May 2020 Georgia Custody/Visitation Case Law Update

The Georgia appellate courts continue to be hard at work despite the pandemic and the Judicial Emergency Declaration. In May 2020, the Georgia Supreme Court released one custody related opinion. The Court of Appeals also released one custody related opinion, and six other family law related opinions. Also, please visit my Covid-19 Pandemic: Family Law Updates and Resources page for the latest in orders, notices and other resources relevant to our family law practices.

Mathenia et al. v. Brumbelow, 308 Ga. 714 (2020) 

Facts:

Mathenia became pregnant with Brumbelow’s son in a one-time sexual encounter. Initially, Brumbelow denied that he was the child’s father. He attended only one doctor appointment so he could calculate the date of conception.  And, after Mathenia refused his offer to pay for an abortion, he and Mathenia stopped all contact, and he offered no support. When Mathenia gave birth, she relinquished her parental rights to a couple who planned to adopt him. The child has been in their custody since. Upon learning of the adoption (approximately one month after the birth), Brumbelow’s mother contacted Mathenia to discuss raising the child together with Brumbelow. Shortly thereafter, Brumbelow filed a petition to legitimate. Yet, throughout the pendency of the case, he only asked to visit with the child once. The trial court denied Brumbelow’s petition, concluding that he abandoned his opportunity interest to develop a parent-child relationship with his son. The court also concluded that denying the legitimation was in the child’s best interests.

Brumbelow appealed, and the Court of Appeals reversed. Brumbelow v. Mathenia, et al., 347 Ga. App. 861 (2018). The Court also remanded the case, with instructions for the trial court to assess the legitimation petition using the parental fitness standard, rather than the best interests standard. The Supreme Court granted certiorari to address 1) whether Brumbelow had abandoned his opportunity interest to pursue his relationship with his son; and 2) if not, whether the trial court should apply the parental fitness standard, or the best interests standard in assessing the legitimation petition.

Holding:

Reversed. The evidence supported the trial court’s finding that Brumbelow abandoned his opportunity interest. Accordingly, the trial court did not abuse its discretion in denying his petition for legitimation.

As an initial matter, pursuant to O.C.G.A. §15-11-10(a)(3)(D), effective as of May 5, 2015, superior courts have exclusive jurisdiction to rule upon termination of parental rights actions in legitimation cases. Furthermore, appellate courts will not disturb the trial court’s findings of fact in a legitimation action if there is any evidence to sustain them. And, the trial court determines the weight that should be given to the evidence, or it may discredit the evidence altogether. Accordingly, although the Court of Appeals considered evidence outside of the trial court’s findings, the Supreme Court did not do so since the evidence supported the trial court’s findings.

With regard to Brumbelow’s opportunity interest, In re Eason, 257 Ga. 292 (1987), sets the standard. As an unwed father, Brumbelow’s opportunity interest to develop a relationship with his son began at conception. Yet, he did not timely pursue that opportunity interest. Rather, despite his financial ability, the only support he offered to Mathenia during her pregnancy was to pay for an abortion. And, although he knew how to contact her, he did not reach out to Mathenia until his mother did so on his behalf. Furthermore, Brumbelow only asked to see his son one time. None of these facts indicate that Brumbelow truly desired to pursue a relationship with his son. Thus, the evidence supported the trial court’s finding that he abandoned his opportunity interest.

The Supreme Court also noted that the Court of Appeals applied the wrong standard in determining whether Brumbelow abandoned his opportunity interest. The question is not “whether the father could have done more” or “whether the father has done so little as to constitute abandonment.” Rather, the trial court properly considered both questions.

Furthermore, O.C.G.A. §19-7-22(d)(1), as amended in 2016, provides that the best interests of the child standard should be applied in all legitimation cases. Thus, the Court of Appeals erroneously held that the trial court should apply the parental fitness standard when assessing whether the legitimation petition should be granted. And, since the trial court did not err in determining that Brumbelow abandoned his opportunity interest, it was not necessary for the Court of Appeals to address the legitimation standard. Thus, the Court of Appeals’ discussion on this issue is dicta only.

Justice Bethel concurred, emphasizing that the trial court has broad discretion, and admonishing the Court of Appeals for “attempt[ing] to reweigh the evidence.” Justice Bethel added that offering to pay for an abortion was “strong evidence” that Brumbelow abandoned his opportunity interest in parenting the child.

