2020 is off to a slow start. In January 2020, the Georgia Court of Appeals released only one custody related opinion, and one other family law related case.
Mitchell v. Capehart, Case No. A19A2139, Georgia Court of Appeals, January 21, 2020.
Mitchell, the mother, filed a modification of custody action against Capehart, the father. She alleged in her original and amended petitions that since the most recent custody order, there had been substantial changes of circumstances. Among other allegations, Mitchell complained that Capehart refused to allow her visits and contact with the children. She also raised several concerns regarding his parenting and discipline of the children. Accordingly, Mitchell alleged that the existing custody order is no longer in the children’s best interests. Capehart responded with a motion to dismiss for failure to state a claim, pursuant to O.C.G.A. §9-11-12(b). The trial court subsequently granted his motion. This appeal followed.
Reversed and remanded. A motion to dismiss for failure to state a claim upon which relief can be granted, can only be sustained if the allegations do not “disclose with certainty” that the petitioner is entitled to relief, and no evidence has been alleged, or could be introduced, to change that. To survive a motion to dismiss, a complaint need not set out all of the elements of a cause of action. Rather, the allegations of a complaint are sufficient if it appears that evidence may be introduced to support petitioner’s requests for relief.
Additionally, the Court of Appeals reiterated that a trial court’s oral pronouncement from the bench is not a binding judgment unless and until it is reduced to writing and filed as a judgment. Finally, Capehart’s argument that the motion to dismiss was converted into a motion for summary judgment was unavailing.
Related Family Law Cases Released in January, 2020:
Child Support // Attorneys Fees
Wilson v. Guerrero, Case No. A19A2475, Georgia Court of Appeals, January 28, 2020.
Neither Guerrero’s pleadings, nor the trial court’s order cited a statutory basis for the attorney’s fees award. The trial court indicated that O.C.G.A. §9-15-14 or §19-6-2 may have been the statutory basis for the award. O.C.G.A. §19-6-2, however, does not authorize attorney’s fees in child support modification actions. Thus, the attorney’s fees award was vacated and remanded for further proceedings.
The Court of Appeals also vacated the trial court’s modification of child support. On remand, the trial court must distinguish between expenses. Extracurricular activities should be included on Schedule E of the Child Support Worksheets. And, child care expenses should be entered on Schedule D.
Finally, pursuant to O.C.G.A. §9-11-12, it is not necessary to file an answer to a counterclaim unless ordered to do so by the trial court.
Leave a Reply