The Georgia Court of Appeals had a very busy month in October 2019! Seven custody and visitation related opinions, and nine other family law related cases were released. The first eight cases are below. The remaining eight cases (listed below) are reviewed in Part 2 of the October case law updates.
Hannah et al. v. Hatcher et al., Case No. A19A1448, Georgia Court of Appeals, October 9, 2019.
Hatcher (the Mother) gave temporary guardianship of L.R. to his paternal grandmother, Hannah. The biological father and Hatcher, however, never married, and he never legitimated L.R. Hannah and her husband eventually petitioned the trial court for immediate temporary and permanent custody of L.R., alleging that both of his parents were unfit. The trial court dismissed the petition, concluding that the Hannahs lacked standing since their son never legitimated L.R. This appeal followed.
Reversed and remanded. The trial court erred by concluding that the Hannahs lacked standing. The controlling factor in O.C.G.A. §19-7-1(b.1) that establishes the Hannahs’ standing is merely that their son is L.R.’s biological parent. There is no prerequisite that the child be legitimated.
Steedley v. Gilbreth, Case No. A19A1413, Georgia Court of Appeals, October 9, 2019.
C.B.G., was born out of wedlock to Steedley, and his biological father never legitimated him. Steedley and C.B.G. lived with Gilbreth, C.B.G.’s grandmother, until Steedley married. However, Gilbreth continued to provide child care. When C.B.G. was three years old, Gilbreth filed a petition for custody, which the trial court granted on a temporary basis. Steedley appealed.
Vacated and remanded. The order awarding Gilbreth custody contains no findings of fact or law to support its award. Without those necessary findings, the Court of Appeals could not properly review the trial court’s custody award.
Upon remand, the trial court must apply the standards, analysis, presumptions and burdens contained in O.C.G.A. §19-7-1(b.1), and Clark v. Wade, 273 Ga. 575 (2001). Thus, the presumption that it is in C.B.G.’s best interests to be in Steedley’s custody can be overcome by clear and convincing evidence that he will suffer either physical harm, or significant long term emotional harm if Steedley has custody. If no harm is proven, then the trial court should award custody to Steedley. If harm is proven, the trial court must then determine whether it is in C.B.G’s best interests to award custody to Gilbreth. Because it has been a year since the last evidentiary hearing, on remand, it may be necessary for the trial court to consider additional evidence regarding the best interests of C.B.G.
The Court of Appeals also could not address Steedley’s enumeration that the trial court erred in denying her motion to transfer venue. Although the trial court made an oral ruling on her motion, it was never reduced to writing, signed by the judge and filed with the Clerk. Thus, the appeal on this issue was premature.
Longino v. Longino, Case No. A19A1386, Georgia Court of Appeals, October 11, 2019.
The Father filed a petition to modify custody of the two minor children of the parties. Evidence was presented at the trial, and several witnesses testified. The trial court modified custody by awarding joint custody, with equal parenting time for both parents. Father was designated as the primary custodian. The order, however, contained no insight as to the trial court’s findings and conclusions. Rather, it only detailed the new custody and child support arrangements. The Father appealed.
Generally, specific findings of fact are not required unless requested by either party. However, in this case, the trial court’s order contained no explicit or implicit finding of a change in material circumstances justifying a change in custody. Nor did the order reflect that the trial court properly applied its findings. Thus, the Court of Appeals vacated and remanded the case for the trial court to make the requisite threshold statutory findings.
Related Family Law Cases Released in October, 2019:
Termination of Temporary Guardianship
In the Interest of J.L., Case No. A19A1103, Georgia Court of Appeals, October 4, 2019.
A temporary guardian who objects to the termination of the guardianship must show by clear and convincing evidence that the child will suffer physical or emotional harm if the biological parent regains custody. The temporary guardian must then show that continuing the guardianship will be in the child’s best interests.
Proof of Dissolution of Marriage
Dillard v. Schilke, Case No. A19A1472, Georgia Court of Appeals, October 8, 2019.
To marry, a person must have no living spouse of a previous undissolved marriage. The dissolution of the previous marriage by divorce cannot be presumed. Rather it must be affirmatively established by the divorce decree, or through circumstantial evidence.
Equitable Division // Personal Injury Settlements // Inter-spousal Transfers
Dixon v. Dixon, Case No. A19A1179, Georgia Court of Appeals, October 9, 2019.
Personal injury settlements for pain, suffering and loss of capacity, and loss of consortium are the separate property of the respective spouses, not subject to equitable division. In contrast, compensation for lost wages or medical expenses during the marriage are marital property subject to equitable division.
Additionally, an inter-spousal transfer of separate property is presumed to become marital property absent evidence to the contrary. Accordingly, the source of funds rule cannot be used to reverse that presumption by re-classifying the marital property back to the separate property status.
Dependency Action // Clear and Convincing Evidence
In the Interest of M.S., a child, Case No. A19A1273, Georgia Court of Appeals, October 11, 2019.
Findings in a dependency action must be supported by clear and convincing evidence. Evidence that the mother has other children in foster care is not sufficient without evidence of the circumstances. Additionally, past misconduct which has been remedied cannot serve as a basis for a finding of present dependency. Evidence of the mother’s present drug use was controverted, and therefore not clear and convincing. Also, the parents’ history of domestic violence did not establish clear and convincing evidence that the child is presently dependent since there was no evidence that the child ever witnessed or heard the incidents. And, despite this history, the possibility that the parents may resume their relationship establishes only potential future (not present) dependency. Finally, the child often stayed with the grandparents, and the mother did not have a complete child care plan, but these facts also are not a basis for a finding of dependency.
Waiver of Issues on Appeal // O.C.G.A. §19-6-2 Attorney’s Fees
Winchell v. Winchell, Case Nos. A19A1531 and A19A2119, Georgia Court of Appeals, October 16, 2019.
The trial court’s compliance with the fact finding requirements of O.C.G.A. §19-6-15 may be raised for the first time on appeal if the appellant did not file a post-judgment motion in the trial court in which the issue was, or could have been raised. However, if such a post-judgment motion was filed, and the compliance issue was not raised, then the issue is waived on appeal.
The purpose of an award of attorney’s fees under O.C.G.A. §19-6-2 is to level the playing field so that both parties can afford effective representation, taking into account their respective financial circumstances. A party’s misconduct in a divorce proceeding is not a basis for a fee award under the code section. However, misconduct may have relevance in its financial impact on the litigation and the amount of fees incurred.
Finally, in Part 2 of the October 2019 Georgia Custody/Visitation Case Law Updates, you will find reviews of the below cases released in the second half of October 2019:
- Sullivan v. Harper
- Dovel v. Dovel
- In the Interest of V.G.
- Vanterpool v. Patton
- Fyffe v. Cain
- McCarthy v. Ashment
- Rollins v. Smith, et al.
- Mashburn v. Mashburn