Justice Peterson dissented, joined by Justice Blackwell and Justice Ellington. He argued that the majority only addressed the sufficiency of the evidence, which, pursuant to Supreme Court Rule 40, is not a proper matter for certiorari review. Accordingly, Justice Peterson argued that the appeal should have been dismissed as improvidently granted.

Steed v. Steed, Case No. A20A0316, Georgia Court of Appeals, May 7, 2020.

Facts:

The parties shared joint legal custody of their three children, with Mother having primary physical custody. Father also paid child support to Mother. Father petitioned for a modification of the parenting plan and child support. Mother counterclaimed for an increase in child support. The trial court denied Father’s request to modify the parenting plan, and increased his child support obligation. The trial court also awarded attorney fees to Mother. Father appealed.

Holding:

The trial court did not err in refusing to modify the parenting plan. Rather, it considered the relevant factors before concluding that modifying the parenting plan was not in the children’s best interests. Evidence that the children attended several schools because of Mother’s frequent moves, and of her poisoning the children against Father may warrant a finding of a change in circumstances. However, the trial court is not required to find that such evidence constitutes a change in circumstances as a matter of law. In the instant case, the custody issues stemmed from the parties’ hostile relationship. Thus, the trial court correctly concluded that there were no changes in circumstances. See also, Park-Poaps v. Poaps, 351 Ga. App. 856 (2019).

The trial court also did not err in refusing to impose a downward departure from Father’s child support obligation. Father’s income had increased significantly since the original child support award. He, however, suffered a temporary involuntary loss of income due to an extended recovery period from shoulder surgery. Under O.C.G.A. §19-6-15(j)(1), the trial court was not obligated to impose a downward departure because of the loss of income. Rather, the trial court was required consider all of the evidence in determining whether to modify child support. And, had Father prevailed on his petition to modify, then pursuant to O.C.G.A. §19-6-15(j)(1), the portion of child support attributable to his lost income would not have accrued from the date Mother was served with the petition. Father, however, did not prevail. Furthermore, since neither party had alleged a change in the needs of the children, the trial court did not err in using work-related expenses from the original child support calculation, rather than requiring fresh evidence of those expenses to calculate the child support.

Finally, the trial court erred in awarding attorney fees to Mother. The only evidence regarding fees was Mother’s testimony as to what she had paid to her current and former attorneys, and what she still owes. She presented no evidence of the attorney’s hourly rates, the services rendered or other relevant factors showing the reasonableness of the fees charged. Accordingly, the Court of Appeals vacated that portion of the trial court’s order, and remanded the case to the trial court for further proceedings on this issue.

NOTE: Continuing family discord is all too often the impetus behind custody modifications. And, we see these cases regularly. Such litigiousness usually does not bode well for the children. What should you do when your client insists on pursuing unproductive litigation? Before withdrawing from the case, schedule an Independent Custody Assessment with me. The fresh perspective and reality check may be the tipping point your client needs to bring reasonableness back to your case, and to your settlement discussions.

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Related Family Law Cases Released in May 2020:

Child Support // Garnishment 
Smith v. Robinson et al., Case No. A20A0591, Georgia Court of Appeals, May 13, 2020.

Under Georgia law, a debtor may not exempt child support obligations from wages in a garnishment action. Rather, the right to child support payments belongs to the child. And, since the debtor does not have standing to assert a claim on behalf of a third party, the debtor cannot assert the right to the exemption on behalf of the child. For the same reasons, the debtor cannot claim that a judgment for unpaid child support takes priority over the garnishment judgment.

O.C.G.A. §9-15-14(b) Attorney Fees // Contempt // Motion to Recuse  
McLaws v. Drew, Case No. A20A0695, Georgia Court of Appeals, May 15, 2020.

Drew prevailed on a contempt action against her ex-husband. His attorney, McLaws, filed a motion for a new trial or, alternatively, a motion to set aside and for reconsideration, which the trial court denied. McLaws also filed a motion to recuse, which the trial court also denied. Subsequently, the trial court entered a judgment for attorney fees pursuant to O.C.G.A. §9-15-14(b) in favor of Drew and against both McLaws and her client. McLaws appealed, and the Court of Appeals reversed.

