February 2021 was another busy month in the Georgia Court of Appeals. The Court released four custody-related opinions, and four other cases relevant to family law.
The Statewide Judicial Emergency remains in effect until March 9, 2021. See the eleventh extension to Georgia’s Statewide Judicial Emergency, and other orders, notices and resources relevant to our family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Brevik v. Bradley, Case No. A20A1780, Georgia Court of Appeals, February 1, 2021.
The parties have two minor children, but were never married. Bradley, the mother, filed a complaint for legitimation. Brevik, the father, counterclaimed also seeking legitimation. The trial court instructed Bradley to amend her complaint to request paternity pursuant to O.C.G.A. §19-7-43, instead of legitimation pursuant to O.C.G.A. §19-7-22. Instead, Brevik indicated that she preferred to dismiss her complaint (although she never did). The trial court dismissed the case in its entirety, finding that it lacked subject matter over the counterclaim since it had no jurisdiction over the main claim. This appeal followed
A trial court has jurisdiction to adjudicate a properly pled counterclaim even if the original complaint is voluntarily or involuntarily dismissed. In accordance with O.C.G.A. §19-7-22, Brevik’s counterclaim sets forth the elements for legitimation, including the mother’s name, the names, ages and sex of the children, and his claims for custody and support. Brevik’s counterclaim was therefore a complete claim which could have been tried independently of the original complaint. Accordingly, the trial court should not have dismissed Brevik’s counterclaim for legitimation.
Bass v. Medy, Case No. A20A2120, Georgia Court of Appeals, February 12, 2021.
Bass (the mother) and Medy (the father) had joint legal custody of their minor children. Medy had primary physical custody. Bass had visitation and she paid child support. In 2019, Medy filed the instant petition to modify visitation. The trial court noticed the parties for a hearing on Medy’s motion for an in camera interview of the children, “and all other pending motions.” No other motions were pending. Yet, over Bass’ objections, the trial court held a temporary hearing, and granted sole legal and physical custody of the children to Medy (by oral pronouncement). The trial court also modified Bass’ visitation, and increased her child support obligation. Bass filed a motion to recuse, which was subsequently denied. Thereafter, Medy amended his petition, asking for custody and child support, and the trial court entered its temporary order. Bass appealed.
The trial court erred by modifying custody and child support. Medy initially sought only to modify visitation. He made no requests for modification of custody or child support (before or during the hearing), or for temporary relief. The only issue properly before the court was whether the judge would interview the children. Consequently, the trial court expanded the hearing beyond the pending motion, thereby violating Bass’ due process rights to notice and a meaningful opportunity to defend against the claims. Medy’s post-hearing amendment to his petition did not cure this issue. Additionally, the trial court did not err in denying Bass’ motion to recuse. A judge’s ruling is rarely a valid basis to show bias or partiality. Further, alleged bias must stem from an extra-judicial source not learned from the case.
PRACTICE CONSIDERATION: Sometimes the nuances in our family law practices get the best of us. Check out my Litigation Support for Attorneys page to see what I can do to provide support and assistance in developing strategies and navigating through some of your most difficult cases. The fresh perspectives and litigation support may be exactly what you need!
Kerr v. Wilson, Case Nos. A20A1668 and A20A2015, Georgia Court of Appeals, February 22, 2021.
The parties were divorced in Tennessee in 2009. Wilson had primary custody of their minor daughter, and Kerr was required to pay child support. In 2019, Wilson filed a petition to register/domesticate the Tennessee order. The trial court confirmed the registration of the Tennessee order despite Kerr’s objection. Kerr appealed that order, and a separate order holding him in contempt for failure to pay child support.
O.C.G.A. §19-9-85 sets out the procedure for registering foreign custody orders. With her request to register the Tennessee order, Wilson was also required to file a certified and one other copy of the order with a sworn statement that it has not been modified, and the names/addresses of all parties. Subsection (d) provides that Kerr could contest the validity of the order by requesting a hearing within 20 days after service of the notice. If not, the registration is confirmed as a matter of law. Wilson, however, only filed a certified copy of the order. Thus, the trial court could not confirm the registration, and should have treated the petition as one to domesticate the order. Registration is a prerequisite to modifying a foreign judgment. However, to enforce a foreign order, it is only necessary to file a certified copy. Accordingly, the trial court properly ruled upon Wilson’s contempt petition.
