October 29, 2012

Video Surveillance as Evidence in Georgia Divorces

Evidence in divorce cases can come in many different formats, including photographs, videos, and electronic communications. This evidence, when obtained in a lawful manner, can be extremely persuasive in a divorce case. In a recent divorce case heard by the Court of Appeals of Georgia, the wife secretly installed video cameras in the marital residence in an effort to obtain information that would help her win custody of the parties’ children. Rutter v. Rutter, A12A0661 (2012). The husband filed a motion to exclude any evidence obtained from the video surveillance, arguing that the wife’s use of these video devices was a violation of OCGA §16-11-62(2), “which makes it generally unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent.” Id. The trial court denied the husband’s motion, relying on an exception to the statute which allows a person to conduct video surveillance of persons “[t]o use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device.” OCGA §16-11-62(2)(C). The husband appealed.

On appeal, the husband first argued that the residence itself is not “within the curtilage of a residence.” Rutter. The Court of Appeals disagreed, using the rule of lenity to conclude that the curtilage does, in fact, include the residence itself.

The husband next argued that the trial court erred when it found that the wife was a resident of the marital residence when she installed the recording devices. Id. Though the wife did not sleep there, she continued to keep clothes and other personal items at the residence, paid part of the mortgage, received mail, and spent fairly significant time there. Thus, though the Court of Appeals acknowledged that evidence of the wife’s residence is disputed, it could not say that the trial court erred when it found that the wife was a resident of the marital home during the time she installed the video devices. Id.

Finally, the husband argued that the wife did not use the surveillance devices for a permissible purpose under the statute: security purposes, crime prevention or crime detection. Id. The Court of Appeals disagreed with the husband, agreeing with the trial court that the surveillance was used for crime detection. The Court found persuasive that the wife testified “she installed and used the video surveillance devices in an effort to discover and document any harm that [the husband] might visit upon the children.” Id. This would, in turn, help her obtain custody of the children.

Having disagreed with the husband on all of his arguments, the Court of Appeals affirmed the trial court’s denial of the husband’s motion to exclude the video evidence. The facts of this case are something to consider if you are thinking about videotaping your spouse, or you think you may be videotaped. Under this case, if the surveillance falls within the exception to the statute, it will likely be admitted as evidence in your divorce case.

February 27, 2012

Can a Georgia divorce lawyer testify in murder case?

A recent article on ABAJournal.com recently reported how one Georgia court is currently wrestling with a tough a question: can a divorce attorney representing a murder defendant’s wife be made to testify in the husband’s criminal trial?

Superior Court Judge Gregory Adams of DeKalb County Superior Court must now rule on the issue after hearing arguments regarding a motion to quash a witness subpoena for the wife’s attorney Esther Panitch. Though any information gathered by Panitch for the purpose of providing legal advice to her client will remain confidential due to attorney-client privilege, the defense counsel argues Panitch possesses material information separate from her representation of the wife.

Precisely what that information is has yet to be revealed by the defense. The defense counsel said that he anticipates “calling her as a witness… because we think she has independent facts that may be important in the case,” adding: “There is a legitimate basis for this subpoena, and I want to hold out the possibility that we may need to call her.”

Panitch originally served as divorce attorney and now acts as an advisor to the wife, Ariela Neuman, for the murder trial of her husband, Hemy Zvi Neuman.

Her attorney and business partner, James R. Hodes, argued that Panitch does not have any relevant evidence concerning the murder case of her client’s husband and argued that subpoenaing her as a witness interferes with her ability to counsel her client effectively.

The case, currently in the middle of trial, revolves around a murder allegedly committed by Henry Neuman, a father of three, who is accused of killing Rusty Sneiderman on November 18, 2011, after Sneiderman dropped off his 2-year-old at Dunwoody Prep Pre-School. Investigators believe Neuman and Sneiderman’s wife may have been having an affair.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

November 8, 2010

Evidence at temporary hearing vs. final hearing in divorce case in Georgia

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.

January 14, 2009

Can I record telephone conversations in Georgia?

When two parties are going through a divorce, one party may feel that it is necessary to record the telephone conversations. For instance, if the parties in a divorce are going through a heated custody battle and one of the spouses is alienating the minor child against him or her, he or she may feel it is necessary to record the telephone conversations to use as evidence in his or divorce case.

According to O.C.G.A. § 16-11-66, you can record telephone conversations in Georgia, but you must be a party to the conversation. Therefore, if you and your spouse are having a telephone conversation, and both parties are in Georgia at the time of the telephone call, it is legal for you to record the conversation under Georgia law.

You cannot, however, record a telephone conversation between your spouse and his mistress because you are not a party to the conversation. There is an exception to this statute. If one of the parties involved in the conversation gives you his or her consent, then you can legally record the conversation according to O.C.G.A. § 16-11-66. In most cases, however, this is not possible.