The Georgia appellate courts were hard at work in September 2020. The Georgia Court of Appeals released two custody and visitation related cases, and four other cases related to family law. And, in September, the Georgia Supreme Court also released one important case.
In addition, Chief Justice Harold D. Melton of the Georgia Supreme Court extended the Statewide Judicial Emergency for the seventh time, to November 9, 2020. This order lifts the suspension of jury trials, which may resume in accordance with safety guidelines at the discretion of the Chief Judge of each trial court. See this and other orders, notices and resources relevant to our family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Westbrook v. Eidys, Case No. A20A0963, Georgia Court of Appeals, September 10, 2020.
Westbrook and Eidys lived together when their child was born in 2008, but broke up shortly thereafter. Over the years, Eidys paid child support, and exercised some visitation. But, Westbrook refused to let him know where she lived, and otherwise obstructed Eidys’ ability to contact or visit with the child for many years. In 2019, Eidys filed the instant legitimation action. The trial court gave oral findings of fact from the bench following a trial, and granted Eidys’ legitimation petition. The court also awarded joint custody to the parties and visitation for Eidys. However, the final order, drafted by Eidys’ attorney and approved as to form by Westbrook’s attorney, contained no factual findings. Westbrook appealed.
In legitimation cases, the Court of Appeals applies an abuse of discretion standard. Factual findings are not set aside unless they are clearly erroneous, with no evidence to sustain them. The Court may also take note of undisputed facts, as long as they do not create alternate findings that are contrary to the trial court’s findings supported by evidence. Furthermore, Westbrook could not complain that the order did not contain findings of fact, because she agreed to the form of the order, as drafted.
Eidys lived with Westbrook during her pregnancy, and he was present at the child’s birth. He was also current on his child support, and he exercised some visitation despite Westbrook’s interference. Thus, there was some evidence supporting the trial court’s conclusion that Eidys did not abandon his opportunity interest to form a relationship with the child. The trial court, however, made no findings as to whether the legitimation, and an award of joint custody are in the best interests of the child. See also Mathenia v. Brumbelow, 308 Ga. 714 (2020). Accordingly, the Court of Appeals remanded the case for the trial court to consider these questions.
PRACTICE CONSIDERATION: In legitimation cases, a Guardian ad Litem is one of the most important pieces of the puzzle. Guardians ad Litem do more than just get to the truth of what is in the children’s best interests. We provide accountability, and keep cases moving along in a positive direction. And, most importantly, we work to settle our cases. File that motion, and request that a Guardian ad Litem be appointed in your custody cases! It will be one of the most important things you do for your client.
Call me or e-mail me NOW about serving as the Guardian ad Litem in your custody cases.
Spruell v. Spruell, Case No. A20A1007, Georgia Court of Appeals, September 18, 2020.
The parties married in 2006, and had one son. Father served in the United States Navy. He was either deployed overseas, or stationed in California during much of the marriage, while Wife and the child lived in Georgia. In 2017, Father was involuntarily retired by the Navy because combat-related injuries suffered during his deployments in both Iraq and Afghanistan left him unable to perform his duties. He, however, elected to waive a portion of his retirement to instead receive disability compensation, in addition to his Combat Related Special Compensation. Father filed a petition for divorce, and Mother counterclaimed. Both sought custody of their 11 year old son and child support. Mother also sought an equitable division of debts and property, including Father’s military disability compensation.
At the final trial, the trial court met with the child in chambers, with neither parents nor counsel present. The Court Reporter, however, lost the recording, so there was no transcript of the interview. The trial court subsequently entered a final judgment and decree, and later amended it. The court awarded joint legal and physical custody of the minor child to both parties, with Father having a majority of the parenting time. However, the court declined to award child support. The trial court also awarded lump sum alimony to Mother, after acknowledging that Father’s disability compensation was not divisible. Father appealed.
The trial court erred by basing its custody decision, in part, on the in-chambers conference with the child. Since no transcript of the in-chambers interview was available, the parties were denied an opportunity to be heard on anything arising from the interview. Consequently, the trial court could not rely on anything from that meeting in making its custody decision. Accordingly, the Court of Appeals vacated the custody award, and remanded the case for the trial court to make a custody ruling based only on evidence available to the parties.
Moreover, the trial court deviated from the presumptive amount of child support, but failed to make findings of fact supporting the deviation. If a trial court deviates from the presumptive child support, findings should include that presumptive amount. Findings should also include the reasons for the deviation, how the presumptive amount is unjust or inappropriate, and how the deviation serves the best interests of the child. In the instant case, the trial court never determined the presumptive child support, and its findings of fact did not otherwise satisfy the statutory requirements. Accordingly, the Court of Appeals remanded the child support award for the trial court to make the required findings.
Finally, the Uniformed Service Former Spouses’ Protection Act provides that a military veteran’s retirement pay is marital property subject to equitable division. The Act, however, exempts any portion the veteran waives to receive disability benefits. Thus, in accordance with Federal law, Father’s disability compensation was not a marital asset subject to equitable division. Moreover, Mother never requested alimony, either prior to, or during trial. As such, Father had no meaningful opportunity to prepare for and defend the trial court’s alimony award. Accordingly, the Court of Appeals reversed the alimony award because the trial court violated Father’s due process rights.
