Domestic Relations

• Publication year: 2016

Domestic Relations

Barry B. McGough

Elinor H. Hitt

Katherine C. McGuire

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Domestic Relations

by Barry B. McGough^* Elinor H. Hitt^** and Katherine C. McGuire^***

This Article addresses significant case law that arose in Georgia domestic relations law from June 1, 2015 to May 31, 2016.¹

I. Prenuptial Agreements

Two cases reviewed this survey period involved enforcement of prenuptial agreements. In determining whether a prenuptial agreement should be enforced, trial judges should use three criteria: "(1) was the agreement obtained through fraud, duress or mistake, or through . . . . nondisclosure of material facts? (2) is the agreement unconscionable? (3) [h]ave the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable?"²

The first criterion, full and fair disclosure of assets, was at issue in both cases. In Kwon v. Kwon,³ following the husband's death, the administrator of his estate sought to have the prenuptial agreement at issue enforced, an action opposed by the wife. At trial, evidence established

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that both the husband and wife owned assets when the prenuptial agreement was executed that were not listed in the agreement, and that the husband did not tell the wife what he owned prior to the execution of the agreement.⁴ The trial court concluded the husband's failure to disclose his assets rendered the agreement unenforceable.⁵

On appeal, the estate administrator argued the wife did not prove that the husband owned any assets unknown to the wife when she signed the agreement.⁶ However, this argument was futile, because the party seeking enforcement has the burden of establishing there was a full and fair disclosure of the assets of the parties prior to the execution of the agreement.⁷ The administrator, not the wife, had the burden of proof.⁸ The administrator then argued the wife waived her right to challenge the adequacy of the disclosure because the prenuptial agreement provided "that each party had made 'a substantially accurate disclosure' of all assets to the other, did not want an independent audit of the other's assets, and 'specifically waives and relinquishes any right to obtain further knowledge with regard to said holdings.'"⁹ The administrator maintained that a full and fair disclosure was achieved via this waiver.¹⁰ The Georgia Court of Appeals disagreed, and it found this language did not constitute a waiver of the wife's right to challenge the adequacy of the husband's disclosure and upheld the lower court.¹¹

In Dodson v. Dodson,¹² the trial court found the parties' prenuptial agreement was unenforceable due to nondisclosure of material facts after the evidence established that no values for the husband's assets, including bank accounts and two closely held businesses, were listed in the prenuptial agreement, and that the husband did not allow the wife reasonable access to his personal or business bank accounts in order to obtain values. The husband appealed, claiming the wife had a duty to inquire and investigate with regard to the value of all of his assets, including bank accounts.¹³ The reviewing court found this to be incorrect as a matter of fact and law.¹⁴ Factually, the husband did not give the wife access

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to his bank accounts by which the wife could have determined the accounts' values.¹⁵ Legally, the spouse seeking enforcement must show that the agreement contained full and fair disclosure of his or her material assets, and in the absence of full and fair disclosure, the other spouse does not have a general duty to investigate the assets of the other party.¹⁶

The husband also argued he was only required to list his material assets, and was not required to apprise the wife of the value of his assets. The Georgia Supreme Court again disagreed.¹⁷ What is required is a "full and fair disclosure."¹⁸ In this case, the disclosure was not full because the wife did not know the value of the husband's assets, and it was not fair because the husband did not allow the wife reasonable access to his accounts to learn their values.¹⁹ The court of appeals affirmed the trial court.²⁰

II. Jurisdiction

Several cases arose during this survey period regarding jurisdictional disputes under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).²¹ The UCCJEA was promulgated to address "problems of competing jurisdictions entering conflicting interstate child custody orders, forum shopping, and the drawn out and complex child custody legal proceedings often encountered by parties [when] multiple states are involved."²²

Roach v. Breeden²³ reversed a ruling by the Superior Court of Walker County which found Walker County was found to be the more convenient forum to litigate custody issues between the parties, and which legitimated the child and awarded sole legal custody to the mother.²⁴ The Juvenile Court of Knox County, Tennessee made an initial custody determination. The father still lived in Tennessee, and exclusive, continuing jurisdiction remained with the Tennessee court until that court determined if a court in another state was a more appropriate and convenient forum in which to hear the matter. The Tennessee court had made no

