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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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Case Law Update, October 30, 2017

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

 Wilson v. Moore

2017 Ga. App. LEXIS 384

August 15, 2017

 

The Court of Appeals notes in this opinion that this case “has a very unusual and convoluted factual situation.” These convoluted and “basically undisputed” facts were as follows. The child was born of one sexual encounter between Mr. Moore (biological father) and Ms. Wilson (mother), which resulted in the birth of the child who was the subject of this litigation. Around the same time, Ms. Wilson began a relationship with Mr. Wilson. Mr. and Ms. Wilson later married, though they were not married when the child was conceived or born. However, Mr. Wilson did administratively legitimate the child.

 

Mr. Moore learned later learned of the child and subsequently filed a Petition for DNA Genetic Paternity Testing and Legitimation. Mr. Wilson intervened, moved to Dismiss Mr. Moore’s petition, and filed his own petition for legitimation. Consent orders were entered between the parties allowing for Mr. Wilson to intervene in the case and ordering DNA testing. DNA testing showed that Mr. Moore was the father. Mr. Wilson then amended his pleadings to add a counterclaim for adoption.

 

The trial court determined that Mr. Moore had not abandoned his opportunity interest and concluded that Mr. Wilson was not the legal father of the child by virtue of marriage, legitimation, or adoption. The Wilsons contend on appeal that the trial court erred by failing to consider the effect of Mr. Wilson’s administrative legitimation on Mr. Moore’s legitimation petition. The Court of appeals agreed, reversed, and remanded with direction that as a threshold matter the trial court must consider any preclusive effect of the preexisting administrative legitimation. The Court included a parenthetical citation to Davis v. Labrec, 274 Ga. 5 (2001) quoting its instruction, “’ we direct the court to determine the crucial issue of whether the delegitimation of the child’s lifelong relationship with [the legal father] is in the best interest of the child….’”

 

Leone v. Griffin

2017 Ga. App. LEXIS 362

August 2, 2017

 

Trial court denied Mr. Leone’s motion for new trial, which he appealed on the basis that the trial court erred in failing to hold a hearing. The court of appeals reversed the trial court, holding as “our Supreme Court has made clear, ‘Uniform Superior Court Rule 6.3 requires a trial court to hold an oral hearing on all motions for new trial in civil cases, unless otherwise specifically ordered by the court,’” and that further if a trial court denies a motion for new trial without holding a hearing, “’the error will not be deemed harmless on appeal.’” Because the trial court had not issued an order excepting the motion for new trial from this requirement and denied the motion without hearing, the court of appeals reversed. 

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Case Law Update, August 28, 2017

Posted By Audrey B. Bergeson, Esq., Monday, August 28, 2017

Hardin v. Hardin

2017 Ga. LEXIS 539

June 19, 2017

 

The Supreme Court analyzed certain disability benefits awarded to Husband during the marriage to determine whether any portion of the same would be subject to equitable division. This case was appealed from the trial court’s grant of partial summary judgment, finding that the insurance proceeds in dispute were awarded solely for pain, suffering, disfigurement, and disability, rather than for lost wages or lost earning capacity.

 

In determining whether the disability benefits awarded during the marriage were a marital asset, the trial court looked to Dees v. Dees, 259 Ga. 177 (1989), which addressed a similar issue concerning workers’ compensation benefits. This analytical approach focuses on the purpose of the award, for example whether the award was designed to address pain and suffering, lost wages, or both. Importantly, this approach applies even if marital funds were used to pay the insurance premiums.

 

Wife contended that the benefits awarded ought to be classified as retirement income, as the parties did not have any retirement account or investment plans. The Supreme Court rejected this assertion, noting that disability benefits that include retirement benefits typically arise from plans that require employees to waive retirement benefits to receive the disability benefits, which was not the case here.

