Domestic Relations
| Publication year | 2021 |
Domestic Relations
Andrew B. McClintock
Allison C. Ellison
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This Article addresses significant case law and legislative updates to Georgia domestic relations law that arose during the Survey period from June 1, 2020 through May 31, 2021.1 Notably, this period includes the state of emergency declared by the Governor2 and statewide judicial emergency declared by Chief Justice Harold D. Melton3 on March 14, 2020, in response to the outbreak of the novel coronavirus (COVID-19) in the state of Georgia during the first quarter of 2020. The majority of litigation deadlines were reinstated effective July 13, 2020, as part of the Fourth Order Extending Statewide Judicial Emergency issued by the Supreme Court of Georgia on July 10, 2020.4 The statewide judicial emergency remained in effect at the end of the Survey period, but it is
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anticipated that it the statewide judicial emergency will expire on June 30, 2021.5
In Angst v. Augustine,6 the Georgia Court of Appeals reversed the Dekalb County Superior Court's order dismissing the former husband's petition to modify his alimony obligation.7 The pertinent section of the parties' settlement agreement provided that the husband would pay the wife $5,652.33 in alimony per month for a period of ten years and would cease after the 120th month. The settlement agreement also contained a provision stating that the parties agreed not to waive their rights to seek a statutory modification of alimony. When the former husband lost his job, he filed a petition to modify alimony based upon the change in his income.8
The trial court granted the wife's motion to dismiss the petition for modification of alimony on the grounds that the settlement agreement established a lump sum alimony obligation.9 An alimony obligation which "states the exact number and amount of payments without other limitations, conditions, or statements of intent"10 is considered "lump sum" alimony, whereas an alimony obligation that is "contingent and [where the total sum] cannot be determined at present" is considered "periodic" alimony.11 "[O]nly periodic alimony is subject to modification."12 The trial court determined that because there was no limitation or condition upon the alimony obligation, and the total sum to be paid over a definite period was determinable, the obligation for lump sum alimony was not subject to modification. This was error.
Applying principles of contract construction and interpretation, the court of appeals determined that the parties' express retention of the right to seek modification was sufficient to render the alimony obligation uncertain (and thus periodic, rather than lump sum), because it might be
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modified or terminated upon statutory grounds.13 To hold otherwise would render the reservation of the right to seek modification void, which would be contrary to principles of construction favoring upholding agreements in their entirety.14
In Calloway-Spencer v. Spencer,15 the wife purchased a townhome shortly before the parties began dating.16 The parties later resided at the townhome and contributed significant marital funds towards the mortgage and repairs, but the townhome remained titled in the wife's name. The Fulton County Superior Court classified the townhome as a gift to the marriage, which the Georgia Court of Appeals found to be error.17 Because the wife did not manifest intent to convert the separate asset into a joint asset through an action such as "transferring [ ] full, partial, or joint ownership" in the townhome to the husband, the trial court should have applied the "source of funds rule" to determine what percentage of the equity in the house was attributable to marital efforts and what percentage remained the wife's separate property.18
The wife in Daniel v. Daniel19 appealed the portion of the Monroe County Superior Court's decision awarding the former marital residence to the husband and wife as tenants-in-common.20 The wife was granted exclusive use and possession of the residence until the youngest child turned eighteen. Further, the trial court's decision obligated the parties to split the taxes, mortgage, and insurance. The Georgia Court of Appeals affirmed this portion of the trial court's decision, finding that it properly considered the evidence presented regarding ownership of the former marital residence.21 Tenancy-in-common may be created through a divorce decree under Georgia law. "[T]he trial court has broad discretion to fashion a remedy suitable to the parties involved," as long as it has properly considered the evidence.22
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Jurisdiction and choice of law were explored by the Georgia Court of Appeals in Mbatha v. Cutting.23 Cutting resided in New York when she traveled to South Africa and met Mbatha. The parties had a brief relationship, resulting in Cutting becoming pregnant. They married in a civil ceremony in New York in January 2018, then traveled on a month-long honeymoon, during which the relationship crumbled. The parties separated, and Cutting moved to Georgia to live with her parents until the child was born in September 2018 while Mbatha remained in South Africa.24
