In September 2023, the Georgia Court of Appeals released one custody related opinion, one case of first impression, and two other opinions relevant to family law. Scroll down for more.
Custody-Related Opinions Released in September 2023:
Stewart v. Stewart, Case Nos. A23A0869 and A23A1110, Georgia Court of Appeals, September 20, 2023
Mother has primary physical custody, and the parties share joint legal custody of their children. Mother resides in Georgia. Father is in the military, stationed in Hawaii. Per their Parenting Plan, Father is entitled to visitation with the children upon notice to Mother, and his purchase of their airline tickets. The divorce decree also awarded Mother funds from Father’s stock account and attorney fees. Mother filed a contempt action regarding the stock account and attorney fees. After a hearing at which Father did not appear, the trial court entered an order finding him in contempt, and a subsequent incarceration order. Thereafter, alleging insufficient service of process, Father moved to vacate the orders. He also filed a contempt action against Mother, alleging that she failed to send the older child for visitation. The trial court denied Father’s motion to vacate, and his motion to hold Mother in contempt. These appeals followed.
The trial court did not err by not holding Mother in contempt. Rather, Father did not purchase an airline ticket for the older child. His contention that Mother is responsible for him not purchasing the ticket is unavailing. She did change the travel plans by insisting on compliance with the Parenting Plan. She also stated that she could not ‘force’ the older child to visit with Father, despite the fact that the child had no right to choose not to visit. Yet, there was no evidence that Mother would not have sent the child had Father bought the ticket. Moreover, Father’s argument that visitation cannot be contingent on paying child support was meritless since visitation expenses (airline tickets) are not child support. It follows that Mother was not in willful contempt for not sending the child to Hawaii since Father never bought the ticket to enable the child to go.
In contempt actions, personal jurisdiction is essential. Due process requires that the respondent be served with the contempt petition and a rule nisi providing reasonable notice of the hearing. A non-resident may be served outside of Georgia by any person authorized in the state where s/he is served. In the instant case, Father was purportedly served in Florida by an authorized Camden County Georgia process server. Yet, there was no evidence that the process server was authorized to serve process in the Florida jurisdiction. Accordingly, service on Father was deficient, and the Court of Appeals vacated the contempt orders and the denial of Father’s motion to vacate. The Court, however, remanded the case for the trial court to determine whether it properly exercised personal jurisdiction in light of Mother’s contentions that Father was served through his counsel, and that he otherwise waived his defense of insufficient service of process.
PRACTICE NOTE: 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. It can be even more challenging to keep clients from reacting negatively to the animosity generated by the opposing party, and to guide them instead toward moving forward in the best interests of their children with integrity, positivity and emotional strength. 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 September 2023:
Disposition of Frozen Embryos upon Divorce
Smith v. Smith, Case No. A23A0896, Georgia Court of Appeals, September 18, 2023.
The parties elected to conceive a child together through in-vitro fertilization (IVF). Prior to beginning the process, they both executed several documents regarding the preservation and disposition of retrieved eggs and fertilized embryos. They agreed to donate the embryo if they could not agree as to its disposition in the future. The agreement also provided that in the event of divorce, “ownership” of the embryos would be determined in a court settlement. Wife proceeded with the IVF process. Ultimately, only one embryo made it through the fertilization process. It was preserved in cryogenic storage. Shortly thereafter, Wife filed for divorce, requesting custody of the stored embryo. Husband argued that the embryo should be donated in accordance with their agreement. The trial court concluded that their cryopreservation contract was valid and binding, and awarded the embryo to Wife as an equitable division of property. Husband appealed.
Reversed. In an issue of first impression, the Court of Appeals looked to other jurisdictions for guidance in determining the appropriate disposition of the frozen embryo in the event of divorce. The Court adopted the “contract approach,” employed as the first consideration by the majority of jurisdictions that have addressed the issue. Under this approach, the Court enforces the parties’ contracts, such as the cryopreservation agreement in the instant case. If there is no enforceable contract between the parties, most courts apply the “balancing approach,” which considers equitable factors such as the parties’ respective interests in the embryos.
In the instant case, the trial court applied a balancing-blended approach, finding that the contract is valid, and then awarding the embryo as an equitable division of property. The Court of Appeals, however, reversed, reasoning that since the parties’ agreement was valid and binding, the inquiry ended there, with no need to also apply the balancing approach. The Court reasoned further that the divorce provision in the parties’ agreement was not intended to control the disposition of the embryo. Rather, its intention was to protect the storage facility and/or hospital by directing that the parties’ agreement as to the disposition of the embryo be incorporated into the divorce settlement.
Presiding Judge Barnes dissented, asserting that the trial court did not err in awarding the embryo to Wife. She reasoned that the majority should have interpreted the divorce provision of the cryopreservation agreement as dispositional of the embryo. Indeed, Judge Barnes explained, in one provision, the parties agreed to the disposition of the embryo in various non-divorce circumstances. Thereafter, in a separate provision, the parties specified that in the event of divorce, “ownership” of the embryo would be determined by court order. Finally, Judge Barnes reasoned that in accordance with the parties’ agreement, the trial court properly awarded “ownership” of the embryo to Wife as an equitable division of property.
Hayward v. Wisner, Case No. A23A0692, Georgia Court of Appeals, September 1, 2023.
Pursuant to O.C.G.A. §16-5-90 a person “commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” In the instant case, the trial court concluded that based on the preponderance of the evidence, Hayward engaged in a pattern of harassing conduct that placed Wisner in reasonable fear of her and her family’s safety. In general, a trial court is best positioned to judge the evidence and credibility of the parties and witnesses. Thus, absent an abuse of discretion, the court’s grant or denial of a stalking petition will not be disturbed on appeal if there is reasonable evidence, as in the instant case, to support its decision.
Expert Witness Testimony
Humphrey et al v. The Emory Clinic, Inc. et al, Case No. A23A0735, Georgia Court of Appeals, September 6, 2023.
The trial court has broad discretion in determining whether a witness is qualified to render an opinion as an expert, and in determining the reliability of the testimony. O.C.G.A. §24-7-702(b) provides the general standard for the admissibility of expert testimony. A witness qualified as an expert may testify in the form of an opinion if the testimony: will help the trier of fact understand the evidence and issues; is based on sufficient facts or data; is the product of reliable principles and methods; and the principles and methods are reliably applied to the facts of the case. The test of reliability is flexible, depending on the specific factors in the case.