Appellant held title to real property that was deemed subject to equitable division in the divorce of her son from his wife.
The couple was married in 1978. Appellant acquired a home in 1991 and allowed the couple to live there. In 1996, Appellant deeded to the property to her son individually, as a gift. In March 2005, the son was facing financial difficulty and transferred the property back to Appellant. Wife filed for divorce in October 2005.
Wife amended her divorce complaint to include Appellant as an additional defendant, sought to enjoin Appellant from selling the property, and sought to have the deed from her husband to Appellant set aside. The trial court then ordered the home to be sold and proceeds placed in escrow. The home sale resulted in $68,873.58 being placed in escrow.
On the first day of trial, Wife told the court that she was not going to pursue the fraudulent conveyance issue. No jury instructions were given regarding the issue of fraudulent conveyance.
The trial court did instruct the jury that the proceeds of the sale were a marital asset, and the jury awarded Wife $41,500 from the proceeds.
Appellant contends that there was no evidence that the property was a marital asset, and that the trial court erred in denying her motions for relief (motions for directed verdict, judgment notwithstanding the verdict, and new trial) and in instructing the jury regarding the equitable division of the property. The Supreme Court agreed with Appellant.
The Supreme Court noted that at the time of the divorce, the real estate was not the separate property of Husband; He had transferred the property to Appellant prior to Wife filing for divorce.
Wife chose not to pursue a fraudulent conveyance claim, and she cited no case law in which the court has recognized a right to pursue the equitable division of property title in a person other than one of the spouses, without title to that property first being brought into the estate of one of the divorcing parties by the determination of a fraudulent conveyance has occurred.
The Supreme Court explained that the law of contracts and titles is respected in divorce cases, and because Wife chose to abandon the avenue of a fraudulent conveyance claim, there was no basis for her claim upon Appellant’s property in the divorce action.
Tyler C. Dixon for appellant
Nicholas E. Bakatsas for appellee
Donald R. Donovan for appellee
Cobb Superior Court; Kenneth O. Nix
Autrey v. Autrey, S10F1806
Child Custody, Child Support
Final decree awarded primary physical custody to Wife, ordered Husband to pay child support based on Husband’s income of $12,500.
Wife filed in Gwinnett in October 2008, Husband served two days later at marital residence in Gwinnet, where parties had lived for 20 years. Husband asserted his domicile and primary residence was in Cobb, where he had rented an apartment since May 2008. Husband obtained new driver’s license and voting registration card in Cobb County in August 2008. Water and utilities were not turned on at Cobb County apartment until just prior to filing of divorce action in October.
Trial court found Husband’s residence to be in Gwinnett during six months prior to filing, based on evidence he continued to reside there and maintained possessions there until served. Supreme Court will not overturn finding of fact as to residence if there is “any evidence” to support it.
Husband claimed trial court’s finding that his monthly income was $12,500 was erroneous. Supreme Court will not disturb factual findings unless clearly erroneous, and will give due deference to trial court’s judgment of credibility of witnesses. Evidence of earnings (including Husband’s own DRFA showing $150,000 annual income), showed trial court’s findings were not clearly erroneous and were “within the range of evidence provided to the trial court.”
Trial court had authority to make an upward deviation in child support by $907.91 for extraordinary educational, medical, and extracurricular needs. Trial court also showed how presumptive amount would be unjust and deviation served children’s best interest.
No “clear abuse of discretion” in trial court’s award of primary physical custody to Wife.
Bailey v. Kunz, A10A1809
Grandparents’ Visitation Rights
Appellants appeal from the denial of their motion to dismiss a petition, filed by Appellees, for grandparent visitation of the Appellants’ minor child.
Appellant Carrie Jean Bailey was married to and conceived a child with the son of Appellees Robert and Royce Kunze. While she was pregnant, the couple divorced. Thereafter, she married another man, Appellant Douglas Bailey.
In 2006, the biological father of the minor child surrendered his parental rights and Douglas Bailey adopted the child.
In October 2009, after a dispute arose over ongoing grandparent visitation, the Kunzes filed a petition for the visitation of the minor child.
The Baileys moved to dismiss the petition because of the adoption and the biological father’s surrender of his parental rights, contending that such a petition was not authorized because the Baileys were the legal parents and lived together with the minor child.
Pursuant to OCGA § 19-7-3(b), a grandparent does not have the right to file an original action for visitation rights where the parents of the minor child are not separated and the child is living with both parents.
The Baileys argue that the trial court erred by not treating Douglas as a “parent” for purposes of the language above.
The core question on appeal is whether Douglas is a “parent” within the meaning of the limiting language in the statute, or whether the term is limited to “natural” or “biological” parents.
Although the word “parent” is undefined in OCGA § 19-7-3, the adoption statute (OCGA § 19-8-18) defines the word parent to include the “legal father” of a child. As stated in OCGA § 19-8-18, an adopted child is “a stranger to his former relatives for all purposes, including…interpretation or construction of…statutes.”
The Court of Appeals declined to ignore the adoption statute’s definition of parent in construing OCGA § 19-7-3, and held that the limiting language of the statute – forbidding original actions for grandparent visitation if the parents are together and living with the child – includes adoptive parents. Thus, the trial court erred by interpreting the word “parent” to include only biological parents.
Therefore, the Appellees’ original petition was not authorized, and the trial court’s denial of the motion to dismiss is reversed.
Jonathan R. Levine for appellant
Paul J. Coburn for appellant
Jennifer McLeod for appellee
Douglas Superior Court; Judge Robert J. James
Baker v. Lankford, A10A1211
Legitimation, Parental Rights
Wife gave birth to a son while married to Husband. Husband was listed on the birth certificate and believed he was the child’s biological father.
Wife later told Husband that he was not the child’s biological father. Wife then moved out of the marital home. Husband paid child support and filed for divorce.
While the divorce was pending, the biological father filed a petition for legitimation, custody, and visitation. Wife consented to the legitimation, but Husband filed a motion to intervene and to dismiss the legitimation proceeding.
While Husband’s motion to intervene was pending, the trial court granted the legitimation petition, and then denied Husband’s motion.
Husband appealed and contended that the trial court erred in denying his motion to intervene. The Court of Appeals agreed and reversed.
The requirements to intervene pursuant to O.C.G.A. 9-11-24 are threefold: interest, impairment resulting from an unfavorable disposition, and inadequate representation.
The Court of Appeals explained that Husband clearly had an interest as he was the child’s legal father. A child’s legal father is defined as the man who was married to the child’s biological mother at the time the child was conceived or born, unless such paternity was disproved by a final order.
