In June 2019, the Court of Appeals released 16 custody, visitation and other family law related cases. The first eight (listed below) are in Part 1 of the June case law updates. The remaining eight are below.
In the Interest of A.L.S, 350 Ga. App. 636 (2019)
A.L.S. was adjudicated as dependent by the juvenile court, and she was initially placed in the temporary legal and physical custody of Boling, her biological maternal grandmother. Eventually, Franklin (A.L.S.’s mother’s adoptive mother) and her husband intervened in the dependency case, seeking temporary custody of A.L.S. They also filed a petition for grandparent custody in the superior court. Several months later, the juvenile court conditionally returned A.L.S. to her mother’s custody. The mother, however, violated the custody conditions, so Boling sought to regain temporary custody in the juvenile court. Meanwhile, A.L.S.’s mother and the Franklins entered into a consent agreement in the superior court action giving permanent legal and physical custody of A.L.S. to the Franklins. Reasoning that there were no longer dependency issues with the Franklins having custody, the juvenile court sua sponte dismissed the dependency action for lack of subject matter jurisdiction. Boling appealed.
The juvenile court erred by dismissing the case. Juvenile courts have exclusive original juridiction over dependency actions. Once a juvenile court takes jurisdiction of a dependency case, it retains jurisdiction until final disposition. In the instant case, dependency issues still remained unresolved. The agreement placing A.L.S. in the Franklins’ custody was not dispositive of those dependency issues. And, the superior court had not yet approved or made the agreement the order of court. Thus, the juvenile court still had subject jurisdiction when it dismissed the dependency action. At the time of the dismissal, there was no evidence that A.L.S. was no longer a dependent, or that it was in her best interests to be in the Franklins’ custody. Accordingly, the Court of Appeals vacated the dismissal and remanded the case for proper resolution of the dependency petition.
Wertz v. Marshall, Case No. A19A0009, Georgia Court of Appeals, June 26, 2019.
The parties divorced in Florida in 2006. Wertz (mother) had physical custody of the children. Several years later, the children began living with Marshall (father) in Georgia. Wertz remarried to an active duty service member, and they were temporarily stationed in Colorado. In 2017, Marshall brought this modification of custody action. In her answer, Wertz admitted that she resided in Colorado, and that Walker County Superior Court had jurisdiction over the case. Six months later, Wertz moved to dismiss Marshall’s petition pursuant to Georgia’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), arguing that Florida still had jurisdiction. The trial court denied Wertz’s motion to dismiss, reasoning that she admitted to jurisdiction in Walker County, and that by not timely raising the lack of jurisdiction defense, she waived it pursuant to O.C.G.A. §9-11-12,
Affirmed. O.C.G.A. §24-8-821 provides that Marshall could avail himself of the admissions and allegations in Wertz’s pleadings. Wertz neither amended her pleadings nor requested permission to withdraw the admission. Thus, her admission that she was no longer a resident of Florida “conclusively divested” the Florida courts of jurisdiction. Presiding Judge McFadden dissented. Subject matter, he pointed out, cannot be waived. He argued that under the UCCJEA, Wertz’s admission that she lived in Colorado, standing alone, did not mean that Florida lost jurisdiction. Instead, a broader inquiry into the totality of the circumstances was necessary. A person can have more than one residence. And, Wertz admitted that she only lived in Colorado temporarily because her husband was stationed there. Thus, Judge McFadden posited that the important question was not where Wertz currently lived. Rather, the question should have been one of intent, and whether she has stopped residing in Florida.
Oni v. Oni, Case No. A19A0711, Georgia Court of Appeals, June 26, 2019.
This case has a long history. In 2010, Cassondra Oni (Ms. Oni) and the biological father of her twins relinquished their parental rights. Shortly thereafter, Adedamola Oni (Dr. Oni) adopted the twins. (The parties were not married. Ms. Oni legally changed her last name.). Approximately ten months later, Ms. Oni moved to set aside the adoption on the basis of fraud and duress. The trial court granted her motion and placed the children in her custody. Dr. Oni appealed. The Court of Appeals reversed, holding that Ms. Oni’s motion was statutorily time-barred. Oni v. Oni, 323 Ga. App. 467 (2013). Upon remand, Ms. Oni amended her motion to set aside, alleging deficiencies that required the adoption to be declared void ab initio. The trial court granted the amended motion. However, the Court of Appeals again reversed because the motion was time-barred. Oni v. Oni, 336 Ga. App. 278 (2016).
