Domestic Relations
| Publication year | 2015 |
Domestic Relations
Barry B. McGough
Elinor H. Hitt
Katherine S. Cornwell
[Page 47]
This Article addresses significant case law that arose during the survey period,1 minor statutory changes specific to child support, and changes to the Uniform Superior Court Rules.
In Coxwell v. Coxwell,2 a lost antenuptial agreement was at issue. In this divorce action, the parties agreed there was a valid and enforceable antenuptial agreement; however, neither party was able to locate the document and they disagreed in their respective recollections of the antenuptial agreement's terms. After finding neither party intentionally failed to produce the agreement and each party honestly believed their recollection of the terms of the antenuptial agreement was correct, the trial court found that the husband failed to prove the terms of the agreement and denied the husband's motion to enforce the antenuptial agreement.3 On appeal, the Georgia Supreme Court held the trial court properly denied the husband's motion and the appropriate standard of
[Page 48]
proof for establishing the contents of a lost antenuptial agreement is a preponderance of the evidence.4
The appellate courts reviewed questions of jurisdiction, venue, and service of process, while the new Uniform Superior Court Rules5 addressed issues relating to the electronic filing of documents. The issues of jurisdiction and venue regarding the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)6 arose in two cases.
In Slay v. Calhoun,7 where the child's mother claimed to reside in Florida and the child's biological father resided in Georgia, the question was whether the jurisdictional rules of the UCCJEA, found in the Official Code of Georgia Annotated (O.C.G.A.) § 19-9-61(a),8 or O.C.G.A. § 19-7-22,9 which regards legitimation petitions, would control in a legitimation proceeding.10 The father argued that the controlling statute was O.C.G.A. § 19-7-22, which provides that if the mother resides outside the state, the petition may be filed in the county of the father's residence.11 However, the Georgia Court of Appeals disagreed with the father, holding that O.C.G.A. § 19-7-22 governs venue while O.C.G.A. § 19-9-61(a), which sets forth the circumstances in which a court of this state has jurisdiction to make an initial child custody determination, governs subject matter jurisdiction.12
In Spies v. Carpenter,13 a second provision of the UCCJEA, regarding a court's decision to decline to exercise jurisdiction based on forum non conveniens, was at issue. The parties resided in Georgia from November 2011 until they separated in August 2013, when the wife moved to California with the parties' children and the husband relocated to Virginia. In October 2013, the wife filed suit for legal separation in the Superior Court of California. On November 21, 2013, the California court entered an order that temporarily awarded sole custody of the children to the wife. On the same day, the husband filed a petition for divorce in Fulton County Superior Court, requesting, inter alia, primary
[Page 49]
child custody.14 The wife moved to dismiss her husband's petition, arguing that the Fulton County trial court is an inconvenient forum, and the Fulton County trial court dismissed the husband's entire case based on O.C.G.A. § 19-9-67,15 which is part of the UCCJEA.16 On appeal, the Georgia Supreme Court held that the husband had a state constitutional right to litigate his divorce case in the county of his residence.17 Thus, the supreme court concluded that the trial court was authorized to dismiss the custody portion of the husband's case on the basis of forum non conveniens, but it erred in dismissing the divorce case.18
In Guerrero v. Guerrero,19 improper service of process was addressed by the Georgia Supreme Court. The parties lived in Butts County, Georgia together with their four minor children. However, by the time the wife filed a complaint for divorce in May 2012, the husband had become a resident of California.20 After failed attempts at personal service, a process server returned an affidavit of service, indicating he served the husband by substitute service at the husband's home "by leaving the complaint 'with or in the presence of: Maria Schiemm, Occupant' who was a '[p]erson of suitable age and discretion.'"21 The husband filed no responsive pleadings, and a final hearing was held in his absence. Upon learning of the final judgment, the husband filed a motion for new trial based on improper service, asserting that Maria Schiemm may have been the former occupant of his rental home but that she did not reside at his home and he did not know her.22