The Georgia Supreme Court (In re White) has made clear that there can be no doubt that a man married to a woman at the time of conception or birth is a party in interest when another man claims fatherhood of the child in a legitimation proceeding.
Additionally, the Court of Appeals explained that a man has no absolute right to the grant of his petition to legitimate a child simply because he is the biological father.
The Court of Appeals held that Husband’s interest as the child’s legal father would be impaired by a decision of the trial court that was unfavorable to him, and his interest was not adequately represented by the parties to the action.
Bruce F. Morriss and Daniel Shim for appellant
Denise D. VanLunduyt for appellee
Alison K. Arce for appellee
DeKalb Superior Court; Judge Linda Hunter
Bellew v. Larese, S10A1334
Child Custody, Foreign Judgment
The parties were married in Italy. Mother is an Italian national and Father is a U.S. citizen. The couple has a minor child who was born in Italy, and who has dual Italian and U.S. citizenship.
In May of 2007, Mother left with the child for Italy for a summer vacation. On August 1, 2007, she filed for divorce and custody proceedings in the Tribunale di Firenze, a court of general jurisdiction in Italy.
Father filed for divorce on September 17, 2007 in the Superior Court of Athens-Clarke County (“trial court”). Service was effected by publication, and on November 15, 2007 Mother entered a special appearance.
On November 27, 2007 the trial court conducted a hearing and entered a temporary order granting sole legal and physical custody of the child to Father; however, the child remained in Italy.
The Tribunale di Firenze (“Italian Court”) also conducted a hearing, at which Father did not appear, and entered an order on February 29, 2008 exercising jurisdiction over the divorce and granting exclusive custody to Mother with Father having visitation.
Mother moved to stay the trial court’s proceedings and for the trial court to communicate with the Italian Court, asserting that such was required by the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) (OCGA § 19-9-40, et seq.).
On January 7, 2010, the trial court issued an order dismissing Father’s complaint, stating that the Italian Court is the proper forum for this action based upon the provisions of the UCCJEA.
Father appeals and contends that the trial court erred in determining the jurisdictional issue under the UCCJEA.
OCGA § 19-9-61(a)(1) provides that a court has jurisdiction to make an initial child custody determination only if the court’s state “is the home state of the child on the date of the commencement of the proceedings, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.”
However, a court of this state may not exercise its jurisdiction under the foregoing statute if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this article. OCGA § 19-9-66(a).
Under the UCCJEA a foreign nation is treated in the same manner as would be a sister state of the United States. OCGA § 19-9-44.
The question then is whether the expression of jurisdiction by the Italian court was done in substantial compliance with the UCCJEA.
Under the UCCJEA, a court’s subject matter jurisdiction to make an initial custody determination is heavily dependent on the question of whether the court is of a state that is the child’s “home state.”
“Home state” is defined under the UCCJEA as “the state in which a child lived with a parent or person acting as a parent for at least consecutive months immediately before the commencement of a child custody proceeding…a period of temporary absence of any of the mentioned persons is part of that period.”
Here, Georgia is the only state that can qualify as the “home state” of the child. Accordingly, the trial court had jurisdiction to make the initial custody determination under the UCCJEA, and the Italian Court did not.
Mother contends that the trial court still could not have exercised jurisdiction because although Italy had not adopted the UCCJEA, the expression of jurisdiction by the UCCJEA was “in substantial conformity with” the UCCJEA.
The Supreme Court determined that is not the case. Specifically, the Italian Court undertook no analysis of the home state of the child, or any other factors that could be considered a substitute for such. Thus, under the UCCJEA, the jurisdictional inquiry entered into by the Italian Court must be deemed insufficient.
The Supreme Court further explained that if it were to find the jurisdictional finding by the Italian Court sufficient under the UCCJEA, it would render meaningless the statutory requirement that a court of this state defer to the court of another state only if that court had “jurisdiction substantially in conformity” with the UCCJEA. Such a finding would also allow the kind of forum shopping the UCCJEA seeks to prevent.
Regina M. Quick for appellant
Christopher T. Anderson for appellee
Clarke Superior Court; Judge Lawton E. Stephens
Boddie v. Daniels, S10A1821
Child Custody, Temporary Guardianship
In order to deny a Mother’s petition to terminate temporary guardianship of her daughter, court must find by clear and convincing evidence that termination of temporary guardianship would harm the child.
Clark v. Wade, 273 Ga. 587 (2001) interprets O.C.G.A. § 29-2-8(b) and states that a third party must prove clear and convincing evidence that child will suffer physical or emotion harm if custody awarded to biological parent.
This ‘best interest standard’ is constitutional.
‘Harm’ means physical or significant, long-term emotional harm, not merely social or economic disadvantage.
Brooker v. Brown, A10A1585
Child Custody, Modifcation
Trial court properly denied petition to modify custody and child support.
Evidence was not sufficient to find that defendant, the primary custodian, was negligent in caring for the child or deficient in meeting child’s medical needs.
Trial court did not err in declining to strike defendant’s testimony on the grounds that she was guilty of false swearing, as there was no evidence that defendant acted with manifest purpose to testify falsely.
Carroll v. Carroll, A10A2332
Child Custody, Modifcation
Following a final hearing in a custody modification action, the trial court awarded primary physical custody of the three minor children to their father.
The mother appealed, claiming the trial court committed harmful error in reviewing testimony previously submitted by affidavit. The parties submitted affidavits in anticipation of a temporary hearing which was subsequently cancelled.
The mother claims that the trial court improperly considered the affidavits, which were not admitted into evidence at the final hearing, for purposes of its final order.
The Court of Appeals agreed that the affidavits submitted in anticipation of a temporary hearing did not upon their filing constitute evidence for purposes of the final hearing.
The Court of Appeals also agreed that the trial court was required to rule on the evidence presented at the final hearing, and not on knowledge gleaned from affidavits that were not admitted into evidence.
Despite the mother’s arguments, however, she failed to show that the trial court used the affidavits for an improper purpose. She failed to show that the trial court either considered the affidavits to be evidence, or relied on them in reaching its final decision. Further, she failed to show that the testimony of the numerous witnesses presented at the final hearing was insufficient to support the trial court’s findings.
As such, the Court of Appeals did not find error with the trial court’s decision. Specifically, the Court of Appeals explained that it would not assume that the judge considered anything outside of the evidence in rendering his judgment. That the trial court prepared for the hearing by reading the case file is not error.
