In March 2019 the Georgia Court of Appeals released five custody related opinions, and six other family law related opinions.
Johnson v. Johnson, Case No. A18A1654, Georgia Court of Appeals, March 5, 2019.
The parties had an adult son with Down Syndrome. Pursuant to their settlement agreement the father paid child support for, and had visitation with all of their children, including the adult son. Two years later, the mother filed a contempt action alleging that the father violated the support and visitation provisions with regard to the adult son. The trial court held the father in contempt, ordered him to comply with the parenting time provision, and required him to pay caretaker costs. The father appealed.
Reversed in part and affirmed in part. The settlement agreement entitled, rather than compelled the father to visit with the children. Thus, the trial court erred in holding the father in contempt for failing to exercise his visitation privileges. The trial court was authorized to require the father to pay a portion of caretaker costs since it was merely enforcing a provision of the settlement agreement. However, the Court of Appeals could not address whether the caretaker fees were supported by the evidence since no trial transcript or exhibits were included in the appellate record. Finally, in her appellate brief, the mother requested that the Court of Appeals impose penalties against the father for frivolous appeal. However, Court of Appeals Rule 41 requires motions to be filed as separate documents. Thus, the Court declined to consider her request.
Grailer v. Jones, 349 Ga. App. 625 (2019)
When the parties divorced in 2010, they agreed to joint legal and physical custody. Within months, Jones (the father) filed the first modification action. Thereafter, the parties continued to litigate through four more modification actions, five contempt actions, two TPO actions, three unsubstantiated DFCS investigations and this, the second appeal to the Court of Appeals. Grailer’s (the mother) third modification action filed in 2016 is the basis of this appeal. Jones counterclaimed for a decrease in Grailer’s parenting time. During the 1-1/2 year litigation, Grailer filed unsupported TPO actions and instigated the unsubstantiated DFCS investigations. The trial court also found her in contempt a few times for interfering with Jones’ parenting time. At the final hearing, the trial court dismissed Grailer’s modification action, disregarded the child’s election to live with her, and granted Jones’ counterclaim. Grailer appealed.
Affirmed in part, reversed in part, vacated in part and remanded with direction. O.C.G.A. §19-9-24 provides that a physical or legal custodian may not maintain a custody action if he or she is withholding custody in violation of a custody order. Grailer’s argument that the minor child chose not to visit with Jones was unavailing since a child cannot elect out of visitation without a court order. There was no such order. Thus, the trial court did not err in dismissing Grailer’s petition to modify custody pursuant to O.C.G.A. §19-9-24, or in finding her in contempt of the custody order. The evidence also supported the trial court’s finding that it was in the child’s best interests to grant Jones’ counterclaim despite the child’s election affidavit.
The child support order did not specify the basis for a modification as required by O.C.G.A. §19-6-15(k). Accordingly, the Court of Appeals vacated that portion of the trial court’s order.
Finally, the trial court failed to include the statutory basis or the necessary factual findings to support its attorney’s fees award to Jones in the modification action. Thus, the Court of Appeals vacated the award and remanded the issue to the trial court for reconsideration. The Court also reversed fees awarded to Jones in the contempt order pursuant to O.C.G.A. §19-6-2(a) since the award was not based on a violation of the original divorce decree.
Hewlett v. Hewlett, Case No. A18A1821, Georgia Court of Appeals, March 7, 2019.
When her child was born with drugs in his system in 2009, the mother agreed to place him in the maternal grandfather’s temporary guardianship. In 2016, the grandfather and his wife filed a petition to adopt the child. The evidence at trial was that the child thrived in the grandparents’ custody since birth. The mother was diagnosed with schizoaffective disorder, she used drugs and she was periodically homeless or incarcerated until 2012 when she entered into a mental health court diversion program. Since successfully completing the program, she has been drug-free, and she manages her mental health condition with medication and counseling. The mother also receives disability income and she has lived in stable housing since 2013. Additionally, she and the child were bonded, as she regularly visited with him on weekends. The trial court terminated the mother’s parental rights and granted the grandparents’ adoption petition. The mother appealed.
Reversed. Pursuant to former O.C.G.A. §19-8-10(a)(5), termination of the mother’s parental rights would be authorized if the evidence was clear and convincing that she failed to exercise proper parental care or control due to misconduct or inability, as set out in former O.C.G.A. §15-11-310(a). To prevail, the grandparents had the burden of showing that the cause of the child’s dependency was not remedied, was likely to continue, and that continued dependency will cause the child serious physical, mental, emotional or moral harm. To the contrary, the evidence was that despite her past struggles, the mother made substantial progress. The evidence also was that the child was doing well with the grandparents, and that the mother and child were bonded. Accordingly, the trial court’s order was not supported by clear and convincing evidence that the mother failed to exercise proper parental care due to misconduct or inability, or that the child would be harmed by remaining with the grandparents or by maintaining a relationship with the mother.
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.
Hill v. Burnett, 349 Ga. App. 260 (2019)
Hill and Burnett were involved in a same-sex relationship for three years. Burnett underwent procedures to get pregnant, and she gave birth to twin girls in 2014. Hill participated in birthing classes, was present at the birth, and contributed to the costs and responsibilities of raising the twins. She and Burnett also consulted with an attorney about adoption, but they never followed through with it. Hill, nonetheless, was “Momma” to the children. In 2016, Burnett and the children moved out of the parties’ residence. Shortly thereafter, Hill filed an action to legitimate the twins and establish her parental rights on the theories of implied contract, promissory estoppel and constitutional rights. The trial court dismissed her petition for lack of standing, and awarded $25,475.87 in attorney’s fees to Burnett pursuant to O.C.G.A. §9-15-14(a). Hill appealed the attorney’s fees award.