Related Family Law Cases Released in September 2020:
Termination of Parental Rights // Expert Witness Bias
In the Interest of M.M.D., a child, Case No. A20A0893, Georgia Court of Appeals, September 11, 2020.
Incarceration, alone, is not always a basis for terminating parental rights. Rather, a parent’s incarceration may support a termination if other aggravating circumstances, such as never contacting the child, are present. Furthermore, pursuant to O.C.G.A. §15-11-283, the juvenile court has discretion to consider a father’s failure to legitimate his child as a basis to terminate parental rights.
Allegations that an expert witness is biased does not render him/her incompetent to testify. Instead, the alleged bias goes to the question of credibility. And, a trial court is presumed to be able to “sift the wheat from the chaff and select only the legal evidence.”
PRACTICE CONSIDERATION: It is not necessarily unusual for the parties to think that the Guardian ad Litem is unfairly biased in favor of the other party. But, usually, this is not the case. The truth is that everybody has biases! Most Guardians ad Litem, however, work to guard against personal biases creeping into their investigations and recommendations. If you believe that the Guardian ad Litem in your client’s custody case is unduly biased, call me for an Independent Custody Assessment. Let’s work together to “sift the wheat from the chaff.”
Hagan et al. v. Hagan, Case No. A20A1480, Georgia Court of Appeals, September 21, 2020.
When the underlying subject of an appeal arises from, or is ancillary to divorce, alimony and other domestic relations cases, the appeal must be made by application for discretionary appeal pursuant to O.C.G.A. §5-6-35(a)(2). If, however, the appeal also raises non-domestic relations issues that would be otherwise directly appealable, then it is a “hybrid” case. In that event, the underlying judgment or order is directly appealable pursuant to O.C.G.A. §5-6-34(d).
Property Division // Choice of Law
Mbatha v. Cutting, Case No. A20A1303, Georgia Court of Appeals, September 21, 2020.
In this case of first impression, the Court of Appeals has adopted the traditional choice of law rule to determine what state or country laws will apply to property division in a Georgia divorce action. Thus, real property interests should be determined by the law of the jurisdiction in which the property is located. And, interests in personal property should be determined by the law of the owner’s domicile at the time the property was purchased.
DISCUSSION: This case had my head spinning! The parties met in South Africa, where Mbatha lived. They married in New York, where Cutting lived. Their marital domicile, for the short time that they lived together, was in South Africa. But Cutting moved to Georgia while pregnant, and remained here after the birth of their daughter. Mbatha filed the divorce in Georgia.
The Court of Appeals considered other choice of law rules. The trial court applied the lex loci contractus approach, reasoning that the marital contract was performed in South Africa, so South African law governed the division of property. Cutting argued that the “most significant relationship” rule should apply. Her position was that the marital domicile was in South Africa, so the laws of that country should govern the division of property and alimony. And, Mbatha urged the trial court to apply lex fori, or the law of the forum, since it is a Georgia divorce case, and jurisdiction is proper. In that event, the trial court would have applied the Georgia laws of equitable division.
Instead, the Court of Appeals adopted the traditional rule. And, if I understand correctly, in this case this means that the trial court will possibly have to apply the laws of several jurisdictions. The marital home, and any other real property located in South Africa will be divided in accordance with South African law. And, if the parties own real property elsewhere, the laws of those jurisdictions are applicable to those properties. Furthermore, personal property purchased by Cutting while living in New York will be divided in accordance with New York law, while personal property she purchased while living in Georgia will be governed by Georgia law. And, personal property purchased by both Cutting and Mbatha while living in South Africa will be governed by South Africa law. I hope the parties never lived anywhere else. If so, this could be a great law school question!
My head is still spinning! Please share your thoughts and comments below.
Child Support // Scrivener’s Error
Ekhorutomwen v. Jamison, Case No. A20A1539, Georgia Court of Appeals, September 29, 2020.
The Court of Appeals reversed the trial court’s post-judgment revisions to a 2014 child support order. Under O.C.G.A. §9-11-60(g), a court may correct errors in certain circumstances. The trial court found that the original order contained a scrivener’s error, since the amount was different than the amount on the Child Support Worksheets and Addendum. However, the Worksheets and the Addendum were neither referenced nor attached to the order. Thus, the amount in the order was conclusive, and not an error. It follows that the trial court also erred by requiring Ekhorutomwen to pay the difference in child support that he did not pay due to the error. Changes to child support must operate prospectively. So, even if the original order did contain an error, the trial court had no authority to retroactively modify the support, or to enter the order nunc pro tunc to the date of the original order.
Engagement Agreement Mandatory Arbitration Clause
Innovative Images, LLC v. Summerville, et al. Case No. S19G1026, Georgia Supreme Court, September 9, 2020.
The Supreme Court of Georgia affirmed the judgment of the Court of Appeals in Summerville et al. v. Innovative Images, LLC, 349 Ga. App. 592 (2019). Accordingly, an attorney’s engagement agreement that contains a mandatory arbitration clause to resolve disputes arising from the agreement, is neither void as against public policy, nor substantively unconscionable. Furthermore, the client was also unable to show procedural unconscionability, based upon its contention that the attorney should have fully explained the advantages and disadvantages of the clause before entering into the contract.
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