Parties were divorced in Louisiana, a community property state. After moving to Georgia 12 years later, Wife attempted to domesticate the decree and implement a constructive trust on her interest in Husband’s military retirement benefits. Court of Appeals transferred the case to the Supreme Court based on SC’s jurisdiction over all divorce and alimony cases, and all equity cases. Supreme Court disagreed and held it was not a divorce, alimony, equity, or title-to-land case over which the SC would have jurisdiction, and sent it back to the CoA.
The divorce decree did not partition the marital estate, so under Louisiana law, the parties each had an undivided half interest in the property, like tenants in common. Therefore, allocation of the retirement benefits property was governed by property law, not the divorce decree. Wallack v. Wallack 211 Ga. 745 (1955) allows equitable partition of personal property where divorce decree did not divide the community property.
A suit to domesticate a foreign divorce decree is not a divorce/alimony case in Georgia. Lewis v. Robinson, 254 Ga. 378 (1985).
Retirement benefits are personal property, not real property, so SC had no title to land jurisdiction.
Also not an equity case. While a constructive trust has been described as an equitable remedy to prevent unjust enrichment, imposition of an implied or constructive trust as an equitable remedy does not automatically trigger SC’s equity jurisdiction. Reeves v. Newman, 287 Ga. 317 (2010). Actions to partition personal property are also not generally equity cases.
Where issues are legal and do not relate to propriety of constructive trust, jurisdiction is with CoA.
DeRyke v. Teets, S10A0710
Divorce, Settlement Agreement
Husband and Wife entered into a settlement agreement which provided that each party waived all of his or her right, title, and interest in and to, among other things, employment benefit plans.
The settlement agreement was incorporated into their final judgment and decree of divorce which was entered on September 25, 2008.
Five days after the divorce, Wife committed suicide, and died intestate.
Husband then made a claim for Wife’s benefits by filling out a beneficiary claim form with her former employer. Wife’s father, on behalf of Wife’s estate, also made a claim for those same benefits.
The insurance company denied the father’s claim because Husband was the named beneficiary of record. Husband filed a declaratory action against the father, as estate administrator, in the Northern District of GA, seeking declarations that Husband be permitted to obtain and retain all of these benefits.
The father then filed this state court action, an application for citation of contempt, against Husband asserting that Husband had unambiguously waived his right to retain any of Wife’s benefits by virtue of the settlement agreement, and that he violated the final decree by making a claim for the benefits and by failing to execute the instruments necessary to give full force to the settlement agreement.
The trial court found that the settlement agreement was unambiguous and that Wife had the opportunity to change the employee benefit designation form but did not do so, and there was no evidence to show that she did not intend to confer the benefits upon Husband, and therefore, there was no willful violation for the agreement for which Husband could be held in contempt.
The Supreme Court reversed, however, and held that the settlement agreement provisions unambiguously expressed the intent of the parties that the beneficiary spouse is releasing any and all interest in the benefits at the time of divorce, and as such the agreement operated as a complete waiver of the Husband’s beneficiary designation.
Even though Wife never changed the beneficiary status, this Court held that there was no affirmative act by Wife so as to constitute an attempt to counter or override the relinquishment of rights or claims under the settlement agreement.
The Supreme Court explained that there was only approximately a month’s time between Husband’s filing for divorce/execution of the settlement agreement and the granting of divorce, and less than a week after the divorce when Wife took her own life.
The Supreme Court further noted that the opportunity to make the beneficiary change was severely limited, and speculation of motivation for the failure to act cannot and should not substitute for concrete action on the part of the Wife.
Jordan J. Hendrick for appellant
Mary A. Stearns-Montgomery for appellant
Jason S. Adler for appellee
Robert J. Kaufman for appellee
Vito S. I. Loiacono for appellee
Fulton Superior Court; Judge Gail S. Tusan
Galvin v. Galvin, S10A1104
Child Custody, Child Support, Modifcation
Father petitioned for modification of custody and child support based on being unemployed.
Downward modification of support that is retroactive to the date Father sought modification was not required, as Father only sought downward modification, and thus O.C.G.A. § 19-6-15(j) did not apply to keep child support from accruing.
Trial court correctly imputed income to father, despite his involuntary unemployment, because evidence showed he was unemployed for a prolonged period of time, and he did not make significant efforts to gain employment.
Trial court correctly declined to make a downward modification of Father’s obligation regarding child’s medical and dental expenses, as trial courts are not required to allocate the parties’ share of health care expenses at the same rate as their share of child support awards.
Trial court need not address Father’s visitation suggestions when there is no evidence of material change in circumstances warranting modification of current custodial agreement.
Gonzalez v. Crocket, S10A0452
Settlement Agreement
Trial court did not err in clarifying that the “marital residence” described in the parties’ decree only described the marital home and the 5 acre tract it sat on, and not the surrounding 21.9 acre tract.
Husband misplaces reliance on Court’s holding in Messaadi v. Messaadi, 282 Ga. 126, 646 S.E.2d 230 (2007).
Court explains that the fact that adjacent lot in Messaadi has a separate address, and was not embraced by an award of the “marital residence located at “ a stated address, does not mean that use of the term “marital residence” in concert with a specific address will necessarily embrace a separate lot when there is not a separate address.
Court stated that Husband’s own acts show he considered marital residence to encompass only the 5 acre property.
Court considered that the parties paid separate taxes on the 5 acre parcel and 21.9 acre parcel, that the parties made payment to relieve debt on the 5 acre parcel only, and that pursuant to the settlement agreement which required Husband to refinance the marital residence in Husband’s name only, Husband refinanced only the 5 acre tract.
Greene v. Greene, A10A1463-A10A1464
Child Custody, Settlement Agreement
These appeals arise from Wife’s motion for contempt against Husband for violating the terms of their Settlement Agreement.
Husband’s appeal (A10A1463) concerns two related enumerations of error.
First, Husband argued that the trial court erred when it found him in contempt of a provision in the Settlement Agreement that gave Wife final decision making authority on religious matters. He claimed that the court’s ruling restricted his freedom to share his religious beliefs with his child and was overly broad.
The parties have one daughter. Wife is Jewish and Husband is Christian.
Husband acknowledged that he had agreed that the child would be raised in the Jewish faith. However, Husband admitted to, among other things, taking the child to numerous Christian churches, reading the bible to the child, and teaching the Child about the Christian faith. Husband also admitted to having referred to Wife’s parents by numbers, but denied he was referring to the Holocaust.
The Court of Appeals held that the Settlement Agreement was clear, and that the trial court did not abuse its discretion in finding the Husband in contempt based on the actions to which he testified. The court also noted that even in the absence of an agreement, the custodial parent has the authority to determine religious training.
In Husband’s second enumeration of error, he argued that the trial court’s order must be reversed because the provisions under which he could purge himself of the contempt were stated in the negative, which rendered them unclear and indefinite.