 

While it was undisputed that a portion of the proceeds would have covered lost wages by Husband until the age of retirement, the evidence showed that more than that amount had already been spent during the marriage. Thus, the Court determined that the remainder was not subject to equitable division and affirmed the trial court.

 

Sutherlin v. Sutherlin

2017 Ga. LEXIS 543

June 26, 2017

 

On appeal arising from a post-divorce action for contempt, the Supreme Court affirmed two counts of contempt and reversed another. Husband’s contentions of error with regard to the first two counts of contempt dealt with the trial court’s ability to clarify its order on contempt.

 

The trial court found the Husband in contempt for failing to make timely payments on the mortgage, which was in Wife’s name. Husband argued that he was not in contempt because the final decree required only that he “be solely responsible” for the mortgage payments, not that he make them timely. The Supreme Court found that responsibility to make the payments “clearly encompasses the duty to make payments on time,” and that the trial court did not impermissibly modify the final order on divorce by inferring this duty. 

 

The second finding of contempt arose out of provisions for the equitable division of marital businesses, under which the husband had a period of years to buy out the wife’s interest. During this time, husband was to indemnify wife as to any “corporate income tax liability.” The issue on contempt was whether the husband must indemnify wife relating to payroll tax liability, which the IRS had pursued against wife while she remained a shareholder of the company. The trial court determined that these taxes were included in “corporate income tax liability” and ordered the husband to reimburse the wife accordingly. The Supreme Court in reviewing this decision held that this construction of “corporate tax liability” was a reasonable clarification and permissible in a contempt action. However, the Court cautioned that the agreement “could have been more clearly drafted, and we caution parties to a divorce to ensure that their intentions are plainly expressed.” However, because the language was ambiguous and required clarification the Court found that husband’s refusal to indemnify wife thus far was not a willful violation.

 

The final issue dealt with notice on contempt. At the hearing, the issue was raised for the first time that husband had failed to maintain the wife as the beneficiary of a life insurance policy, which was required until such time as he paid her her interest in a marital business. The trial Court found him in contempt, determining that because this issue was related to the count of contempt dealing with the business, husband had sufficient notice. The Supreme Court affirmed, noting that at the hearing Husband had in fact stated that he had no objection “should the Court find that this life insurance policy plays a role in [this] hearing.”

 

Amayo v. Amayo

2017 Ga. LEXIS 552

June 30, 2017

 

The trial court awarded attorney’s fees to Husband pursuant to O.C.G.A. § 9-15-14, but failed to include findings of fact as to the conduct upon which the order was based. Accordingly the Supreme Court vacated and remanded the award of fees for proper findings of fact.

 

Jewell v. McGinnis

2017 Ga. App. LEXIS 303

June 22, 2017

 

This grandparent custody case had previously appeared before the Court of Appeals at which time the Court directed the trial court to enter a new order which could not include an award of joint custody between a parent and a third party. Nonetheless, the trial court on remand granted primary physical custody to the grandparents in an award of joint custody between the grandparents and the mother. The mother appealed and the Court of Appeals overturned the award of joint custody for the second time. The opinion of the court did not address the mother’s remaining argument.

 

Judge McFadden wrote a special concurrence, arguing that the mother’s remaining arguments should have been addressed. Judge McFadden placed emphasis on the lengthy nature of litigation and the limbo in which the children involved often languish. For this reason, Judge McFadden addressed the trial court’s finding that the child would suffer significant harm if placed in her mother’s custody. Judge McFadden found that the evidence at trial did not support such a finding.

 

Odum v. Russell

2017 Ga. App. LEXIS 294

June 20, 2017

 

This appeal arose out of an action to modify custody. After a hearing, the trial court entered an order which included a finding that no change in circumstances existed which would support a modification of custody. Yet, the trial court modified legal decision making and removed a week of the father’s summer parenting time. The Court of Appeals held that because “the trial court expressly found that there had been no material change in circumstances, the trial court was not authorized to modify the original custody order.” The Court also specifically found that deleting a week of father’s summer parenting time constituted a change in custody and not merely visitation.

