Domestic Relations
| Publication year | 2017 |
Domestic Relations
Barry B. McGough
Elinor H. Hitt
Abigail M. Herrmann
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This Article addresses significant case law during the survey period from June 1, 2016 through May 31, 2017.1
The Georgia Supreme Court reviewed two cases involving a prenuptial agreement or a postnuptial agreement.2 In Vakharwala v. Vakharwala,3 an alimony waiver found in a prenuptial agreement was at issue. The parties married in 2012. Prior to marriage, the husband and the wife executed a prenuptial agreement, which stated, in pertinent part, that "in the event of a marital separation or dissolution, it is agreed and understood that neither party shall seek or obtain any form of alimony or support from the other."4 The husband filed for divorce in 2014 and a final decree was entered September 23, 2015, reserving the issue of legal fees. During the pendency of the litigation, the trial court entered orders
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requiring the husband to pay the wife $24,000 in temporary support before temporary support was suspended upon the prenuptial agreement being enforced. The trial court also entered orders directing the husband to pay the wife's counsel $25,000 in temporary attorney's fees.5
After the divorce was granted, pursuant to section 9-15-14(b) 6 of the Official Code of Georgia Annotated (O.C.G.A.), the trial court entered an order "finding [the] [h]usband's conduct had unnecessarily expanded the litigation" and awarded the wife $98,385 in attorney's fees.7 Pursuant to O.C.GA. § 19-6-2,8 the wife was awarded an additional $60,000 in attorney's fees. The husband appealed, arguing that the attorney's fees awarded were not proper and, even if they were proper, the trial court erred in failing to offset against the final attorney's fees award the amount the husband previously paid as temporary support and attorney's fees.9
The order granting the wife's motion for attorney's fees, pursuant to O.C.G.A. § 9-15-14(b), was based on findings of fact supported by the record that the husband engaged in numerous acts of improper conduct throughout the litigation. These acts included delay, harassment, and represented a blatant abuse of the discovery process, highlighted by the husband's on-the-record statement that he would, "spend whatever it takes to win." After reviewing the record, the appellate court rejected the husband's assertion that the award of attorney's fees was unsupported by evidence and affirmed this portion of the fee award.10
The order granting the wife's motion for attorney's fees, pursuant to O.C.G.A. § 19-6-2, was based upon the disparity in the parties' financial situations, the husband's depletion of the parties' joint bank accounts of $170,000 one day before he filed the complaint, and that the wife had to spend excessive funds defending herself against the husband's baseless allegations.11 In reversing this portion of the attorney's fees award, the appellate court determined that due to the alimony waiver in the parties' prenuptial agreement, the trial court erred in awarding attorney's fees pursuant to O.C.G.A. § 19-6-2.12 Fees awarded under this section are considered to be part of temporary alimony because they are awarded to
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enable the spouse to contest issues in an action covered by the statute.13 Further, misconduct of a party does not provide a basis for attorney's fees under O.C.G.A. § 19-6-2, though in this case, the misconduct authorized an award under O.C.G.A. § 9-15-14(b).14
The husband also asserted that amounts he paid to the wife for temporary support and temporary attorney's fees should be offset against a final fee award.15 However, fees awarded under O.C.G.A. § 9-15-14(b) are unrelated to alimony and are not subject to offset for amounts the husband paid as temporary support and attorney's fees.16 Pursuant to O.C.G.A. § 19-6-2, the court reversed and vacated the attorney's fee award, therefore the argument for offset is rendered moot.17 In addition, this issue was not raised in a previous motion or proceeding, and it cannot be considered for the first time on appeal.18
In Murray v. Murray,19 fraud rendered a postnuptial agreement unenforceable.20 In early 2014, after a thirty-four-year marriage, the parties began discussing divorce. The husband wanted to divorce, though the wife wanted to save the marriage. The wife wrote the husband an apology letter renouncing her rights in the marital estate. The wife said the letter was written at the husband's request and said what the husband wanted the letter to say. The husband then had counsel draft a formal postnuptial agreement, providing for the disposition of the couple's marital estate upon dissolution of the marriage by divorce or death, which was favorable to the husband. The agreement was signed on June 5, 2014.21
