January 2022 was another busy month for the Georgia appellate courts. The Georgia Court of Appeals release two custody-related opinions and six other opinions relevant to family law. In addition, the Georgia Supreme Court issued an order regarding a previously released opinion.
The Statewide Judicial Emergency ended last year, but court rules and regulations continue to change. See updates on news, notices, orders and resources affecting family law practices on my Covid-19 Pandemic: Family Law Updates and Resources page.
Custody-Related Cases Released in January 2022:
McAlister v. Clifton, Case No. S22A0144, Georgia Supreme Court, January 11, 2022
In December 2021, the Georgia Supreme Court released its opinion declaring this equitable caregiver case moot since the minor child has already attained the age of 18. However, after considering Motions for Reconsideration filed by both parties, the Supreme Court vacated and withdrew the opinion in this case. A new opinion will issue on or before July 1, 2022. Stay tuned!
For background and recent Court of Appeals opinions regarding the Equitable Caregiver Statute, click here.
In the Interest of Baby Girl N., a child, Case No. A21A1751, Georgia Court of Appeals, January 11, 2022.
Facts:
Shortly after the birth of Baby Girl N, her biological mother surrendered her parental rights to the Department of Human Services (DFCS) under the Safe Place for Newborns Act, O.C.G.A. §19-10A-1 et seq. DFCS placed the baby in foster care with the Jacksons, and filed a dependency action, and subsequent termination of parental rights action. Both the Jacksons, and Baby Girl N’s maternal grandparents, the Wallers, intervened. The Wallers also filed for custody with intentions to adopt the baby. The trial court ultimately awarded permanent custody of Baby Girl N to the Jacksons for purposes of adoption. The Wallers appealed.
Holding:
Affirmed. The trial court did not err by allowing the Jacksons to intervene. Rather, in accordance with the permissive intervention provisions of O.C.G.A. §9-11-24(b)(2), the Jacksons were allowed to intervene since their claims and the custody portion of the termination action both have in common the question of the best interests of the child. Additionally, in making its determination as to the appropriate placement of Baby Girl N, O.C.G.A. §15-11-321 required the juvenile court to consider several factors, including biological and familial connections. The court, however, was not required to give preference to family members. Instead, the juvenile court must place a child with the most appropriate person(s), considering the child’s best interests.
NOTE: The Court of Appeals noted a glaring incongruity in the law. The Safe Place law purportedly protects the anonymity of the parent surrendering his/her parental rights. Yet, DFCS is required to seek out relatives as potential custodians of the child. Is this something the Legislature should address?
Hooper v. Townsend, Case No. A21A1293, Georgia Court of Appeals, January 19, 2022.
Facts:
Shortly after Hooper (Mother) moved to Virginia with the minor child, Townsend (Father)
legitimated the child in Georgia, and obtained joint custody with visitation and communication privileges. Three years later, Townsend filed the instant modification and contempt action. After settling some of the contempt issues, however, Hooper filed a custody action in Virginia, and moved to transfer jurisdiction there (even though she and the child moved to New Jersey). The Georgia and Virginia judges consulted and agreed that jurisdiction was proper in Georgia. A Guardian ad Litem (GAL) was appointed, and the investigation ensued. Following a bench trial, the trial court found that Hooper was unwilling to co-parent and that she employed numerous tactics in an attempt to alienate the child from Townsend. The court awarded primary custody and attorney fees pursuant to O.C.G.A. §19-9-3 to Townsend. This appeal followed.
Holding:
Affirmed. The trial court did not err in retaining exclusive, continuing jurisdiction in accordance with the UCCJEA and O.C.G.A. §19-9-62(a). Although the court could have declined jurisdiction upon a finding that Georgia is an inconvenient forum, it did not do so. Instead, as the Virginia and Georgia judges agreed, the court properly retained jurisdiction since it made the initial custody determination, and Townsend still resides in Georgia.
Additionally, Hooper challenges the trial court’s denial of her request for a continuance. She contends that her ability to prepare for trial was hampered because the GAL had not yet interviewed her witnesses or issued her report. The GAL, however, explained that the delays in her investigation and report were caused by Hooper’s own delays in providing her with information and payment. The GAL also testified that Hooper never responded to her request to reduce her list of 46 witnesses, or at least provide more information about what they would report to the GAL. The trial court found that Hooper had sufficient opportunity to address these issues prior to trial. The court added that it would allow Hooper to call witnesses at trial or submit witness affidavits. Accordingly, under these circumstances, the trial court did not abuse its broad discretion in denying Hooper’s motion for continuance
Hooper also asserted several other trial court errors, but to no avail due to her own errors. Firstly, she was unable to establish that the trial court should have recused herself from the case because of alleged violations of the “three degrees of separation” requirement of the Georgia Code of Judicial Conduct Rule 2.11(A). Secondly, Hooper could not complain that the trial court did not rule on her motion to compel since she never pursued the ruling at the trial level, thereby precluding review on appeal. Next, Hooper’s assertion that the trial court erred in refusing to consider an affidavit also failed since she had no citations to the record supporting the alleged error. Finally, the Court of Appeals deemed Hooper’s remaining claims of error abandoned since Hooper presented no argument or authority in support of those claims.
