In September 2021, the Georgia Court of Appeals released four custody-related opinions, and six 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 September 2021:
Copeland v. Copeland, Case No. A21A0921, Georgia Court of Appeals, September 8, 2021.
Father and Mother had an altercation when Father picked up the children for his parenting time. Not surprisingly, their factual accounts of the incident differed. The next day, Mother obtained an ex parte temporary protective order granting physical custody to her, and no visitation for Father. A hearing was scheduled, but it was stayed because of the pandemic-related statewide judicial emergency granting relief from deadlines and schedules. As a result, Father moved to reinstate the 30-day hearing requirement on ex parte orders pursuant to O.C.G.A. §19-13-3(c). He also moved to dismiss the ex parte order. The court denied both motions. Ultimately, the court issued a 12-month protective order in favor of Mother, and awarded Father visitation. Thereafter, Father requested that the court reduce the 12 month period, since the extended ex parte period effectively extended the protective order by three months. The court denied his motion, and this appeal followed.
Family violence allegations must be proved by a preponderance of the evidence. Despite the parties’ different accounts of the incident, some evidence supported the trial court’s ruling. Thus, the court did not abuse its discretion in finding that family violence occurred. Moreover, O.C.G.A. §19-13-3(c) provides that unless the parties agree otherwise, a family violence case must be dismissed if no hearing is held within 30 days. However, even though the judicial emergency order deemed domestic violence hearings as essential functions, it did not mandate that hearings be held. Rather, the order vested trial courts with discretion as to how and when to conduct proceedings. Accordingly, the trial court did not err by not holding a hearing within the statutory 30 days. Finally, the trial court was authorized to enter the 12-month protective order despite the fact that the ex parte order was in force for more than one month.
Pascal v. Pino, Case No. A21A0913, Georgia Court of Appeals, September 22, 2021.
The parties’ 2018 divorce agreement provided for joint physical and legal custody of their two minor children. One year later, Pascal (Mother) petitioned for sole custody. However, before Pino (Father) filed his answer and counterclaim, he obtained emergency temporary sole physical and legal custody of the children. Thereafter, he filed his response to Pascal’s complaint. Although the title to his answer and counterclaim indicated that Pino was seeking a modification of custody, the substance and prayers in his counterclaim indicated that he wanted the custody provisions to remain unchanged from those in the final divorce decree. Yet, at trial, Pino argued for a permanent change in custody. The trial court granted Pino’s requests. This appeal by Pascal followed.
Judgment vacated and remanded. The trial court had no authority to award primary custody to Pino since he did not request a modification of custody in his counterclaim. O.C.G.A. §19-9-23 provides that a modification of custody must be requested by way of a complaint, or a counterclaim in response to a complaint for change in custody. Pino’s emergency motion for custody did not suffice, particularly since his later filed counterclaim requested that custody remain the same as in the divorce decree. Moreover, Pino’s oral request for custody at trial also did not satisfy the requirement of O.C.G.A. §19-9-23. Finally, although the trial court is always charged with determining what is in the best interests of the children, it does not have unfettered discretion to modify custody, absent the required pleadings and prayers for relief. To rule otherwise would render O.C.G.A. §19-9-23 meaningless.
PRACTICE NOTE: Sometimes the nuances in family law get the best of us. Working through all of the detail can be stressful. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see what I can do to provide support and assistance in navigating through the difficulties, and obtaining a more favorable outcome for your client. The fresh perspectives and litigation support may be exactly what you need!
Lockhart v. Lockhart, Case No. A21A0760, Georgia Court of Appeals, September 27, 2021.
After 17 years of marriage, Mother and Father divorced in 2020. Of their six children, four were still minors. Throughout the marriage, Father was the primary breadwinner, earning $58,000 to $61,000 per year, and Mother generally did not work. However, in 2018, Father moved away, and was unable to maintain stable work. Thereafter, he earned approximately $27,000/year, and he provided little support for the family. Moreover, once the pandemic hit, he applied for unemployment. As a result, Mother relied on her mother for financial help, and she eventually got a job earning $13/hour, plus discounts at a childcare facility. Mother was awarded custody of the children at trial. In calculating child support, the trial court imputed income of $4,000/month to Father, and attributed $2,253/month as Mother’s income, plus work-related child care expenses. The trial court also required Father to pay lump sum alimony and attorney’s fees to Mother. Father appealed.
Vacated and remanded with direction. Past income is evidence of one’s earning capacity, but it is not conclusive. Instead, the court must also consider other relevant circumstances, including skills, education, age, health, and the job market. A child support award based on earning capacity will be sustained if the payor has the present ability to pay the amount ordered. This was not the case here. Rather, despite a poor job market, Father tried to earn more money. Moreover, he had no assets, and there was no evidence that he suppressed his income. Regarding Mother’s income, the court must consider the actual amount she pays for childcare, including her discount. Furthermore, it was within the trial court’s discretion not to include the financial assistance she received from her mother. As to the attorney fees award, the trial court erred by failing to specify the statutory authority for the award, and by not making the required findings in support of the award. Finally, with regard to the alimony award, on remand, the trial court must consider Mother’s needs, Father’s ability to pay, and evidence of the parties’ conduct toward one another.