Bennett v. McClam, Case No. A21A0134, Georgia Court of Appeals, February 23, 2021.
Bennett has primary custody of the parties’ minor child. McClam filed a petition to modify custody and child support. The trial court granted Bennett’s motion to dismiss since there were no changes in circumstances substantially affecting the welfare of the child. Bennett sought attorney fees pursuant to O.C.G.A. §9-14-15 (a) and (b) and O.C.G.A. §19-9-3(g). The trial court denied Bennett’s requests for fees. This appeal followed.
O.C.G.A. §19-9-3(g) is the applicable attorney fees statute in custody cases that do not arise out of a divorce or alimony action. Unlike O.C.G.A. §19-6-2 in divorce or alimony cases, O.C.G.A. §19-9-3(g) does not require the court to consider the parties’ financial circumstances. Rather, the judge, in his/her discretion, may order the parties to pay reasonable fees and expenses of litigation. Furthermore, the fact that Bennett prevailed on his motion to dismiss McClam’s petition is not enough to entitle him to §9-15-14 fees. Rather, the trial court stated that it could have accepted McClam’s claims, and therefore her petition did not lack substantial justification. Since there was no transcript of the proceedings, the Court of Appeals must assume that the trial court was correct, and affirm the ruling.
Related Family Law Cases Released in February 2021:
12-Month Stalking Protective Order // Social Media Posts
Bodi v. Ryan, Case No. A20A2102, Georgia Court of Appeals, February 1, 2021.
Under O.C.G.A. §16-5-90, a Petitioner seeking a stalking protective order must show by a preponderance of the evidence that the perpetrator follows, places him/her under surveillance, or contacts him/her, without consent, for the purpose of harassment and intimidation. Bodi’s nasty posts on social media do not establish “contact,” even if Bodi may have reasonably expected that Ryan would see the posts. Furthermore, the evidence did not establish that Bodi surveilled or followed Ryan. Finally, the evidence was insufficient to establish harassment or intimidation directed at Ryan. A threat need not be overt or explicit. However, Ryan did not testify that she was frightened by Bodi’s incendiary language or conduct. Accordingly, the evidence was insufficient to establish a finding of stalking.
PRACTICE CONSIDERATION: Bodi was involved in a consensual relationship with Ryan’s 14-year-old daughter. Ryan prohibited Bodi from coming onto her property, but her daughter allowed him to visit. Ryan did not file her stalking petition on behalf of her daughter. Had she done so, the outcome may have been very different.
Pro Se Pleadings
In the Interest of N.C., et al., children, Case No. A21A0841, Georgia Court of Appeals, February 8, 2021.
A party represented by counsel has no right to file pro se pleadings. Unless and until the attorney has withdrawn from the case, pro se filings are a nullity.
Termination of Parental Rights
In the Interest of T.R., et al., children, Case No. A20A2124, Georgia Court of Appeals, February 8, 2021.
O.C.G.A. §15-11-310 provides a two-pronged analysis in termination of parental rights cases. The trial court must first determine whether one of five statutory grounds for termination has been met. If so, the court must then determine whether termination is in the best interests of the children. In the instant case, in addition to other factors, the trial court properly considered the mother’s medically mental health deficiency in determining that the children were without proper parental care and control. O.C.G.A. §15-11-311(a)(1). The trial court may consider past conduct when determining whether the conditions will likely continue. The court must also consider the relationship between the child and parent. In so doing, the court must assess whether the child will likely suffer serious harm if returned to the parent, or if the child remains indefinitely in foster care. Finally, the trial court must make separate findings of fact as to each child.
Authentication of Social Media Posts
Intemann v. State, Case No. A20A1870, Georgia Court of Appeals, February 22, 2021.
Tweets and other documents from electronic sources are subject to the same rules of authentication as other documentary evidence. See O.C.G.A. §24-9-901. Thus, as a condition precedent to admissibility, there must be sufficient evidence that the matter in question is what the proponent claims it to be. The argument that the Twitter account may have been hacked goes to the weight of the evidence, not to its authenticity.
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