April 2019 was an interesting month for custody and visitation cases released by the Georgia Court of Appeals.
Long v. Truex, Case Nos. A19A0038 and A19A0749, Georgia Court of Appeals, April 10, 2019.
When the parties divorced in 2014, they shared joint legal custody of their son, with Truex (Father) having primary physical custody. Shortly thereafter, both parties filed for a modification of custody, and Truex filed a contempt action against Long (Mother). In the contempt action, Long was held in contempt, her untimely motion for new trial was denied, and Truex was awarded attorney’s fees pursuant to O.C.G.A. §9-15-14(a). In the modification actions, based on its findings that Long had deteriorating mental health issues that were detrimental to the child, the trial court awarded sole legal and physical custody to Truex, and required that Long’s visitation be supervised. Long filed a motion for new trial, but later unsuccessfully attempted to dismiss it. The trial court denied her motion for new trial. This appeal ensued.
The only way to dispose of a motion for new trial is with a Court order. Thus, Long’s attempt to voluntarily dismiss her motion for new trial did not deprive the Court of Appeals of jurisdiction since the appeal arose from the trial court’s denial of her motion.
The trial court properly considered Long’s declining mental health. Under O.C.G.A. §19-9-3(a)(3)(I), a parent’s mental health is a factor to consider in custody determinations. The evidence and testimony, including that of a parent coordinator, authorized the trial court’s findings that Long’s mental health was deteriorating, and that her behaviors were detrimental to the minor child. Furthermore, the trial court was authorized to draw conclusions from its own observations throughout the lengthy litigation. Since the evidence supports the trial court’s findings and ruling, there was no abuse of discretion.
The Court of Appeals vacated and remanded the trial court’s award of attorney’s fees pursuant to O.C.G.A. §9-15-14(a) since it was unclear whether the trial court intended for the fees to be assessed against Long, her attorney, or both of them. The trial court’s amended order correcting this error was ineffective since it was entered after Long filed her discretionary appeal.
Finally, since the Court of Appeals accepted Long’s discretionary appeal, and since the attorney’s fees award was vacated and remanded, Truex’s request for sanctions for frivolous appeal was denied.
Morgan et al. v. Morgan, Case No. A19A0239, Georgia Court of Appeals, April 12, 2019.
In 2008, by consent of his parents, J.P. was placed in his paternal grandparents’ custody. In 2014, the grandparents and J.P.’s mother entered into a second consent order providing for joint custody with significant visitation for the mother (J.P.’s father was no longer living). The evidence showed that the mother continued to improve her ability to care for J.P. She was employed, had a stable home, and she was raising J.P.’s sister (also the grandparents grandchild). J.P. was seeing mental health professionals to help him cope with psychological issues. The trial court noted this should continue. The trial court also found that the mother was a fit parent, capable of meeting J.P.’s needs. Thus, the trial court awarded custody of J.P. to the mother based on the it’s finding that J.P. would not suffer physical or long term emotional harm. The grandparents appealed.
Affirmed. The trial court properly rejected the grandparent’s argument that the burden of proof should have shifted to the mother to show that a change in custody would be in J.P.’s best interests. Instead, the trial court correctly applied the standard in O.C.G.A. §19-7-1(b.1), placing the burden of proof on the grandparents. The mother would have had the burden of proof if she had previously lost permanent custody to the grandparents pursuant to an evidentiary hearing with clear and convincing evidence of present parental unfitness. But that was not the case here. The Court of Appeals further rejected the grandparents’ argument that there should be a per se bar to change custody to the mother since J.P. lived with them for most of his life. Finally, the Court held that the evidence supported the trial court’s award of custody to the mother.
Dingle v. Carter, Case No. A19A0081, Georgia Court of Appeals, April 24, 2019.
This case arose from cross-motions for contempt. Carter (father) originally had custody of the parties’ minor child, but in 2014, Dingle (mother) obtained primary physical custody. Dingle, who was in the United States Army, was required to give notice to Carter if she was deployed, and Carter would become the child’s temporary guardian during her deployment. The 2014 order also required Carter to pay child support and to maintain a life insurance policy with the child as the beneficiary. However, the order was silent as to whether he was required to pay support while the child was in his care during Dingle’s deployment. Carter was also ordered to pay $30,000 in attorney’s fees to Dingle’s attorney.
