In October 2019, the Georgia Court of Appeals released seven custody and visitation related opinions, and nine other family law related cases. Part 1 reviews the first eight cases from the first half of October (listed below). The remaining eight cases follow.
Sullivan v. Harper, Case No. A19A1629, Georgia Court of Appeals, October 22, 2019.
When the parties divorced in 2016, they shared joint legal custody of their two sons. Sullivan had primary custody and final decision making authority. The Parenting Plan entitled both parties to consult with, and receive full disclosure and information from health care and other providers. It also set forth conditions for scheduling and taking the children to their appointments. Finally, the Parenting Plan contained non-disparagement language.
The older son received tutoring and therapies for autism spectrum disorder. His psychologist performed an evaluation which required both parents’ to fill out forms and provide input. Both parents also met with the psychologist separately for feedback sessions. However, Sullivan objected to Harper’s fiancé attending the feedback session with him. She also told the psychologist to consult with her prior to releasing the children’s records to Harper. Harper filed a contempt action alleging that Sullivan was in violation of the Parenting Plan.
The trial court found Sullivan in contempt for disparaging Harper to the health care professionals, interfering with his right to receive information, and misrepresenting the scope of her final decision making authority. The trial court added that Sullivan cannot dictate who can attend therapy feedback sessions with Harper. Furthermore, the court clarified that providers can release records and information to Harper without first consulting, notifying or advising Sullivan. Finally, the trial court awarded attorney’s fees and costs to Harper pursuant to O.C.G.A. §19-6-2. Sullivan appealed.
Affirmed in part, reversed in part, and remanded with direction. A trial court cannot modify a Parenting Plan in a contempt action. However, it is authorized to interpret or clarify it to ensure compliance with the intent and spirit of its decrees. Neither party should be allowed to take advantage of unclear draftsmanship to the detriment of the other party.
The trial court did not err by specifying that others can attend Harper’s feedback sessions that do not include the child. The Court of Appeals reasoned that this was not an impermissible modification. Rather, the provision merely clarified the extent of Sullivan’s decision-making authority. It follows, however, that the trial court erred in holding Sullivan in contempt for instructing the psychologist to exclude the fiancé from sessions since, the provision, without the clarification, was too vague and indefinite to enforce.
The Court of Appeals, however, did uphold the trial court’s finding that Sullivan’s responses to the psychologist’s questions and forms were disparaging and in violation of the Parenting Plan. Whether her comments were, in fact, disparaging, and whether she intended to disparage Harper are factual and credibility questions within the province of the trial court. And, the evidence supported the trial court’s findings. Astutely, the Court added that a parent can honestly respond to health provider inquiries without being disparaging.
Finally, since the trial court erred in finding Sullivan in contempt on one of the issues, the Court of Appeals vacated and remanded the attorney’s fees award.
Vanterpool v. Patton, Case No. A19A1108, Georgia Court of Appeals, October 28, 2019.
This is the second appeal regarding the legitimacy of a child conceived by in vitro fertilization (IVF). Four days before the finalization of their divorce, with Patton’s consent, Vanterpool underwent the IVF procedure, using donor ova and donor sperm. The divorce decree, which incorporated the parties’ agreement, provided that there were no children born of, or at issue in the marriage. Vanterpool subsequently filed this paternity action. In Patton v. Vanterpool, 302 Ga. 253 (2017), the Supreme Court held that under O.C.G.A. §19-7-21, the irrebuttable presumption that a child is legitimate if conceived by artificial insemination during a marriage, does not apply to children conceived by IVF.
Upon remand, Patton argued on motions for summary judgment and to dismiss that Vanterpool was estopped from proceeding on her paternity claim since the issue was already litigated in the divorce action. The trial court granted his motion, and dismissed the paternity action. This appeal followed.
Affirmed. The doctrine of res judicata prevents the same parties from re-litigating the same issues upon which a judgment has already been rendered. The issue of paternity was effectively adjudicated in the parties’ divorce action. Thus, Vanterpool’s claim to establish paternity was barred by O.C.G.A. §9-12-40.
Likewise, Vanterpool’s paternity claim was barred by collateral estoppel. Specifically, Vanterpool pled in her answer and counterclaim that no children were born or expected of the marriage. She then re-affirmed the same when she entered into the agreement incorporated into the divorce decree. Accordingly, Vanterpool cannot now take positions inconsistent with her previous stipulations and agreements.
Fyffe v. Cain, et al., Case No. A19A1162, Georgia Court of Appeals, October 30, 2019.
After 10-year-old H.C.’s father was killed in an accident, her mother, Fyffe, took custody of her. Shortly thereafter, the Cains, H.C.’s paternal grandparents, filed a petition for legal and physical custody of H.C. For the fourteen months H.C. was in Fyffe’s custody, her school performance was good. However, Fyffe used profanity in H.C.’s presence; called the Cains ugly names; withheld contact between H.C. and the Cains; and received a speeding ticket while H.C. was in the car. There was also conflicting evidence that Fyffe did not fully comply with the child support and visitation provisions of the divorce decree before H.C.’s father was killed. Moreover, the Cains alleged that Fyffe lived a questionable lifestyle, exposing H.C. to sexual and/or violent conduct and relationships. The trial court granted legal and physical custody of H.C. to the Cains, and visitation for Fyffe. Fyffe appealed.
