Domestic Relations - Barry B. Mcgough and Gregory R. Miller

• Publication year: 2003

Domestic Relationsby Barry B. McGough*and

Gregory R. Miller**

Fourteen of the domestic relations appellate cases decided during the survey period¹ are digested here. Georgia law requires that appeals of domestic relations cases occur through the discretionary application process.² A party wanting to appeal an order in a domestic relations case must first file an application to obtain the appropriate appellate court's permission to file an appeal.³ As part of a pilot project, the Georgia Supreme Court announced it would accept all "non-frivolous" applications filed in domestic relations cases during the calendar year 2003.⁴ The pilot project does not include cases that would be appealed first to the court of appeals,⁵ writs of certiorari,⁶ or interlocutory appeals.⁷ While the domestic relations bar hopes the pilot project will be extended or made permanent, no decision has been announced. The pilot project, however, has enabled the courts to address a variety of domestic relations issues.

I. Divorce: Parties

The supreme court addressed the issue of who may be named as parties to a divorce case other than the spouses. In Gardner v. Gardner,⁸ the supreme court affirmed the trial court's joinder of two corporate entities in the parties' divorce case.⁹ The husband, who filed for divorce, listed corporate stock in three entities as the only marital assets of the parties. The husband was the sole stockholder and director of the three companies, but the corporations held title to the assets that the parties used, including the marital home and vehicles. Therefore, the wife filed a counterclaim and a motion to have two of the corporations joined as parties, claiming joinder was necessary to enable the parties to obtain a complete equitable division of the marital assets.¹⁰

Both the trial court and the supreme court agreed.¹¹

O.C.G.A. Sec. 9-11-13(h) provides: "When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim . . . the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained."¹²

O.C.G.A. section 9-11-19(a)(1) states that "'[a] person who is subject to service of process shall be joined as a party in the action if: (1) [i]n his absence complete relief cannot be afforded among those who are already parties.'"¹³ Because the husband's companies held title to many of the parties' assets, the supreme court determined that "complete relief could only be achieved by joining the corporations as parties to the divorce action.¹⁴ However, the supreme court emphasized that the joinder must be limited to the division of the parties' marital assets.¹⁵

II. Equitable Division

In Barolia v. Pirani,¹⁶ the court of appeals reversed the trial court's determination that it did not have jurisdiction to award an equitable division of certain marital property.¹⁷ The parties were divorced in Texas, but the decree specifically stated that the now ex-wife did "not waive her right to an action on the division of property which should be brought in the state of Georgia."¹⁸ The ex-husband brought an action in Georgia to domesticate the Texas decree and to divide the Georgia property. The ex-wife admitted jurisdiction and filed a counterclaim for equitable division of the property. On the ex-husband's motion for summary judgment, the trial court held that entry of the divorce decree prevented the Georgia court from having jurisdiction to equitably divide the parties' marital property. The trial court relied on the proposition that title to property not addressed in the decree remains unaffected by the entry of the decree, and title remains with the party or parties having title at the time of the decree.¹⁹ The court of appeals reversed, holding that while the trial court correctly stated the law, that proposition does not apply when the property is addressed in the divorce decree, and a decision is reserved for later determination.²⁰

III. Child Custody: Standard

While trends seem to place reduced importance on spousal misconduct, particularly in custody cases, the supreme court held that a trial court could consider such misconduct.²¹ In Patel v. Patel,²² the supreme court affirmed the trial court's consideration of the cause of the parties' separation in awarding sole physical custody of the minor children to the mother.²³ The father's adulterous relationship with an employee/patient resulted in the father losing his job and the wife filing for divorce. The trial court awarded joint legal custody to the parties, but it awarded sole physical custody to the mother subject to the father's liberal visitation rights. The father's visitation rights were not restricted in any manner to prevent contact between the father's paramour and the children.²⁴

