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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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