A parent’s constitutional right to the care and custody of his/her children should be infringed upon only under the most compelling circumstances. To overcome the constitutionally based presumptions in favor of biological parents, a non-parent has a high burden of proof. Clear and convincing evidence must show that if the parent is awarded custody, the child will suffer physical harm, or significant long-term emotional harm.
The undisputed evidence showed that in the fourteen months after her father’s death, Fyffe adequately provided for H.C.’s needs, and H.C. excelled in Fyffe’s custody. In light of this evidence, the findings regarding Fyffe’s conduct, lifestyle and past non-compliance with orders were of little consequence since there was no evidence that H.C. was exposed to, aware of, or harmed by any of it. Likewise, the trial court’s findings about the Cains strengths as custodians, and H.C.’s relationship with them were of no significant relevance, since the relevant issue was whether H.C. would be harmed if she remained in Fyffe’s custody. Finally, the trial court findings that the mother missed significant visitation with H.C. are unsupported by the record.
Since the evidence and testimony did not support the trial court’s conclusion that H.C. would suffer harm if she remained in Fyffe’s custody, the Court of Appeals reversed the award of custody to the Cains. Senior Appellate Judge Phipps dissented, arguing that the trial court’s findings were supported by clear and convincing evidence, and therefore should not be set aside.
Mashburn v. Mashburn, Case No. A19A1616, Georgia Court of Appeals, October 31, 2019.
Mashburn v. Wiggins, Case No. A19A1617, Georgia Court of Appeals, October 31, 2019.
These related cases involve two minor children of different fathers. The Mother had custody of both children, but lost custody on an ex parte basis. The maternal grandmother was granted temporary sole legal and physical custody of L.G.M. (her father has had no contact with her since she was an infant). And, Wiggins, F.M.’s father, was awarded temporary sole physical and legal custody of her. The Mother was granted supervised visitation with the children.
Evidence at the temporary hearings in both cases included sexually provocative pictures of the Mother. The Mother also admitted to previous marijuana use. Additionally, the trial court heard evidence about the Mother’s former husband, and her mental health issues. Most significant was evidence of Mother’s involvement with a registered sex offender. Despite all of the foregoing evidence, the visitation supervisor testified that the children were bonded with the Mother, and that her visits and interactions with them went well.
The evidence at the final trials in both cases indicated that since the temporary hearing, the Mother was working, and living a more stable lifestyle. She, however, was pregnant with the registered sex offender’s child. And, except for phone calls, she also had not exercised her visitation for five months. Most of the other evidence provided by the grandparents and Wiggins at trial was at least a year old.
The trial court found that the grandparents overcame the statutory presumption in favor of the Mother, and awarded primary physical and sole legal custody of L.G.M. to them. Similarly, the trial court awarded primary physical and sole legal custody of F.W. to Wiggins, finding that a material change in circumstances warranted the modification. Again, the trial court ordered that the Mother’s visitation be supervised. The order also provided for drug testing, with a provision that the Mother would forfeit two visitation periods for each positive drug screen.
Judgments vacated and remanded with direction. Although there was some clear and convincing evidence supporting the trial court’s custody award of L.G.M. to the grandparents, the case is remanded for further consideration. Similarly, the Court of Appeals held that there was sufficient evidence to support the trial court’s conclusion of a material change in circumstances, and its custody award of F.W. to Wiggins. However, again, for the below reasons, the case is remanded for further consideration.
With regard to the custody of L.G.M., the important underlying principle is that the Mother has a constitutional and fundamental right to the care and custody of her children. Under O.C.G.A. §19-7-1, the grandparents bear the burden of proof of showing that it is in L.G.M.’s best interests for the Mother to lose parental power. However, they must first prove by clear and convincing evidence that L.G.M. will suffer physical or emotional harm if the Mother retains custody. In making this determination, the trial court should focus on the Mother’s fitness as a parent.
In both cases, the Mother’s continued relationship with a convicted sex offender supported the trial court’s awards of custody. Based on evidence and testimony about their relationship, the trial court concluded that L.G.M. would likely suffer physical harm if she is returned to the Mother’s custody. Even with the heightened clear and convincing standard of proof, the grandparents were not required to show that the Mother’s relationship would cause L.G.M. unequivocal harm. Rather, evidence of the threat of harm was sufficient.
The trial court, however, erred by relying on year-old evidence regarding the Mother’s lifestyle, none of which was shown to have resulted in harm to the children. Instead, on remand, the trial court should focus on the Mother’s most recent conduct. The question of harm to the children should be based on current evidence, and determined as of the date of the final order. Further, although the Mother’s failure to exercise visitation was recent, the evidence did not indicate that the children were, or will be, harmed by the missed visits.
