Domestic Relations
| Publication year | 2020 |
Domestic Relations
Andrew B. McClintock
Allison C. Kessler
Barry B. McGough
Elinor H. Hitt
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This Article reviews opinions impacting the practice of criminal law delivered by the Supreme Court of the United States and the Georgia Supreme Court covering the period of June 1, 2019, up until May 21, 2020. This Article is designed to be a mere overview to both prosecutors and defense attorneys of decisions and new statutes, and it serves as a broad guideline to how these decisions will affect their practices.in the State of Georgia in the first quarter of 2020 and continuing through the end of the survey period.1
While the 2020 legislative session was cut short by the outbreak of the novel coronavirus, significant legislation passed during the 2019 session went into effect during the survey period. As discussed in last
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year's survey,2 Georgia's new "equitable caregivers" statute, O.C.G.A. § 19-7-3.1,3 went into effect on July 1, 2019, and provides a new path to legal custodial and visitation rights for persons acting in dedicated parental roles for children with whom they do not have a formal legal or biological relationship.4 No decisions construing or applying the equitable caregiver law have been issued by the higher courts at the time of this writing. Effective July 1, 2019, O.C.G.A. §§ 19-9-225 and 19-9-236 were amended to provide that a party may bring a counterclaim for modification of legal or physical custody in response to a complaint seeking a modification of the same.7 The intent of the amendment is to permit counterclaims for modification to be asserted against complaints for modifications or contempt actions seeking to enforce a child custody order.8 The child support guidelines codified at O.C.G.A. § 19-6-159 were also amended effective July 1, 2019, to make certain grammatical and terminology corrections, to remove alimony as a specific child support deviation in some circumstances, and to exclude certain adoption benefits from gross income.10
Additionally, the Living Infants Fairness and Equality Act (LIFE)11 was scheduled to go into effect on January 1, 2020, making changes to numerous provisions of the Official Code of Georgia Annotated intended to enhance the rights of unborn children and their parents by revising the laws governing abortion and providing protections and benefits to an unborn child with a detectable heartbeat.12 Among other things, it would have permitted unborn children with detectable human heartbeats to be "included in population based determinations,"13 and for the parents of such children to seek and receive child support for medical and pregnancy-related expenses.14 However, on June 28, 2019, a federal lawsuit was brought against the Governor and State of Georgia challenging the constitutionality of the LIFE Act under
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42 U.S.C. § 198315 by a coalition of plaintiffs comprised of "SisterSong Women of Color Reproductive Justice Collective, seven reproductive health care clinics, and three individual physicians."16 On October 1, 2019, the federal district court entered a preliminary injunction enjoining the LIFE Act from going into effect pending the final resolution of the case.17
Many opinions issued by the higher courts during the survey period serve to clarify Georgia's law with respect to child custody, child support, and the modification of each.
