The Georgia Court of Appeals had another busy month in August 2020, now that deadlines have been reinstated. Yet, the Court only released three opinions relevant to our family law practices. None were custody related.
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.
Related Family Law Cases Released in August 2020:
Angst v. Augustine, Case No. A20A1477, Georgia Court of Appeals, August 17, 2020.
Under the terms of the settlement incorporated into their divorce decree, Angst was obligated to pay a specified amount of alimony to Augustine for 120 months. The parties also expressly reserved the right to seek modification of the alimony obligation in accordance with O.C.G.A. §19-6-19. In general, a specified amount of alimony payable for a specific period of time, with no other limitations, is lump-sum alimony. Lump-sum alimony is non-modifiable. Conversely, if the total amount of the alimony obligation cannot be determined because of a contingency such as remarriage or death, it is considered periodic alimony, which may be modified. Accordingly, in the instant case, since the parties reserved the right to modify the alimony, the total alimony obligation is uncertain, and therefore should be treated as periodic alimony subject to modification.
Expert Witnesses // Spoliation
Stern et al. v. Pettis et al., Case No. A20A1261, Georgia Court of Appeals, August 20, 2020.
The party seeking to introduce expert testimony has the burden of establishing admissibility in accordance with O.C.G.A. §24-7-702. The trial court has broad discretion in ruling on this evidentiary question, but must consider the expert’s qualifications, as well as the reliability and relevance of the testimony. Additionally, a party may be subject to sanctions for destroying, or failing to preserve evidence relevant to the litigation. This duty to preserve evidence arises once the party knows, or reasonably should know, that litigation is being contemplated. Sanctions may include a rebuttable presumption that the missing evidence would have been harmful to the spoliator.
LESSONS TO LEARN FROM THIS CASE:
We have all seen the high conflict litigants who find themselves caught in the revolving door to the courthouse. It seems that there is always issues with custody, visitation, child support and alimony. Advise these clients to be pack rats. They should keep their financial records and any records pertaining to the children at least until the issues can no longer be raised in court. Otherwise, if a trial court finds that your client reasonably should have known that the missing documents would be relevant in the litigation, shredding those records can be fatal to his or her case.
Send a non-spoliation notice/letter to the opposing party or counsel as soon as you become involved in the case. Demand that they preserve all files, both physical and electronic, including but not limited to specified financial records, text messages, e-mails, social media postings/direct messages, medical records, school records, surveillance reports, computer hard drives and audio and/or visual recordings.
Don’t forget about these, and other details. For support in building a strong case, check out my Litigation Support for Attorneys page. And, let’s talk!
Termination of Parental Rights
In the Interest of L.B., a child, Case No. A20A0851, Georgia Court of Appeals, August 27, 2020.
Under O.C.G.A. §15-11-310(a)(5), parental rights may be terminated if a child is, and will likely continue to be dependent due to improper parental care or control, despite the parent’s reasonable efforts to remedy the situation. Under these circumstances, if the Court finds that returning the child to the parent would be harmful to the child, then terminating parental rights is not error. In the instant case, because the mother’s unresolved mental health issues were the primary cause of the child’s dependency, the trial court did not err in finding that the dependency is likely to continue, and that terminating the mother’s parental rights was appropriate.