February 2019 was a busier month than the two previous months. The Court of Appeals released three custody related opinions, and four other family law related opinions.
Woodall v. Johnson, 348 Ga. App. 820 (2019)
Woodall and his former wife (“Mother”) divorced in 2013. In 2014, Mother married Johnson. In 2015, Woodall was held in contempt for failure to comply with the parenting plan and to pay child support. Pursuant to the contempt order, Woodall’s visitation was suspended until he provided a clean drug test to Mother. The trial court also ordered counseling. Woodall was almost a year late in taking the drug test, and did not go to the counseling, so Mother discontinued his contact with the minor child. In 2017, Johnson filed a petition to adopt the child, alleging that without justifiable cause, Woodall failed to communicate with the child, or to provide care and support for him for more than a year. Woodall denied the allegations, claiming that he paid the child support, including the arrearage, and that Mother refused his attempts to call and visit with the child.
At trial, Mother admitted that she denied contact between Woodall and the child despite the fact that Woodall tried calling daily. She also testified that the minor child had a good relationship with his paternal grandparents, who gave gifts to him from Woodall. However, after Johnson filed his adoption petition, Mother ended all contact with the grandparents. Woodall and the paternal grandmother also testified regarding his attempts to see and/or communicate with the minor child, and about payments he made toward the child support arrearages.
The trial court found that Woodall abandoned the minor child. It then terminated his parental rights and granted Johnson’s request for adoption, finding that it is in the best interests of the minor child.
Reversed. The trial court erred in terminating Woodall’s parental rights without his consent. In doing so, the trial court apparently relied on O.C.G.A. §19-8-10(a). Johnson, however, apparently relied on subsection (b)(1) of the same code section in his pleadings. (No code sections were cited in the order or pleadings). Neither subsection provided an appropriate basis to terminate Woodall’s parental rights.
Subsection (a) of O.C.G.A. §19-8-10 required a finding of abandonment. The evidence did not support such a finding since Woodall never intended to sever his parental rights. Instead, the evidence was that he paid his support, albeit late, and his attempts to call and visit with the minor child were thwarted by Mother. Furthermore, since Johnson’s pleadings did not reference O.C.G.A. §19-8-10(a), Woodall had no notice that the code section would come into play. Thus the trial court could not rely on it.
Subsection (b)(1) of O.C.G.A. §19-8-10 also was not a basis to terminate Woodall’s parental rights because, again, the evidence did not support such a conclusion. Mother thwarted Woodall’s attempts to communicate and visit with the child. Thus, she could not show that Woodall’s failure to communicate with him was without justifiable cause.
NOTE: A new version of the code sections relied upon by the trial court was enacted effective September 1, 2018. Because the petition and judgment pre-date the new version, the Court of Appeals applied the old versions of the statutes in this case.
Reid v. Reid, 348 Ga. App. 550 (2019)
After four years of litigation, and a contentious 20-day divorce and custody trial, Wife requested attorneys’ fees pursuant to O.C.G.A. §§9-15-14 and 19-6-2. In support of her claim, her attorneys submitted affidavits showing amounts billed and paid, but not explaining or detailing charges for specific work. Husband objected to Wife’s request for fees, arguing that their finances did not justify it, and that the requested fees were not attributed to any alleged sanctionable conduct, which he denied.
The trial court found that Mother was entitled to $250,000 in fees pursuant to O.C.G.A. §19-6-2 because Wife was dependent on Husband, whose income was significantly greater than hers; and because Husband financed the litigation with gifts from his parents and investments, while Wife sold jewelry and other separate assets to defend her case. The trial court also found that Husband unnecessarily expanded and delayed the litigation, entitling Wife to an additional $473,394.41 in fees pursuant to O.C.G.A. §9-15-14(b). This award was based on the trial court’s findings that Husband sought primary custody of the children without evidentiary support; he demanded child support from Wife, regardless of who was awarded custody; Wife underwent unnecessary alcohol testing, monitoring and motions, and she hired an expert witness because of Husband’s exaggerated claims about her drinking; and Husband engaged in bad faith settlement negotiations. Husband appealed both awards of attorneys’ fees.