In Belknap v. Belknap,18 pursuant to O.C.G.A. § 19-9-3(a)(5),19 the father of a fourteen-year-old son petitioned the court for modification of child custody and support, seeking primary custody of the child on the basis of the child's election to live with him. Following the parties' 2011 divorce in Georgia, the father moved to Florida while the parties' two minor children remained in the Atlanta area with the mother. When the younger child turned fourteen, he informed the father that he wished to move in with him, leading the father to file the petition and affidavit of election at issue. Despite the child's election, the trial court denied the petition for modification of custody and issued a final order that did not address the child support modification. The father appealed on the ground that the court erred in failing to honor the child's affidavit of election despite determining him to be a fit parent and in neglecting to modify child support based on a material change in the needs of the child.20 The Georgia Court of Appeals affirmed the trial court's order.21 While a prior version of O.C.G.A. § 19-9-322 provided that the election of a child aged fourteen or older was controlling unless the court determined that the selected parent was unfit, the current language of O.C.G.A. § 19-9-3 and subsection (a)(5) specifically contains no reference to parental fitness; instead, a child's election is presumptive and may be overridden if the trial court finds that the custody election is not in the child's best interest.23 The trial court made such a finding and, therefore,
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refused to honor that the child's election was not an abuse of discretion.24 Further, because the child support modification relied on a change of custody which was not granted, and the father did not pursue a ruling one way or the other regarding child support, the court of appeals determined that the father waived his claim of error regarding child support.25
Wertz v. Marshall26 involved a dispute under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)27 as to jurisdiction for modification of custody.28 The parties were divorced in Florida and the mother was awarded physical custody of the two minor children. Six years after the divorce, the younger of the children moved to Georgia to live with the father, and the father filed a petition in Georgia to modify the Florida custody award to grant him sole and permanent custody of the child. In the mother's answer, she admitted to being a resident of Colorado (where her new husband, a member of the military, was stationed temporarily) and that the Walker County Superior Court had jurisdiction over the modification. She subsequently moved to dismiss the petition on the ground that Florida had retained exclusive jurisdiction to modify the custody award, but the trial court denied the motion to dismiss based upon the jurisdiction admissions in her answer.29
The court of appeals affirmed and held that the mother's admission in judicio was properly treated as conclusive and the fact that no parties remained in Florida divested that state of jurisdiction under the UCCJEA.30 However, Presiding Judge (and, at the time of this writing, Chief Judge) Christopher McFadden dissented on the ground that the UCCJEA imposes a higher burden of proof than an admission in an unverified pleading before a court may be deemed to have lost continuing exclusive jurisdiction over a custody matter.31 As the Wertz decision is merely persuasive, rather than binding precedent under Georgia Court of Appeals Rule 33.2,32 it would be prudent for future litigants faced with
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similar jurisdictional disputes to consider the arguments and positions set forth in the dissent.33
In Dovel v. Dovel,34 the Georgia Court of Appeals held, under O.C.G.A. § 19-6-2,35 that a waiver of alimony provision contained in the parties' divorce settlement agreement precluded an award of attorney's fees.36 The parties settled the case before trial, and the settlement agreement contained an alimony waiver provision stating that "[e]ach party waives and forever relinquishes any claims and rights each has or may have to alimony, maintenance[,] and support of any nature from the other . . . ."37 The settlement further provided that the issue of attorney's fees would be reserved for later determination by the court. At the hearing on attorney's fees, the wife's counsel asserted that she sought attorney's fees under O.C.G.A. § 19-6-2; the husband's counsel objected to such an award on the basis that it was precluded by the waiver of alimony in the settlement agreement. The trial court granted the wife's request and ordered the husband to pay fees pursuant to O.C.G.A. § 19-6-2, and the husband appealed.38
On review, the court of appeals affirmed the principle that attorney's fees authorized by O.C.G.A. § 19-6-2 "are considered to be a part of alimony."39 As such, the broad waiver of alimony in the settlement precluded an award of attorney's fees in the nature of alimony.40 Interestingly, the wife did not contest that the alimony waiver barred an award of fees under O.C.G.A. § 19-6-2. Rather, she argued that the reservation of attorney's fees despite the alimony waiver created ambiguity in the agreement as to whether the parties intended fees to be available under O.C.G.A. § 19-6-2.41 Applying general principles of contract construction and noting that the wife could have sought and been awarded attorney's fees under O.C.G.A. § 9-15-1442 notwithstanding the alimony waiver, the court of appeals determined that construing the agreement so as to permit an award of attorney's fees
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in the nature of alimony would improperly invalidate the waiver provision; as such, the trial court erred in awarding attorney's fees under O.C.G.A. § 19-6-2.43 This case effectively affirms the substantive rule of the 2019 case Ford v. Ford,44 which is considered persuasive physical precedent only, and presents an important consideration: if a contractual waiver of alimony is effective to bar an award of O.C.G.A. § 19-6-2 fees in the divorce litigation, it should be presumed effective in post-divorce litigation, such as enforcement or contempt actions as well—even where the post-judgment contempt arises from another issue in the divorce, such as property division.45 Attorneys and litigants who wish to preserve the possibility...
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