The Court of Appeals reversed the portion of attorney’s fees related to Hills claims for custody and parenting time, and affirmed the portion related to the legitimation claim. O.C.G.A. §9-15-14(a) provides that attorney’s fees may be assessed against a party who pursues a position with “a complete absence of any justiciable issue of law or fact.” In this case, Hill, in good faith, sought to establish a new theory of law in Georgia. She cited persuasive authority from other jurisdictions in support of her claims for custody and parenting time, but no such authority in support of her legitimation claim. In fact, with regard to the legitimation claim, Hill argued a position that was clearly contrary to Georgia law (only a “biological father” may file a legitimation action). O.C.G.A. §9-15-14(c) prohibits an assessment of attorney’s fees if a good faith attempt to establish new law is based on precedential or persuasive authority. It was not necessary that Hill prevail on her claims. Rather, she only needed to present a “justiciable issue” of law or fact that may reasonably offer support for her claims. Her reliance on recognized authority from other states with regard to her custody and parenting time claims did that. Thus, the fees attributable to Hill’s claims for custody and parenting time were reversed. However, the case was remanded for the trial court to determine what fees were attributable to the legitimation claim.
Price v. Grehofsky, 349 Ga. App. 214 (2019)
Grehofsky gave birth to a baby girl in 2007. Chris Price, the biological father, legitimated the child, and was awarded custody. In 2008, Grehofsky befriended Lauren, who was also dating, and later married Chris in 2011. Since 2009, Grehofsky tried to contact Chris about the child. All but one attempt went unanswered. She also sent letters and gifts to the child, but the letters were returned. Grehofsky communicated with Lauren about the child through Facebook until 2012, when Lauren, Chris and the child moved out of state. Despite Google searches and other efforts, Grehofsky was unable to locate them. In 2016, Lauren filed a petition to adopt the minor child. Grehofsky objected. The trial court found that Lauren did not produce clear and convincing evidence that there was no justifiable cause for Grehofsky’s failure to communicate with and provide support for the child. The trial court also found that it would not be in the child’s best interests to terminate Grehofsky’s parental rights and grant the adoption. Thus, it denied Lauren’s petition. Lauren appealed.
Affirmed. Former O.C.G.A. §19-8-10(b) provided that parental rights may be terminated in favor of a step-parent adoption upon a finding of clear and convincing evidence that without justifiable cause, the biological parent failed to communicate with or provide care and support for the child. In this case, the evidence was that Grehofsky tried to maintain contact with the child, but that her attempts were stonewalled by Chris. As to Grehofsky’s failure to provide support for the child, the Court found that even if she had the ability to pay, she had no idea of where to send the money. Thus, the evidence authorized the trial court’s findings that Grehofsky had justifiable cause for her failure to communicate with and provide support and care for her child. Finally, the Court of Appeals declined to disturb the trial court’s finding that terminating Grehofsky’s parental rights and granting the adoption would not be in the child’s best interest despite the fact that the child was doing well in Chris and Lauren’s custody.
Related Family Law Cases Released in March, 2019:
Ford v. Ford, Case No. A18A1688, Georgia Court of Appeals, March 4, 2019.
The parties waived all forms of alimony in their settlement agreement. Thus, since an award of attorney’s fees under O.C.G.A. §19-6-2 is a form of alimony, the wife was not entitled to fees under that code section. The opinion and dissent also discuss the general rule that issues not raised and ruled upon in the trial court cannot be raised on appeal.
Schaffeld v. Schaffeld, 824 S.E.2d 735 (Ga. App. 2019)
A ‘meritricious relationship’ is one in which the parties cohabit openly and continuously, and are either sexually intimate, or sharing living expenses. Since the Wife in this case only periodically spent overnights with her boyfriend, she was not involved in a meretricious relationship that would trigger the termination of the Husband’s obligation to pay alimony to her.
Cook v. Campbell-Cook, 349 Ga. App. 325 (2019)
Simply prevailing in a contempt action does not authorize an award of attorney’s fees under O.C.G.A. §9-15-14(b). However, if the defenses to the contempt action lack substantial justification, as in this case, then reasonable and necessary attorneys fees are authorized. Fees must be limited to those incurred because of sanctionable conduct.
In re Sierra Leigh Wertzer, 349 Ga. App. 303 (2019)
Guardian ad Litem fees are a cost of litigation in Superior Court custody cases, and in Probate Court guardianship and conservatorship cases. Although the Probate Court has authority under O.C.G.A. §29-9-15 to award costs to the Guardian ad Litem, it does not have the authority to assess those costs against the guardian of a ward.
State v. Burgess, and vice versa, 349 Ga. App. 486 (2019)
An ex parte family violence temporary protective order that orders the Sheriff to confiscate firearms does not substitute for a search warrant authorizing entry into the home.
Summerville et al. v. Innovative Images, LLC, and vice versa, 349 Ga. App. 592 (2019)
An arbitration clause in an attorney/client contract is not unconscionable and against public policy if the attorney does not explain the potential disadvantages to the prospective client prior to signing the contract. The arbitration clause is subject to the ordinary rules of contract construction.
NOTE: The Georgia Supreme Court granted certiorari, and affirmed the judgment of the Court of Appeals on September 9, 2020 in Innovative Images, LLC vs. Summerville, et al, Case No. S19G1026.
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