October 2018 was busier than the previous two months for the Georgia Court of Appeals. The Court released four custody related cases, and four other family law related cases.
Brumbelow v. Mathenia, et al., 347 Ga. App. 861 (2018)
Mathenia gave birth to Brumbelow’s son, but voluntarily relinquished her parental rights at birth to a couple who planned to adopt him. Although Brumbelow initially denied that he was the child’s father, when he learned of the pending adoption (approximately a month after the birth) he told Mathenia he wanted to raise the child. He filed a petition to legitimate shortly thereafter. The trial court denied Brumbelow’s petition, concluding that he had abandoned his opportunity interest to develop a parent-child relationship with his son, and that denying the legitimation was in the child’s best interests. Brumbelow appealed.
Reversed and remanded. The trial court applied the wrong standard in determining that Brumbelow abandoned his opportunity interest in developing a relationship with his son. The Court explained that “the appropriate inquiry is not whether the father could have done more, but rather whether the father has done so little as to constitute abandonment.” Furthermore, the Court held that the trial court’s conclusions were not supported by the evidence, as it should have considered all of the facts and circumstances of the case. Instead, the trial court discounted undisputed evidence of Brumbelow’s attempts to preserve his relationship with the child, and it ignored the fact that he filed his legitimation petition almost immediately after learning of the planned adoption. The Court also noted that Mathenia was admittedly hostile to Brumbelow during her pregnancy, and that she was the one who cut off contact with him. And, the Court added that Mathenia’s unilateral placement of the child for adoption interfered with Brumbelow’s ability to pursue a relationship with the child after birth. Accordingly, given the totality of the circumstances, the Court of Appeals held that Brumbelow did not abandon his opportunity interests in a relationship with his son.
The Court held further that the parental fitness standard should be applied in assessing the legitimation petition in this situation. Brumbelow’s constitutionally protected opportunity interest cannot be denied through state action. Yet, the pending adoption, and the placement of the child in the prospective adoption parents’ custody resulted in Brumbelow losing his opportunity to develop a relationship with his son after birth. In such circumstances, the appropriate standard for determining whether the legitimation should be granted is parental fitness. Accordingly, the trial court erred in applying the best interests standard, and on remand, if Brumbelow is deemed a fit parent, he must prevail.
Finally, Brumbelow argued that the Georgia legitimation statute violates his constitutional rights to equal protection and due process. The Supreme Court has exclusive jurisdiction over constitutional challenges to statutes. However, the trial court did not consider or rule upon Brumbelow’s constitutional arguments, which were raised for the first time on appeal. Thus, the Court of Appeals declined to transfer the case to the Supreme Court, and it addressed only the remaining issues on appeal.
NOTE: The Georgia Supreme Court reversed the Court of Appeals in Mathenia et al. v. Brumbelow, 308 Ga. 714 (2020). The Supreme Court held that the trial court did not err in denying Brumbelow’s petition to legitimate since the evidence supported its conclusion that Brumbelow abandoned his opportunity interest. The Supreme Court also held that the portion of the Court of Appeals’ opinion relating to the standard for legitimation should be viewed as dicta only.
The Court of Appeals vacated its opinion at 347 Ga. App. 861, and adopted the Supreme Court’s opinion on February 17, 2021. Judge Dillard concurred dibutante (a full concurrence, but with reservations), “because my oath requires that I do so.” Judge Dillard believes that the Supreme Court made it more difficult for an unwed biological father to preserve his opportunity interests, thereby significantly diminishing his constitutional rights to a parent-child relationship with his child. Judge Dillard also questioned whether the Supreme Court “cherry pick[ed]” the facts it relied upon to “achieve a seemingly predetermined result.”
Phillips v. Phillips, 347 Ga. App. 524 (2018)
The husband in this divorce action appealed the trial court’s final judgment awarding custody of four children to the wife. The husband claimed that the trial court disregarded his evidence, and instead based its ruling on unfounded charges his wife made against him. He also speculated that the judge was biased against him.
