March 2022 was another busy month. The Georgia Supreme Court released one opinion relevant to family law, while the Court of Appeals released six family law related opinions, three of which deal with custody.
Business is getting back to normal, 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 March 2022:
Dunn v. Dunn, Case Nos. A21A1776, A21A1777 and A21A1778, Georgia Court of Appeals, March 9, 2022
The trial court entered its final order of divorce in December 2020. In January 2021, Father filed a timely motion for new trial. Mother also filed for a family violence protective order, and to have Father held in contempt, alleging, among other things, that he withheld custody from her on two occasions. Before ruling on Father’s motion for new trial, the trial court held a hearing, granted Mother’s request for a 12-month protective order, and held Father in contempt. Subsequently, Mother filed a second motion for contempt, which the trial court granted before ruling on Father’s motion for new trial. Father appealed all three orders.
Reversed. O.C.G.A. §9-11-62(b) provides that unless otherwise ordered by the court, Father’s motion for new trial acted as an automatic supersedeas which precluded the trial court from holding him in contempt. In its discretion, the trial court had authority to condition supersedeas by ordering a bond to secure the judgment. The court was also authorized to exempt or limit the effect of the automatic supersedeas on any portion of the final order. However, in the instant case, the court did neither. Accordingly, Father’s motion for new trial stayed the provisions of the final order, and rendered it unenforceable.
Moreover, there was no evidence that Father committed family violence. O.C.G.A. §19-13-1 defines family violence as the commission of a felony or other specified illegal act between specified individuals. By comparison, discipline by a parent, if reasonable, is not family violence. In the instant case, Mother testified about her concern that Father bruised the children. She, however, provided no factual basis for her concerns. Furthermore, Mother’s allegations that Father twice withheld the children from her could not support a family violence finding. Rather, O.C.G.A. §16-5-45(b)(1)(C), which criminalizes withholding a child within Georgia in violation of a custody order, is a felony only on the third and subsequent offenses. Likewise, although Father lived out of state, there was no evidence that he illegally withheld the children there. Therefore, the family violence order also could not be predicated upon a felony violation of O.C.G.A. §16-5-45(c)(2).
Stanley v. Edwards, Case No. A21A1500, Georgia Court of Appeals, March 15, 2022.
In September 2018, Father filed a petition to modify a 2013 custody order, alleging that Mother failed to support the children’s needs, and exposed them to immoral behavior, partying and drugs. At trial, the parties testified, and the witnesses included a teacher, the children’s step-mother, and the older son, Q.E. Additionally, the evidence included provocative entries and pictures from Mother’s social media account. The trial court awarded primary custody to Father, finding that Mother took steps to alienate the children from Father, had questionable morals, and that she does not address Q.E.’s school problems with appropriate urgency. Mother appealed.
Reversed. To prevail, Father was required to show a material change in circumstances affecting the welfare of the children since the 2013 custody award. The trial court could then consider the children’s best interests, but only if the evidence indicates that there was, in fact, a material change. In the instant case, the discord between Mother and Father was ongoing since before the 2013 order, and there was no evidence that the animosity had worsened. Moreover, the trial court’s conclusion that Mother was alienating the children from Father was not consistent with the evidence. Rather, there was no evidence that she spoke negatively about Father, that she prohibited the children from communicating with him, or that she refused to discuss the children with him. Importantly, there was also no evidence that the children held a negative view of him. Compare Hooper v. Townsend, __ Ga. App. __ (Case No. A21A1293).
Moreover, the evidence was that Q.E.’s difficulties in school have also been ongoing for years, and are not because of Mother’s conduct. Indeed, the evidence was that Mother helped Q.E. with his school work, and nothing indicated that Father could do a better job. Finally, there was no evidence that Mother’s behaviors were new circumstances, or that the the children have seen, or were in any way negatively impacted by her provocative social media posts. In fact, Q.E. testified that he witnessed smoking, drinking and other un-parentlike behaviors at both of his parents’ homes. Thus, although the children may be suffering because of their parents’ behaviors, there was no evidence of a change sufficient to modify custody.
PRACTICE NOTE: Judge Doyle, who authored this opinion, touched on the reality of practicing family law. Quoting old case law, she reminded us that “[i]n domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child.” As litigators zealously representing our clients, we sometimes miss this important distinction.
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!
Newlin et al. v. Adamar et al. Case No. A22A0497, Georgia Court of Appeals, March 25, 2022.
After leaving two-year-old A.D. with relatives, Adamar (Mother) eventually agreed to let A.D. live temporarily with the Newlins (Adamar’s aunt and uncle). Adamar visited with A.D. for several weeks, until the visits stopped in 2019. Thereafter, she requested to see A.D., but the Newlins either refused or ignored the requests. In 2020, the Newlins petitioned to adopt A.D. Adamar objected, and counterclaimed for visitation, with the intention of regaining custody. At trial, Adamar testified that she was sober for almost two years, was gainfully employed, and she is remarried with another child. The trial court found that Adamar failed to provide for the care and support of A.D., but that the Newlins thwarted her efforts to communicate with A.D. The court then denied the petition to adopt, finding that the Newlins did not show clear and convincing evidence that the adoption would be in A.D’s best interest. The Newlins appealed.
Affirmed. Pursuant to O.C.G.A. §19-8-7, the Newlins could have adopted A.D. if Adamar and the father voluntarily surrendered their parental rights. In general, however, a surrender of rights may not be necessary with clear and convincing evidence that the parent, without justifiable cause, did not communicate with, or provide care and support for the child for more than one year. If so, the court must then consider whether the adoption is in the child’s best interests. In the instant case, the court found that Adamar failed to provide for A.D.’s care and support. However, the court did not abuse its discretion in finding that the adoption was not in A.D.’s best interests. Rather, it was evident that A.D.’s needs likely would be met in both homes. Thus, the controlling factor is Adamar’s fundamental liberty interest, as A.D.’s mother, in the care and custody of her child.
Related Family Law Cases Released in March 2022:
Yanes v. Escobar, Case No. A22A0315, Georgia Court of Appeals, March 3, 2022.
An order is final and appealable when all issues have been resolved, it contains the court’s final ruling on the merits of the case, and the parties have no further recourse on the trial court level. When the underlying action involves rights and obligations arising out of, or ancillary to a divorce decree (and does not involve child custody), O.C.G.A. §5-6-35(a)(2) requires an application for discretionary review to appeal the judgment. Additionally, a timely and properly filed notice of appeal is an absolute requirement to confer jurisdiction upon the appellate courts.
Trial Transcript // Attorney Fees
Roth v. Crafton, Case No. A21A1486, Georgia Court of Appeals, March 11, 2022.
Roth appealed the trial court’s denial of his motion to modify child support, its finding that he is in contempt of the child support order, and its award of attorney fees. Roth, however, failed to file a transcript of the hearing, and therefore failed to carry his burden of showing harmful error on appeal. Indeed, without the transcript, the Court of Appeals must presume that the evidence supported the trial court’s denial of the motion and finding of contempt.
Moreover, Roth’s challenge to the award of attorney fees is unsuccessful for other reasons. The trial court awarded fees pursuant to O.C.G.A. §§ 9-15-14 and 19-6-2. The award pursuant to O.C.G.A. §9-15-14 cannot stand because the order did not specify whether the award is made pursuant to Subsection (a) or (b). Nor did the order specify the offensive conduct upon which the award was made. However, the trial court’s award pursuant to O.C.G.A. §19-6-2 is sustainable since the trial court’s order properly considered both parties’ financial circumstances. Moreover, under this code section, the court was not required to make any findings as to the reasonableness of the fees.
Doctrine of Forum non Conveniens
McInerney v. McInerney, Case No. S21A1068, Georgia Supreme Court, March 15, 2022.
The Georgia Constitution provides that proper venue in divorce cases is based on the residence(s) of the parties. As in the instant case, if the defendant is a Georgia resident, then venue is proper in the county in which s/he resides. O.C.G.A. §9-10-31.1(a) further provides that upon motion of a party invoking the doctrine of forum non conveniens, the trial court may either transfer venue to another county in Georgia, or dismiss the case if another state is a more convenient forum. The statute sets out several factors that the court must consider in determining whether to transfer or dismiss the divorce action. Notably, proper venue is not always the most convenient venue. As such, the trial court must consider whether, in the interest of justice, it is more convenient for the parties and witnesses for the case to be litigated in another forum.
Requests for Admissions
Williams v. Jamont et al., Case No. A22A0219, Georgia Court of Appeals, March 18, 2022.
Discovery by requests for admissions is governed by O.C.G.A. §9-11-36. Pursuant to this code section, a party may serve another party with a written request to admit the truth of non-privileged information relevant to the case. Within 30 days, the responding party must either admit or deny the request, object to the requests, move for a deferment for more time to respond, or seek a protective order. If the responding party does not respond or avail itself of any of the remedies, the requests are deemed conclusively established. However, the responding party has one more bite at the apple, as s/he may file a motion for the court to grant a withdrawal or amendment of the admission.