 

The Court next addressed attorney’s fees. The trial court awarded fees pursuant to both O.C.G.A. §§ 19-6-2 and 19-9-3. Because the action for modification also included a claim for contempt arising out of the divorce, the award pursuant to § 19-6-2 was upheld. However, the award under § 19-9-3 was vacated and remanded because the Court of Appeals could not discern to what extent this award was tied to the trial court’s erroneous modification of custody. 

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Case Law Update, July 10, 2017

Posted By By Audrey B. Bergeson, Esq., Monday, July 10, 2017

Gibson v. Gibson

2017 Ga. LEXIS 455

June 5, 2017

 

On appeal arising from a divorce action, the wife argued that the trial court improperly excluded $3.2 million in assets from its determination of equitable division of the assets. The Supreme Court affirmed the decision of the trial court to exclude the assets in trust from equitable division, except as to certain brokerage accounts not properly conveyed to the trust.

 

The evidence at trial showed that the relationship of the parties had been rocky for at least half of the twenty years they were married. While the wife threatened divorce often over those ten years, the husband testified that he did not take such threats seriously until the wife did in fact file for divorce in 2014.

 

Several years prior to the wife filing for divorce, in 2008, the husband formed a trust for the benefit of the wife and their daughter, named his mother as trustee, and transferred certain assets to the trust.  The husband created another similar trust in 2012. It was undisputed at trial that the wife was unaware of the trusts or the transfer of assets to the same.

 

The Supreme Court found that the trust would be subject to equitable division only if the wife could show that the transfers were fraudulent. Property conveyed to a third party is not subject to equitable division absent a showing of fraud. An exception does exist if a spouse places property in a trust of which he is the sole beneficiary, in which case the property may be subject to division. However, this exception did not apply here as the husband was not a beneficiary of the trust at all. The Supreme Court held that the trial court’s determination that the transfer was not fraudulent was supported by the evidence. Thus, finding no fraudulent transfer, the trial court was correct in excluding these assets from equitable division.

 

Lastly, two brokerage accounts held by the trust, which the husband had conveyed to the trust, named the husband as trustee. While, the husband presented evidence that this was administrative error and his intent was to transfer these assets to the trust, the Supreme Court was unpersuaded by the husband’s intent argument. Rather, the Court held that the assets had not been properly conveyed and were therefore subject to division, regardless of the husband’s intent to transfer. The Supreme Court remanded with direction for the trial court to reconsider equitable division to include these accounts.

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Case Law Update, May 12, 2017

Posted By Kristyn Girardeau, Wednesday, May 17, 2017

 

 

Case Law Update, May 12, 2017

By Audrey B. Bergeson, Esq.

 

Voyles v. Voyles

2017 Ga. LEXIS 225

April 17, 2017

 

The Georgia Supreme Court dismissed former husband’s appeal by opinion so as to clarify the appropriate determination of discretionary versus direct appeals in domestic cases. The Court specifically stated that for

the clarity of the bench and bar, we now reiterate that the ‘issue-raised-on-appeal’ rule applies to appeals from orders or judgements in child custody cases. This means that the proper appellate procedure to employ depends upon the issue involved in the appeal, even if the order or judgment being challenged on appeal was of the type listed in O.C.G.A. § 5-6-34(a)(11) and was entered in a child custody case.” 

Here, the former husband had appealed the trial court’s order denying his motion to set aside based upon what he alleged was inadequate notice. As the issue of notice is not a child custody issue, despite arising in the context of a child custody case, Husband should have followed the procedures for a discretionary application as set forth in O.C.G.A. § 5-6-34. Because he failed to do so, his appeal was dismissed. 

