Domestic Relations

• Publication year: 2014

Domestic Relations

Barry B. McGough

Elinor H. Hitt

Katherine S. Cornwell

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Domestic Relations

by Barry B. McGough^* Elinor H. Hitt^** and Katherine S. Cornwell^***

I. Introduction

This Article addresses significant case law that arose during the survey period.¹ There were no extensive statutory changes specific to domestic relations during this period, though legislation was passed by the Georgia General Assembly providing limitations on personal information allowed in court filings.

II. Jurisdiction, Venue, and Procedural Issues

Two cases during the survey period addressed questions of subject matter jurisdiction. In Crutchfield v. Lawson,² the parties divorced in Paulding County, and the former wife filed a subsequent contempt action in Cobb County. The former husband challenged Cobb County's jurisdiction, though at a hearing the parties had consented to the court's jurisdiction on the record. After the husband was held in contempt, he moved to set aside the contempt judgment based on a lack of subject

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matter jurisdiction.³ Subject matter jurisdiction is the power or authority to hear a class of cases, and "may not be waived by consent of the parties."⁴ Superior courts have the authority to hear an action for contempt of a Georgia divorce decree; thus, subject matter jurisdiction in the superior court was proper.⁵

The real issue was which superior court could properly hear this particular case-a question of venue.⁶ However, venue may be waived or conferred by consent, as happened here when the parties consented on the record to the case being heard in Cobb County.⁷ The trial court's judgment was affirmed.⁸

In Barfield v. Butterworth,⁹ the subject matter jurisdiction of a superior court versus that of a probate court was at issue.¹⁰ On April 13, 2012, the maternal grandmother filed a petition in superior court seeking custody of her grandchild, H.H. On April 25, 2012, the paternal grandmother was issued letters of temporary guardianship over H.H. by the probate court. The paternal grandmother moved to dismiss the maternal grandmother's custody petition, arguing the superior court lacked subject matter jurisdiction to dissolve the letters of temporary guardianship she obtained. The trial court properly denied the motion.¹¹

The temporary guardianship did not deprive the superior court of jurisdiction to determine whether permanent custody should be awarded to the maternal grandmother.¹² "Superior courts have 'original jurisdiction over contests for permanent child custody . . . between parents, parents and third parties, or between parties who are not parents.'"¹³ Further, as a custody dispute between non-parents, the matter was required to be determined according to the best interests of the child.¹⁴ The temporary guardianship did not preclude the custody

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proceeding, and any resulting custody award would supersede the temporary guardianship.¹⁵

Court filings are now to be redacted in a manner which precludes inclusion of certain sensitive information, including complete dates of birth, social security numbers, tax identification numbers, and financial account numbers.¹⁶ The birth year may be included, but not the day or month, and only the last four digits of the other numbers may be used.¹⁷

III. Discovery

In Rutter v. Rutter,¹⁸ the Georgia Supreme Court reversed the Georgia Court of Appeals.¹⁹ During the parties' divorce case, the husband moved to exclude evidence that the wife derived from video surveillance devices surreptitiously installed in the marital residence.²⁰

The husband argued that the wife's use of the devices was a violation of section 16-11-62(2) of the Official Code of Georgia Annotated (O.C.G.A.),²¹ which makes it unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent.²² Evidence obtained in violation of O.C.G.A. § 16-11-62²³ is not admissible in court.²⁴

In denying the husband's motion to exclude, the trial court relied on O.C.G.A. § 16-11-62(2)(C), which provides an exception to the general prohibition and expressly permits one to conduct video surveillance of persons "within the curtilage of [her own] residence" for "security purposes, crime prevention, or crime detection."²⁵ The court of appeals affirmed the trial court, holding that subparagraph (2)(C) survived a 2000 amendment to the statute.²⁶ In reversing the lower court, the supreme court held that the 2000 amendment eliminated the "curtilage"

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exception of subparagraph (2)(C) by implication and the evidence should have been excluded.²⁷

IV. Family Violence

In Mandt v. Lovell,²⁸ the Georgia Supreme Court granted certiorari to determine under what circumstances, if any, a trial court, pursuant to O.C.G.A. § 19-13-4,²⁹ may subsequently modify a permanent protective order (PPO).³⁰ Based on changed circumstances, the trial court partially granted the father's motion to terminate a family violence PPO entered against him two years earlier.³¹

The supreme court agreed with the court of appeals in holding that the trial court had the authority to terminate portions of the PPO even though the court term in which the PPO was entered had expired.³² Generally, a trial court lacks jurisdiction to make material changes to a final order after the expiration of the term of court in which it was entered.³³ Yet, "[j]udgments that govern continuing or recurring courses of conduct may be subject to modification even though the power of doing so is not expressly provided."³⁴ A PPO is a continuing judgment, and therefore is subject to modification at any time based upon changed circumstances.³⁵

V. Legitimation

Administrative legitimation was spotlighted in two cases reviewed by the Georgia Court of Appeals this survey period. In Ray v. Hann,³⁶ the minor child, A.C.R., was born out-of-wedlock in 2008.³⁷ Before leaving the hospital, Ray, the father, and Peterson, the mother, signed an acknowledgment of paternity and legitimation which provided that Ray's relationship with A.C.R. "shall be considered legitimate for all purposes under the law pursuant to O.C.G.A. § 19-7-22(g)(2)."³⁸

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In 2012, A.C.R.'s stepfather filed a petition to adopt the child, and Ray filed a petition to legitimate and opposed the stepparent adoption. The trial court was aware of the acknowledgment of paternity and legitimation; however, the court granted the stepfather's adoption petition, denied Ray's petition to legitimate, and terminated Ray's parental rights.³⁹ The court of appeals held that the trial court's denial of Ray's petition to legitimate was an abuse of discretion.⁴⁰ The acknowledgment of paternity and legitimation rendered Ray's relationship with A.C.R. legitimate, and Ray remained the child's legal father "unless and until his parental rights have been terminated."⁴¹

In Allifi v. Raider,⁴² a different outcome occurred.⁴³ The day after the birth of T.R. in 2008, the mother and the father signed an acknowledgment of paternity and legitimation. In September 2010, the father filed a petition to legitimate T.R., which was denied. The trial court found that, based on the evidence of the father's drug use and irresponsible behavior, legitimation was not in T.R.'s best interest. The father moved to set aside the judgment denying his legitimation petition, and that motion was granted. The trial court found that the original order was based upon a mistake of fact and was pre-empted by the parties' acknowledgment of legitimation.⁴⁴ The appellate court determined this was error because a party is precluded from setting aside a judgment on a ground which he knew or could have discovered through reasonable diligence.⁴⁵ The father was aware of his voluntary acknowledgment of paternity at the time he filed his legitimation petition, and he should have brought it to the trial court's attention prior to judgment on his legitimation petition.⁴⁶ The father cannot now use the existence of this document as a basis to set aside the trial court's final judgment thereon.⁴⁷

VI. Child Custody

While the appellate courts reviewed numerous appeals regarding child custody during this survey period, four cases of note are highlighted

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herein. In Sahibzada v. Sahibzada,⁴⁸ international travel restrictions were at issue.⁴⁹ The trial court entered a final decree of divorce, which provided that, until they reached the age of sixteen, the parties' two minor sons could not travel outside the United States without the wife's consent.⁵⁰ The supreme court affirmed the lower court because the evidence showed that the husband frequently travelled outside the country without communicating his whereabouts to his wife, the paternal relatives could travel to the United States to visit the children, and the wife may have difficulty asserting her custodial rights in Pakistan where she was a non-citizen and her husband was a citizen.⁵¹

In Donohoe v. Donohoe,⁵² access to records of the Department of Family and Children's Services (DFACS) were at issue.⁵³ Two reports had been made to DFACS regarding the custodial father's treatment of the parties' minor child.⁵⁴ The mother "filed a motion for subpoena of the DFACS records . . ., asking the trial court to review the records to determine if the records were necessary to resolve any issues before the court and, if so, to release those records to the parties."⁵⁵ The court did not rule on the mother's motion. However, in rendering its final order, the trial court noted it had reviewed the DFACS records and used information from the records in reaching its verdict.⁵⁶ The court of appeals held that the trial court erred in relying on the DFACS records, as the records were never entered into evidence and no one from DFACS testified, and the court erred in declining to provide the mother access to the records.⁵⁷

Driver v. Sene⁵⁸ reminds us that even when there is a material change in circumstances that would justify a modification of child custody...