In October 2014, after unsuccessful marriage counseling, the wife filed for divorce, and the husband moved to enforce the agreement. The wife, whom the trial court found credible, testified that the "[h]usband had induced her to sign the [a]greement with the promise that he would tear it up as soon as she signed it, making her believe her execution of the [a]greement was merely a symbolic gesture of love and devotion that would have no practical effect."22 After determining the husband procured the wife's signature on the agreement under the pretense that
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the agreement would be destroyed and never enforced, the trial court found the agreement to be unenforceable based on the husband's fraud.23 The husband appealed the trial court's order.24
The Georgia Supreme Court affirmed the lower court because it determined the evidence supported the trial court's conclusion that the agreement was unenforceable because the husband's promise to tear up the agreement amounted to fraud.25 Georgia law defines "fraud" as an action that "may be consummated by signs or tricks, or through agents employed to deceive, or by any other unfair way used to cheat another."26 The record showed, however, that while the husband did not file for divorce, he did not destroy the agreement as he had promised. Instead, the husband retained the document for nearly six months, during which time the parties were attempting to reconcile their marriage, and produced it for enforcement when the wife later sought a divorce.27 The husband's prolonged retention of the agreement that he promised to destroy as soon as the wife signed it, coupled with the subsequent attempt to enforce it, was sufficient to establish the existence of fraud, especially in light of the confidential relationship that exists between spouses, which entitles them to repose confidence and trust in each other.28
In Russell v. Sparmer,29 Russell sued Sparmer to dissolve their domestic and business partnerships.30 The wife's claim for divorce arose from an unlicensed ceremonial and self-solemnized marriage, which the parties entered into in Greece. They bought matching rings, exchanged vows in front of a church, and later held themselves out to be married. The claim was not based on common law principles. The trial court granted summary judgment to Sparmer on the divorce claim and awarded attorney's fees under O.C.G.A. § 9-15-14.31 The Georgia Court of Appeals held that Russell's claim for divorce was neither frivolous nor interposed for delay.32 Additionally, the court noted that the parties had
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the capacity to contract, consented to marry each other, and possessed a present intention to be married to each other.33 Neither self-solemnization of the marriage, the officiant's lack of authority, nor the lack of a license rendered the marriage invalid.34 In terminating her business partnership with Sparmer, Russell "did not want to leave open the possibility that she and Sparmer might be legally married."35
In Devlin v. Devlin,36 a case of first impression, the court of appeals held that pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),37 it is within the discretion of the trial court to allow a party to present telephonic testimony.38 In June 2014, following the death of her son, the grandmother, through a Pennsylvania court, was awarded limited grandparent visitation with her grandchildren.39
In February 2014, the mother and children moved to Georgia, and in December 2014, the mother filed an action in Georgia to enforce and modify the custody and visitation order entered by the Pennsylvania court. In a hearing limited to the issue of jurisdiction, the court allowed the grandmother to participate pro se in a limited manner by telephone.40
Two months later, the trial court scheduled mediation for the parties to take place in Georgia. The trial court denied the grandmother's request to participate by telephone, and the grandmother did not appear at mediation. The grandmother then filed a motion for an emergency hearing regarding her request for two weeks of unsupervised visitation with the children in Pennsylvania each year, and requested to testify telephonically. The trial court scheduled a final hearing on the grandmother's request and ordered the grandmother "to appear in person at the hearing, if she wishe[d] to be heard on this motion."41 The grandmother did not appear for the final hearing and pursuant to O.C.G.A. § 19-7-3, 42 the trial court denied her request for grandparent
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visitation. The grandmother appealed claiming it was error for the trial court to deny her request to testify telephonically.43
The UCCJEA provides that "[a] court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state."44 Other states have concluded that this portion of the UCCJEA permits, but does not require, a trial court to allow...
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