Back in the trial court again, Ms. Oni filed the instant case, a separate action seeking custody, parenting time and child support. The trial court consolidated her custody action with the remanded motion to set aside case. Ruling that the “peculiar circumstances” of the case defied the general rules of law, the trial court exercised its equity jurisdiction, awarding Ms. Oni permanent custody of the twins, and restraining Dr. Oni from having any contact with them. Dr. Oni appealed to the Court of Appeals for the third time.
NOTE: In 2017, Dr. Oni attempted to regain custody of the children by enforcing the adoption order in Tennessee, where Ms. Oni lived with the children. The Tennessee trial court communicated with the Georgia court in accordance with the UCCJEA. After finding that Ms. Oni’s custody action was pending in Georgia, the Tennessee trial court ruled that Georgia was a more convenient forum, and dismissed the Tennessee case. The trial court was affirmed on appeal. Oni v. Oni, Case No. E2017-01636-COA-R3-CV, Court of Appeals of Tennessee at Knoxville. A read of this case, and the above mentioned Georgia cases gives a good picture of the facts underlying these appeals.
Reversed. The trial court relied on O.C.G.A. §23-1-3 which provides: “Equity jurisdiction is established and allowed for the protection and relief of parties where, from any peculiar circumstances, the operation of the general rules of laws would be deficient in protecting from anticipated wrong or relieving for injuries done.” Equity may only be exercised within the parameters of the law, and cannot be invoked to create rights that Ms. Oni does not otherwise have. After surrendering her parental rights, Ms. Oni is a “stranger” to the children. Therefore, she does not have the right to seek custody under O.C.G.A. §19-7-1(b.1), the statute that governs custody disputes between parents and third parties. Accordingly, her petition for custody has no basis in law, and equity jurisdiction could not be invoked.
Rowles v. Rowles, Case Nos. A19A0467 and A19A0719, Georgia Court of Appeals, June 28, 2019.
Almost two years after the parties’ second divorce, Husband filed a petition for contempt alleging that Wife violated the visitation provisions of their settlement agreement. He later filed a motion to set aside the divorce decree, contending that he signed the settlement agreement under duress when Wife threatened to expose his extra-marital affair. The trial court granted Husband’s motion to set aside as to the custody and visitation provisions, but denied the motion as to the remaining financial portions. The trial court then granted Husband sole legal and physical custody of the children, with Wife having supervised visitation. Finally, the trial court awarded Husband $112,189.10 in attorney’s fees pursuant to O.C.G.A. §§19-6-2 and 9-15-14(b). Both parties appealed.
Affirmed in part, reversed in part and vacated in part. Pursuant to O.C.G.A. §9-11-60, a motion to set aside a judgment based on fraud must be filed within three years of the judgment. Husband’s motion was timely filed. With the contempt action pending, he was not required to file a separate action to set aside the judgment.
The trial court, however, erred by setting aside the divorce decree on the basis of duress. A trial court can only set aside a judgment for duress if the complaining party was prevented from asserting a good defense. The claim of duress must be based on the other party’s “wrongful or unlawful” acts. Husband participated in the divorce proceedings and the mediation of the custody agreement. Furthermore, he enumerated no defense that he allegedly was prevented from asserting. Rather, his own acts (the affair) put him in the unfavorable bargaining position in which he found himself. Thus, the order to set aside the divorce decree was reversed.
The Court of Appeals affirmed the attorney’s fees awarded pursuant O.C.G.A. §19-6-2. Fees under this statute are not based on the wrongdoing of either party. Rather, the trial court properly considered the parties’ financial positions. Expenses of litigation other than attorney’s fees, however, are not recoverable under O.C.G.A. §19-6-2.
The Court of Appeals also vacated the fees awarded under O.C.G.A. §9-15-14(b) and remanded the issue for further findings. The record and the trial court’s findings indicate that Wife alienated the children from Husband, refused to allow visitation, and made unfounded allegations of child abuse. These acts support the trial court’s findings that, without justification, Wife unnecessarily expanded the litigation for the purpose of delay and harassment. The trial court, however, failed to make findings as to how the fees awarded were limited to this conduct.