While visitation rights will not be deprived unless a parent is unfit,²⁵ custody may be deprived based merely on the "best interests of the child" standard.²⁶ In applying the best interests standard, the trial court is authorized to consider the parties' conduct during the marriage,²⁷ even when the divorce is granted on no fault grounds.²⁸ Construing O.C.G.A. section 19-9-1(a)(1)²⁹ with O.C.G.A. section 19-9-3(a)(2),³⁰ the supreme court³¹ held that Georgia law "confers a prima facie right on the party not in default³² such that the trial court should award custody to that party, in the absence of proof of circumstances showing that the children's welfare will be better served by entry of a different award."³³ The supreme court, therefore, held that the evidence of the father's adultery was relevant to the trial court's custody determination.³⁴

IV. CHILD CUSTODY: MODIFICATION

While the state legislature has yet to pass a bill about the impact of a parent's relocation on custody arrangements, the supreme court began addressing the issue. In Scott v. Scott,³⁵ the supreme court held that an automatic change of custody based on the custodial parent's future relocation is invalid.³⁶ When the parties divorced in 2001, the trial court awarded primary physical custody to the mother, but the divorce decree stated that if the mother relocated outside of the county of her current residence, custody would revert to the father. The trial court found that such a move would be a material change of circumstances affecting the welfare of the parties' child. The provision was to be "self-effectuating" and required no further court action.³⁷

Ordinarily, custody provisions are only modifiable by court action.³⁸ However, the appellate courts have approved self-effectuating custody changes in the past. In Weaver v. Jones,³⁹ the supreme court approved an automatic change based on the minor child reaching at least fourteen years of age and making an election to reside with the noncustodial parent.⁴⁰ In Pearce v. Pearce,⁴¹ the supreme court enforced an automatic change when the children were not expressly required to reach age fourteen prior to making the election.⁴²

The supreme court reaffirmed these two decisions, finding them consistent with existing law.⁴³ Children over the age of fourteen may elect the parent with whom they choose to reside, and their election will be binding unless the selected parent is determined to be unfit.⁴⁴

Prior to deciding Weaver and Pearce, the supreme court in Holder v. Holder⁴⁵ approved a self-effectuating change if the mother remar-ried.⁴⁶ In Carr v. Carr,⁴⁷ the court of appeals approved a provision changing custody if the mother moved to a different city or state.⁴⁸ In Scott the supreme court held that the decisions in Holder and Carr were not appropriate extensions of the decisions in Weaver and Pearce.⁴⁹ The supreme court repudiated its holding in Holder and disapproved of the court of appeal's decision in Carr.⁵⁰

Unlike in Weaver and Pearce, the bases for modifications in Holder and Carr were contrary to Georgia law. A modification of child custody must be predicated upon the finding of a material change in circumstances affecting the welfare of the child.⁵¹ The appellate courts have repeatedly held that the remarriage or relocation of the custodial parent alone is not a change of circumstances.⁵² The supreme court further noted that such events may impact children positively or negatively.⁵³ The custodial election of a child over the age of fourteen, on the other hand, is a proper basis for modifying custody.⁵⁴

A modification must be based on the facts and circumstances at the time of modification.⁵⁵ Because the trial court in Scott, like those in Holder and Carr, based the self-effectuating modification provision on the facts and circumstances as they existed at the time of the divorce, and not the time of the modification, the modification violated public policy.⁵⁶

V. Child Support: Guidelines

Georgia's Child Support Guidelines ("Guidelines")⁵⁷ were the subject of several appellate decisions. In Georgia Department of Human Resources ("DHR") v. Sweat,⁵⁸ the supreme court determined that the Guidelines were constitutional, reversing the trial court's order finding otherwise.⁵⁹ In Sweat the father was awarded custody when the parties divorced in 1998, and the mother was not required to pay child support. In 2000 DHR sought child support on behalf of the father. The mother successfully argued to the trial court that the Guidelines were unconstitutional.⁶⁰

The supreme court held that the trial court erred in concluding that the Guidelines violated the Georgia and United States Constitutions' guarantees of substantive due process.⁶¹ Finding that the Guidelines do not infringe upon any fundamental rights of the mother, and that the mother is not a member of any suspect class, the supreme court determined that the statute need only be rationally related to a legitimate government concern.⁶² The supreme court classified the provision of child support to children of divorce as an "important and highly reasonable...