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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



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

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

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

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

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


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
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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