The Court of Appeals held that his argument lacked merit, as the directions to Husband were sufficiently clear and certain.
Wife appealed (A10A1464) on the ground that the trial court erred when it failed to find Husband in willful contempt for violating a provision in the Settlement Agreement which ordered that the parties be restrained and enjoined from harassing or harming the child or each other, and ordered that neither party attempt to alienate the child natural affection for the other party.
Wife argued that Husband’s conduct was such that the trial court was required to hold Husband in willful contempt.
The Court of Appeals stated that trial courts have broad discretion in ruling on a motion for contempt, and held that there was no abuse of discretion. In particular, the Court of Appeals noted the thorough trial court order showing that the trial court considered Husband’s deplorable conduct, but believed his testimony that he was remorseful, resulting in the trial court’s conclusion that he did not intent to willfully violate the Settlement Agreement.
Charla E. Stawser for Husband
Alan Mullinax for Wife
Tamela L. Adkins for Wife
Gwinnett Superior Court; Judge Robert D. Walker
Herrin v. Herrin, S10A0384
Child Support
Father sought upward modification of child support obligation, but Court found no evidence that Mother was able to earn in excess of her then current salary.
To sustain an award of child support based upon a party’s earning capacity, there must be evidence that the party has the ability to earn an amount sufficient to pay the award of support; otherwise the award cannot stand.
Here, Mother’s income and earning capacity had dramatically decreased in recent years due to, among other things, the economic downturn.
Mother had an infant daughter, held a high school education, lived with her parents, and had no savings accounts or checking accounts.
Court held there was no evidence to support a finding that Mother was willfully under-employed or voluntarily suppressing her income to avoid child support payments.
Holland v. Holland, S10A1158
Marital Property, Settlement Agreement
The parties purchased a Lake House after they married, and titled it solely in Wife’s name. Wife took out a line of credit, with lake house as collateral, to use as a down payment on the marital residence. Wife subsequently extended the same line of credit, putting additional money into the couple’s business.
The parties drew up a post nuptial agreement in 2006; were divorced in 2008.
The post nuptial agreement awarded the lake house to Wife, and also provided for its sale. After the sale, the post-nup dictated that net profits were to be divided 50/50, and from husband’s 50% share of net profits, he was to reimburse Wife in the amount of $98,000 for her initial investment.
The trial court ordered that the outstanding line of credit be deducted from the sales price before distribution of net profits to the parties, which left 34k for each. The court then ordered Husband to pay his entire 34k share to Wife, as well as an additional 64k.
The trial court properly used the proceeds of sale to pay off the line of credit based on the document’s definition of “net profit.” Additionally, the specific provision stating the debt on lake house was to be paid off upon sale trumps the more general provision stating debt incurred by one party is that party’s separate debt.
Reversed in part: The plain language of the post-nup stated that the Wife would be reimbursed 98k solely from H’s 50% share, not from his separate assets. While the parties did not predict such low sales proceeds, the document’s language still limits Husband’s reimbursement obligation to his 50% share of the net profits.
Holloway v. Holloway, S10F1417
Attorney's Fees, Child Support
Divorce judgment reversed where there was an $18 difference in child support amount between the Settlement Agreement and the child support guidelines.
Trial court’s order failed to set forth mandatory findings for deviation from guidelines, and Wife’s voluntary agreement to deviation cannot cure this defect.
Attorney’s fee award cannot stand absent required findings of fact and evidence of party’s counsel’s work.
Horton v. Horton, S10F0827
Divorce, Marital Property
Husband and Wife were divorced pursuant to a Total Judgment and Decree of Divorce entered on June 5, 2009.
During the trial of the case, the trial court refused to allow Wife to introduce evidence of a Temporary Order that had been entered in the divorce action on February 15, 2007.
Wife contends that evidence of the Temporary Order should have been admitted at trial to show how much marital property was being depleted during the time period that the temporary order was in force.
The Supreme Court affirmed the trial court’s conclusion that the issue raised by Wife is controlled by McEachern v. McEachern, 260 Ga. 320, 394 S.E.2d 92 (1990), which states, “Evidence of post-separation support payments is not admissible unless the court determines that the evidence should be admitted for impeachment purposes to prevent a party’s perpetrating a fraud upon the court.”
Here, the parties had agreed to the terms of the Temporary Order, and there is no allegation that evidence of the Temporary Order was necessary for impeachment purposes at trial to prevent Husband from perpetrating fraud upon the court.
The Supreme Court points out that although Wife may have felt the temporary agreement left her at an economic disadvantage with respect to the parties’ division of property, and evidence of the Temporary Order may have been relevant to her claim at trial, “relevant evidence may be excluded if its probative value is outweighed by certain risks.” McEachern, at 322.
As such, the trial court correctly excluded evidence of the Temporary Order during the parties trial.
Maxine Hardy for appellant
Kice H. Stone for appellee
Robert M. Mock, Jr. for appellee
Marion Superior Court; Judge Frank J. Jordan
In Re N.A.U.E., S10A1109
Parental Rights
If a full and fair trial on the merits is provided, the Due Process clause of the Fourteenth Amendment does not required a State to provide appellate review, even in termination of parental rights cases.
In the Interest of C.A.L, A10A2557
Child Custody, Deprivation
Facts and Trial Court:
After hearing evidence from DFACS and a clinical psychologist about the minor child’s (C.A.L)’s abuse at the hands of Father, stepmother, and cousins on Father’s side, the trial court concluded that the child was deprived under the definition set forth in O.C.G.A. § 15-11-2, and awarded custody to Mother.
Court of Appeals:
Standard of Review: Viewed in light most favorable to lower court, whether trier of fact could have found by clear and convincing evidence that the child was deprived. Does not weigh evidence or determine credibility of witnesses.
Father’s enumeration of error: There was no clear and convincing evidence of who was responsible for CAL’s abuse.
The definition of deprived child focuses on the needs of the child, not parental fault. The petition is brought on behalf of the child, and concerns the child’s welfare, not who is responsible for the conditions which amount to deprivation.
Evidence showed that CAL was inappropriately touched and suffered from sexual abuse, which contributed to her developing post-traumatic stress disorder, so trial court’s finding of deprivation was supported by the record.
A juvenile court is authorized to find a lack of proper parental care or control based on a parent’s failure to protect his or her child from injury.
Joseph W. Jones (Public Defender’s Ofc.) for appellant
Samuel S. Olens (Attorney General)
Shalen S. Nelson (Sr. Asst. Atty. Gen.)
Penny Hannah (Asst. Atty. Gen.)
