May 2021 was another busy month for the Georgia Court of Appeals. The Court released five custody-related opinions, and two other opinions relevant to family law.
The Statewide Judicial Emergency remains in effect until June 8, 2021. See the fourteenth 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 May 2021:
Belliveau, et al. v. Floyd, Case No. A21A0505, Georgia Court of Appeals, May 18, 2021.
Evelyn Belliveau and Floyd had a child together while Evelyn and her husband, Daniel, were separated. Floyd was at the birth, was listed as the child’s father on the birth certificate, and he and Evelyn signed a paternity acknowledgement. After raising the baby together for six months, Evelyn left Floyd and reconciled with Daniel. Thereafter, she refused to allow Floyd to have a relationship with the child, and she changed the child’s legal name to Belliveau. Floyd petitioned to legitimate the child. The trial court appointed a guardian ad litem (GAL), who reported back to the court with recommendations. However, the court never held a hearing or received evidence. Rather, based only on the pleadings, unproven allegations and the GAL’s report, the trial court granted the legitimation, and terminated Daniel’s parental rights. Evelyn and Daniel appealed.
Judgment vacated and remanded with direction. O.C.G.A. §19-7-22 sets out the procedure in legitimation proceedings. In the instant case, the trial court properly ordered genetic testing before addressing whether legitimation is in the child’s best interests. O.C.G.A. §19-7-22(h). However, the court did not hold an evidentiary hearing before granting the legitimation petition, as mandated by O.C.G.A. §19-7-22(d)(1). Furthermore, Uniform Superior Court Rule 24.9(6) provides that the GAL’s report shall be admitted into evidence, and that it is not a substitute for the GAL’s appearance and testimony at the final trial, unless the parties agree otherwise. Moreover, the trial court must determine whether Floyd abandoned his opportunity interest in developing a relationship with the child before considering whether the legitimation serves the child’s best interest. Finally, the trial court must terminate Daniel’s parental rights before it can grant Floyd’s legitimation petition.
Brazil v. Williams, Case No. A21A0037, Georgia Court of Appeals, May 19, 2021.
The parties’ final judgment and decree of divorce awarded them joint legal custody, with primary physical custody and final decision making to Williams (father) and visitation rights to Brazil (mother). Six months later, Williams moved with the child to Michigan, and Brazil filed the instant modification action. Prior to the move, Williams drove the child from Milledgeville to Atlanta to visit with Brazil every other weekend. Since the move, Williams flew the child to visit with Brazil once a month. The guardian ad litem (GAL), who also served in the divorce action, recommended that Brazil have primary custody since, logistically, it is easier for Williams to visit with the child in Georgia. The trial court, however, rejected the GAL’s recommendation. Instead, the court granted Williams’ motion for directed verdict, finding that his relocation was not a material change in circumstances since the travel time is now shorter. This appeal followed.
Affirmed. In custody modification cases, the trial court must apply a two-pronged test. First, the court must determine whether a material change in circumstances affecting the welfare of the child has occurred since the last custody award. If the court finds in the affirmative on the threshold question, it must then consider whether a change in custody is in the child’s best interests. Relocation of a custodial parent outside of Georgia does not automatically constitute a material change in circumstance. Rather, the trial court must consider the totality of the circumstances. In the instant case, the trial court also considered the parties’ poor communication and co-parenting skills, but found no change in circumstances since those issues existed as of the last custody award. Accordingly, Brazil did not carry her burden of showing a change in circumstances. Thus, trial court did not err in denying the petition to modify custody.
PRACTICE NOTE: As this case demonstrates, the trial court is not bound by a GAL’s recommendation. Rather, Uniform Superior Court Rule 24.9(6) provides that the trial court must exercise independent discretion and judgment in making a custody decision. If the GAL’s recommendation is adverse to your client, check out my Independent Custody Assessment and Litigation Support for Attorneys pages to see what I can do to provide support and assistance in developing strategies to obtain a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
Steedley v. Gilbreth, Case No. A21A0356, Georgia Court of Appeals, May 21, 2021.
