In June 2019, the Court of Appeals released 16 custody, visitation and other family law related cases. The first eight are below. The remaining eight (listed below) will be coming soon in Part 2 of the June case law updates.
Burnham v. Burnham, 350 Ga. App. 348 (2019)
When Alexa and Bruce Burnham divorced in 2016, they agreed to joint legal custody of their children, with Alexa having physical custody. They also agreed to live within 120 miles of the marital residence. The parties initially co-parented well, and Bruce spent more time with the children than provided in the agreement. In 2017, Bruce asked Alexa to agree to less child support. Alexa responded by strictly enforcing the visitation, thereby reducing the children’s time with him. In 2018, Alexa moved to another county, but still within the agreed upon 120 miles. Bruce petitioned to modify custody, alleging that the move constituted a material change in circumstances. Alexa denied that the move was a material change since she remained within 120 miles, as contemplated by their agreement. She also filed a petition to modify Bruce’s visitation, and for contempt regarding child support and life insurance. The trial court found that it was in the children’s best interests to reside with Bruce, and granted his petition to modify. Alexa appealed.
Judgment vacated and remanded for further factual findings. In a modification of custody action, the trial court must first determine whether there has been a material change in circumstances. Only if there has been a material change should the trial court address the question of the children’s best interests. In this case, the trial court erroneously skipped the threshold question of material change, and focused only on what was in the best interests of the child. Contrary to Bruce’s contention on appeal, Alexa did not waive her argument that there was insufficient evidence of a change in circumstances by not raising the argument at trial.
Selvage v. Franklin, Case No. A19A0730, Georgia Court of Appeals, June 4, 2019.
Selvage (father) and Franklin (mother) had a child out of wedlock in 2008. In 2009, Selvage pled guilty to domestic violence acts against Franklin in the child’s presence. A condition of his probation was to have no contact with them. Because of this, and subsequent violations of no-contact orders, Selvage had no contact with the child from 2009 to 2013. In 2013, he legitimated the child. The trial court, however, continued to deny contact with the child. In 2015, Franklin allowed Selvage to have some visitation, but she stopped all visits after she and Selvage had a disagreement. In 2017, Selvage filed a modification petition seeking joint physical and legal custody, visitation, and to establish child support. Franklin opposed the petition. The trial court denied Selvage’s petition in its entirety, finding that contact with him still was not in the child’s best interests. This appeal ensued.
Prior to trial, Selvage requested findings of fact and conclusions of law, in accordance with O.C.G.A. §§19-9-3(a)(8) and 9-11-52(a). Yet, the trial court’s order was scant. The Court of Appeals held that “given the gravity of the court’s decision” to deny all contact with the child, Selvage was entitled to an order with more complete findings and conclusions. Thus, the Court vacated the trial court’s denial of Selvage’s request for a modification of visitation, and remanded the issue for findings of fact and conclusions of law. NOTE: In this case, the basis for the applicability of O.C.G.A. §19-9-3(a)(8), which applies in custody cases, is O.C.G.A. §19-9-22(1), which defined “custody” as including visitation rights. Senate Bill 190, effective July 1, 2019, removed this language from O.C.G.A. §19-9-22(1).
The Court of Appeals also remanded the case for the trial court to consider the applicability of O.C.G.A. §19-9-7. This code section allows for visitation in cases involving domestic violence if the trial court finds that adequate provisions can be made for the safety of the child and the victim(s). There are a number of visitation options the trial court can consider implementing under this code section.
The trial court also failed to enter a parenting plan in compliance with O.C.G.A. §19-9-1. Subsection (a) of the code section mandates that a permanent parenting plan be incorporated into any final order in custody cases. The trial court must address several details in the parenting plan, but a separate order is not necessary. In the instant case, the trial court’s mere recitation of custody and visitation was insufficient. This was another basis for the Court of Appeals to vacate the judgment and remand the case with instructions for the trial court to comply with O.C.G.A. §19-9-1.
Finally, the trial court erred by summarily denying Selvage’s request to pay child support. The trial court should have determined whether there had been a substantial change in Selvage’s financial status, or in the needs of the child. If there was, the trial court should have reconsidered child support in accordance with the guidelines in O.C.G.A. §19-6-5. Thus, the child support portion of the final order was reversed and remanded for reconsideration. The Court of Appeals admonished the trial court with a reminder that child support is the child’s right, not the parent’s right.
Brooks v. Lopez, Case No. A19A0324, Georgia Court of Appeals, June 11, 2019.
Lopez (mother) and Brooks (father) had a child born out of wedlock in 2008. Brooks signed the birth certificate, and the child took his last name. Brooks and Lopez later married, but divorced in 2011. In the settlement agreement, they agreed to joint legal and physical custody with Brooks having primary physical custody. In 2017, Lopez filed a petition to modify custody. She later amended her petition to allege that Brooks was not the child’s biological father. She also filed a motion for DNA testing, which the trial court granted after only 16 days. The trial court granted Brooks’ certificate of immediate review, and this appeal followed.
Reversed. The trial court erred by granting Lopez’s motion for genetic testing. The paternity issue was adjudicated in the divorce proceedings. Lopez did not allege fraud or mistake. Thus, the issue of paternity is res judicata, and Lopez is estopped from raising the issue again in this action.
O’Brien v. Lewis, Case No. A19A0502, Georgia Court of Appeals, June 19, 2019.