Merrill v. Lee
2017 Ga. LEXIS 243
April 17, 2017

Merrill and Lee were divorced in 2005. Their settlement agreement provided that a party who unsuccessfully seeks relief in connection with the agreement would be responsible for the defending party’s attorney’s fees. Lee later brought an action for modification of child support. The trial court granted summary judgment to Merrill, finding that Lee had specifically waived his right to seek a downward modification of child support in the Settlement Agreement. Merrill sought fees because Lee had unsuccessfully sought relief in connection with the order. Lee appealed the trial court’s ruling and his appeal was denied. While his appeal was pending, he argued that Merrill was not the prevailing party because of the pending appeal, and the trial court denied Merrill’s request for fees. Merrill then appealed and the Supreme Court reversed the trial Court, noting that Lee had abandoned his argument regarding the pending appeal in both his brief and oral argument. Instead, he relied upon a public policy argument, which the Court found unpersuasive. The Court found that the trial court was without authority to alter the provision of the settlement agreement providing for fees to the prevailing party. Thus, it remanded the case for a determination as to the appropriate amount of attorney’s fees to be awarded to Merrill. 

Wynn v. Craven
2017 Ga. LEXIS 240
April 17, 2017

Pursuant to the final judgement and decree of divorce, the father was to pay to the mother 20% of his weekly income but not less than $100 per week. Mother had accepted $100 per week for 15 years, and sought to recover that specific amount during previous enforcement actions. Nevertheless, in 2014 the mother filed a motion for contempt, having recalculated child support based on 20% of the father’s gross weekly income. She argued in her motion that he was in arrears in excess of $72,000. The father asserted the defense of laches, arguing that the mother had waived her right to accept additional support by both accepting $100 per week for many years and enforcing support in the amount of $100 in previous actions. The trial court agreed and denied the mother’s motion. 

The Supreme Court reversed the trial court, finding explicitly that laches does not apply to child support. Laches applies when it would be inequitable to allow a party to enforce his or her legal rights. However, child support is the right of the child, not the parent. Therefore, laches cannot be applied to child support. The trial court’s ruling amounted to forgiveness of past due support, which constitutes an impermissible retroactive modification. 

Le v. Sherbondy
2017 Ga. LEXIS 242
April 17, 2017

The trial court entered a temporary order in the parties’ pending divorce requiring the husband to pay child support to the mother. The divorce action was later dismissed. The mother brought a contempt action for failure to pay child support under the temporary order. The husband argued that the temporary order was nullified by the dismissal of the divorce action. The trial court denied the petition for contempt, finding that the mother could not file for contempt after the case had been dismissed. The Supreme Court reversed. 

Dismissal of a divorce action does not bar the enforcement of obligations under the temporary order which were owed prior to the dismissal. Therefore, the wife was entitled to seek relief in a contempt action for the husband’s failure to pay child support which accrued prior to the dismissal. 

 

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Case Law Update, March 31, 2017

Posted By Kristyn Girardeau, Friday, March 31, 2017

Case Law Update, March 31, 2017

By Audrey B. Bergeson, Esq.

 

 

Eversole v. Eversole

2017 Ga. LEXIS 87

February 27, 2017

 

Husband and Wife had lived together in Georgia during the marriage, until Husband moved to South Carolina. Within six months of Husband’s move, Wife filed for divorce in Georgia, alleging that personal jurisdiction was proper under the Georgia Long Arm Statute. After several failed attempts at personal service, the trial court granted Wife’s motion to serve Husband by publication. Husband did not file an answer or appear for the final hearing.

 

After the final hearing, but before the entry of the final order, Husband filed an answer wherein he admitted jurisdiction was proper and made no objection as to the sufficiency of service of process. After Father filed his answer, the trial court entered the final order and back-dated it to the date of the hearing. Husband then filed a motion to set aside the final order on the grounds that service was improper and the trial court lacked personal jurisdiction over him. The trial court granted this motion in part and set aside the award of alimony, child support, and attorney fees, finding that it lacked personal jurisdiction to make those awards. Wife appealed.

