In June 2023, the Georgia Court of Appeals released 16 opinions relevant to custody and family law. Reviews of the first three custody-related, and the first five family law and other related cases are below. The remaining June 2023 cases (listed below) will be reviewed in Part 2 of the June 2023 Custody/Family Law Case Updates, to be released soon.
Custody-Related Opinions Released in June 2023 – Part 1:
Golias v. Boyce, Case No. A23A0150, Georgia Court of Appeals, June 1, 2023
Boyce (Mother) had custody of her two minor children after their father was incarcerated for aggravated molestation of the older child. Boyce allowed Golias, the paternal grandmother, to visit with the children, albeit supervised, as Golias had threatened to run away with the older child. That arrangement continued until Golias testified on behalf of the father in support of his release on bond. Thereafter, Boyce refused all visitation with Golias, despite the latter’s continued requests to see the children. Eventually Golias petitioned for, and was denied grandparent visitation rights. Yet, against Boyce’s express instructions to no longer contact her or the children, Golias sent another unwanted e-mail to Boyce requesting visitation. She also attended a school event, and talked to and gave gifts to the younger child. Following that contact, Boyce filed a stalking petition, and the trial court entered a 12-month protection order. Golias appealed.
Reversed. Boyce has sole custody and the right to make decisions regarding the children. She, however, was unable to curb Golias’ unwanted advances by way of a stalking protective order based on the evidence presented. Rather, O.C.G.A. §16-5-90(a)(1) requires that she establish a pattern of harassing and intimidating behavior to obtain a protective order. The two instances of unwanted contact after Boyce demanded no contact, however, were insufficient to establish the requisite pattern.
Williams v. Silvers, Case No. A23A0208, Georgia Court of Appeals, June 6, 2023
The parties shared joint physical and legal custody of their three minor children, who rotated living on a week-on/week-off basis between their parents’ homes. Williams (Mother) had final decision-making authority regarding all major decisions, except that she was limited to three counties within which to enroll the children in school. Silvers (Father) remained living within the designated counties. Williams lived in Alabama, but initially exercised her parenting time in Georgia at her grandmother’s home. Eventually, however, she began taking the children to Alabama during her parenting time. The children either attended school virtually, or they commuted daily for over two hours in both directions. Williams filed the instant action alleging a material change in circumstances and that Silvers was in contempt of several provisions of their parenting plan. Silvers counterclaimed for primary custody. The trial court granted Silvers’ counterclaim for custody and did not hold him in contempt. Williams appealed.
Affirmed. The record reveals that the children were doing well in the school they attended and would continue to attend living primarily with Silvers. Moreover, living with Silvers, the children would remain near their maternal and paternal extended families. Although Williams also presented evidence supporting her claim to custody, since there was some evidence supporting the trial court’s award of custody to Silvers, the decision will not be disturbed on appeal.
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Finch v. Walden, Case No. A23A0486, Georgia Court of Appeals, June 7, 2023
This is the second appearance of this case in the Court of Appeals. See In the Interest of S. W., 363 Ga. App. 666 (2022). In the first case, the juvenile court adjudicated S.W. as dependent and awarded Walden sole primary custody. The Court of Appeals, however remanded the case to the juvenile court with direction to enter a disposition order containing findings of fact and conclusions of law, as is required in dependency orders. Thereafter, Walden petitioned in the Superior Court for a change in custody. The trial court held a temporary hearing at the conclusion of which Finch’s attorney orally requested the court to enter findings of fact and conclusions of law. The trial court issued its order granting temporary custody to Walden. The order, however, did not include the findings and conclusions. This appeal followed.
Order vacated and remanded with direction. Both O.C.G.A. §19-9-3(a)(8) and O.C.G.A. §9-11-52 mandate a trial court to enter findings of fact and conclusions of law if a party timely requests the same. O.C.G.A. §19-9-3, however, only applies to permanent custody orders. Unlike the former code section, O.C.G.A. §9-11-52 also mandate the trial court to enter timely requested findings of fact and conclusions of law in temporary custody orders. In the instant case, Finch made her request prior to the court’s ruling, as is required by the code section. Thus, upon remand, the trial court is directed to make sufficient findings and conclusions to support its custody ruling.
