,” and the Court found no abuse of discretion here. Id.

The wife further alleged that the court erred in calculating the amount of alimony to be awarded from the pension. Generally, alimony is awarded in accordance with the needs of one party and the ability of the other party to pay. The trial court has great discretion within these parameters. The Supreme Court of Georgia rejected the wife’s argument here because there was evidence that the trial court considered several factors, including “the value of the pension, the overwhelming marital debt, husband’s contribution of inherited assets to the marriage, and wife’s recent promotion.” Id. at 5. Thus, the Court held that the trial court did not abuse its great discretion in setting the alimony amount from the pension.

May 4, 2012

Transcript Extremely Important for Appeal of Georgia Family Law Cases

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.

March 30, 2012

Inherited property is not always considered separate property in Georgia divorces

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.

February 17, 2012

Legitimation and due process in Georgia

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.

February 10, 2012

Retroactive alimony modification not allowed in Georgia

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.

February 3, 2012

Grandparent visitation rights in Georgia

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.

January 23, 2012

Self-executing visitation provision in Georgia divorce held invalid

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.

January 20, 2012

Custody awarded to father in Georgia divorce case despite evidence of alleged family violence

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).

January 16, 2012

In Georgia, trial court cannot rely on evidence from temporary hearing in making final judgment

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.

December 26, 2011

Prenuptial agreement upheld in Georgia divorce case

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.