Dingle eventually deployed, but she waited three months to give the required notice to Carter. Carter also failed to pay the child support or maintain the life insurance policy. He filed for bankruptcy, naming Dingle’s attorney as a creditor, and was later generally discharged in bankruptcy.
The trial court found Dingle in contempt for failing to give notice of her deployment to Carter. The trial court also abated the portion of Carter’s child support obligation during his temporary guardianship. Additionally, the trial court ruled that it did not have authority to determine whether the attorney’s fees were dischargeable in bankruptcy. Finally, the trial court awarded attorney’s fees to Carter. This appeal followed.
Affirmed in part, reversed in part, and case remanded. The evidence supported the trial court’s finding of contempt against Dingle since she did not give the proper notice of her deployment to Carter.
State courts have concurrent jurisdiction with bankruptcy courts to determine whether a debt is in the nature of support. If the bankruptcy court makes this determination, it is res judicata in state courts. A general discharge in bankruptcy, however, does not suffice, and will not deprive the State court of jurisdiction to determine dischargeability. In this case, since there was no evidence that the bankruptcy court made a determination as to the dischargibility of the fee award, the trial court should have made the determination. Thus, the issue was remanded for the trial court to determine whether the fee award was dischargeable.
Regarding the abatement of child support while Carter had temporary guardianship, the trial court found that the deviation in support would not do an injustice to Dingle. However, the trial court failed to make any findings as to whether the abatement/deviation was in the child’s best interests. Thus, the Court of Appeals reversed and remanded this issue so that the trial court can make a ruling as to whether the abatement is in the child’s best interests, and issue written findings of fact to support the deviation. UPDATE: The Court of Appeals reconsidered and revised its opinion regarding the abatement of child support. The foregoing reasoning and conclusion were deleted from the opinion. Instead, the Court of Appeals held that the trial court erred by abating (and therefore modifying) Carter’s child support obligation in a contempt action.
Finally, the trial court erred in awarding attorney’s fees to Carter pursuant to O.C.G.A. §9-15-14 since it did not hold an evidentiary hearing to determine the necessary and reasonable amount to award. The trial court also did not have authority to award fees pursuant to O.C.G.A. §19-6-2 since the code section applies only to divorce and alimony cases.
Related Family Law Cases Released in April, 2019:
In re Ari Bey f/k/a Arielle McKenzie, Case No. A19A0254, Georgia Court of Appeals, April 11, 2019.
In re Nino Bey f/k/a/ Andre Johnson, Case No. A19A0253, Georgia Court of Appeals, April 11, 2019.
In both of these appeals, the trial court granted the Petitioners’ requests for a name change, but failed to rule on their requests for a change of race/nationality. Thus, the Court of Appeals remanded both cases to the trial court for a ruling on Petitioners’ requests.
Naar v. Naar, Case No. A19A0560, Georgia Court of Appeals, April 29, 2019.
A Varn v. Varn, 242 Ga. 309 (1978) waiver of upward or downward modification of alimony remains in effect despite the passage of almost 30 years, and despite the fact that the obligor is 88 years old and on a fixed income. Additionally, attorney’s fees pursuant to O.C.G.A. §9-15-14 should not be assessed when the case has been filed in a good faith attempt to challenge precedent, or to establish a new theory of law based on recognized precedential or persuasive authority.. See also, Hill v. Burnett, Case No. A18A1655, Georgia Court of Appeals, March 7, 2019.
In the Interest of J.C. et al., children, Case No. A19A0540, Georgia Court of Appeals, April 30, 2019.
The Juvenile Court’s sua sponte transfer of guardianship to the children’s paternal grandparents without the required notice to the mother and without the requisite findings was in violation of mandatory procedures set forth in O.C.G.A. §§15-11-240, 15-11-241, 15-11-241 and 29-2-18.
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