Related Family Law and Other Opinions Released in June 2023 – Part 1:
Service of Motions Upon Non-Parties
Georgia Pain and Wellness Center, LLC v. Hatchett, Case No. A23A0185, Georgia Court of Appeals, June 5, 2023.
Due process requires service of a motion upon a non-party to be reasonably calculated to apprise them of the pending action, and the opportunity to present objections. The rule nisi serves as the “summons” providing notice to the non-party of a motion filed against him/her. It follows that in order to confer personal jurisdiction upon the trial court over a non-party in a motion to compel discovery or a motion for contempt, the latter must be served using the same method required for service of process. Sending the motions and rule nisi via regular U.S. mail does not satisfy this requirement.
Evans v. Jackson, Case No. A23A0630, Georgia Court of Appeals, June 13, 2023.
After the trial court ruled against Evans’ motion to suspend payments due to Jackson pursuant to their final judgment and decree of divorce, Evans filed a notice of appeal. Almost one year later, in response to a motion filed by Jackson, the trial court dismissed the notice of appeal because Evans did not file a discretionary application to appeal. The trial court, however, was without authority to dismiss the notice of appeal. Rather, except in very limited cases, the appellate courts have the sole authority to dismiss a notice of appeal. In the instant case, the Court of Appeals nonetheless dismissed Evan’s appeal because he failed to follow discretionary appeal procedures.
Arbitration // Confirming or Vacating Award
Defense Products and Services Group, Inc. et al v. Kinney et al., Case Nos. A23A0228 and A23A0537, Georgia Court of Appeals, June 15, 2023.
The arbitration code provides that a party may apply to vacate an arbitration award within three months after the award. O.C.G.A. §9-9-13(a). Moreover, unless an award has been vacated or modified by a trial court, upon application made by one of the parties at any time within one year after receipt of the award, the trial court must confirm the award. O.C.G.A. §9-9-12. Nothing in the code section requires that a motion to confirm be stayed during the three month period within which a motion to vacate may be filed. Rather, if a motion to confirm is filed, the opposing party still has the opportunity to present objections to the confirmation and entry of the award.
Emile Blau v. Stacia Horn Blau, Case No. A23A0489, Georgia Court of Appeals, June 21, 2023.
O.C.G.A. §19-6-1(a) defines alimony as “an allowance out of one party’s estate, made for the support of the other party when living separately.” If the number of and total amount of payments is an indefinite amount, it is considered periodic alimony. In the instant case, the former husband’s obligation to carry life insurance and pay the premiums for the benefit of the former wife was periodic alimony since the total amount of premium payments depends on the unknown factor of how long the former husband will live. Thus, as periodic alimony, the former husband’s obligation to carry insurance terminated upon the former wife’s remarriage. Moreover, the former wife could not use promissory estoppel as the basis for enforcing the life insurance provision since the agreement was contained in an enforceable and bargained-for written settlement agreement.
Equitable Division of Property
Stonewall v. Stonewall, Case No. A23A0180, Georgia Court of Appeals, June 21, 2023.
The general rule is that if a divorce decree does not specifically dispose of property in which both parties have an interest, title remains as it was before the decree. In the instant case, however, the final decree is vacated and remanded for clarification since the trial court impliedly awarded the marital home to the wife, but did not explicitly do so.
Before a trial court can divide property, it must first classify it as marital or non-marital. As to the marital property, each spouse is entitled to an allocation based upon his/her respective equitable interests therein. This does not necessarily mean an equal division. Moreover, a trial court may not treat separate property as marital, or marital property as separate to create its perception of an equitable division. Finally, the trial court should apply the “source of funds” rule to divide property that has both marital and non-marital contributions. Only the marital portion of the property is equitably divisible.
Finally, reviews of the below cases will be released soon in Part 2 of the June 2023 Georgia Custody/Family Law Case Updates:
- Herzler v. Herzler
- Moore v. Humble, and vice versa
- Gelin v. Welch
- In the Interest of B.R., a child
- Williams v. Phillips
- Huber v. State
- Green et al v. Pinnix et al
- In the Interest of K.B.