Related Family Law Cases Released in January 2022:
Dependency
In the Interest of C.B., a child, Case No. A21A1195, Georgia Court of Appeals, January 11, 2022.
DFCS brought the instant dependency action alleging that C.B.’s mother was negligent. Thus, as the petitioning party, DFCS had the burden of proving the negligence by clear and convincing evidence. Evidence of past or potential future dependency does not suffice. Rather, the evidence must be of present dependency, which is based on a finding of parental unfitness. This requires evidence of the parent’s inability to care for the child, or neglect or abuse of the child. Indeed, the focus of the inquiry is not whether the child was in danger of harm in the past. Rather, the juvenile court must consider whether the child would be harmed if returned to the parent’s custody.
Contempt // O.C.G.A. §9-15-14(b) Attorney Fees
Viente v. Maiden, Case No. A21A1774, Georgia Court of Appeals, January 12, 2022.
In this contempt action, the Court of Appeals vacated and remanded the trial court’s attorney fees award to Maiden pursuant to O.C.G.A. §9-15-14(b). Previously, the trial court denied all of Viente’s contempt claims against Maiden, as well as her motion to recuse and her objection to consolidating the contempt actions. Maiden prevailed on only one of his three contempt claims against Viente. Subsequently, the court awarded Maiden all of the fees he requested, except those incurred for the recusal motion. Yet, the order contained no findings of fact and conclusions of law explaining the statutory basis for the award, i.e., how/why Viente’s conduct lacked substantial justification, was intended for purposed of harassment or delay, or unnecessarily expanded the proceedings. Thus, the trial court erred since lump sum or unapportioned fee awards are not permitted under O.C.G.A. §9-15-14(b), and the award must be limited to fees incurred because of sanctionable conduct.
Contempt Actions
Cowart v. Georgia Power Company, Case No. A21A1805, Georgia Court of Appeals, January 14, 2022.
A contempt motion is not a new civil action despite O.C.G.A. §15-6-61(a)(4)(A) and Uniform Superior Court Rule 39.2, which require new case numbers in post-judgment filings. Contempt is part of the court’s inherent power to enforce its orders. Thus, contempt actions are independent proceedings, ancillary to the action in which the order was entered. Moreover, entitling a contempt action “petition” instead of “motion” or “application” is of no effect. Rather, the substance of the filing is what matters. Similarly, an error on the Civil Case Filing Information Form does not alter the substance of the filing.
Additionally, trial court cannot modify an order in a contempt action. It may, however, interpret and clarify its orders, and craft a remedy for the harm caused by the contemptuous conduct. The test is whether the clarification is reasonable, or whether it is so contrary to the intent of the original order that it amounts to a modification. Finally, civil contempt remedies are conditional as a means to coerce future compliance with the prior court order. Criminal contempt, on the other hand, imposes unconditional punishment for prior contemptuous acts.
Permanent Guardianship
In the Interest of J.D., a child, Case No. A21A1198, Georgia Court of Appeals, January 19, 2022.
This appeal arises from 10-year-old J.D.’s mother’s petition to terminate the permanent guardianship that she consented to shortly after J.D.’s birth. Pursuant to O.C.G.A. §15-11-244(c), a permanent guardianship may be modified, vacated or revoked upon a finding, by clear and convincing evidence, of a material change in the circumstances of the child or the guardian. The court must also find that the modification, vacation or revocation of the guardianship is in the child’s best interests. In addition, an order granting permanent guardianship must establish a reasonable visitation schedule for the child and parents. As in the instant case, however, the court is not required to set a visitation schedule in an order refusing to terminate the guardianship, especially in light of the fact that the mother did not request visitation at trial.
Admissibility of Expert Testimony
Fireman’s Fund Insurance Company v. Holder Construction Group, LLC, et al., Case No. A21A1558, Georgia Court of Appeals, January 26, 2022.
O.C.G.A. §24-7-702 governs the admissibility of expert testimony. The trial court assesses the witness’ qualifications in the particular area of expertise, as well as the relevance and reliability of the testimony. The party seeking to introduce the expert’s testimony has the burden of establishing the witness’ reliability. The trial court may not exclude expert testimony simply because it does not believe the testimony is persuasive. Rather, the weight given to admissible evidence is for the jury to decide. Finally, an expert may testify as to his/her opinion on an ultimate issue of fact. However, the expert may not opine as to ultimate legal conclusions.
Authentication of Evidence
In the Interest of A.A., a child, Case No. A21A1724, Georgia Court of Appeals, January 31, 2022.
Georgia law has no specific rules governing the authentication of electronic documents or communications. O.C.G.A. §24-9-901(a) provides generally that the prerequisite of authenticating or identifying evidence is satisfied by a showing that the matter is what the proponent claims it to be. Section (b) of the code section provides several examples of how evidence may be authenticated, including, but not limited to testimony of a witness with knowledge, and distinctive characteristics under the circumstances. Once the party presents a prima facie case that the evidence is what it purports to be, the evidence should be admitted.
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