In June 2021, the Georgia Court of Appeals released two custody-related opinions, and five other opinions relevant to family law.
The Statewide Judicial Emergency ended on June 30, 2021. See local orders 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 June 2021:
Cockerham v. Cockerham, Case No. A21A0553, Georgia Court of Appeals, June 18, 2021.
The parties had joint custody of their child, with Father having parenting time on Wednesdays, and every other Friday to Monday. Father petitioned for modification, seeking equal parenting time. Mother counterclaimed for an increase in child support, and attorney fees. The parties consented to a Guardian ad Litem (GAL), with Father paying the fees, subject to reapportionment. They also settled the child support issues. Before the final hearing on the custody issues, Father moved for a continuance and to have the GAL removed, alleging bias. The trial court denied both motions. At trial, Father requested the court to enter findings of fact and conclusions of law. The court increased Father’s weekend parenting time to include Thursday nights. Additionally, the court awarded attorney fees to Mother pursuant to O.C.G.A. §§19-6-15(k) and 19-9-3(g). Finally, the court did not reapportion the GAL fees, and required Father to pay the balance. Father appealed.
O.C.G.A. §9-11-52(a) requires the trial court to make findings of fact and conclusions of law if either party requests them before the court rules. The court must set out the facts, and the process by which conclusions were reached. Likewise, if requested by either party, O.C.G.A. §19-9-3(a)(8) requires a judge to provide factual findings, including the specific relevant factors relied upon in making the custody determination. In the instant case, the court limited its findings to concern about Father’s expletives and profanity in an e-mail to Mother. The findings did not explain the e-mail’s relevance to the child’s best interests, or to the factors contained in O.C.G.A. §19-9-3(a)(3). As such, it is unclear why the judge awarded Father additional parenting time, but not the requested equal parenting time. Accordingly, the custody portion of the order is vacated and remanded for the trial court to make appropriate findings.
The trial court did not abuse its discretion by not granting Father’s motions for a continuance, and to remove the GAL. Father asserted that the GAL exhibited impartiality by meeting with the child and receiving additional information from Mother just days before trial, but not meeting with him. He, however, failed to show how he was prejudiced by this, or by the court’s refusal to grant a continuance. A mere appearance of impropriety or bias is not enough, as Father must show both error and harm to prevail on appeal. Further, Father asserted that the appointment of the GAL and the use of the best interest standard violated his constitutional rights. He also contended that the trial court improperly considered hearsay. However, the Court of Appeals did not address these issues since Father did not raise his objections at trial.
Finally, the trial court has broad discretion in awarding attorney fees as long as there is sufficient proof of the actual costs, and the reasonableness of those costs. O.C.G.A. §19-6-15(k) authorizes an award of fees to the prevailing party in modifications of child support cases. O.C.G.A. §19-9-3(g) authorizes an award of attorney fees and expenses of litigation in custody cases. In the instant case, Father did not challenge the basis for, or the reasonableness of the fees requested. Accordingly, the trial court did not err by not making findings of fact to support the fee awards. Additionally, the court had the discretion under O.C.G.A. §19-9-3(g) to require Father to pay the balance of the GAL fees. Moreover, Father cannot now complain that the trial court did not reapportion the GAL fees since he had consented to the order setting out the payment terms.
PRACTICE NOTE: Woe is the client who writes damaging e-mails or social media posts while under the watchful eye of the GAL and the Court. Damage control and client control are sometimes difficult to navigate. Check out my Litigation Support for Attorneys and Litigation Support for Clients 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!
Blackwelder v. Shugard, et al., Case No. A21A0483, Georgia Court of Appeals, June 28, 2021.
In 2015, Blackwelder petitioned for legitimation and custody of his minor children. Two years later, he was awarded emergency temporary custody of the children after the Department of Family and Children Services became involved and Shugard (the mother) failed a drug test. The trial court also added Dye, the maternal Grandmother, as a party, and granted her visitation. Several months later, Dye petitioned for and obtained temporary custody of the children after Blackwelder failed a drug test, began living with a woman (who he later married), and one of the children almost drowned while he was drinking beer and angrily texting with Dye. Ultimately, at the final trial, the court concluded that the children have been, and will continue to be harmed in the custody of either parent, and that it is in their best interests to be in Dye’s custody. Blackwelder appealed.
