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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.

 

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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Case Law Update 2017

Posted By Kristyn Girardeau, Friday, January 6, 2017

Case Law Update

By Audrey B. Bergeson, Esq.

 

This year the Family Law Section will be bringing you regular case law updates, which you can find here on the blog. Check back often for summaries of the most recently published family law cases.

 

Allen v. McGuire

339 Ga. App. 219

October 28, 2016

http://opinions.dailyreportonline.com/singleOpin.asp?l=100236307107&searchKeywords=mcguire

McGuire, the mother, filed an action for modification of custody of custody in the Superior Court of Fulton County. Allen, the father, counterclaimed for modification of custody, and the Court ultimately awarded him primary physical custody. Thereafter, the mother filed a motion for new trial, asserting that the father’s counterclaim for change in custody was improper, and the trial court granted said motion, finding that it lacked jurisdiction on the father’s claim, which should have been brought as a separate action against the mother in her county of residence.

 

The father filed a separate action in DeKalb County, mother’s county of residence, along with a motion to transfer to Fulton County. The motion to transfer was denied.

 

Subsequently, the Fulton County Superior Court issued its ruling in the new trial in the mother’s action, finding that a change in circumstances existed, such that the current parenting plan was no longer in the child’s best interest, but that awarding primary custody to the mother would not resolve that issue.

 

The father filed a motion for partial summary judgment in the DeKalb case, contending that he was entitled to primary physical custody, based on the findings in the Fulton case, which was denied. The Court of Appeals did not find error, explaining that the mother made a sufficient showing that additional information existed since the conclusion of the Fulton case, creating a genuine issue of material fact. Accordingly, summary judgment was not appropriate.

 

Father’s second enumeration arises from the trial court’s ruling on his motion in limine, in which he sought to establish that evidence at trial, as to material change in circumstance, would include evidence going back to the entry of the divorce decree. The trial court disagreed, limiting evidence at trial to facts after the conclusion of the Fulton case. The appellate court found this to be error, as material changes in circumstances are to be assessed from the time of the most recent custody award, and the Fulton case did not result in a custody award.

 

Russell v. Sparmer

339 Ga. App. 207

October 28, 2016

http://opinions.dailyreportonline.com/singleOpin.asp?l=100236306187&searchKeywords=sparmer

Russell filed for divorce, among other claims, against Sparmer, to whom she was married in an un-officiated ceremony in Greece. Sparmer filed for partial summary judgment as to the issue of divorce, asserting that the parties had never been legally married. The trial court granted Sparmer’s motion and awarded attorney’s fees under O.C.G.A. § 9-15-14.

 

On appeal, the Court of Appeals held that these were insufficient grounds for an award under 9-15-14. The court underlined that the “mere fact that Sparmer received summary judgment on the divorce claim, without more, will not support an attorney fees award.” The appellate court discussed the specific requirements for a marriage to be considered legal, along with the ambiguities. The Court found that in light of the particular facts of the case, the claim for divorce was not frivolous nor did it lack a justiciable issue of law. Accordingly, the Court held that an order for fees under O.C.G.A. § 9-15-14 was not supported.

 

Hulsey v. Hulsey

Supreme Court of Georgia

October 31, 2016

http://opinions.dailyreportonline.com/singleOpin.asp?l=100236300167&searchKeywords=hulsey#

The father alleged that the trial court erred on two grounds: 1) by awarding the mother the ability to claim their three children as dependents on her tax returns in alternating years; and 2) by improperly calculating child support, attributing him income when he was unemployed.

 

As to his first enumeration, the Supreme Court held that the trial court erred in awarding the mother the ability to claim the children on her tax returns in alternating years. The Court reiterated that it, “is well-established that Georgia courts do not have the authority to award the federal income tax dependency exemption to a non-custodial parent.”

 

The Supreme Court also found error as to the father’s second enumeration, vacating the child support award and remanding for reconsideration. It was undisputed at trial that Father had retired and had no income. However, the trial court attributed income to Father, listing the same as “salary and wages” on the worksheet. Had the trial court intended to impute income, it would have had to designate it as such on the worksheet.

 

Wright v. Wright

Supreme Court of Georgia

November 7, 2016

http://opinions.dailyreportonline.com/singleOpin.asp?l=100236303197&searchKeywords=wright

The Supreme Court notes at the outset that the appellant is both pro se and incarcerated, giving way to complicated procedural history and two separate appeals which are ruled on in this case.

 

With regard to the first appeal, the trial court had “dismissed” the husband’s appeal for failure to file a timely notice of appeal. The Supreme Court held that while the notice was premature, having been filed before his application was granted, it was nonetheless timely. Furthermore, the trial court lacked jurisdiction to dismiss the appeal, as only the Supreme Court has such authority.