The Court of Appeals affirmed the trial court’s custody ruling. The husband did not include some of the trial court transcripts in the record, so without a complete record, the Court of Appeals must assume that the evidence supported the judge’s findings. Furthermore, the Court will not interfere with the trial court’s judgment unless there clearly is an abuse of discretion. In this case, there was no abuse of discretion since the detailed findings of fact and conclusions of law in the final judgment indicate that the trial court carefully weighed the evidence and gave full consideration to the best interests of the children. The Court also held that the father’s claims of trial court bias were “unavailing.”
As to the remaining issues on appeal, the Court vacated and remanded the trial court’s equitable division of marital property since it included the husband’s non-marital military retirement pay. Likewise, the Court vacated and remanded the child support award since, on remand, the trial court’s equitable division of rental property will govern which party should be credited with the rental income derived from that property. The Court also rejected the husband’s arguments that the trial court miscalculated the equity in one of the homes, and that the trial court awarded his separate property to the wife. Finally the Court held that the trial court did not err in including husband’s GI Bill benefits in its child support calculation.
Borgers v. Borgers, 347 Ga. App. 640 (2018)
The parties had joint physical and legal custody of their children with the mother having primary physical custody and final decision-making authority. The father filed two petitions for contempt alleging, among other things, that the mother was not complying with the Parenting Plan. Although there was no prohibition in the Parenting Plan against the mother home-schooling the children, both the Father and the trial court expressed concerns about it. Father, however, sought only a finding of contempt and a modification of his child support obligation, and he never asked for a change in legal custody. The trial court resolved both contempt actions, and held a compliance hearing shortly thereafter. At that hearing, the trial court found that both parties had complied with the order. However, the trial court also ordered the mother to enroll the youngest child in a school, and to stop home-schooling him. The mother appealed.
The trial court’s order requiring the mother to no longer home-school the child stripped the mother of her right to make final educational decisions, and was therefore an improper modification of custody in a contempt action. Although the father’s petition contained “Modification of Custody” in its title, he never asked for a change of custody, and he never filed a separate action seeking a modification.
Chief Judge Dillard concurred fully and specially because of his concerns about the trial court’s imposition of its own judgment as to how the child should be educated. Chief Judge Dillard stressed that this was an interference with the mother’s constitutional rights to the care, custody and control of her children. He added that the mother’s fundamental rights to raise her children extend to educational decisions, including decisions to home-school a child, and that those rights should only be infringed upon in the most compelling circumstances, which do not exist here.
Bridger v. Franze, 348 Ga. App. 227 (2018)
Franze and Bridger lived together, on and off, before Franze petitioned to legitimate their one-year-old daughter. Initially, his visitation was supervised by either the Guardian ad Litem (GAL), or by a psychologist. The GAL reported positive parenting interactions between Franze and his daughter. But, the GAL also had concerns about his care and supervision of the child. Nonetheless, the supervision requirement was lifted for a short period until it was again imposed after a potentially dangerous situation while the child was in Franze’s custody. Approximately eight months before the final trial, Franze stopped visiting with the child. The trial court awarded joint legal and physical custody to both parties with Bridger being the primary custodian. The order provided, however, that the parties would be joint custodians if Franze relocates to the Atlanta area. Additionally, the trial court denied Bridger’s requests for past child support expenses and attorney’s fees.
The Court of Appeals affirmed the award of joint legal and physical custody with Bridger being the primary custodian since there was some evidence to support the trial court’s judgment. However, the provision changing the custody arrangement if Franze relocates to the Atlanta area was an improper self-executing change in custody. The Court, therefore, reversed this provision of the trial court’s order.
As to the remaining issues, the Court of Appeals reversed the child support award because the trial court failed to include the cost of health insurance premiums in its calculations. The Court also held that the trial court did not err in refusing to require Franze to reimburse Bridger for past child support expenses, since Franze had previously provided financial support for Bridger and the child. Finally, the Court upheld the trial court’s denial of Bridger’s request for attorney’s fees since an award of attorney’s fees pursuant to O.C.G.A. §19-9-3 or §19-7-50 is discretionary.
Related Family Law Cases Released in October, 2018: