The new year came in with a bang! In January 2023, the Georgia Court of Appeals released four family law opinions. One was custody related. Scroll down for more.
Custody-Related Opinions Released in January 2023:
Perrie v. Sticher, Case No. A22A1429, Georgia Court of Appeals, January 25, 2023
Sticher (Father) filed to modify custody in the Fulton County Family Court. At the 30-day status conference, the parties consented to Sticher having temporary primary physical custody. The judicial officer (JO) appointed a guardian ad litem and ordered Perrie (mother) to undergo a psychological evaluation before the 60-day status conference. Perrie, however, did not timely complete the evaluation. Accordingly, the JO struck her pleadings,, entered an order granting Sticher sole physical and legal custody, and reserved the remaining issues for final trial. One day before the final trial, Perrie filed a motion pursuant to Superior Court Rule 1000-4, asking that the Superior Court judge try the case instead of the JO. The JO nonetheless moved forward with trial. The final order required the parties to each pay half of extracurricular, education, health insurance and unreimbursed medical expenses. The JO also awarded attorney fees to Sticher. Perrie appealed.
Vacated and remanded for further proceedings. Perrie had no notice that custody would be addressed at the 60-day status conference. Moreover, the JO did not find a material change in circumstance affecting the child. Thus, the JO abused its discretion in awarding sole custody to Sticher. The Court of Appeals also vacated the child support award since the JO failed to provide specific findings of fact supporting a deviation from the presumptive amount. There also was no evidence supporting attorney fees award, which is only authorized upon sufficient proof of the fees and costs, and the reasonableness thereof. Finally, Rule 1000-4 of the Fulton County Family Division Local Rules provides that the JO may preside over issues unless a party objects at least five days before a scheduled hearing. Accordingly, since Perrie’s motion was untimely filed, the JO did not err by not granting it.
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Related Family Law Cases Released in January 2023:
Equitable Division // Contempt
Guven v. Guven, Case No. A22A1442, Georgia Court of Appeals, January 5, 2023.
The divorce decree provided that before Wife could accept an offer to sell a parcel of marital property, Husband had 15 days to assert a right of first refusal to purchase the property. Wife received an offer to purchase the property. However, Husband filed a contempt action asserting Wife violated the agreement before the 15-day period to exercise his right of first refusal elapsed. Given the circumstances of the case, the trial court did not err by holding that the pendency of the contempt action tolled the time to exercise the right of first refusal. This did not amount to a modification of the divorce decree. Rather, it was a reasonable clarification since it was consistent with the intent and spirit of the original decree. Finally, Husband’s acceptance of the right of first refusal generally entitles him to specific performance of the contract formed by his acceptance. Thus, Wife did not have the right to seek counter-offers.
In the Interest of S.M., a child, Case Nos. A22A1262 and A22A1263, Georgia Court of Appeals, January 6, 2023.
O.C.G.A. §15-11-311(a)(2) provides that when considering whether a child is without proper parental care and control, the juvenile court shall consider a parent’s excessive or historic chronic un-rehabilitated substance abuse rendering him/her incapable of caring for the child. The court may infer that such drug abuse adversely affects the minor child.
Clarification // Military Retirement
Smith v. Smith, Case No. A22A1443, Georgia Court of Appeals, January 17, 2023.
Military regulations provide that military retirement benefits may be divided in a divorce decree by using either a “formula award” or a “hypothetical award” (see below). The trial court cannot alter the award type when modifying the divorce decree to bring it into compliance with military regulations. The controlling principle when interpreting a divorce agreement is to look within the ‘four corners’ of the original agreement to find the parties’ intent in light of the circumstances at the time it was made. The test is whether a clarification or interpretation is reasonable, or whether it is so contrary to the parties’ intent that it amounts to a modification of what the parties originally bargained for.
NOTE: The Georgia Court of Appeals explained that a “formula award is usually expressed in terms of a marital fraction, where the numerator covers the period of the parties’ marriage while the member was performing credible military service, and the denominator covers the member’s total period of creditable military service. The former spouse’s award is usually calculated by multiplying the marital fraction by ½ or 50%. However, the parties can provide a different percentage.” A hypothetical award, the Court explained, “is an award expressed as a percentage of a hypothetical retired pay amount that is different from the member’s actual retired pay. If the court order uses a hypothetical award, it is usually figured as if the member had retired on the date of separation or divorce. . . . A hypothetical award does not give the former spouse the benefit of any of the member’s pay increases due to promotions or increased service time after the divorce.”