This case has made several appearances in the Court of Appeals. In Steedley v. Gilbreth, 352 Ga. App. 179 (2019), the Court vacated a temporary order awarding custody to Gilbreth (maternal grandmother), and remanded the case for the trial court to make additional findings of fact and analysis in accordance with Clark v. Wade, 273, Ga. 587 (2001). On remand, citing O.C.G.A. §19-9-3 as authority, the trial court awarded “primary physical custody” to Steedley (mother), and visitation rights for Gilbreth. This appeal followed.
Reversed. O.C.G.A. §19-9-3 does not apply in the instant case as it only governs custody disputes between parents. Instead, O.C.G.A. §19-7-1(b.1) is the applicable law that governs custody disputes between parents and third-party relatives, including grandparents. The latter code section authorizes an award of sole custody to the third-party relative. However, neither code section authorizes joint custody between a parent and third-parties, as Georgia law only supports joint custody arrangements between parents. The Court noted that although the trial court did not specify “joint custody,” the terms of the order, including “primary physical custody,” should be construed as such. Furthermore, O.C.G.A. §19-7-3 provided the authority for the trial court to award visitation rights to Gilbreth. Under Subsection (c)(1), Gilbreth must show by clear and convincing evidence that the child’s health or welfare would be harmed if visitation is not granted, and that the visitation is in the child’s best interests.
VanVlerah v. VanVlerah, Case Nos. A21A0700 and A21A0704, Georgia Court of Appeals, May 26, 2021.
Wife separated from Husband and moved to Michigan with the parties’ five children. Thereafter, she filed for divorce and Husband counterclaimed. Both parties requested primary custody of the children. The trial court held a bench trial. After the trial concluded, but before the judge entered the final judgment, Husband requested the court to make findings of fact and conclusions of law pursuant to O.C.G.A. §9-11-52. Shortly thereafter, the trial court entered the final judgment and decree, awarding joint legal custody, with primary physical custody to Wife, and supervised visitation for Husband. The trial court, however, did not include findings of fact or conclusions of law in the judgment, and failed to incorporate a parenting plan and child support worksheets. Husband appealed. Husband also appealed the trial court’s refusal to hold Wife in contempt for failure to comply with the supervised visitation provisions of their temporary order.
The trial court erred by failing to make findings of fact and conclusions of law. Husband timely requested the findings and conclusions pursuant to O.C.G.A. §9-11-52(a), which mandates them if requested by either party prior to the entry of the order. Alternatively, in custody cases, O.C.G.A. §19-9-3(a)(8) requires the trial court to provide findings of fact if a party requests them on or before the close of evidence. The trial court also erred in failing to enter a permanent parenting plan, either by incorporating it into the final judgment, or by separately filing one into the record, as required by O.C.G.A. §19-9-1(a). The parenting plan should contain details such as the parents’ rights to the children’s records. Additionally, the trial court failed to reference, adopt or incorporate child support worksheets, and any appropriate schedules, into the final judgment required by O.C.G.A. §19-6-15.
Finally, the trial court did not err in refusing to hold Wife in willful contempt for failure to accommodate Father’s supervised visitation. The evidence was that Wife had a sincere fear that she would expose the children to the Covid-19 virus, even though the visitation center had safety precautions in place. Moreover, Wife believed, albeit incorrectly, that Husband agreed to delay visitation until the pandemic was under control. Finally, Wife ultimately came into compliance with the order, and began allowing the visits. Accordingly, the trial court held that Wife’s failure to comply with the visitation terms was not willful, and did not rise to the level of contempt. The trial court, however, misinterpreted Uniform Superior Court Rule 6.4 as requiring Husband to communicate in good faith with Wife prior to filing his contempt motion. Rather, USCR 6.4 applies to discovery disputes only, and is inapplicable here.
Pryce v. Pryce, Case No. A21A0056, Georgia Court of Appeals, May 28, 2021.