Presiding Judge McFadden dissented in part. He agreed with the trial court that Wife’s threats constituted duress which wrongfully caused Husband to agree to significant financial concessions, limited his access to the children, and restrictions on the children’s dual citizenship. He argued, however, that the trial court did not consider whether Husband was prevented from asserting the duress defense before the trial court entered the final decree. Judge McFadden also argued that the trial court improperly applied the unclean hands doctrine, and that it could not set aside only part of the final decree while leaving the remaining portions intact. Judge McFadden would have vacated the motion to set aside order and remanded the issue for reconsideration. And, because this result may have affected the parties’ respective financial positions on remand, Judge McFadden contended that the fees awarded under O.C.G.A. §19-6-2 also should be vacated and remanded for reconsideration.
Related Family Law Cases Released in June, 2019:
Dependency // Appellate Jurisdiction
In the Interest of A.B., a child, Case No. A19A0116, Georgia Court of Appeals, June 19, 2019.
The mother abandoned A.B., and she abused drugs, was homeless, and was mentally and economically unstable. Thus, the evidence was clear and convincing evidence that she was unfit, and that A.B. was a dependent child. There was no merit to the mother’s assertion that she was deprived of due process because the juvenile court did not comply with various code sections. Furthermore, the mother contended that she did not receive sufficient notice of a hearing. Yet, she and her attorney appeared at the hearing. Since she did not raise the issue of insufficient notice at that hearing, the issue was waived on appeal. The majority and dissenting Presiding Judge McFadden disagreed on whether the Court of Appeals had jurisdiction to entertain the appeal. Judge McFadden argued that the mother’s pro se notices of appeal were invalid because she was represented by counsel. Even though the issue was discussed and ruled upon in open court, the mother’s attorney made no written request to withdraw in accordance with Juvenile Court Rule 25.2 and Uniform Superior Court Rule 4.3(1), and the juvenile court did not issue an order of withdrawal.
Termination of Parental Rights
In the Interest of M.R.B., a child, Case No. A19A0490, Georgia Court of Appeals, June 19, 2019.
The juvenile court abused its discretion by terminating the father’s parental rights. Although the father is presently incarcerated, the record shows that the juvenile court previously placed M.R.B. in his custody for approximately three years despite a previous criminal history that predated M.R.B’s birth. Most of the father’s recent criminal history is misdemeanor convictions that would not prevent him from caring for M.R.B. Moreover, unless there were “circumstances in aggravation,” termination of the father’s parental rights was not automatically authorized simply because he was currently incarcerated. Additionally, in ruling that the father failed to pay child support, the juvenile court should have first considered whether his inability to earn income due to his incarceration justified his failure to pay. And, although the father was willing to complete his case plan goals to regain custody of M.R.B., because of his incarceration and the unavailability of appropriate services, he was not given a realistic opportunity to progress on the goals. Finally, the record did not support by clear and convincing evidence other juvenile court findings and conclusions, including its conclusion that if M.R.B. is returned to the father’s custody, she would likely be exposed to instability, illegal drugs or domestic violence.
Family Violence Protective Order
Smith v. Smith, Case No. A19A0320, Georgia Court of Appeals, June 20, 2019.
Pursuant to O.C.G.A.§19-13-3(c), the hearing on a petition for a family violence protective order must be held within 30 days after the petition is filed. Unless the parties agree otherwise, if it does not occur within 30 days, the petition shall be dismissed. Because of inclement weather, the trial court rescheduled the hearing on the wife’s petition for a family violence protective order for several days after the 30 day period. Thus, the trial court erred by moving forward with the hearing, and not granting the husband’s motion to dismiss the petition.
Edwards v. Moore, et al., Case No. A19A0082, Georgia Court of Appeals, June 27, 2019.
The trial court properly granted summary judgment to the wife’s divorce attorney in this malpractice action. As a matter of law, the wife could not prove that the attorney was the proximate cause of the termination of her alimony. Specifically, the wife alleged that the attorney should have filed a counterclaim to obtain alimony and reform a previous settlement agreement between the husband and wife. However, the wife has no absolute right to alimony, and thus, she could not prove that but for the alleged error, she would have prevailed on the counterclaim. Furthermore, even if there was evidence that she would prevail, the wife was unable to prove the measure of damages, since the amount and the length of the alimony, if awarded, would be entirely speculative.
Click here for Part 1 of the June 2019 Georgia Custody/Visitation Case Law Updates with reviews of the below cases.
- Burnham v. Burnham
- Selvage v. Franklin
- Brooks v. Lopez
- O’Brien v. Lewis
- In the Interest of A.M., et al.
- Lynch v. Lynch
- In the Interest of T.Y., et al.
- In the Interest of J.G.
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