In addition, on remand in both cases, the trial court must consider what type of visitation will best promote the children’s welfare and happiness. In making this determination, the trial court should make a best interests analysis considering a variety of factors. With regard to L.G.M., the trial court should consider those factors enumerated in Clark v. Wade, 273 Ga. 587 (2001). In determining appropriate visitation for F.W. the court should base its best interests analysis on the factors set forth in O.C.G.A. §19-9-3(a)(3).
Moreover, the provisions in both orders requiring the Mother to lose two visits for each positive drug screen violates the rule against self-executing changes in visitation. The trial court further erred by failing to enter a Parenting Plans in accordance with O.C.G.A. §19-9-1(a). On remand, the trial court should cure these errors by entering either separate Parenting Plans, or incorporating them into its final orders, without the self-executing change provisions.
Finally, the Court of Appeals held that the sexually provocative pictures of the Mother were irrelevant. However, the Court noted that the trial court did not rely on the photographs in its factual findings. Thus, the Mother suffered no prejudice as a result of their admission.
Related Family Law Cases Released in October, 2019:
Alimony Waiver // Attorney’s Fees
Dovel v. Dovel, Case No. A19A1375, Georgia Court of Appeals, October 22, 2019.
Attorney’s fees awarded pursuant to O.C.G.A. §19-6-2 are considered to be a part of alimony. Accordingly, since the parties unambiguously waived all alimony and support in their settlement agreement, the trial court’s award of attorney’s fees to the Wife under that code section was not authorized. The Court of Appeals rejected the Wife’s argument that the parties’ reservation of the attorney’s fees issue established their intent to except O.C.G.A. §19-6-2 attorney fees from the alimony waiver. Rather, other authority was available for a potential award of attorney’s fees, so the reservation of fees did not establish an intent to invoke O.C.G.A. §19-6-2.
In the Interest of V.G., a child, Case No. A19A0966, Georgia Court of Appeals, October 22, 2019.
In a dependency action, parental unfitness is an essential element. Only in compelling circumstances established by clear and convincing evidence may a trial court sever the parent-child relationship. The record shows that V.G.’s mother reached out for assistance when she became overwhelmed with caring for V.G. Yet, the evidence was that V.G. was doing well, and there was no evidence that his mother’s overwhelm and instability caused him harm. Accordingly, since there was no clear and convincing evidence that V.G. is a dependent child within the meaning of O.C.G.A. §15-11-2(22), the juvenile court erred in removing him from his mother’s custody.
Presiding Judge Dillard wrote an impassioned concurrence reminding the courts and the State that the “cherished and sacrosanct” constitutional right of familial relations should be disturbed only in exceptional circumstances. Judge Dillard also stressed that the Mother should not be penalized for reaching out for governmental assistance when she was homeless and in need of help.
McCarthy v. Ashment, Case No. A19A0788, Georgia Court of Appeals, October 30, 2019.
McCarthy was properly served with a Rule Nisi within 30 days of the motion for contempt, in accordance with O.C.G.A. §19-6-28(b). The trial court may disqualify counsel after considering the balance of ethical lawyer conduct against a party’s right to choose counsel. McCarthy was not entitled to a jury trial on the issues of his ability to pay, or his failure to pay child support. Additionally, pursuant to O.C.G.A. §7-4-12.1(a), the trial court has discretion to apply or waive past due interest in a contempt action. Attorney’s fees may be granted in a contempt action pursuant to O.C.G.A. §19-6-2. Furthermore, the purge amount that McCarthy was required to pay to be released from incarceration was not error since the amount was based on prior monetary arrearages. Finally, a motion to recuse does not divest a court of jurisdiction until the motion is ruled upon.
Rollins v. Smith, et al., Case No. A19A1592, Georgia Court of Appeals, October 30, 2019.
In a malpractice action, a client must prove that the attorney failed to exercise ordinary care, skill and diligence, and that the negligence was the proximate cause of damages to the client. The degree of skill and care is measured by the degree ordinarily employed by other attorneys in similar conditions and circumstances. Proximate cause requires the client to show that but for the attorney’s negligence, the outcome would have been different, and the client would have prevailed.
Attorneys may invoke the doctrine of judgmental immunity, which gives them discretion in making tactical decisions, upon a showing that the alleged negligence was based on an honest exercise of professional judgment. However, the fact that a client settles a case does not necessarily sever the proximate cause element of proof. Additionally, the client in this case did not establish that the alleged negligent failure to assert a claim for attorney fees was a proximate cause of damages. In essence, she could not show that the outcome would have been different but for the alleged error, since O.C.G.A. §19-6-2(a)(1) attorney fees are within the sound discretion of the trial court. Finally, punitive damages are awarded only upon a showing of “circumstances of aggravation or outrage.”
Finally, you can find reviews of the below cases released in early October 2019 at Part 1 of the October 2019 Georgia Custody/Visitation Case Law Updates.
- Hannah et al. v. Hatcher et al.
- Steedley v. Gilbreth
- Longino v. Longino
- In the Interest of J.L.
- Dillard v. Schilke
- Dixon v. Dixon
- In the Interest of M.S.
- Winchell v. Winchell
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