The Court of Appeals affirmed the $250,000 award pursuant to O.C.G.A. §19-6-2. The Court also upheld the trial court’s judgment of liability for fees under O.C.G.A. §9-15-14. However, it vacated the amount of fees awarded, and remanded the case to the trial court for further proceedings on the issue of how much should be awarded.
The purpose of a fee award under O.C.G.A. §19-6-2 is to ensure effective representation of both spouses in a divorce. In this case, the trial court properly considered the relative finances of both parties. A determination that the fees are reasonable was not necessary. Thus, the trial court did not abuse its discretion.
With regard to the $473,394.41 awarded pursuant to O.C.G.A. §9-15-14(b), the Court of Appeals held that the record supports the trial court’s findings of sanctionable conduct, and its judgment for liability. However, Wife’s attorneys submitted affidavits that did not identify what fees were attributable to Husband’s sanctionable conduct. Since an award under this code section must be supported by proof of the actual fees incurred because of the sanctionable conduct, the proper course of action for the Court of Appeals to take is to vacate the award and remand the case to the trial court for further proceedings to establish the appropriate amount. Finally, the Court of Appeals held that that the trial court properly considered settlement negotiations in determining whether to award fees under this code section.
Elmore v. Clay, et al., 348 Ga. App. 625 (2019)
Elmore sought to terminate the parental rights of her step-daughter’s biological mother, and to adopt the child. The child’s paternal grandmother and maternal grandfather (married to one another), intervened, seeking visitation rights. Elmore objected. The biological mother apparently was uninvolved. Instead, the father and child lived on and off with the grandparents, until he married Elmore in 2013. The evidence at trial was that the grandmother provided much of the care and financial support for the child. The evidence also established that the child remained close to both grandparents. The trial court terminated the biological mother’s parental rights, granted Elmore’s petition for adoption, and awarded visitation to the grandparents. Elmore appealed.
O.C.G.A. §19-7-3(c)(1) permits a trial court to grant visitation to grandparents if the trial court finds “by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” In making this determination, the trial court is required to consider whether the child lived with the grandparents for six months or more; whether the grandparents provided financial support for the child for at least one year; whether there was an established visitation or child care pattern; and any other relevant circumstances. After considering these factors, the trial court is authorized, but not required, to find that harm to the child is reasonably likely if it denies the grandparent visitation. See, Patten v. Ardis, 304 Ga. 140 (2018).
In the instant case, the trial court found that it was “bound by these existing factors.” Thus, it is unclear whether the trial court properly exercised its discretion by awarding visitation based on clear and convincing evidence of harm, or whether the Court erred because it believed that it was required to award visitation since the foregoing factors were met. Accordingly, the Court of Appeals vacated the trial court’s order, and remanded the case with instructions to the trial court to properly exercise its discretion.
Related Family Law Cases Released in February, 2019:
Herbert v. Jordan, 348 Ga. 538 (2019)
Stalking protective orders issued pursuant to O.C.G.A. §§16-5-94 and 19-13-3 must be dismissed as a matter of law if a hearing is not held within 30 days of the filing of the petition for protective order, unless the parties consent to a longer period.
Juvenile Court Procedure
In the Interest of E.S., et al., children, 348 Ga. App. 546 (2019)
In Juvenile Court, the Civil Practice Act governs procedures for motions to dismiss or transfer for improper venue. If there is any evidence supporting the trial court’s ruling as to venue, then the ruling will be affirmed. A defense of insufficient service of process cannot be raised in an amendment to an original pleading. As long as it is not contrary to the interests of the children and there are no objections, a Juvenile Court can continue a preliminary protective hearing.
Stalking // Attorneys Fees
Bishop v. Goins, et al., ase 305 Ga. 310 (2019)
The Supreme Court of Georgia reversed the Court of Appeals in Bishop v. Goins, 344 Ga. App. 174 (2017). Following the entry of a stalking protective pursuant to O.C.G.A. §16-5-94, a trial court may award costs and attorney’s fees to either party. However, costs related to subsequent appellate proceedings may not be awarded.