 

Regarding the second appeal, the husband argued that he was not provided a copy of the final judgment on the 2010 divorce until 2014. The husband moved to set aside the judgment for failure to notify him of the judgment. The trial Court denied the same. The Supreme Court, in a previous appeal, had vacated the order and remanded for findings of fact as to whether notice of the judgment was given. However, the trial court entered yet another order without such findings. Instead the trial court noted that the it was the usual practices of the wife’s attorney to serve both parties and there was no indication that that had not occurred in this case. The Supreme Court held that this was error, as O.C.G.A. § 15-6-21 imposes a duty on the trial court to provide notice of judgments to the parties and the trial court had failed to make findings as to whether this duty was performed.

 

Marks v. Soles

Court of Appeals of Georgia

November 10, 2016

http://opinions.dailyreportonline.com/singleOpin.asp?l=100236403157&searchKeywords=wright

 

There are two underlying custody determinations in this case, relating to three siblings. Marks is the mother of the three children, two of whom are the children of Soles. The third child is the biological child of Brad Lane. While Marks initially had primary physical custody of all three children, they were removed from her home, and she was arrested for cruelty to children relating to the conditions of her home. Both fathers moved for primary physical custody of their respective children. The court granted each primary physical custody on an ex parte basis and later consolidated the cases. The court also suspended each father’s child support obligation and entered an order requiring Marks to pay retroactive child support.  Marks had previously filed a garnishment action against Soles for child support, and Soles had filed a traverse to that garnishment.

 

Marks filed her own ex parte petition for modification of custody, which was followed by a motion to intervene by the third child’s grandparents. The court held a hearing on this motion at which time all counsel agreed that the facts from each case were interwoven and that evidence from one might bleed into the next.

 

The trial court subsequently entered two orders. The first order included a parenting plan for the third child only, awarding joint legal custody to Marks, Lane, and the paternal grandparents with primary physical custody to the grandparents. The second order awarded joint legal and physical custody to Marks and Soles. The second order also referred the parenting plan of the first and found that that parenting plan was approved as to the first two children as well.

 

Marks first asserts error as to the consideration of evidence on final issues, which had been submitted in the temporary hearing, citing Pace v. Pace. The Court of Appeals found that the record did not support Marks’s contention that evidence was improperly considered or that the trial court failed to give notice, noting Marks’s failure to object when the trial court discussed that the many matters bled together and had overlapping evidence.

 

Marks next alleges error with regard to the award of joint legal custody to a third party. The Court of Appeals agreed, reiterating that Stone v. Stone, 297 Ga. 451 (2015) emphasized that third parties could not be awarded joint custody. Absent a finding that both parents are unfit, the trial court lacked authority to award legal or physical custody to a third party, and said portion of the order was vacated and remanded.

 

Marks also asserts error as to the trial court’s incorporation of the parenting plan for the third child as the parenting plan for the first and second child. Because said parenting plan was “erroneous on its face” for awarding joint legal and physical custody to a third party, it was error to incorporate that plan in the order regarding the first two children. The Court further remanded with instructions to the trial court to enter at least two parenting plans, one for the first two children and one for the third.

 

Lastly, Marks asserted that Soles’s traverse was not timely filed. The Court disagreed, as the statute limiting the time for response had not come into effect until May of 2016, and therefore, did not apply. However, the trial court did err in applying retroactive child support to Marks, citing O.C.G.A. § 19-6-15(k)(4), which provides that “’[a] child support judgment cannot be modified retroactively.’” The Court of Appeals further found that the trial court had failed to use the child support guidelines as to the first two children, which was legal error.

 

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Case Law Update

Posted By Stephanie L. Wilson, Esq., and Corey A. Aitken, Esq., Stern & Edlin, P.C., Thursday, March 20, 2014
Sapp v. Sapp
S13F1749
January 21, 2014

Husband and Wife were divorced by a decree, requiring them to sell their marital home. Additionally, the decree provided that in the event the parties were unable to agree upon a list price, the court would set the price at a later date. 

Wife sought to appeal the divorce decree by filing an application for discretionary appeal. However, the Supreme Court dismissed the application, concluding that the divorce decree entered by the lower court was not final, as it reserved an issue to be determined at a later date (i.e. the list price of the marital residence). Therefore, Wife needed to have filed a certificate of immediate review, under O.C.G.A. § 5-6-34(b), which governs interlocutory appeals. 

Tags:  case  decree  divorce  law  sapp 

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The Honorable Robert E. Flournoy, III speaks at the December 2013 Breakfast

Posted By Emily Su-Hwa Yu, Esq., Hunter, Weinstein & Somerstein, LLC , Thursday, March 20, 2014
On December 12, 2013, Judge Robert E. Flournoy, III spoke to the Atlanta Bar Family Law Section. Judge Flournoy obtained both his undergraduate degree and law degrees from the University of Georgia. Prior to taking the bench with the Superior Court of Cobb County, Judge Flournoy was in private practice handling a wide range of civil and criminal matters with a focus on family law. In 2000, Judge Flournoy was appointed by Governor Barnes to fill a judgeship position in the Superior Court of Cobb County. When speaking to the Atlanta Bar Family Law Section, Judge Flournoy discussed some tips and take-home lessons to practitioners after presiding over three jury trials.

Tags:  breakfast  family  flournoy  law  section 

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