In March 2021, the Georgia Court of Appeals released one custody-related opinion, and four other cases relevant to family law.
The Statewide Judicial Emergency remains in effect until April 8, 2021. See the twelfth 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.
Custody-Related Cases Released in March 2021:
Ortega v. Temple et al., Case No. A20A1716, Georgia Court of Appeals, March 15, 2021.
Shortly after A.U.’s birth, Ortega (biological mother) and the biological father consented to place her in the sole legal and physical custody of her maternal grandmother. Ortega retained visitation rights, and the right to discuss major decisions with the grandmother. Subsequently, the Temples (godparents) filed a motion to modify custody. The parties consented to the Temples having sole legal and physical custody, with Ortega having visitation. Over a year later, Ortega petitioned to regain custody. The trial court ruled that the Temples had a prima facie right custody since Ortega voluntarily consented to fully release her parental rights to the Temples. The trial court also ruled that Ortega carried the burden of showing, by clear and convincing evidence, that she was a fit parent, and that it was in A.U.’s best interests to be returned to her custody. This interlocutory appeal ensued.
Reversed in part, vacated in part and remanded. Parents have a constitutional right to the care and custody of their children. Accordingly, in third party custody disputes, parents have a prima facie right to custody unless they lose parental control of the child. Moreover, there is a rebuttable presumption that it is in a child’s best interests to be in his/her parent’s custody. O.C.G.A. §19-7-1(b.1). A parent may lose parental power by voluntarily contracting to release his/her right to a third person. O.C.G.A. §19-7-1(b)(1). Here, the consent order did not serve as a permanent surrender of Ortega’s parental rights. Rather, she retained the right to discuss major decisions regarding A.U. Furthermore, there was no evidentiary hearing, nor any findings as to Ortega’s parental fitness, or A.U.’s best interests. Accordingly, Ortega still retained the prima facie right to custody, and the burden of proof did not shift to her.
PRACTICE CONSIDERATION: Custody is a multi-faceted issue. Check out my and Independent Custody Assessment and Litigation Support for Attorneys pages 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!
Related Family Law Cases Released in March 2021:
Child Support // Life Insurance // Property Division // Attorney Fees
Johnson v. Johnson, Case No. A20A2061, Georgia Court of Appeals, March 2, 2021.
A trial court may revise, correct, revoke, modify or vacate a judgment within the same term of court as the original judgment, or thereafter, if a motion is filed within the same term. The court has discretion to deviate from the presumptive amount of child support, but must support the deviation with written findings of fact. Additionally, O.C.G.A. §19-6-4(a) authorizes the trial court to require either/both parents to carry life insurance for the children’s benefit. The amount is within the court’s discretion, and is not limited to the value of the future child support obligation. Parenthetically, the trial court may also require life insurance for the benefit of the spouse. After consideration of both parties’ financial circumstances, O.C.G.A. §19-6-2 authorizes an attorney fees award to ensure effective representation of both parties. Finally, the trial court also has broad discretion in equitably dividing retirement accounts, the marital home and debts.
Child Support During Pendency of Appeal
Cousin v. Tubbs, Case No. A20A2050, Georgia Court of Appeals, March 4, 2021.
This is the second appearance of this case in the Court of Appeals. In February, 2020, the Court vacated the child support portion of the trial court’s order in Cousin v. Tubbs, 353 Ga. App. 873 (2020), and remanded it for reconsideration of the high income deviation. During the pendency of the appeal, Tubbs cited Cousin for failure to pay the child support then on appeal. The parties entered into a consent order as to the arrearage and re-payment.
Upon remand, the trial court re-calculated the high income deviation so that the monthly child support payment was significantly lower. Thereafter, Cousin sought reimbursement or credit for the greater amount he paid during the pendency of the appeal. The trial court denied his request and the Court of Appeals affirmed. Cousin consented to paying the arrearage, so the Court did not address his entitlement to reimbursement. Furthermore, since Cousin did not raise his remaining arguments on the trial level, and he cannot raise them for the first time on appeal.
PRACTICE CONSIDERATION: It was likely a wise move for Cousin to consent to re-pay the court-ordered child support. He, however, should have insisted on a provision that allows for reimbursement or credit in the event he prevails on appeal. In fact, the Court of Appeals added that “such agreements should be drafted with care to protect each parties’ interests.” Alternatively, Cousin could have agreed to pay the funds into the Court’s registry pending final resolution.
Moody et al. v. Hill, Kertscher & Wharton, LLP et al., Case No. A18A1011, Georgia Court of Appeals, March 8, 2021.
This case is also making second appearance in the Court of Appeals. In Hill, et al v. Moody, 308 Ga. 74 (2020), the Georgia Supreme Court dealt with the question of a client’s implied waiver of the attorney-client privilege in a malpractice action. This appeal deals with the attorney work-product. The attorney-client privilege protects the attorney-client relationship and communications. The work-product doctrine protects attorneys from allowing their work to be used against their clients. OCGA § 9-11-26(b)(3) provides the standard for the production of attorney work-product. Discovery of work product may be had only upon a showing of substantial need for the materials, and an inability to obtain equivalent materials by other means. Even then, the trial court must protect against disclosure of the attorney’s mental impressions, conclusions, opinions or legal theories by having an in camera review and making necessary redactions.
Child Support // Equitable Division
Daniel v. Daniel, Case No. A20A1938, Georgia Court of Appeals, March 12, 2021.
A trial court must attach child support worksheets and schedules to a final order. O.C.G.A. §19-6-15(m)(1). Gross income from self-employment is calculated in accordance with O.C.G.A. §19-6-15(f)(1)(B). Thus, self-employment income for purposes of child support may differ from income reported for tax purposes. Additionally, O.C.G.A. §19-6-15(h)(3)(A) provides that a child’s uninsured medical expenses shall be divided on a pro rata basis, unless otherwise ordered by the trial court. These expenses include co-payments, deductibles and other “reasonably necessary” costs. O.C.G.A. §19-6-15(a)(23). The trial court did not err by excluding costs for over-the-counter medications and chiropractic treatments not deemed medically necessary by a doctor. Finally, the trial court may require a parent to reimburse the other for expenses incurred from the time the divorce was filed, until a temporary or final order is entered.
Equitable distribution of marital property does not necessarily mean an equal division. Property not addressed in a divorce decree remains titled as it was before the divorce decree. If the parties retain a one-half undivided interest in the property, they have a tenancy-in-common. Finally, the degree of detail necessary in findings of fact regarding property division depends upon the complexity of the issues involved.