After 23 years of marriage and three children, Husband filed for divorce in 2019. The trial court awarded temporary custody of the parties’ two minor children to Husband, and appointed a guardian ad litem (GAL) to investigate the custody issues. At the final trial, the court awarded joint legal custody of the children to the parties, with Husband having primary custody. The trial court also ordered Wife to pay child support to Husband, and Husband to pay alimony to Wife. Additionally, Husband was required to pay Wife’s attorney fees, and the balance of fees due to the GAL. Finally, the trial court awarded half of Husband’s retirement to Wife. Husband appealed.
The trial court failed to include an adequate parenting plan in the divorce decree in accordance with O.C.G.A. §19-9-1. Thus, the custody portion of the divorce decree is vacated and remanded with direction for the trial court to comply with the statutory requirements. Specifically, unless otherwise ordered, the parenting plan must include an acknowledgement and recognition that the children’s close and continuing relationships with both parents is in their best interests; and that the parents shall take into account that the children’s needs will change as they mature. O.C.G.A. §19-9-1(b)(1). Additionally, the parenting plan must provide information regarding the parents’ access to the children’s records and information as to education, health, health insurance, extracurricular activities and religion. Finally, in accordance with Subsection (b)(2) of the code section, the trial court must include transportation arrangements for visitation, and it must address whether supervision is required.
The Court of Appeals also vacated and remanded the child support award to the trial court for appropriate findings. Specifically, the trial court failed to allocate the children’s uninsured health care expenses on a pro rata basis, and enter each parent’s share on the worksheets in accordance with O.C.G.A. §19-6-15(b)(10). The balance of the trial court’s judgment was affirmed by the Court of Appeals. The trial court, in its discretion, was authorized to award to Wife her reasonable attorney fees and expenses of litigation, including the GAL fees, pursuant to O.C.G.A. §§19-9-3(g) and 19-6-2(a)(1). Further, the alimony award was authorized under O.C.G.A. §19-6-1. As the record indicates, the court properly considered factors contained in O.C.G.A §19-6-5(a) in making the alimony award, including the length of the marriage, and the disparity in the parties’ incomes. Health insurance costs were properly allocated to Husband on the worksheets in accordance with O.C.G.A. §19-6-15(b)(7). Finally, the trial court did not err in awarding half of Husband’s retirement account to Wife in addition to his alimony and other financial obligations.
Related Family Law Cases Released in May 2021:
Dependency Proceedings // Guardian ad Litem
In the Interest of C.L.W., Case No. A21A0616, Georgia Court of Appeals, May 18, 2021.
An attorney representing a dependent child in a Juvenile Court dependency proceeding may also serve as the child’s Guardian ad Litem (GAL), as long as the dual role presents no conflict of interest. O.C.G.A. §15-11-104(b). The GAL is a person with an interest in the child authorized under O.C.G.A. §15-11-32(e) to petition the court for a modification of disposition. Moreover, the GAL has a duty to advocate for the child’s best interest pursuant to O.C.G.A. §15-11-105(a). Finally, the GAL is also authorized to file motions in the capacity of the attorney representing a dependent child.
PRACTICE NOTE: In Superior Court custody cases, the appointment and role of the GAL are governed by Uniform Superior Court Rule 24.9. Unlike GALs in Juvenile Court dependency cases, GALs in custody cases only represent the child’s best interests. Thus, for example, if a child expresses a desire to live with one parent, the GAL is not bound to make recommendations honoring the child’s wishes if it is not in the child’s best interests. Additionally, similar to the Juvenile Court statutes, U.S.C.R. 24.9(8)(b) also provides authority for the GAL to file appropriate motions and pleadings necessary to preserve, promote or protect the child’s best interest.
Equitable Division of Lottery Proceeds
Messick v. Messick, Case No. A21A0600, Georgia Court of Appeals, May 18, 2021.
Property acquired during a marriage as a direct result of the labor and investments of the parties is marital property subject to equitable division. Accordingly, lottery proceeds that the Wife won after the parties executed their divorce settlement agreement, but before the entry of the final judgment and decree, are subject to equitable division. General prefatory language providing that neither party may claim property in the possession of the other did not apply to the lottery proceeds since the proceeds were not owned as of the date of the agreement.