 

As to the issue of personal jurisdiction under the long-arm statute, the Supreme Court found that the trial court had erred in concluding that service by publication would not confer personal jurisdiction under the Long Arm Statute, which permits the court to “exercise personal jurisdiction over any nonresident, in the same manner as If he were a resident of the state.”

 

With regard to the sufficiency of service, the Supreme Court found that Husband had waived this argument in filing his answer without raising an objection to the sufficiency of service. The trial court, because it had back-dated its final order to a date prior to the filing of Husband’s answer, disregarded Husband’s admissions in his answer. The Supreme Court found this to be error, stating “[w]hile a back-dated order may be used in a divorce action to perfect the record… the entry of such an order does not require or even permit a court to ignore admissions or waiver, at least jurisdictional ones, made in a pleading filed by a party to the action prior to the actual date the final order was executed.” 

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Case Law Update, March 24, 2017

Posted By Kristyn Girardeau, Tuesday, March 28, 2017

Case Law Update, March 24, 2017

By Audrey B. Bergeson, Esq.

 

 

Denney v. Denney

2017 Ga. LEXIS 99

February 27, 2017

 

This case addresses the standard to be applied by the court regarding a name change for a child. The parties were married, but separated prior to the birth of their child. When the child was born, the mother gave the child her maiden name and did not put the father’s name on the birth certificate. The mother filed for divorce and the father was served with the complaint shortly after the child’s birth.

                                            

The parties settled all matters in their divorce except the issues of the child’s name, which was put before the trial court. In ruling on the name change, the trial court held that it was without authority to change the name of the child without the consent of the parties under O.C.G.A. § 19-12-1(c). The father appealed.

 

The Supreme Court disagreed with the trial court, finding that the trial court’s determination that the father was the biological and legal father triggered O.C.G.A. § 31-10-9(e)(3), under which the court had authority to make a finding as to the child’s surname. However, the Supreme Court noted that it “found no authority in Georgia providing the standard by which the court is to make a finding with regard to the child’s surname.” The court noted several cases from other jurisdictions as well as related Georgia cases, which pointed to the best interests of the child as the proper standard. Thus, the Court held that the trial court not only had authority to consider the name change but that in doing so it should apply the “best interest of the child.”

 

Tate v. Tate

2017 Ga. App. LEXIS 67

February 23, 2017

 

At a temporary hearing on a modification action brought by the mother, the trial court switched custody from the father to the mother and terminated the mother’s child support obligation. Several months later, the mother filed for contempt alleging that the father had failed to pay child support. The trial court found the father in contempt, despite there being no order requiring that he pay child support.

 

On appeal, the mother attached to her brief evidence of an agreement regarding child support. The Court of Appeals noted that it would not consider the mother’s evidence attached to her brief, as it was not part of the record. The Court further noted that the authority cited by the mother in support of her position was distinguishable as arising from a motion to enforce, whereas the instant case arises from a finding of contempt.

 

The Court of Appeals reversed the trial court, finding that there was no order requiring father to pay child support and therefore he could not be held in contempt of court.

 

Rasheed v. Sarwat

2017 Ga. LEXIS 97

February 27, 2017

 

After lengthy settlement negotiations and announcements from both parties to the court that the matter had been settled, the parties agreed that counsel for wife would draw up the formal settlement agreement. Unfortunately, disagreements regarding the twenty-page, formal settlement agreement precluded its execution.

 

Wife moved to enforce and, after a hearing on the matter, the trial court entered a two-page order enforcing the agreement and setting out its terms. The husband appealed and the Supreme Court reversed and remanded. The Supreme Court found that based upon the order entered by the trial court, the terms of the divorce agreement appeared incomplete, noting that the trial court’s order “omit[ted] fundamental considerations such as the custody of the minor children.” Thus, the agreement was too incomplete to have been enforced.