Linda B. Taylor (Hunnicutt & Taylor) for appellee
Coweta Juvenile Court, Judge Joseph P. MacNabb
Jenkins v. Walker, S10A0907
Child Support
Father claimed that DFACS improperly placed him on child abuse registry after he entered a safety plan with Mother following allegations of child abuse.
Safety plans are not agreements which may be enforced by DFACS, they are merely suggestions designed to prevent need for DFACS to take custody of the children who are subject to the plan.
Since safety plans are not enforceable, DHS requested that the trial court not incorporate the plan but instead make an independent finding with regard to the custody of the children.
Because the child abuse registry was struck down by State v. Jackson 269 Ga. 308 (1998), Father’s claims were misplaced.
Lightfoot v. Hollins, A10A1923
Grandparents’ Visitation Rights
Facts and Trial Court:
In a North Carolina divorce, Mother was awarded custody of the minor child. Mother tragically died several months after the divorce. Father then obtained custody. Father remarried two years later. Step-mother adopted child through proceedings in North Carolina. Father, Step-mother, and child now live in Cobb County.
Maternal Grandparents, who live in Maryland, brought action in Cobb County Superior Court seeking visitation privileges, alleging Father had only allowed grandparents to see child twice following Mother’s death, and had not allowed grandparents to see child at all in the past 4 years.
Father filed motion for summary judgment based on his current wife having legally adopting the child, alleging the grandparents’ rights to the child had been extinguished by law. Father also alleged that grandparents had failed to satisfy O.C.G.A. § 19-7-3 (c) by providing clear and convincing evidence that the health or welfare of the child would be harmed if visitation were denied. Father also stated the grandparents failed to show that it would be in the best interest of the child for visitation to be granted, using as a basis for his assertion the fact that the grandparents had not seen the child in four years.
Trial court held O.C.G.A. § 19-7-3 provided a basis for grandparents’ claim, despite the adoption. Trial court also found that the lack of contact in the past four years was not sufficient to resolve all facts relevant to the petition, and appointed a Guardian Ad Litem to “completely investigate all aspects of the case.”
Court of Appeals:
Biological father appealed denial of his motion for summary judgment, stating grandparents failed to show clear and convincing evidence that the child would suffer harm absent their visitation, and that the lack of contact for four years resolved the issue as a matter of law.
Grandparents’ rights are not affected by an adoption by a stepparent under O.C.G.A. §§ 19-7-3 and 19-8-19.
§ 19-7-3 allows grandparents reasonable visitation rights only when court finds health or welfare of child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation.
Harm requirement means grandparents must show more than just that their contact with the child would be beneficial to the child. Any detrimental impact that the separation may have on the grandparents is irrelevant.
In opposing Father’s motion, grandparents did not show how child would suffer harm without the grandparents’ visitation. However, under O.C.G.A. § 9-11-56(f), even if respondent cannot present facts in opposition to a motion for summary judgment, trial court has the discretion to deny the motion, allow the case to go forward, allow further discovery, or take other action. Trial court did not abuse this discretion in denying the motion for summary judgment and deciding that further proceedings were necessary to develop the case, even when it did not specifically cite § 9-11-56(f).
Mary Stearns-Montgomery and Ryan Proctor for appellant
Anthony Zezima for appellee
Cobb Superior Court, Judge George H. Kreeger
Miller v. Miller, S10A1707
Contempt, Marital Property
Parties divorced in 2009, decree determined alimony, custody, child support, but reserved fees.
Found parties’ real property (marital residence and Amelia Island lot) to be marital, and profits from sales would be equally divided.
Trial court accepted Wife’s expert’s valuation of Husband’s medical practice, which used combination of Asset, Market, and Income approaches.
Trial court awarded Wife ¼ of Husband’s medical practice, payable in 24 monthly “business alimony” installments.
Wife filed motion for contempt. Trial court awarded Wife attorney’s fees and found Husband in contempt.
Asset, Income, and Market approach to valuation. Supreme Court found:
No one best way to value a professional practice. Can use multiple methods.
Expert weighs each approach differently based on the specific business at issue (“an art rather than a science”).
Facts upon which expert bases his/her opinion are admissible. Trial court/fact finder determines weight given to valuation technique(s) used by expert.
Here, Expert used all 3 approaches, weighing each one differently. Expert capitalized “excess earnings” in the Asset approach, and capitalized “total earnings” in the Income approach.
Husband claimed using Market approach inappropriate, as there is no market for solo medical practices. Supreme Court found that:
Testimony of Husband’s witnesses stating that there was no market for solo practices was contradicted by Wife’s expert, who used two national databases – a generally accepted method of valuing medical practices.
Differences in location and dates of sale for comparisons go to weight, not admissibility.
Husband contended that capitalization of excess earnings was error because he paid himself a normal salary which left no excess earnings. Supreme Court found that:
Capitalization of excess earnings is the most common method for valuing professional practices.
To value practice’s intangible assets, deduct owner’s reasonable salary from average net income of the practice, NOT from the actual salary paid to the owner.
This adjusts for practices that increase/decrease retained earnings through owner’s salary. That the practitioner is paid a normal salary does not mean there are no excess earnings.
Capitalizing excess earnings is appropriate because it provides the present value of the business and avoids valuing post-divorce earnings and profits.
Here, Expert properly made modifications for taxation as S corp, individual goodwill, excluded annual income from reasonable compensation for services, and capitalized actual past earnings instead of estimated future earnings based on future growth rate.
Husband claimed his income was counted twice by awarding portions of his business in both the Alimony/Child Support awards and Property Division award (which the trial court called “business alimony”). Supreme Court found:
There was no double dipping because Expert took this into account.
Trial court used both Husband’s salary and business income in child support worksheets.
Gross income includes income which was considered in placing a value on a business which was the subject of equitable division.
For Child Support as between a parent and child, the asset subject to property division is not being counted twice.
Goodwill. Husband claimed “professional goodwill” cannot be divided as marital property.
Two types of goodwill:
Enterprise (commercial) goodwill (transferable & included in valuation)
Individual (personal) goodwill (nontransferable, cases divided as to whether it is included in valuation)
“Professional goodwill” as used by Husband is ambiguous. If he means Enterprise, it can be used in valuation of practice as part of marital property. If he means Individual, Wife’s Expert excluded individual goodwill from valuation of practice. [Individual goodwill NOT marital for purposes of this opinion only].
Key Person Discount – One method of quantifying personal goodwill.
