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Case Law Update, November 20, 2017

Posted By By Audrey B. Bergeson, Esq., Tuesday, December 5, 2017

Flesch v. Flesch

2017 Ga. LEXIS 629

August 14, 2017

 

Three questions were presented on appeal to the Supreme Court of Georgia: 1) whether the trial court erred in determining that the wife’s vanguard account was entirely her separate property, 2) whether the trial court erred in determining that a particular townhouse was marital property subject to division, and 3) whether the award of attorney’s fees to wife was proper.

 

With regard to the vanguard account. The trial court had found that because wife owned the account prior to the marriage, it was her separate property, despite the undisputed fact that wife had placed marital assets into the account. This was error. The Supreme Court remanded with instruction for the trial court to conduct at Thomas v. Thomas analysis and equitably divide the marital portion of the account.

 

With regard to the townhouse, the husband had purchased the home, unbeknownst to the wife, during the marriage. He originally titled it in his name along with his paramour and placed the mortgage in his name. He also purchased furnishings for the home. He additionally entered into a lease-to-own agreement with his paramour. Husband argued that he was merely a broker in this arrangement and that the funds came from the paramour and her husband. The trial court determined the property to be a marital asset and awarded 60% of the equity in it to the wife.

 

The Supreme Court noted that the trial court sits as the finder of fact, to determine whether the property is separate or marital. The trial court did not make findings of fact in its order, demonstrating what evidence it relied on in coming to its decision. No such findings were required and neither party asked the court to make any. Thus, the Supreme Court determined it “cannot conclude that the trial court’s finding that the townhouse was marital property was improper as a matter of law or as a matter of fact”, and found no error.

 

Finally, regarding attorney’s fees, the husband contested the award of attorney’s fees pursuant to O.C.G.A. § 19-6-2. The Supreme Court again found no error, noting the discretion of the trial court in awarding fees under this statute which, “will not be disturbed on appeal unless that discretion is manifestly or flagrantly abused.”

 

 

 

 

 

Plummer v. Plummer

Ga. App. LEXIS 388

August 17, 2017

 

This appeal arises from the dismissal of the father’s petition for modification for want of jurisdiction under the Uniform Custody and Jurisdiction Enforcement Act.

 

The parties were divorced in Georgia and the mother was awarded primary physical custody. At the time of the divorce, the mother and the child were already living in Florida and the father remained in Georgia. The father filed his petition to modify in the same county where the parties were divorced. Shortly thereafter the father moved to Arizona. The superior court granted the mother’s motion to dismiss pursuant to O.C.G.A. § 19-9-62(a)(2), as neither party nor the child resided in Georgia any longer. Father appealed, arguing that because he resided in Georgia at the time of filing, the dismissal was improper. The Court of Appeals affirmed the dismissal, finding that under the plain language of the statute, jurisdiction was no longer proper once a “court of this state determines that neither the child nor the child’s parents … presently resides in this state.” 

 

Lockamy v. Lockamy

2017 Ga. LEXIS 782

September 13, 2017

 

The parties were divorced in 2009, pursuant to a final decree of divorce, which incorporated the parties’ settlement agreement. The wife was awarded 40% of the husband’s military retirement payments, and the agreement specified that in no case should her monthly payment be less than $1,274. The wife was not awarded alimony.

 

Less than one year later, the husband was informed by the Navy that this benefit was in fact disability pay and not retirement and that it could not be divided with wife. He then stopped making payments to the wife under that provision of the settlement agreement.

 

Six years later the wife filed to reform the divorce decree. The trial court entered an order for the husband to pay to the wife alimony of $1,400 per month to give effect to the parties’ intent and effectively split the disability benefit.

 

The Supreme Court found that because the wife was not originally awarded alimony, she could not simply file for revision of an award of alimony. Rather, she would have had to timely contest the final order via motion for new trial or a motion to set aside. The Court found that “[b]ecause this case does not involve a void judgment that could be attacked at any time, Wife was required to file her motion to attack the September 11, 2009 divorce decree ‘within three years from entry of the judgment.’” Wife was outside of the time to file a motion to set aside. Accordingly, the Supreme Court reversed the trial court’s decision. 

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