On appeal from the denial of the husband's motion for new trial, the Georgia Supreme Court held that proper service upon the husband could have been effectuated by serving him personally or by leaving a copy of the summons and complaint at his "dwelling place or usual place of abode with some person of suitable age and discretion then residing therein."23 The court concluded that the process server's affidavit, on its face, established that the person with whom the process server left the complaint was an occupant, not a resident; thus, the court concluded
[Page 50]
the service was improper and the husband's motion for new trial should have been granted.24
Reynolds v. Reynolds25 also addressed improper service of process. The husband filed a complaint for divorce and obtained an order to serve the wife by publication after filing an affidavit, alleging she was a nonresident of Georgia and providing a last known address for her in Barnesville, Georgia. Several months after the divorce was finalized without the wife's participation, she filed a motion to set aside the final judgment and decree of divorce, which the court denied.26
On appeal, the Georgia Supreme Court held that the trial court erred in granting the order for service by publication and in denying the wife's motion to set aside the final decree.27 The evidence showed that the husband could have obtained the wife's address "through reasonably diligent efforts but failed to do so."28 In addition, the husband's affidavit in support of service by publication did not meet the requirements of O.C.G.A. § 9-11-4(f)(1)(A),29 and this failure was further evidence of the husband's lack of due diligence in locating his wife.30
Effective May 7, 2015, the Georgia Supreme Court added two Uniform Superior Court Rules relating to the electronic filing of documents.31 Uniform Superior Court Rule 36.1632 allows for electronic filing of documents; addresses electronic signatures, time of filing, electronic service, and the effect of system errors; and establishes that documents filed electronically have the same force and effect as documents filed by traditional means.33 Uniform Superior Court Rule 36.1734 provides that documents must be in accord with O.C.G.A. § 9-11-7.1.35 When documents are filed electronically,36 O.C.G.A. § 9-11-7.1 requires redaction of certain sensitive information.37
[Page 51]
Also effective May 7, 2015, the Supreme Court of Georgia added two Uniform Superior Court Rules relating to discovery.38 Uniform Superior Court Rule 5.439 provides that discovery conferences should be held early in a case, followed by the submission of a discovery plan to the court.40 Uniform Superior Court Rule 5.541 provides steps to be taken if otherwise discoverable information is withheld by a party based on a claim of privilege and steps to be taken if information produced in discovery is subject to a claim of privilege.42
Numerous child custody modification cases were reviewed by the appellate courts during this survey period. In deciding whether to modify child custody, the trial court must first determine if there has been a material change of condition affecting the welfare of the children since the last custody award.43 If there has been a material change in condition, then the trial court must base its new custody decision on the best interest of the child.44 A trial court's decision regarding a change in custody or visitation will be upheld on appeal unless it is shown the court abused its discretion, and where there is any evidence to support the ruling, a reviewing court cannot say there was an abuse of discretion.45
The Georgia Supreme Court upheld the trial court in two cases involving custody modifications. In Carr-MacArthur v. Carr,46 the supreme court affirmed a trial court that found there was a material change in condition sufficient to support a change of primary physical custody from the mother to the father.47 The supreme court concluded that the mother's psychological and physical problems—manageable at the time of the parties' divorce—had subsequently become unmanageable: the mother had developed new psychological problems, and the mother had voluntarily surrendered the child to the father in the midst
[Page 52]
of an investigation by the Florida Department of Child and Family Services.48
In Neal v. Hibbard,49 the father had been arrested in connection with a sexual incident that resulted in a criminal prosecution that was covered extensively by the media. The father subsequently relocated from Augusta to Atlanta to restore his law practice. In separate cases filed by each of the father's two former wives, Mrs. Hibbard and Ms. Neal, the trial court found it in the best interest of the children, based on a material change in circumstances, to modify custody from both parents having joint physical custody to the mothers having primary physical custody.50 The supreme court concluded that even though the children were not present in the father's home when the sexual incident occurred, in determining the best interests of the children, the court may consider the conduct of...
To continue reading
Request your trial