Wife’s expert stated Key Person Discount not applicable b/c Husband could be replaced by another doctor, and any patient attrition was taken into account by use of Market approach (where a Key Person Discount is already adjusted for in the purchase price of comparable practices) and higher capitalization rate in the other methods (as a means of reflecting risk that some patients would leave). An additional Key Person Discount on top of this would count personal goodwill twice.
Trial court’s label of “Business Alimony” not controlling. Award, which stated number of payments, gross amount paid, and had no contingencies, was a property settlement.
Source of Funds. Husband contended the source of funds for the marital residence and Amelia Island lot was a “prior residence” purchased with premarital funds prior to marriage. Supreme Court found the “prior residence” was transformed into marital property where:
“Prior residence” was deeded in both parties’ names after the marriage; and
Wife testified that the purpose thereof was to give her ownership b/c of her contribution to the household.
Husband argued that down payment on marital residence was made with business funds which were then replaced by proceeds of sale of “prior residence.” Trail court properly concluded Husband did not use his own personal funds for down payment on marital residence, and Husband actually conveyed marital residence to both parties on the day it was purchased, where:
Both parties were sellers of “prior residence;”
Proceeds from “prior residence” were deposited into parties’ joint account, and NOT a business account; and
Proceeds from “prior residence” comingled with funds in parties’ joint account.
Parties borrowed against the equity in the marital residence to purchase the Amelia Island lot. Since marital residence determined to be joint marital property, so was Amelia lot.
Evidence was seven instances where Husband asserted his privilege in response to questions at contempt hearing.
Adverse inferences from Husband’s invocation of privilege formed sole evidentiary basis for criminal contempt finding by trial court.
In a civil case, court can draw adverse inference against witness who asserts privilege, but no inference of guilt can be drawn from privileged refusal to testify in a criminal case. Criminal contempt is a crime requiring proof of elements beyond a reasonable doubt.
Mitchum v. Manning, A10A0151
Visitation Rights
Trial court did not err in concluding that visitation with Father was in adult disabled child’s best interest.
Child was a ward of the state until she was 18, at which time Mother was appointed her legal guardian.
In support of her contention that visitation with Father was against the child’s best interest, Mother testified that Father had physically abused her 30 years ago while she was pregnant with the child, and that the child became disoriented when confronted with strangers.
Father denied the abuse allegations and his present wife and several other individuals testified on his behalf to his character. Father also presented evidence that he had previously visited the child on numerous occasions without harmful results.
Agreeing with the trial court that the record was insufficient to justify denying Father visitation with his daughter, the Court held it would not deny a parent all visitation rights absent exceptional circumstances in which there is “reasonable probative evidence” that the parent is morally unfit.
The Court explained that while Georgia gives a legal guardian general authority to exercise powers necessary to provide for the health and welfare of the ward, it also dictates that the ward has the right to communicate freely and privately with persons other than the guardian.
The Court also noted Georgia’s strong policy in favor of allowing a divorced parent continuing contact with his or her child so long as the parent has demonstrated the ability to act in the child’s best interest.
Husband and Wife divorced in 2007 by Decree, incorporating a settlement agreement. H was member of U.S. Navy. Agreement stated that, upon H’s retirement, W was entitled to only the portion of his retirement benefits which Navy required be paid to her. If such payments were required, H agreed to sign all documents to insure W received them.
After entry of Decree, parties realized Navy did not require any portion of H’s benefits be paid to W, and Navy had no legal authority to allocate benefits between ex-spouses.
W then sought H’s agreement to a Agreed Domestic Relations Order (ADRO) that stated W would receive 50% of “marital portion” of H’s retirement benefits. H refused to sign.
W petitioned court hold H in contempt for refusing to sign ADRO; or in the alternative, requested the Decree be set aside based on mutual mistake of Navy’s authority.
Trial Court
After hearing, trial court found parties had a mutual misunderstanding of Navy’s rules. Trial court declined to set aside the decree, instead declaring the agreement ambiguous on this point. Trial court then used its ‘powers to interpret,’ and, based on the roughly equal division of other marital assets, determined that the parties intended to divide the marital portion of H’s retirement pay equally. Because parties intended for W to share in H’s retirement benefits, trial court held H in contempt for refusing to sign the ADRO.
Supreme Court
A party cannot be held in contempt of an order unless the order informs him in definite terms as to the duties imposed upon him. Provisions of Decree must be sufficiently specific to be enforced by contempt. Because trial court expressly found the provision ambiguous, contempt ruling was error. Trial court also erroneously modified the terms of the Decree and therefore the basis for contempt was vitiated.
The trial court did more than construe or clarify the agreement, it eschewed the plain language (that W gets only what Navy requires) and substituted a 50% allocation.
A court can perform a calculation based on an already agreed upon allocation (as in Cason v. Cason, 281 Ga. 296 (2006)), but a court cannot determine the allocation itself.
While the parties’ reliance on an erroneous understanding of Navy rules was ill-advised, the trial court cannot use a contempt proceeding to substantially alter the decree, no matter how reasonable a 50% allocation may be.
Supreme Court noted that W still has recourse on remand to address uncertain allocation of H’s military retirement benefits, as the trial court may consider anew Wife’s alternative motion to set aside the Decree. Smith v. Smith, 281 Ga. 204 (2006) (Decree with erroneous provisions may be challenged via motion to set aside).
Other cases on impermissible modification of Settlement Agreement:
Darroch v. Willis, 286 Ga. 566(3) (2010): Where the Agreement requires only that H remove W’s name from mortgage, the court ordering the sale of the residence in a contempt action is an improper modification of the Agreement.
Roquemore v. Burgess, 281 Ga. 593 (2007): The court cannot modify a settlement agreement by requiring the payment of an agreed-upon sum out of the proceeds from the sale of marital residence, where the plain language of the Agreement did not so require.
Wayne D. Keaton for appellant
Sherri E. Kelley for appellee
Paulding Superior Court, Judge Tonny S. Beavers
Mullin v. Roy f/k/a/ Mullin, S10F1120
Child Support
Trial courts have the discretion to order a lump sum payment of child support obligations.
While in the midst of a divorce, husband was caught with child pornography and accordingly lost his job, and was living off his $422,000 inheritance. Husband pled guilty in federal court, and was sentenced to five years in prison. The court acknowledged that his earning potential would be somewhat impaired upon his release from prison due to required registration as a sex offender, and ordered husband to pay his entire child support obligation for 15 years by a single payment of $201,960 within 60 days.
Court’s discretion to award lump sum child support award was not eliminated by the 2007 revision of Section 19-6-15.
Husband’s contention that the lump-sum award would preclude any future modification under Section 19-6-15 (k) was purely speculative and therefore not ripe for adjudication.