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such determination.²⁵ Accordingly, the trial court in Georgia lacked jurisdiction to modify the Tennessee order.²⁶

In Prabnarong v. Oudomhack,²⁷ a custody dispute arose between the minor child's father and maternal uncle following the mother's death. The Superior Court of Gwinnett County improperly exercised emergency jurisdiction by modifying a custody order from the state of Washington, which had exclusive and continuing jurisdiction over the issue. Though the child's maternal uncle contended that V.P.'s father "has threatened to mistreat [V.P.] by removing her from everything she knows,"²⁸ and V.P. signed an affidavit expressing vague concerns about her safety if forced to relocate to Washington, emergency jurisdiction was not required to protect V.P.²⁹

Pursuant to section 19-9-64(a) of the Official Code of Georgia Annotated ( O.C.G.A.),³⁰ a court of this state has temporary emergency jurisdiction to modify a child custody determination made by a court of another state if the child is present in this state and it is necessary in an emergency to protect the child because "the child . . . is subjected to or threatened with mistreatment or abuse."³¹ The long-held standard is whether there is immediate danger to the child.³² In Prabnarong, there was no immediate danger under any version of the facts as alleged by the uncle or V.P. sufficient to invoke emergency jurisdiction under O.C.G.A. § 19-9-64(a). The appellate court reversed the lower court's judgment.³³

In Ward v. Smith,³⁴ enforcement of a foreign custody order was at issue. The initial custody determination regarding the parties' child, P.W., was made in 2006 by an Indiana court, which retained continuing, exclusive jurisdiction over the matter. In 2008, the mother and P.W. relocated to Camden County, Georgia. In 2014, the father did not return P.W. to Georgia after his Labor Day visit. On September 11, 2014, the mother filed a Petition for Enforcement of Custody Determination in the Superior Court of Camden County, seeking, inter alia, to enforce the Indiana order and to find the father in contempt. Also on September 11, 2014, the

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Camden County Court entered an order requiring the father to appear at a hearing on September 25, 2014, and return P.W. to the jurisdiction of the court so the mother could take custody. The father argued that Indiana retained continuing jurisdiction over the matter, and he did not turn over the child.³⁵

On September 30, 2014, the Georgia and Indiana courts held a telephone conference, and the Indiana court surrendered jurisdiction to the Georgia court. Following an October 7, 2014 hearing, the father was found in contempt of the September 11, 2014 order for willfully refusing to return P.W. to the jurisdiction of the court as ordered.³⁶

On appeal, the father argued the trial court erred in finding him in contempt of the September 11, 2014, order because Indiana still had jurisdiction at the time.³⁷ However, O.C.G.A. § 19-9-84(a)³⁸ provides that '"a court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing,' among other things, '[a] visitation schedule made by a court of another state.'"³⁹ The court of appeals affirmed that, under the UCCJEA, an order for the enforcement of a visitation agreement in a foreign custody determination is not void because of the originating court's continued jurisdiction.⁴⁰

III. Equitable Division of Property

During this period, the Georgia Supreme Court decided three cases regarding the application of the "source-of-funds" rule (the Rule) in equitably dividing property.⁴¹ The Rule is a method employed by courts to equitably divide property upon divorce by entitling a spouse who contributed non-marital property to an interest in said property in the ratio of the non-marital investment to the total non-marital plus marital investment in the property.⁴² After calculating and separating that spouse's interest, the remaining interest is marital property, subject to equitable division.⁴³ In order to benefit from the Rule, there must be evidence of

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appreciation of the property in relation to its fair market value during the parties' marriage.⁴⁴

In Mallard v. Mallard,⁴⁵ the wife purchased a property in 2009, and then transferred ownership of the property to herself and to the soon-to-be husband as joint tenants in 2011. The parties married in January 2012, and the husband paid off the $268,314 debt on the property with his separate funds in April 2012. An appraisal of the fair market value of the property during the divorce action was $252,000. In awarding the husband 100% of the residence, the trial court applied the Rule and held that the...