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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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