 

Lowry v. Winenger

2017 Ga. App. LEXIS 70

February 23, 2017

 

Father filed a petition for modification, which the trial court granted after a hearing that included testimony from a guardian ad litem. The evidence presented showed that mother had moved approximately 50 minutes away from father, with whom she shared physical custody on an approximately equal basis, and attempted to conceal where she and the child resided. The move had also meant a change in school for the child. The mother had additionally converted to Mormonism and had involved the child heavily in the church, over the objection of the father, who had final decision-making over religion. The trial court found that the totality of the evidence supported that a material change in circumstances had occurred and that these changes had resulted in harm to the child. The court granted father’s request and made him the primary physical custodian. The mother appealed.

 

Noting that the standard of review on such a matter is abuse of discretion and that “where there is any evidence to support the trial court’s finding, [the court] will not find there was an abuse,” the Court of Appeals held that the record was sufficient to support the ruling of the trial court. The mother also contended that the trial court had impermissibly considered “potential future negative impacts.” The Court of Appeals found that this contention by mother mischaracterized part of the ruling of the trial court, which the Court of Appeals read as an analysis of the child’s best interest. Accordingly, the Court found no error.

 

Sullivan v. Bunnell et al.

2017 Ga. App. LEXIS 58

February 21, 2017

 

Mr. Bunnell and Ms. Sullivan were formerly husband and wife. Pursuant to the divorce decree, Mr. Bunnell was to submit his monthly pension payment to Ms. Sullivan. Mr. Bunnell’s daughter, who lived in California, actively communicated with her father’s counsel during these negotiations and shortly after the divorce she was given power of attorney by her father, who suffered increasingly from dementia.

 

After her father’s condition worsened, the daughter sent correspondence, through local counsel, to Ms. Sullivan, stating that she would no longer be sending the monthly payments from the pension because her father’s condition required care in an assisted-living facility. Ms. Sullivan filed contempt against Mr. Bunnell and his daughter, both individually and in her capacity as her father’s representative.

 

The daughter moved to dismiss for want of personal jurisdiction or subject matter jurisdiction. The trial court granted the motion to dismiss on both counts and the Court of Appeals reversed as to both.

 

Regarding personal jurisdiction, the court found that the daughter’s engagement of counsel to communicate with Ms. Bunnell as her father’s agent about ceasing the payments satisfied the minimum contacts test and that subjecting her to personal jurisdiction did not offend notions of fairness or substantial justice.

 

As to subject matter jurisdiction, the Court clarified that the relief plead for by the daughter seemed to in fact be a motion to dismiss for failure to state a claim upon which relief could be granted. The court noted that a superior court has subject matter jurisdiction over contempt in a divorce. Thus, the question was whether Ms. Sullivan had a claim against the daughter for contempt of an order to which she was not a party. The court noted caselaw stating that violation of an order by someone who is not a party can be contempt if the “contemnor had actual notice of the order.” The Court therefore found that Ms. Sullivan had put forth sufficient facts such that her case should not have been dismissed for failure to state a claim upon which relief could be granted, and reversed the trial court.

 

Hooper v. Hedgepath

340 Ga. App. 163

February 7, 2017

 

Mr. Hedgepath sent his daughter to live with Ms. Hooper, who at the time believed herself to be the child’s great-aunt, while he sought employment. Shortly thereafter he was incarcerated, and Ms. Hooper ultimately got guardianship from probate court, to which Mr. Hedgepath consented. Ms. Hooper later filed to adopt the child, which Mr. Hedgepath opposed. The trial court declined to terminate his parental rights and denied the adoption.

 

Ms. Hooper appealed, arguing that the trial court erred in applying O.C.G.A. § 19-8-10(b) rather than O.C.G.A. § 19-8-10(a). The Court of Appeals agreed and reversed the trial court.

 

At the hearing, Mr. Hedgepath contested the relationship between Ms. Hooper and the child and the trial court determined that there was not sufficient evidence to prove the familial relationship. Thus O.C.G.A. § 19-8-10(b) was inapplicable, as she was not considered to be a relative. The Court of appeals remanded with instruction to apply the correct standard of O.C.G.A. § 19-8-10(a) as to the issue of terminating the father’s parental rights.

