February 2020 was a very busy month for the Georgia appellate courts. Ironically, for the shortest month of the year, this month’s case law update is one of the longest yet! In February 2020, the Court of Appeals released four custody related opinions. And, the Supreme Court and Court of Appeals released seven other opinions relevant to our family law practices.
Gnam v. Livingston, Case No. A19A2055, Georgia Court of Appeals, February 18, 2020.
Facts:
In 2018, Livingston and her husband divorced, and agreed to share joint custody of their minor children. One month after their divorce was finalized, Livingston’s mother, Gnam, filed a petition for grandparent visitation. The trial court subsequently dismissed Gnam’s petition for lack of subject matter jurisdiction. In addition, the trial court awarded Livingston attorney fees under O.C.G.A. §9-15-14(b). Gnam appealed.
Holding:
Affirmed. Pursuant to O.C.G.A. §19-7-3(c)(2), a grandparent cannot file an original action for visitation rights in the same year in which another custody action concerning the child has been filed. Since Gnam’s petition was filed in the same year as Livingston’s divorce action which also resolved the custody issues, the trial court properly dismissed her petition for lack of subject matter jurisdiction. The fact that Livingston and her former husband settled, rather than litigated the custody issues, does not change this conclusion.
Finally, the trial court did not err in awarding attorney fees to Livingston pursuant to O.C.G.A. §9-15-14(b). Even though Gnam had no notice that the issue would be heard at trial, her attorney agreed to proceed. Thus, she waived the issue of notice at trial, and cannot complain about it on appeal. Furthermore, since the statute is clear that Gnam could not maintain her action (as discussed above), the trial court did not err in finding that Gnam lacked substantial justification, and unnecessarily extended the proceedings. 
Fiffee v. Jiggetts, Case No. A20A0131, Georgia Court of Appeals, February 18, 2020.
Facts:
The parties shared joint legal custody of six children. Fiffee (the mother) had physical custody of four children, and Jiggetts (the father) had physical custody of two children. Jiggetts filed a motion to vacate and modify the custody award. Via facsimile, the trial court served the attorneys with the scheduling order setting the case for trial. Fiffee’s attorney did not see the scheduling order until after the trial, so neither he nor Fiffee appeared for trial. The trial court awarded custody of all six children to Jiggetts. Fiffee filed a motion to vacate the order, arguing among other things, that service of the scheduling order by facsimile was insufficient. The trial court denied Fiffee’s motion, and this appeal followed.
Holding:
Reversed. Under O.C.G.A. §9-11-5(b), service by facsimile of a notice for hearing is not authorized. Compliance with the notice requirements is mandatory. Thus, the trial court erred by serving the notice via facsimile. Insufficient notice, as shown on the face of the record constitutes a nonamendable defect that justifies setting aside a judgment. And, Fiffee was clearly harmed by the lack of proper notice. Moreover, her claims were not barred by any contributory negligence or fault of her attorney for not seeing the faxed notice. Accordingly, the trial court abused its discretion by refusing to set aside the modification order. Additionally, an application for discretionary appeal is the appropriate procedure to follow for a review of the denial of a motion to set aside a custody order on the ground of inadequate notice.
Reder v. Dodds et al., Case No. A19A1668, Georgia Court of Appeals, February 24, 2020.
Facts:
F.R., the minor child, was adopted by Reder. Initially, they lived with Reder’s mother, Dodds. Reder, however, eventually married, and his wife adopted F.R. Shortly thereafter, they divorced, and Reder retained custody of F.R. Then he married, and divorced again. Throughout all of this time, F.R. continued to visit with Dodds, and also spent time with Reder’s sister. Over time, however, Reder became estranged from Dodds, all of the other aforementioned people, and others with whom F.R. had relationships. He also ignored evidence that F.R. entertained suicidal thoughts, and that she had been molested by a boy. Finally, Reder planned to move to Mexico.
Initially, Dodds filed a petition for grandparent visitation. She obtained a temporary restraining order preventing Reder from removing F.R. from Georgia, and granting temporary visitation. Yet, Reder refused to allow the visits. Dodds amended her petition, asking for custody of F.R. and a contempt order against Reder. Upon learning that Reder planned to follow through with his move to Mexico, the court-appointed guardian ad litem moved for an emergency ex parte hearing, in which the trial court granted temporary custody to Dodds. Shortly thereafter, Reder attempted to leave the country with F.R. They, however, were stopped by U.S. Customs and Border Protection, and F.R. has been in Dodds’ custody since. Reder appealed.