Barnes v. Barnes, Case No. A21A1079, Georgia Court of Appeals, September 29, 2021.
Following negotiations on the Father’s petition to modify custody and child support, he filed a motion to enforce a purported settlement agreement, and for attorney fees. The trial court granted Father’s motion to enforce, but reserved ruling on the attorney fees issue. The Mother directly appealed the trial court’s order enforcing the agreement, under O.C.G.A. §5-6-34(a)(11).
Dismissed. A direct appeal pursuant to O.C.G.A. §5-6-34(a)(11) is appropriate to challenge substantive rulings in child custody cases. However, challenges to non-substantive rulings in custody cases, such as the trial court’s enforcement of the settlement agreement in the instant case, are not subject to direct appeal. Moreover, the Court of Appeals cannot accept jurisdiction of a direct appeal from a non-final order. Accordingly, since the issue of attorney fees remained pending in the trial court, the Mother should have followed the procedures set forth in O.C.G.A. §5-6-34(b).
Related Family Law Cases Released in September 2021:
Espinosa-Herrera v. State, Case No. A21A0949, Georgia Court of Appeals, September 7, 2021.
A parent may use force as a disciplinary measure for their minor children. However, such force must be reasonable. Whether the force used is reasonable is a question for the trier of fact.
Pretrial Procedure // Sanctions
Cortes et al. v. Georgia Power Company, Case No. A21A0706, Georgia Court of Appeals, September 8, 2021.
A trial court has broad discretion in matters of case management, including establishing pretrial procedure and scheduling deadlines. However, the court’s discretion in fashioning appropriate sanctions for failure to comply with scheduling, discovery and other case management orders is not unlimited. Rather, the trial court must first consider all of the circumstances. No harsher sanctions should be imposed than necessary.
Motion to Dismiss Discovery // Requests for Admission
Bardin v. Lindsey, Case No. A21A0659, Georgia Court of Appeals, September 16, 2021.
Under O.C.G.A. §9-11-36(a)(2), a defendant is not required to respond to discovery until 45 days after service is perfected, unless the trial court deems otherwise. Moreover, if the defendant files a motion to dismiss for failure to perfect service, the plaintiff is entitled to limited discovery to respond to the motion. O.C.G.A. §9-11-12(j)(4). Additionally, a failure to timely respond to a request for admissions is, by operation of law, deemed an admission. A party may not give lack of information or knowledge as an excuse for not responding to a request for admission unless he states that after reasonable inquiry, he has insufficient information to admit or deny the request.
Equitable Division // Contempt and Clarification
Gilreath v. Conner, Case No. A21A0816, Georgia Court of Appeals, September 21, 2021.
Pensions acquired during a marriage are subject to equitable division. In the instant case, the parties agreed that Conner was entitled to 27.4% of Gilreath’s pension, using a specific date span as the valuation date (ending as of divorce). Almost five years later, Gilreath began collecting his pension. However, when Conner did not receive her share, she filed a motion for contempt and for clarification. A trial court may interpret or clarify a divorce decree to insure compliance with the intent and spirit of its decrees. However, the court may not modify the divorce decree in a contempt action. The test is whether the clarification is reasonable, or whether it is so contrary to the original intent of the parties so as to amount to a modification. In the instant case, the court erred by interpreting the agreement as awarding Conner a 27.4% interest, without considering the appropriate valuation dates.
Sullivan v. Kubanyi, Case No. A21A1180, Georgia Court of Appeals, September 27, 2021.
In accordance with O.C.G.A. §19-13-3(c), hearings for stalking protective orders pursuant to O.C.G.A. §16-5-94 must be held within 30 days of filing a petition,. However, the 2020 pandemic-related statewide judicial emergency declared by the Supreme Court tolled that requirement. Moreover, O.C.G.A. §16-5-94(d) authorizes the trial court to order a party to: refrain from staking, harassing or interfering with the other party; seek psychiatric or psychological services; and pay attorney fees. The code section, however, does not authorize the court to require a party to surrender personal property to law enforcement. Finally, without a transcript or other acceptable substitute, the Court of Appeals will assume that the evidence presented at trial supports the trial court’s decision to issue or deny a protective order.
Vital Records // “May” = “Must” or “Shall”
In re Shawn Donovan Stroud, et al., Case No. A21A0931, Georgia Court of Appeals, September 27, 2021.
It is in the public interest to ensure that vital records are accurate. Accordingly, a probate court must amend a marriage certificate if doing so would protect the accuracy and integrity of the records. However, if a marriage certificate accurately reflects the names of the parties at the time of the marriage, a subsequent name change does not require a change to the marriage records. In general, the term “may” in a statute does not mandate or command. However, when it concerns the public interest, such as ensuring vital records are accurate, the term must be construed as “must” or “shall.”
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