Trial court did not need to discount the lump sum to reflect present value because Husband failed to show that such reduction would be appropriate in light of the current economy.
Pace v. Pace, S10F0843
Child Custody
At temporary hearing, trial court awarded physical custody to Husband and joint legal custody to both parties. At final trial, court awarded permanent physical and legal custody to Husband. Supreme Court reversed, as the trial court relied on evidence from the temporary hearing without notifying the parties.
A temporary award of custody differs in nature and purposes from a permanent award; a temporary award is an interim arrangement that serves the best interests of the child pending adjudication of the rights of mother and father, whereas an award of permanent custody constitutes a final adjudication of the rights of the parties.
Temporary order is not governed by the same rules as permanent custody order. Temporary hearings are governed by USCR 24.5. Children are not permitted to give oral testimony at temporary hearings; permanent awards cannot rely on testimony by affidavit. Nature and quality of evidence at temporary hearing is likely different than at final. Therefore it is error to rely on temporary evidence in a final determination without express notice to the parties.
Prince v. Wingo, A10A1972
Child Custody, Modifcation
Parties were divorced and custody of the child was awarded to maternal grandparents. Husband then remarried and filed a modification requesting custody, claiming he could now provide a stable home for the child.
Once custody is awarded to a third party in an action to which a parent was a party, the roles of the parent and third party reverse, so that the third party has prima facie right to custody. Parent can regain custody only by showing clear and convincing evidence of present fitness as a parent, and that a change of custody is in best interest of child.
Here, the court found that Husband had shown clear and convincing evidence of his present fitness, but failed to show by clear and convincing evidence that a change in custody was in the child’s best interest.
When, in a modification proceeding, the issue is that of present fitness, the conduct of the parents before the divorce is immaterial, and evidence as to unfitness must be confined to matters transpiring subsequent to the divorce. However, where the best interest of the child is concerned, a judge may consider any relevant factor, such as stability of family unit and continuity. Therefore, it was not error for the trial court to consider the Husband’s two prior short-lived marriages when determining the best interest of the child.
Robinson v. Robinson, S10A0929
Alimony, Child Support
Supreme Court acknowledged that there are contradictory lines of cases that dictate at what point in time awards of temporary alimony and child support cease to be effective after a final judgment awarding different amounts is appealed.
Here, the Court held that, if not otherwise altered by the trial court, a temporary award continues in effect until the entry of the remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.
In this case, a Temporary Order was entered in 2007 awarding $3,500/mo in child support and $3,000/mo in temporary alimony. In 2008, the Final Decree was entered, awarding higher CS amount (5,500k/mo), and awarding lump sum permanent alimony (not periodic permanent alimony). In 2009, Husband filed for discretionary appeal to SC, SC denied it as frivolous; the trial court then entered SC’s remittitur on July 28, 2009.
On August 21, 2009 Wife filed contempt seeking CS @ 5,500/mo for June, July & August 2009, & seeking temporary alimony for same months, based on the 2007 temporary order. Trial court said that Husband could not be held liable for failing to pay temporary alimony for those months since the 2008 Final Decree did only awarded lump sum, not periodic, support.
Robinson v. Robinson (this case) Overrules the Nicol line of precedent: Nicol v. Nicol, 240 Ga. 673 (1978), DuBois v. DuBois, 250 Ga. 271 (1982), Gladney v. Bearden, 244 Ga. 298, and Cale v. Cale, 153 Ga. App. 57 (1980). (Stating that when a Final Judgment awards a higher amount than the temporary, is then appealed, but is affirmed, the Final Decree has the same force and effect as the date it was entered, and the higher amount must be paid, only subject to an offset of any lower temporary amount paid during the pendency of the appeal.)
Here, the Court holds that McDonald v. McDonald, 234 Ga. 37 (1975) is the proper rule: Judgment for temporary alimony continues in full force and effect until a final judgment in the case - but a judgment is not final so long as either party has the right to have it reviewed by the SC. Temporary and permanent alimony have distinctly different purposes, so a spouse is not entitled to a credit against permanent alimony for payments made by that spouse pursuant to a temporary order while the final judgment of divorce is pending appeal.
Therefore, Husband WAS obligated to pay temporary amounts that came due before remittitur, even though it was after the entry of the Final Decree. Trial court correctly ordered Husband to pay temporary child support amounts until the date the remittitur was entered, at which point the higher, Final amounts kicked in.
Sherrington v. Holmes, A10A1066
Child Custody, Legitimation
General prayer for relief in Petition should put respondent on notice of issues to be presented at upcoming hearing, such as a request to determine custody.
Failing to file an answer to a petition can serve to waive any defense to the original claim, but will not waive the right to respond to a subsequent request not included in the petition.
Respondents need reasonable opportunity to respond to new prayers for relief.
Inadequate notice to respondent of issues in custody hearing can impede court’s ability to give proper consideration to issues impacting determination of child’s best interest.
Despite a lack of transcript, and appellant’s burden to show error from the record below, the Court determined that the trial court had abused its discretion.
Smith v. Carter, A10A1760
Child Support
The Court held that the trial court’s award to Mother of $70,224 in back-support was an abuse of discretion, and that the trial court erred in refusing to consider the Child Support Guidelines of O.C.G.A. § 19-6-15 in its order regarding back-support.
Mother had sued Father for past and future child support for the parties’ son, who had been born out of wedlock.
The trial court found Father’s monthly income to be $2,222.80, and Mother’s to be $6,384.20.
Pursuant to the Child Support Guidelines of O.C.G.A. § 19-6-15, the trial court calculated future support from Father to be $115.00 per month.
Based on the evidence, the trial court calculated that Mother had spent $83,600.00 for the child’s care during the preceding 12 years.
The court then subtracted 16% of that amount to represent Father’s visitation time with the child, and ordered Father to pay the entirety of the remaining amount ($70,224.00) as back child support.
Father contends that the trial court failed to account for any financial support from the Mother, whose income was triple that of his.
Father also points out that the current Child Support Guidelines only required a $115.00 monthly payment by him, which multiplied by 139 months (the time Mother sought back support) would amount to less than $16,000.00.
The Court stated that the guidelines for computing the amount of child support found in O.C.G.A. § 19-6-15 must be considered by any court in setting child support, and “shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.”
The Court also noted that it is the joint and several duty of each parent of a child born out of wedlock to provide for the support of that child, and not the exclusive duty of either the father or the mother.
Additionally, the Court clarified its holding in Weaver v. Chester, which held that the actual expenditures of the mother were the ceiling or maximum for a back-support award, and by no means the minimum for such an award. Weaver outlined that regardless of a non-custodial parent’s ability to pay, the custodial parent can never be awarded back-support for more than he or she actually spent.