The parties shared joint legal custody with Lewis (mother) having primary physical custody. Lewis petitioned to modify visitation and child support in DeKalb County, where O’Brien lived. After dismissing his counterclaim in DeKalb County, O’Brien (father) filed to modify custody and child support in Forsyth County, where Lewis lived. Lewis dismissed her modification of visitation claim in DeKalb County, and the parties subsequently agreed to consolidate their cases in Forsyth County. Then, Lewis amended her answer, moving to modify visitation under O.C.G.A. §19-9-3(b). O’Brien filed a motion to dismiss her amended answer, arguing that O.C.G.A. §19-9-23 required her to file a separate visitation action in DeKalb County. The trial court denied his motion. At the final trial, the trial court refused to accept a proffer of evidence by O’Brien. The trial court also awarded attorney’s fees to Lewis pursuant to O.C.G.A. §§19-6-15 and 19-9-3(g). This appeal followed.
Affirmed. The Court of Appeals reasoned that when O’Brien filed his petition in Forsyth County, he submitted to jurisdiction there. He then consented to consolidate all litigation in Forsyth County so that all issues of custody, visitation and child support could be tried together. Thus, the trial court properly denied O’Brien’s motion to dismiss Lewis’ counterclaim. Presiding Judge McFadden dissented. He argued that Lewis’ motion to modify visitation under O.C.G.A. §19-9-3(b) does not create a separate basis for jurisdiction. Instead, Judge McFadden opined that pursuant to O.C.G.A. §19-9-23, she should have filed a separate action in DeKalb County. NOTE: The Georgia Legislature amended O.C.G.A. §19-9-23, effective July 1, 2019. Now, counterclaims for modification of legal or physical custody and visitation are permitted in response to complaints for modification of custody.
Additionally, the trial court did not err in awarding attorney’s fees to Lewis. The underlying issues in this case were modification of child support and custody/visitation. O.C.G.A. §19-6-15(k) authorizes an award of “reasonable and necessary attorney’s fees” in child support actions. O.C.G.A. §19-9-3(g) authorizes “reasonable attorney’s fees” in custody matters. Finally, O’Brien has not fully explained his offer of evidence or how it would have assisted the trial court. Thus, the trial court did not err in refusing the proffer.
Related Family Law Cases Released in June, 2019:
Dependency // Reunification
In the Interest of A.M. et al., children, Case No. A19A0240, Georgia Court of Appeals, June 4, 2019.
When children previously adjudicated dependent are reunited with their parent(s), the Juvenile Court may order the Department of Human Services (DHS) to perform certain duties to ensure reunification and relieve the DHS of further responsibility. The trial court, however, cannot order the DHS to do things unrelated to the foregoing. O.C.G.A. §15-11-212(d).
Antenuptial Agreement // O.C.G.A. §9-15-14 Attorney’s Fees
Lynch v. Lynch, Case No. A19A0485, Georgia Court of Appeals, June 13, 2019.
Enforcement of the parties’ antenuptial agreement was affirmed since there was some evidence to support the trial court’s finding that it contained full disclosure of their assets and income. However, 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 since the order was devoid of findings of fact and conclusions of law supporting the award. There was no reference to the sanctionable conduct forming the basis of the award, and the trial court did not consider the reasonableness of the fees. Finally, the trial court’s order does not specify whether the fee award was made under subsection (a) or (b).
Dependency // Juvenile Court Findings
In the Interest of T.Y. et al., children, 350 Ga. App. 553 (2019).
In dependency cases, O.C.G.A. §15-11-111(b)(2) requires the Juvenile Court to enter findings of fact in accordance with the provisions of O.C.G.A. §9-11-52(a). Thus, the Juvenile Court must “find the facts specially and shall state separately its conclusions of law.” The trial court’s findings should reflect its consideration of the evidence and testimony. Furthermore, the trial court should consider evidence and testimony of present dependency rather than past or potential future dependency. Finally, “a finding of parental unfitness is essential to support an adjudication of present dependency.’”
Following a remand to the juvenile court, this case appeared for a second time in the Court of Appeals in October 2020. See In the Interest of T.Y., et al., children.
Dependency // Juvenile Court Findings // Grandparent Custody
In the Interest of J.G., Case No. A19A0427, Georgia Court of Appeals, June 19, 2019.
As in In the Interest of T.Y. above, the Juvenile Court’s order has insufficient findings of fact to enable appellate review. Findings of fact should not be merely a recitation of the evidence and testimony at trial. Rather, findings of fact should reflect the court’s consideration of the testimony and evidence, with a rationale as to how the conclusions are reached. Additionally, under O.C.G.A. §15-11-200, the Juvenile Court is no longer required to extend a reunification case plan to a dependent child’s parents. However, only in the most compelling circumstances should the trial court interfere with a parent’s right to raise his or her child. Thus, if the trial court refuses to allow a reunification case plan, the findings should contain a specific factual basis to support its conclusion.
Finally, the Juvenile Court applied the incorrect legal standard in awarding custody to the grandmother. Custody issues between a parent and a grandparent are governed by O.C.G.A. §19-7-1(b.1). Thus, the grandmother had the burden of showing by clear and convincing evidence that awarding custody to the father would be harmful to the child. If the grandmother carried that burden, she must then show that awarding custody to her is in the best interests of the child.
Part 2 of the June 2019 Georgia Custody/Visitation Case Law Updates with reviews of the below cases can be found here.
- In the Interest of A.B.
- Oni v. Oni
- In the Interest of M.R.B.
- In the Interest of A.L.S.
- Smith v. Smith
- Wertz v. Marshall
- Edwards v. Moore
- Rowles v. Rowles