Holding:
Affirmed. The trial court correctly applied O.C.G.A. §19-7-1(b.1). The code section establishes a rebuttable presumption in third party custody disputes that it is in a child’s best interests to be in the parent’s custody. The presumption, however, may be rebutted by clear and convincing evidence that the child will suffer physical harm, or significant long-term emotion harm in the parent’s physical custody. See also, Mashburn v. Mashburn, October 31, 2019. In determining whether F.R. would suffer significant long-term emotional harm if she remained in Reder’s custody, the trial court properly considered relevant factors, including F.R.’s past and present caretakers, the bonds she has built, the parties’ interest in and contact with F.R., and any special needs F.R. has. The evidence supported the trial court’s findings and the award of custody to Dodds.
Furthermore, the trial court did not err in requiring Reder to pay a portion of the guardian ad litem fees. This was not a grandparent visitation action in which the grandparent would be required to pay the guardian ad litem fees pursuant to O.C.G.A. §19-7-3(e)(1). Rather, this was a grandparent custody case. Thus, the trial court was authorized to require Reder to pay a portion of the fees. Finally, since Reder demonstrated no harm from the trial court’s calculation of the mother’s share of child support, that portion of the order was not disturbed on appeal.
Cousin v. Tubbs, 353 Ga. App. 873 (2020)
Facts:
Tubbs (the mother) had primary physical and legal custody of the minor child, K.T. Cousin (the father) was entitled to visitation, but he only exercised his visits sporadically. After an extended absence from K.T.’s life, Cousin agreed to allow Tubbs to supervise his visits until Tubbs deemed supervision no longer necessary. In 2017, Tubbs filed this modification of child support action. Cousin counterclaimed for joint legal and physical custody of K.T., and alleging that Tubbs was in contempt for violating Parenting Plan provisions. The trial court granted the modification of custody, but denied Cousin’s contempt motion. In addition, the trial court held Cousin in contempt for failing to provide health insurance for K.T., Finally, the trial court increased Cousin’s child support obligation, based on a gross monthly income of over $60,000. The trial court denied Cousin’s motion for a new trial, and Cousin appealed.
Holding:
Affirmed in part, vacated in part and case remanded. The evidence was that the parties mutually agreed to deviate from the Parenting Plan, and that Tubbs would temporarily exercise control over the visits. Under those circumstances, the trial court did not abuse its discretion in finding that Tubbs did not interfere with Cousin’s visitation rights to an extent that rose to willful contempt.
Furthermore, even though Tubbs never raised contempt issues in her pleadings, the trial court did not err by entertaining her oral motion to hold Cousin in contempt of the support and insurance provisions. O.C.G.A. §9-11-15(b) provides that if issues not raised in the pleadings are litigated with the express or implied consent of both parties, then those issues shall be treated as if they were properly pled. At trial, Tubbs raised the contempt issues. Cousin did not object to inadequate notice, or to her testimony and evidence supporting her motion. Having acquiesced to litigating the contempt issues, Cousin cannot now complain about it on appeal.
Turning to the child support issues, the trial court found that Cousin did not provide complete current financial information, and that his disclosures lacked credibility. Thus, the trial court did not err by using income from previous years to calculate his child support obligation. Furthermore, the trial court properly applied O.C.G.A. §19-6-15(f)(1), which provides permissive (not mandatory) guidance on how to treat irregular, non-recurring or one-time income sources. Moreover, given the express statutory language regarding exclusions from, and adjustments to gross income, the trial court correctly did not consider Cousin’s gambling losses and federal itemized deductions. Cousin waived objection to the trial court’s failure to deduct self-employment and Medicare taxes since he did not raise the issue at trial. The trial court also properly considered whether not applying an adjustment for support Cousin pays to other children would cause substantial hardship for Cousin, and whether an adjustment would be in K.T.’s best interests.
Finally, the trial court abused its discretion by imposing a high-income upward deviation of $9,352/month to Cousin’s child support obligation. Pursuant to the child support guidelines, in high-income cases, a trial court, in its discretion, may make an upward deviation from the presumptive child support amount if it is consistent with the child’s best interest. The findings, however, must bear some relation to the magnitude of the deviation. In the instant case, the trial court used a calculation resulting in a deviation significantly greater than any other reasonable calculation the trial court could have used. Furthermore, to the extent that the amount of the deviation was intended to compensate for the low child support Cousin paid in previous years, the trial court appears to have had a punitive purpose. Accordingly, the Court of Appeals vacated the high-income deviation, and remanded the case for further proceedings on the issue.
Related Family Law Cases Released in February, 2020:
Expert Witnesses
Lee v. Smith, Case No. S18G1549, Georgia Supreme Court, February 10, 2020.