 

Epstiner v. Spears

2017 Ga. App. LEXIS 40

February 10, 2017

 

Spears filed a motion to set aside the trial court’s order on legitimation and custody because it did not accurately reflect the court’s oral ruling. While this inaccuracy was undisputed, Epstiner argued that Spears’ counsel consented to the order and therefore could not seek relief under O.C.G.A. § 19-11-60. Epstiner also contested the new order put in place by the trial court after setting aside the first order, as failing to meet the requirements of O.C.G.A. § 19-9-1.

 

With regard to the first contention by Epstiner, the Court of Appeals noted that despite granting the motion to set aside, the action taken by the trial court was not in fact to set aside the order, because it had left parts of the order intact. However, the Court noted that in construing orders it looks to the substance and function rather than “merely nomenclature.” Accordingly, it determined the trial court’s order to be a permissible modification under O.C.G.A. § 19-9-3, because the modifications affected visitation which may be reviewed and modified at any time. Thus, the court affirmed the trial court’s entry of the new order.

 

However, the Court of Appeals agreed with Epstiner that the order failed to meet the statutory requirements of O.C.G.A. § 19-9-1. The order plainly left out many of the required findings and was therefore vacated by the Court and remanded for the entry of an order in compliance with O.C.G.A. § 19-9-1. 

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Kurt Kegel Memorial Scholarship - Accepting Applications Until April 14

Posted By Kristyn Girardeau, Tuesday, March 21, 2017

The Atlanta Bar Association Family Law Section is proud to announce the Kurt Kegel Memorial Scholarship.  Kurt Kegel was a family law practitioner and a former ABA Family Law Section Chair who passed away in April 2016. The purpose of the scholarship is to allow an attorney in practice less than three years to attend the annual Family Law Institute on May 18, 2017 – May 20, 2017. The scholarship will cover full tuition to the FLI and room and board for the conference.  Room and board will be covered up to $1,500.00 by the scholarship.

 

The deadline to apply is Friday April 14, 2017 at 5:00 p.m.  If you have any questions about the application, please call Eileen J. Shuman at (770) 790-3700 or email at eileen@shumanfamilylaw.com.   

 

Application attached. 

Download File (PDF)

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March 2017 Case Law Update

Posted By Kristyn Girardeau, Friday, March 3, 2017

Case Law Update, March 3, 2017

By Audrey B. Bergeson, Esq.

 

Rollins v. Rollins  

2017 Ga. LEXIS 43

February 6, 2017

 

As part of the parties’ divorce, they agreed to submit the division of furniture to arbitration. Following arbitration, Mr. Rollins filed for contempt against Ms. Rollins, as many of the items awarded to him had gone missing. The court found her in contempt and ordered her to show cause as to why she should not be incarcerated. Ms. Rollins appealed the order, both directly, and through a discretionary application for review. Her discretionary application was denied. Subsequently, at the show-cause hearing, the court entered a final order on contempt, ordering Ms. Rollins to pay for the missing property as well as fining her for 34 instances of contempt. Ms. Rollins appealed this order as well.

 

In ruling on the appeal that arose from the second order on contempt, the Supreme Court found that the trial court lacked jurisdiction to enter the second order and vacated the same. Because Ms. Rollins’ initial discretionary application was denied and her direct appeal was improper, the trial court determined that it had retained jurisdiction. The Supreme Court held that even when an appeal is improper, the notice of appeal acts as supersedeas until such time as the appellate court dismisses the appeal.

