August 13, 2012

Obtaining a Family Violence Protective Order in Georgia

There are specific requirements for obtaining a family violence protective order in Georgia, and courts cannot add additional requirements to those listed in the statute. In a recent case heard by the Georgia Court of Appeals, the parties separated afollowing an incident of family violence committed by the husband against the wife, and the wife moved to a new residence, the location of which she tried to keep from the husband. Lewis v. Lewis, A12A0601 (2012). The husband subsequently located the wife’s new residence and “on more than one occasion, he appeared at the residence unannounced and proceeded to harass and threaten” the wife. Id. at 2. After one particularly violent incident in late 2010, the wife took out a warrant for the husband’s arrest. The husband then agreed to stay away from the wife and moved to another state. Id.

A few months later, the husband moved back to Georgia and the wife served him with a petition for child support. Based upon the husband’s reaction to this lawsuit and her previous experience with him, the wife feared he would soon become physically violent with her again “because of the look on his face and his demeanor.” Id. at 3. The wife, therefore, applied for and received a temporary protective order under OCGA §19-13-3(b). At the hearing to extend that order for 12 months, however, the judge dismissed the petition for protective order because the wife could not show a “reasonably recent” incidence of family violence, as the last occurrence was almost a year prior. Id. at 4.

The wife appealed, arguing “the statute under which she sought a protective order, OCGA §19-13-3, does not absolutely require her to show a ‘relatively recent’ act of family violence.” Id. at 5. The Court of Appeals of Georgia agreed, looking to the plain language of the statute, which only requires that “family violence has occurred in the past and may occur in the future.” OCGA §19-13-3(b). There is no specific time requirement in this statute. In holding that the trial court abused its discretion, the Court pointed out that “[t]he recency of past violence may, of course, bear upon the likelihood of future violence, but a ‘reasonably recent’ act of violence is not absolutely required.” Id. at 6. The Court of Appeals, thus, vacated the order dismissing the wife’s petition and remanded the case for additional proceedings.

August 6, 2012

Georgia Divorce Settlements

Sometimes in divorce cases, parties think that they have “settled” their case and don’t need to attend the hearing because they have “agreed to everything,” even though there is no signed settlement agreement. The Supreme Court of Georgia recently heard a case that cautions against this very issue. Pennington v. Pennington, 291 Ga. 165 (2012). In Pennington, the court scheduled a jury trial to begin on a Monday, with the custody issues to be decided by the judge the previous Friday. Id. The parties were notified of the dates in a status conference and also received written notices via mail. Id. at 2. The night before the hearing, the parties discussed settlement, but the wife would not sign an agreement. The next morning, the husband found a note from the wife on his car stating that she wanted to settle, though she did not communicate this desire to the court nor attend the scheduled custody hearing that day. Id. The husband appeared at the hearing where the court refused to accept the note as proof of settlement, struck the wife’s pleadings, and awarded the husband sole custody and all marital property. Id. The wife appealed, contending that the trial court “abused its discretion by striking her pleadings and proceeding to a bench trial as a sanction for her failure to appear.” Id. at 3.

The Supreme Court of Georgia disagreed with the wife, stating that “[a] trial court may strike a party’s pleadings as a proper sanction for willful refusal to participate in the proceedings pursuant to a court’s inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court.” Id. at 3. The wife had proper notice but still failed to appear or inform the court of the reason for her failure to appear and the court was, thus, authorized to strike her pleadings. Id. at 4.

The Court was not persuaded by the wife’s argument that she was excused from attending the hearing because she thought the case was settled. The Court emphasized that, regardless of her intent in leaving the note, “it is undisputed that she never communicated to the court her intent to settle and she failed to provide any notice to the court of her reason for not appearing.” Id. at 4. In affirming the trial court’s decision, the Court sternly held that “a note from one party to another abdicating all responsibility and authority in resolving a dispute” does not excuse a party’s failure to communicate with the court and participate in a scheduled proceeding. Id. at 5.

The lesson to take from Pennington is to attend every scheduled court hearing unless you have confirmation from the court that there is no reason to attend. Even if you think you have settled your case, make sure you have a signed settlement agreement that has been filed with the court (and confirm that the court has received it!) before deciding not to attend.

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 25, 2012

Father's Petition for Modification of Child Support is Time Barred Under Georgia Law

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.

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.