Samantha F. Jacobs for appellant
William B. Johnson for appellee
Wayne Superior Court; Judge Ken W. Smith
Sponsler v. Sponsler, S10F0299
Settlement Agreement
Trial court was authorized to find an agreement existed between the parties and to make that agreement part of the final decree, despite Husband’s contention otherwise.
At trial, Husband testified that he understood the agreement would be set forth on the record.
Neither party objected to the Judge affirming she understood there was an agreement between the parties, and Husband failed to object to any terms of the agreement when Wife’s attorney stated them on record.
Tanner v. Morris, S10A1227
Attorney's Fees, Child Support, Contempt
Parties had a self-executing child support provision in their Final Divorce Decree, saying that Father would pay Mother child support while each child was living at home with Mother.
Trial court should not have found Father in contempt for reducing his support obligation when he had Mother’s consent for the two children to live with him.
Father properly relied on Perry v. Perry 265 Ga. 186 (1995), which allows self executing decrease of child support payments.
Trail court properly found Father in contempt for failing to return the middle child to Mother upon her request, as she had primary physical custody and FDMA. However, trial court should have calculated child support arrearage amount from time Father lost consent to keep middle child. Award vacated and remanded.
Atty’s fees award to Mother was vacated.
Thompson v. Thompson, S10F1231
Civil-Estoppel, Divorce
In this case, the Supreme Court ‘disapproves’ its 2007 decision in Grissom v. Grissom, 282 Ga. 267, which it said caused confusion. The Court now reinstates Coley v. Coley, 128 Ga. 654 (1907), holding that one who has accepted benefits such as spousal support or equitable division under a divorce decree is stopped from seeking to set aside that decree without first returning the benefits.
However, a former spouse may still collect an award of child support while repudiating the final judgment, since the benefits belong to the child.
Wier v. Wier, S10F0553
Allimony, Marital Property
Court held that lump sum alimony to Wife in amount of $600,000 was not excessive when Husband owned property worth over $1.6 million, and had a monthly gross income exceeding $16,600.
Georgia law permits the Court to require a party to sell or encumber property in order to pay equitable division and alimony awards.
Court declined to decide whether trial court improperly allowed jury to consider Husband’s misconduct in determining the amount of alimony, because Husband failed to raise an objection to the charge, and such a failure to object precludes review on appeal unless charge was substantially erroneous and harmful as a matter of law.
Charge did not instruct jury that it would consider conduct or misconduct in fixing award of alimony, so the charge was not substantially erroneous.
Willis II v. Willis, S10F1357
Child Custody, Child Support, Divorce
The parties’ appeals from the entry of a judgment and decree of divorce were before the Court by way of the pilot project.
The trial court awarded the parties shared joint legal and physical custody of the sole child born of the marriage, with the parties exercising physical custody on alternate weeks.
Solely for purposes of calculating child support, the court designated Husband as the noncustodial parent and found his monthly income to be $4,166.00, and Wife’s monthly income to be $2,333.00. After noting Wife was paying monthly health insurance premiums of $208.00, the trial court ordered Husband to pay monthly child support of $961.00 to Wife and to divide evenly with Wife all uninsured medical expenses.
The final decree also provided that Wife could request hair follicles from Husband four times a year in order to test for illegal substances.
On appeal, Husband contends the trial court abused its discretion and unjustly enriched Wife when it did not make a deviation in the presumptive child support on account of the equal division of child custody.
The trial court set out in its order; however, that in order to grant any deviation it must find the application of the presumptive amount of child support unjust or inappropriate, and that the best interest of the child would be served by a deviation. The trial court went on to state that it did not make such findings. As such, the Supreme Court held that the trial court did not abuse its discretion in declining to make a deviation to the presumptive amount of child support.
Husband also contends that the trial’s failure to require Wife to pay child support while in Husband’s custody deprived the child of support and unjustly enriched Wife. The Supreme Court explained that while shared custody is a factor that may be considered to modify presumptive child support, it is within the trial court’s discretion to do so, and here the trial court did not error when it expressly declined to so after determining it could not make the necessary findings.
Finally, Husband claims that the trial court erred when it authorized drug-testing of Husband without any evidence of current or recent drug usage by Husband.However, Husband’s testimony that he had not used drugs in the ten months preceding the hearing was not controlling as there was evidence that he had ingested drugs during the child’s lifetime. As such, the trial court did not abuse its discretion
In Wife’s appeal (Case No. S10F1358), she asserts the trial court’s award of shared joint physical custody was contrary to law, and was not in the child’s best interest. However, the trial court’s decision was support by the evidence which showed the child had a good relationship with each parent, and that each parent had adequate housing for the child and could provide what the child needed.
Wife asserted 34 other enumerations of error, approximately half of which were not filed timely. As to the others, the Supreme Court either determined that the trial court did not abuse its discretion, or that there was a lack of foundation or evidence.
G. Clyde Dekle III, for Carl J. Willis, II
Kimberly S. Willis proceeded pro se
Fulton Superior Court; Judge Cynthia D. Wright
Woods v. Bradford, S10A0636
Child Support
The parties divorced in 1992, and Wife was awarded custody of the parties’ two minor children.
In 2001, the elder child, (“Son”), went to live with Husband. The younger child, (“Daughter”), continued living with Wife.
The parties then consented to a modified custody order establishing, among other things, child support obligations. The parties agreed that Husband’s child support obligation for Daughter was $640.87 per month, while Wife’s child support obligation for Son was $728.00 per month.
The order provided that since each party had custody of one minor child, and in lieu of exchanging support checks in the amounts set out above, Wife would pay to Husband the sum of $75.00 per month, representing the difference in the support obligations of each party to the other.
Wife paid Husband $75.00 per month until Son reached majority, then ceased. Thereafter, Husband did not pay any child support to Wife for Daughter. After Daughter reached majority, Wife filed a motion for contempt alleging that Husband was obligated to pay the $640.87 per month in support of Daughter after Son reached majority, and that the amount in arrears was $14,740.01.
The trial court ruled that the parties’ final judgment and decree did not include a directive to pay certain child support obligations, and as such denied the citation for contempt.
The Supreme Court reversed the trial court’s decision, and found that the parties modified custody order specifically set Husband’s child support obligation for Daughter at $640.87, and that the requirement that Wife pay $75.00 per month to Husband until Son reached majority was clearly a practical accommodation.
The order was held to embrace separate child support obligations and did not provide for any termination of Husband’s obligation to Wife prior to the time at which Daughter reached majority.