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.

April 13, 2012

Can smoking make you lose custody of your children?

I recently read an interesting article about how a parent’s smoking may affect child custody. Smokers losing custody cases a growing trend, by Myra Fleischer, The Washington Times. According to the article, “states are increasingly factoring cigarette smoking in making decisions about who gets custody of minor children. An anti-tobacco advocacy group surveyed custody cases involving smoking found that many courts have issued orders prohibiting smoking in the presence of a child, or even within 24 hours before a child arrives in the home. The survey further found that no court has ever ruled that subjecting a child to tobacco smoke should be ignored in deciding custody.

In Georgia specifically, custody is awarded according to the best interest of the child standard, and the court can consider any factor in making that decision. Thus, it is well within the confines of Georgia law for a judge to consider smoking as a factor in determining custody. According to the article, there was a Georgia custody modification case in which the mother was addicting to smoking and, after the divorce, her child was found to have asthma. In reaching its decision, the Georgia court “found that the mother was smoking in the presence of her child, which it said implied that she had insufficient concern for her child.” This reason alone was enough to change custody.

This article further shows how anything and everything can come into play in a custody battle, especially if the parent is engaging in an activity that is harmful to the child. If you are a smoker and going through a custody fight, and are unable to break the habit, at the very least you should not smoke in the presence of the children or allow others to do so.

March 12, 2012

Downward modification of child support in Georgia

Atlanta family law attorneys are often asked about lowering a party's child support obligation. I was recently asked how a person could adjust their child support obligation where the ordered amount is so high that they could not pay rent or other bills.

In order to have child support adjusted or modified, a parent needs to file for a modification of child support. To have a chance at being successful on this request for modification, the parent must show a substantial change in circumstances. For example, if a parent was making $50,000 a the time the child support was set, but, after that point, the parent lost their job (through no fault of their own) and obtained new employment making only $30,000, that parent could argue that there has been a substantial change in circumstances and child support should be reset accordingly. There must be a substantial change in the income or financial circumstances of either parent, or the needs of the children; otherwise, a court will not modify the child support obligation.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

February 20, 2012

Automatic Adjustments to Child Support Payments in Georgia

In Georgia, child support payments are calculated to cover all the minor children in a household. However, when an older child reaches 18 years of age (aka “ages out”), the child support obligation changes to reflect the fewer number of minor children in the household. In a case that has been fully resolved, filing a Modification of Child Support is usually necessary to adjust the child support figure. For those currently going through a divorce and expecting their oldest child to age out in just a few months or years, can the parties agree for an automatic adjustment of child support to occur when the oldest child ages out? How do Judges in Georgia perceive such automatic adjustments in Settlement Agreements?

At a conference for matrimonial lawyers held by the Georgia State Bar, a few Judges responded to this exact question. All of the Judges on this panel, including a Judge from Cobb County, Fulton County, and Gwinnett County, all indicated that they would allow the automatic adjustments only if the change was foreseeable. For these Judges, this meant that the oldest child would age out within a matter of 6-8 months. If not within this time frame, these Judges all indicated that they would be unlikely to accept automatic adjustments and that filing a Modification of Child Support would be the proper procedure.

By Emily Yu, Associate Attorney, Meriwether & Tharp, LLC

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.

December 12, 2011

Mindy McCready custody dispute - what not to do when seeking a custody modification

In yet another celebrity family law case that has made national news, country singer Mindy McCready has found herself in the middle of a custody dispute with her mother. Mindy McCready’s son found in Arkansas, CNN.com, December 3, 2011. Due to McCready’s troubled past, the singer’s mother has custody of her 5-year-old son and McCready has visitation rights. Last week, McCready unlawfully took her son from her mother’s home claiming he was not safe there, and asked a court to restore custody to her, all the while refusing to travel back to Florida per a Judge’s order. Authorities recently found McCready and her son in Arkansas, and her son will be returned to McCready’s mother in Florida.

Though this case is not in Georgia, it sets a good example of what not to do when you are seeking a custody modification (which is presumably what McCready was trying to do). If there is a custody order in place, you must follow that order, until there is another order replacing it. If you feel your child is in danger under the current custody arrangement, you can file an emergency petition for modification of custody, which will be heard more quickly, or you can seek the help of law enforcement, if necessary. Taking matters into your own hands usually only makes things worse. Remember, the judge will always be looking at the best interest of your children. McCready likely made things much worse for herself by acting above the law and taking her son without first going through the court system, as these actions will be considered by the judge in the custody modification action.

December 9, 2011

Usher Raymond's ex-wife seeking to obtain full custody in Georgia

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

November 25, 2011

Parenting plans in Georgia

With the holiday season upon us, many divorced parents in Georgia will look to their parenting plan for guidance on arranging their holiday schedules. Parenting plans are custody agreements that are submitted jointly or individually by each party in an action that involves child custody in Georgia. Except in those cases where emergency relief is necessary due to family violence, parenting plans are required in all actions in Georgia where child custody is at issue.

A parenting plan may be temporary until a final decree is entered, at which time a permanent parenting plan will go into effect. Under Georgia law, when considering either a joint plan or opposing plans of the parties, the court must make its determination based upon the best interest of the child. O.C.G.A. § 19-9-3. The court bases its determination on a number of factors including, but not limited to, the relationship that exists between each parent and the child, and the ability of each parent to provide the child with basic necessities. Id. at a(3).

Parenting plans require that both parties acknowledge and decide on a variety of issues. O.C.G.A. § 19-9-1. Holiday visitation is one such issue, and it can be difficult and emotional for parties to come to an agreement because it requires each party to agree to some holidays away from their children. It may never be easy to split time with your child and the other parent, but a successful parenting plan can alleviate tensions between the parties and allow each parent to enjoy time with their child.

If you need help creating a parenting plan, or seek to modify your existing parenting plan, please contact our Atlanta divorce attorneys to assist you in the process.

By Courtney Carpenter, Associate Attorney, Meriwether & Tharp LLC

November 4, 2011

Modification of visitation affirmed by Georgia Court of Appeals

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.