A trial court may not exclude an expert witness solely because the witness was not identified until after scheduling, discovery or case management order deadlines. Instead, the trial court must exercise discretion by evaluating the specific circumstances surrounding the non-compliance with deadlines. In exercising this discretion, when determining whether a late-identified witness should be excluded from trial, a trial court should consider: (1) the reason for the late disclosure; (2) the importance of the testimony; (3) the prejudice to the opposing party; and (4) whether a less harsh remedy is available.
Termination of Parental Rights
In the Interest of C.L. et al., children, Case No. A19A2239, Georgia Court of Appeals, February 12, 2020.
Without emotional stability and permanence of home, children are likely to suffer emotional consequences. Thus, the trial court did not err by terminating the mother’s parental rights based on its finding that continued dependency, and remaining indefinitely in foster care will likely cause serious harm to the minor children. Furthermore, a paent has a constitutional right to effective representation in a proceeding to terminate his or her parental rights. To prove ineffective representation of counsel, the parent must establish that the attorney’s performance was deficient, and that such deficiencies prejudiced the outcome of the case.
Civil and Criminal Contempt // Implied Obligation to Reimburse // Receiver and Attorneys Fees
Sponsler v. Sponsler, et al., Case Nos. A19A2282 and A19A2283, Georgia Court of Appeals, February 13, 2020.
Criminal contempt remedies impose “unconditional punishment for prior acts of contumacy.” Civil contempt remedies impose conditional punishment to coerce future compliance with a prior court order. The ex-husband was held in contempt for not executing a quitclaim deed to property that the ex-wife eventually lost to foreclosure. Civil contempt remedies requiring future compliance with the divorce decree were therefore no longer applicable. However, the trial court was authorized to impose criminal contempt sanctions for the ex-husband’s “prior acts of contumacy.” Moreover, the ex-husband could not establish that the trial court’s imposition of criminal contempt remedies arose from the trial court’s vindictiveness after the case was remanded following a previous appeal.
Additionally, when one party pays for the other party’s obligations under a divorce decree, the responsible party has an “implied obligation” to reimburse the paying party. Thus, the ex-husband was entitled to reimbursement for payments he made toward the ex-wife’s loan obligation. Moreover, the trial court did not abuse its discretion in awarding fees and administrative expenses to the court-appointed Receiver, and an attorney hired to act on his behalf. And, finally, 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 lump sum or unapportioned attorney fees are not permitted under the code section.
Dependency
In the Interest of L.K. et al., children, Case No. A19A2328, Georgia Court of Appeals, February 25, 2020.
Although parental unfitness is an essential element to support an adjudication of dependency, the focus is on the child’s welfare, not the responsible parent. Moreover, findings of past or potential future dependency do not authorize removing a child from the parent. Rather, there must be clear and convincing evidence of present dependency to even temporarily sever the parent-child custodial relationship.
Arbitration
King v. King, 354 Ga. App. 19 (2020).
An arbitrator’s authority is defined by the terms of an arbitration agreement. If the arbitration award is not consistent with, the award may be vacated pursuant to O.C.G.A. §9-9-13(b)(3). In the instant case, the agreement required the arbitrator to include findings of fact and conclusions of law in his award, but he did not do so. While the “default rule” is that there is no specific form for the arbitration award, if, as in this case, the arbitration agreement calls for findings and conclusions in the award, then the arbitrator is contractually required to provide them. And, as a result of the arbitrator’s “imperfect execution” of his authority, the Husband’s rights were prejudiced. Accordingly, the trial court was authorized to vacate the arbitration award.
Furthermore, in accordance with O.C.G.A. §9-9-13(e), an order vacating an arbitration award constitutes a final judgment for purposes of appeal. Accordingly, even though the case has been remanded for further arbitration, interlocutory appeal procedures do not apply.
Pro Se Litigants // Restraints on Frivolous Lawsuits
Oliver v. Field, Case No. A19A1730, Georgia Court of Appeals, February 27, 2020.
Pro se litigants have a constitutional right to have their grievances heard by the courts. They, however, cannot abuse that right by inundating the court with frivolous lawsuits. Oliver filed over 27 lawsuits, and threatened to file several more. Under these circumstances, the trial court was authorized to restrain him from making future filings unless the chief judge first reviews them.
Legal Malpractice // Attorney-Client Privilege
Hill, Kertscher & Wharton, LLP et al. v. Moody, Case No. S18G1436, Georgia Supreme Court, February 28, 2020.
A client who sues a former attorney for legal malpractice impliedly waives the attorney-client privilege with respect to the underlying matter. In a case of first impression, the Supreme Court extends the implied waiver to communications with other attorneys who also represented the client in the same underlying matter, but who the client did not sue.
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