 

 

Stanford v. Pogue

2017 Ga. App. LEXIS 13

January 20, 2017

 

Following a 2009 legitimation and custody action, the parties entered into a consent order on contempt in 2015, modifying father’s visitation. Father subsequently filed a motion for contempt in 2016, for mother’s failure to comply with the consent order. After a hearing on contempt, the trial court modified visitation such that father picked the child up from school, rather than the mother. The trial court further ordered the mother jailed for 20 days “in order to purge herself of her willful contempt.”

 

Mother appealed arguing (1) that the trial court lacked authority to modifiy visitation within a year of the consent order and without further findings of fact, and (2) that the court erred in imposing unconditional incarceration. The Court of Appeals affirmed the trial court as to both.

 

Regarding the modification of visitation, the Court referred to O.C.G.A. § 19-9-3(b), which authorizes the court to modify visitation in a contempt action. The Court further found that because a contempt proceeding is “ancillary to a pending case,” no findings of fact were required.

 

As to the order of incarceration for a period of 20 days, the Court determined that though the trial court had not specified whether it was criminal or civil, the intent of the order made clear that it was penal and therefore criminal. As 20 days is the maximum period allowed and conditions for incarceration are only required when the incarceration is civil in nature, the trial court did not err. While the words “to purge herself of her willful contempt,” lend themselves to civil contempt, the inclusion of the same did not necessarily render the contempt civil. Finally, the Court rejected that argument that Easley required that the penalty for violating visitation provisions must be civil contempt.

 

Albritton v. Kopp

2017 Ga. LEXIS 51

February 6, 2017

 

The settlement agreement of the parties included standard language as to the duration of child support with the addition of the sentence, “[t]his is conditional upon the child being enrolled or registered as a full-time high school student for the regular high school year.” Due to the child’s learning disabilities, she returned to high school for a 5th year to complete necessary credits for graduation. The father ceased paying child support, contending that the daughter was not enrolled in sufficient courses to be a “full-time” student. The mother filed for contempt.

 

The trial court declined to find the father in contempt, determining that the child was not enrolled “full-time.” The mother appealed and the Supreme Court reversed.

 

Reviewing the case de novo, the Court pointed out that the Settlement Agreement did not define the term full-time student. The Court noted that it had in previous cases defined “full-time” student to mean “continuous attendance during the normal school year.” The Court found that in defining the term to mean seven instructional segments per day, the trial court had in effect modified the settlement agreement, rather than simply clarifying it. Accordingly, the Court reversed the judgment of the trial court. 

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February 2017 Case Law Update

Posted By Kristyn Girardeau, Friday, February 3, 2017

Brown v. Brown

2017 Ga. LEXIS 2

January 23, 2017

http://opinions.dailyreportonline.com/singleOpin.asp?l=100226500287

 

 

Former wife filed an action for contempt the former husband. The Court noted that the parties represented themselves during the divorce and filed a form settlement agreement that was not thoroughly completed. In addition to the filed settlement agreement, the record also contained an unsigned document, drafted by the former husband, which stated that the parties wished not to sell the marital home until the economy improved, that the wife would occupy it, and noting that the amount of the alimony and child support were sufficient to cover the monthly payment on the mortgage. The final decree did not reference or incorporate the document.

 

After the divorce, the husband began making the support payments by depositing money into a joint account, which both parties could access. Husband also used this account to pay the mortgage during the marriage, but ceased making payments once the divorce was filed. Subsequently the bank foreclosed on the home.

 

The former wife filed contempt, alleging that her former husband was required to make the alimony and child support payments directly to her, rather than to the joint account and for failure to pay the mortgage. The trial court held that he was not in contempt, as the decree contained no requirement that the payments be made directly or that he pay the mortgage on the home. In addition, the trial court terminated husband’s child support obligation, as the minor child was now living with him.

 

The Supreme Court found that the trial court did not abuse its discretion in declining to find the former husband in contempt, given the facts in evidence. However, the Court reversed the trial court’s termination of husband’s child support obligation, reiterating that a divorce decree cannot be modified in contempt, citing Pollard v. Pollard, 297 Ga. 21, 22 (2015).

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