In March 2023, the Georgia Court of Appeals released one custody related opinion, and four other opinions relevant to family law. Scroll down for more.
Custody-Related Opinions Released in March 2023:
Wiggins v. Rogers, Case No. A23A0110, Georgia Court of Appeals, March 20, 2023
Facts:
Pursuant to their divorce decree, Wiggins (Father) and Rogers (Mother) shared joint custody with roughly equal parenting time. Neither party paid child support to the other. Eventually, Rogers moved to a different county and enrolled the minor child in school, approximately 30 miles from Wiggins’ home. Thereafter, Rogers filed the instant modification of custody and child support action, and she obtained temporary primary custody of the child. At the final trial, the trial court found that the commute from Wiggins’ home to school had an adverse effect on the minor child’s focus and school performance, which, in fact, improved after Rogers obtained temporary primary custody. The court further found that a modification of custody is in the minor child’s best interest, and it awarded primary custody to Rogers. In addition, the trial court required Wiggins to pay child support, plus half of the child’s extracurricular activities expenses. This appeal followed.
Holding:
A trial court must apply a two-part test before it can rule on a modification of custody. The court must first determine whether there has been a material change in circumstances affecting the child’s welfare since the last custody award. This determination is a fact question that depends upon the unique circumstances of each individual case. If the court finds in the affirmative to this query, it must then determine whether a change in custody is in the child’s best interest. The trial court has broad discretion in making these determinations. A parent’s relocation in and of itself does not constitute a material change in circumstances. In the instant case, the trial court also properly considered how the relocation affected the child’s school performance and general welfare, and ultimately found that the modification of custody was in the child’s best interests.
Extracurricular expenses are generally included in the presumptive amount of child support. However, if special child-rearing expenses such as extracurricular expenses exceed 7% of the basic child support obligation, the excess amount shall be considered as a deviation to be included in Schedule E. In that event, the trial court must make specific written findings of fact to justify the deviation, including the reasons for the deviation; the presumptive child support amount; how the presumptive amount would be unjust or inappropriate; and how the best interests of the child will be served by applying the deviation. In the instant case, the fact that Wiggins consented to pay half of the extracurricular expenses during trial does not relieve the trial court of its obligation to enter findings. Thus, the trial court erred by requiring Wiggins to pay half of the child’s extracurricular expenses with no factual findings to support the deviation. 
PRACTICE NOTE: As the Court of Appeals also pointed out in this case, difficulties in maintaining a shared custody arrangement may amount to an adverse change in condition affecting the child’s welfare. Child custody cases can be so very difficult for both the attorney, and the client. Untangling the issues and building a strong case can be challenging. Check out my Independent Custody Assessments, Litigation Support for Attorneys and Litigation Support for Clients pages to see how I can support and assist you and your client in navigating through the difficulties, and obtaining a more favorable outcome. The fresh perspectives and litigation support may be exactly what you need!
Related Family Law Cases Released in March 2023:
Termination of Parental Rights
In the Interest of N.E.K., a child, Case Nos. A22A1471 and A22A1472, Georgia Court of Appeals, March 3, 2023.
Two of the grounds for terminating parental rights under O.C.G.A. §15-11-310 are abandonment and un-remedied dependency. Abandonment is any conduct showing an intent to forgo parental duties or relinquish parental claims. Both parents in the instant case are incarcerated. However, there was no evidence that either parent abandoned the child. Rather, they both visited regularly with the child virtually, and complied with reunification requirements to the extent possible, given their incarcerations. Un-remedied dependency is a basis for termination if reasonable efforts to remedy a parent’s lack of proper parental care or control are unsuccessful and will likely continue to be unsuccessful. Moreover, the court must find that continuing the parent/child relationship will likely cause harm to the child, or threaten the child’s safety and welfare. Generalized findings of harm are not sufficient. Rather, the court must make explicit findings to support its conclusions.
Third-Party Discovery
Benchmark Rehabilitation Partners, LLC v. SDJ Logistics, LLC, Case No. A22A1519, Georgia Court of Appeals, March 10, 2023.
A motion to compel discovery against a non-party must show good cause for the trial court to compel compliance with discovery requests. However, what constitutes good cause is in the trial court’s discretion. Pursuant to the Civil Practice Act, discovery sought from non-parties must be relevant and non-privileged. “Relevance” is interpreted broadly to mean anything that is reasonably calculated to lead to the discovery of admissible evidence. Thus, even if a document sought from a third-party would be inadmissible at trial, there may be good cause to compel its discovery if it is not privileged, and if it may lead to other admissible evidence.
Veterans Administration Benefits // Equitable Division
Boomer v. Boomer, Case No. A23A0393, Georgia Court of Appeals, March 14, 2023.
In a case of first impression in Georgia, the Court of Appeals relied on Federal law and case law from other states to conclude that Veterans Administration disability benefits are the separate property of the party receiving the benefits. Therefore, lump sum retroactive benefits, even if received during the marriage, are not marital property subject to equitable division.
O.C.G.A. §9-15-14 Attorney Fees // Award to Non-Party
Ellis v. Seaver, Case No. A23A0125, Georgia Court of Appeals, March 20, 2023.
O.C.G.A. §9-15-14(a) and (b) expressly authorize an award of costs and attorney fees only against parties and their attorneys. Thus, a trial court does not have authority to impose attorney fees under this statute against a non-party.
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