A disagreement arose between the parties, due to their various residences, as to which jurisdiction's law would govern the division of marital property.25 The Forsyth County Superior Court initially applied the rule of lex loci contractus, which Georgia courts traditionally apply to questions of law in contract disputes.26 This doctrine looks to the law of the place where the contract was made, unless it is specified in the contract that the law of another state should apply. The trial court determined, under that rule, that New York choice-of-law rules should apply because the parties married in New York.27 This was error. Instead, "a Georgia court should apply Georgia's approach in a conflict-of-law analysis."28 As the court of appeals explained, Georgia follows the rule of lex loci contractus in contract disputes and the rule of lex loci delictis in tort cases—under which the law of the place where the tort occurred governs the choice of law.29 However, the court of appeals determined that Georgia should follow the traditional approach to choice-of-law with respect to property division: "the parties' interests in any real property should be determined under the law of the jurisdiction where it is located while interests in personal property should be determined under the law of the owner's domicile at the time the property was acquired."30
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The parties in Messick v. Messick31 separated, settled all issues between them, and executed a settlement agreement. After the divorce petition was filed, but before the final judgment and decree of divorce were entered, Ms. Messick won a significant amount of money in a lottery. Ms. Messick moved to enforce the settlement agreement entered prior to the win; Mr. Messick moved to set the agreement aside, arguing that the winnings were subject to equitable division because the winnings were obtained during the marriage. The Ben Hill County Superior Court denied Ms. Messick's request to enforce the settlement agreement and set it aside due to its failure to address the lottery proceeds. The agreement did not contemplate division of lottery proceeds received before the decree was entered; therefore, the agreement did not dispose of all marital property, and thus could not be incorporated into the final judgment and decree. The Georgia Court of Appeals affirmed the trial court's ruling.32
Three noteworthy cases during the Survey period examined the standards for a biological father's abandonment of opportunity interest in forming a relationship with his child.
First, in Westbrook v. Eidys,33 the parties were unwed parents with one shared child. Eidys sought to legitimate when the child in question was approximately ten-years-old. The evidence showed that Westbrook had consistently impeded Eidys' efforts to spend time with the child, including, but not limited to, informing Eidys' mother of her address but forbidding the mother from communicating the same to Eidys; moving to Mexico for two years without informing Eidys; requiring supervised visitation; and moving to Washington state after the filing of the legitimation petition. The Camden County Superior Court granted the petition for legitimation, citing that Eidys was current on all child support and that Westbrook had prevented Eidys from communicating with the child. Eidys was awarded joint legal custody and specified visitation. Westbrook appealed.34
The Georgia Court of Appeals held that the trial court had made the decision to legitimate the child based on some evidence, and therefore it did not err.35 However, the trial court failed to consider whether the legitimation and subsequent custody arrangement was in the best
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interests of the child.36 Thus, the case was remanded with direction to consider the best interests of the child.37
The Georgia Court of Appeals issued an opinion in Brumbelow v. Mathenia38 after the Supreme Court of Georgia reversed its decision in Mathenia v. Brumbelow,39 released during the last Survey period.40 The Georgia Supreme Court granted certiorari on two elements of the case: whether the Habersham Superior Court's decision that Brumbelow abandoned his opportunity interest was correct, and whether the court of appeals used the proper standard—parental fitness, rather than the best interests of the child—for evaluating a legitimation petition.41 The supreme court held that the superior court did not abuse its discretion in dismissing Brumbelow's original petition, as it was supported by evidence.42 Additionally, it held that portions of the court of appeals decisions must be viewed as dicta only.43
The Georgia Supreme Court explained that the court of...
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