A trial court may award attorney fees under O.C.G.A. §9-15-14(b) for filing or defending an action that lacks “substantial justification,” meaning that it is “substantially frivolous, substantially groundless, or substantially vexatious.” The trial court must make express findings of fact to support its conclusions, including the specific conduct that justifies the award. See also, Cook v. Campbell-Cook, 349 Ga. App. 325 (2019).  In the instant case, the trial court’s order only contains conclusions, and no express factual findings. And, finding no merit in any of the trial court’s conclusions, the Court of Appeals reversed.

As to Drew’s defense of the motion for new trial, the evidence did not warrant an award of fees pursuant to O.C.G.A. §9-15-14(b). Firstly, there was no merit to the trial court’s conclusion that the written motion was deficient. It is not necessary, for example, for the written motion to include citations to law. Furthermore, the motion was predicated upon errors allegedly  committed by the trial court, which sufficiently constitute an “intrinsic defect which does not appear on the face of the record or pleadings.” O.C.G.A. §9-11-60(c). Additionally, there was no basis for the trial court to conclude that the grounds for the motion for new trial were substantially frivolous, groundless or vexatious. Rather, the allegations, which included violations to the ex-husband’s due process rights, had a reasonable basis, and support in the law. For example, the evidence was that the ex-husband was not given proper notice to defend against some of the issues for which he was held in contempt. The record also showed that despite a medical emergency the ex-husband experienced during trial, the trial court refused to grant a continuance. Accordingly, given the foregoing, the trial court erred by awarding fees under O.C.G.A. §9-15-14(b) to Drew for defending the motion for new trial.

The Court of Appeals also held that the motion to recuse was not substantially frivolous, groundless or vexatious, and did not warrant an award of fees under O.C.G.A. §9-15-14(b). Rather, the Court admonished the trial court for “twice overlook[ing] well-established law to incarcerate [the ex-husband] in violation of his due process rights.” First, the contempt order contained an impermissible self-executing provision allowing for the ex-husband to be jailed without a hearing on his willfulness. And, after the ex-husband was arrested for non-payment, the trial court refused to recognize the supersdeas effect of the motion for new trial, which barred enforcement of the contempt order. Instead, the trial court conditioned the ex-husband’s release upon payment of a portion of the amounts due under the order, even though the ex-husband was also contesting the trial court’s calculation of those amounts. Given these issues, the Court of Appeals held that an award of fees for Drew’s defense of the motion to recuse also was not authorized under O.C.G.A. §9-15-14(b).

Attorney Fees // 12-Month Stalking Protective Order
Brooks v. Hayden, Case No. A20A0564, Georgia Court of Appeals, May 18, 2020.

After the parties consented to a 12-month stalking protective order, the trial court, sua sponte, awarded attorney fees to Hayden, without specifying the statutory or factual basis for the award. The only statutory basis for fees in this case is O.C.G.A. §16-5-94(d)(3), as neither O.C.G.A. §19-6-2, nor O.C.G.A §9-15-14(a) or (b) apply. Accordingly the Court of Appeals need not remand the case to specify the statutory basis for the award. However, because the trial court failed to provide a factual basis for the award, the Court of Appeals vacated the award, and remanded the case for further proceedings.

Legal Malpractice
Cuffie et al. v. Armstrong et al., Case No. A20A0072, Georgia Court of Appeals, May 19, 2020.

A legal malpractice action may sound either in tort or in contract, depending on the circumstances. The statute of limitations begins to run from the date of the attorney’s alleged negligent or unskillful act.

Juvenile Court // Delinquency // Guardian ad Litem
In the Interest of N.T., a child, Case No. A20A0118, Georgia Court of Appeals, May 26, 2020.

O.C.G.A. §15-11-2 (35) defines a Guardian ad Litem as a person appointed to assist the court in determining the best interests of a child. Guardians ad Litem are appointed in delinquency cases in accordance with O.C.G.A. §15-11-476.

Rule of Sequestration 
Mule v. The State, Case No. A20A0458, Georgia Court of Appeals, May 28, 2020.

The trial court has discretion to allow a witness who has violated the sequestration rule to testify. The violation may affect the weight of the witness’ testimony, but it does not automatically render the testimony inadmissible.

A little food for thought. With virtual trials and hearings now being live streamed online, how can we ensure that witnesses remain sequestered while waiting to testify? Hmmm…. great question! Please leave your thoughts and comments below.

REMEMBER, sometimes the nuances in family law get the best of us. Check out my Litigation Support for Attorneys page to see what I can do to provide support and assistance to you in developing strategies and navigating through the difficulties. The fresh perspectives and litigation support may be exactly what you need!