Affirmed. Custody disputes between a parent and third-party relatives are governed by O.C.G.A. §19-7-1(b.1). To rebut the statutory presumption in favor of parents, Dye was required to show, by clear and convincing evidence, that the children would suffer physical and/or significant long-term emotional harm if placed with Blackwelder, and that a custody award to Dye would best promote their welfare and happiness. In the harm analysis, the courts consider several factors, including the children’s past and present caretakers; their psychological bonds with the parties; evidence of interest in, and contact with the child over time; and the child’s unique medical or psychological needs that one party can better meet. In the instant case, the evidence supported the trial court’s conclusion that Blackwelder’s history of domestic violence, and the near-drowning of one of the children were indicative that a threat of harm existed if custody was awarded to him.
Related Family Law Cases Released in June 2021:
Settlement // Attorney Fees
Ernest v. Moffa, Case No. A21A0269, Georgia Court of Appeals, June 8, 2021.
On appeal, a party cannot complain of an error caused by his or her own conduct. Thus, Ernest, who did not appear for her final divorce trial, cannot complain that the trial court did not hold a hearing on the non-custodial issues. Rather, her attorney agreed to forego presenting evidence in favor of negotiating a settlement. Furthermore, the trial court did not err by not incorporating counsels’ negotiated settlement on the non-custodial issues into the final divorce decree. The trial court was also authorized, in its discretion, to reapportion the guardian ad litem fees. O.C.G.A. §19-9-3(g) and Uniform Superior Court Rule 24.9(8)(g). Finally, the trial court’s award of O.C.G.A. §9-15-14(b) attorney fees to Moffa sufficiently identified the sanctionable behavior supporting the award, and was limited to the actual and reasonable costs incurred because of that conduct.
Child Support Deviation // School Tuition
Rose v. Clark, Case No. A21A0172, Georgia Court of Appeals, June 16, 2021.
O.C.G.A. §19-6-15(k)(1) provides authority to modify child support if the court finds that there has been a substantial change in either parent’s income and financial status, or in the needs of the child. Upon a showing of this threshold requirement, the court must reconsider the child support amount under the O.C.G.A. §19-6-15(b) guidelines. The parties’ settlement agreement to each pay half of the tuition costs reflects their intention “to alter the legal presumption that the custodial parent would pay that child rearing expense.” Yet, the trial court has discretion to also deviate from the presumptive child support amount based on findings of changed income and tuition costs. Finally, since the trial court provided no statutory basis or findings supporting its attorney fees award, the Cour of Appeals vacated and remanded the fee award to the trial court with instruction to provide explanations.
In the Interest of J.R., et al., Case No. A21A0347, Georgia Court of Appeals, June 25, 2021.
A trial court may declare a child dependent if it finds that an act of family violence occurred while the child was physically present, or where the child could see or hear it. In the instant case, even though the children’s parents no longer live together, the ongoing nature and history of their relationship authorized the trial court to find present dependency that was likely to continue if the children remain in the parents’ custody.
Threatt v. Threatt, Case No. A21A0637, Georgia Court of Appeals, June 25, 2021.
Due process in final divorce proceedings requires that the parties receive notice reasonably calculated to inform them of the hearing and give them an opportunity to object. If a party does not appear at a hearing for which he has been properly noticed, the trial court may proceed with the hearing. In the instant case, when the pro se Wife did not appear for a status hearing, the trial court erred by dismissing her answer and counterclaim, and moving forward with the final divorce trial. Accordingly, since Wife did not have sufficient notice of the final divorce trial, the trial court should have granted her motion to set aside the final judgment.
Hill v. Hill, Case No. A21A0285, Georgia Court of Appeals, June 29, 2021.
The Georgia Code of Judicial Conduct requires judges to avoid all impropriety or the appearance of impropriety. The test is whether a situation would create a perception in reasonable minds that the judge does not have the ability to carry out his/her responsibilities with integrity, impartiality and competence. Uniform Superior Court Rule 25.3 provides the procedure for a motion to recuse a trial judge. Judges should recuse themselves if they represent a party in a case before their own court. Judges should also recuse themselves when a judge within the circuit appears as a party in a case. Neither of these situations appeared in the instant contempt action. As such, Hill was unable to show that all of the Brunswick Circuit judges should recuse themselves because his ex-wife’s attorney also sits as a part-time magistrate judge in Camden County.