Domestic Relations - Barry B. Mcgough

• Publication year: 1995

Domestic Relationsby Barry B. McGough^*

The survey year produced forty-two family law appellate decisions. Of that number, sixteen are digested here. Three cases and new legislation require strict application of the child support guidelines. Two decisions refine the theory of equitable division of property. Grandparents can no longer seek judicially proscribed visitation rights. Parents can now be directed to insure their lives for the benefit of their minor children.

I. Divorce

A. Equitable Division

In Bass v. Bass¹ the jury awarded Mrs. Bass a portion of her husband's interest in a family corporation. Because Mr. Bass had been given his fifty-one percent interest in the enterprise, he argued that the property was separate and the issue of its division was erroneously submitted to the jury.² The Supreme Court of Georgia held that the question of whether the husband's interest was marital property was a mixed question of law and fact and affirmed the lower court's decision.³ Retreating somewhat from its reasoning in Goldstein v. Goldstein,⁴ the court stated:

[T]he classification of property as either marital or non-marital is not always exclusively a question of law. What items of property can legally constitute a marital or nonmarital asset is a question of law for the court. However, whether a particular item of property actually

constitutes a marital or nonmarital asset may be a question of fact for the trier of fact to determine from the evidence.⁵

In the instant case, the plaintiff failed to allege that the appreciation in the value of the husband's interest arose solely from market forces.⁶ Accordingly, the question of what portion of that interest was marital was for the jury.⁷ Janelle v. Janelle⁸ applied the rule in Bass⁹ to the issue of alleged appreciation in a premarital corporation and the marital residence¹⁰ The court noted that contentions regarding time of acquisition of the residence and funds used for its purchase were within the province of the source of funds rule."

B. Alimony

The trial court, sitting without a jury, entered a divorce decree awarding the wife permanent alimony in Allen v. Allen¹² The decree, "provided that the 'alimony payments shall not terminate upon the remarriage of the Plaintiff or upon her cohabitation in a meretricious relationship . . . .'"¹³ The supreme court held that the trial court had not exceeded its authority but construed the cohabitation clause "to mean that such cohabitation does not create a self-executing termination of the alimony obligation."¹⁴ Since the decree did not prohibit future modification of the alimony obligations, the trial court; had not abused its discretion¹⁵ A divorce jury awarded the wife no alimony, but did equitably divide property in Andrews v. Whitaker¹⁶ The husband was required to pay the wife one half of his retirement pay, to purchase an annuity for her, and to provide her with two tickets to the Masters Golf Tournament every odd-numbered year. The wife remarried and the husband brought a declaratory judgment action, contending his obligations were periodic alimony payments which were terminated by her remarriage. The trial court denied the husband relief.¹⁷ The appellate court affirmed as to the retirement pay but found the other obligations to be of an indefinite duration, and accordingly, alimony which was terminated by the wife's remarriage.¹⁸

C. Enforcement

In Bryant v. Employees Retirement Systems,¹⁹ a divorce decree which ordered a nonparty state agency to pay to the wife a portion of her husband's retirement benefits was not enforceable against the agency.²⁰ Pension plans for employees of state governments are not subject to the Retirement Equity Act of 1984.²¹ Although state retirement benefits which are marital property are divisible at divorce, there is no statute permitting transfer of the employee's rights to another person. The employee spouse can be ordered to pay the benefits to the nonemployee spouse after receipt.²³ In Parker v. Eason²⁴ the former wife sought to enforce a ten-year-old child support judgment by citation for contempt. The former husband defended on the ground that the judgment was dormant.²⁵ The contempt pleadings did not seek revival of the judgment.26The court reversed the trial court's holding that the contempt citation was an action for revival.27 The court remanded the case for determination of which unpaid amounts were more than seven years old and therefore unenforceable.²⁸ The majority opinion is unclear as to whether a prayer for revival would suffice. However, the special concurrence stated that only an action for revival or an application for a writ of scire facias is legally sufficient.29 In Paul v. Paul,³⁰ the reach of the long-arm statute³¹ was not long enough to hold on to the former wife's contempt action for past due alimony.³² The trial court erred in denying the former husband's motion to dismiss for lack of personal jurisdiction where the parties had lived in Georgia for less than a year before they ended their twenty-two year marriage and where neither party was a Georgia resident at the time of the filing of the contempt proceeding.

II. Children

A. Child Support

The child support guidelines³⁴ were repeatedly underscored during the survey year. In Ehlers v. Ehlers³⁵ the supreme court remanded an order modifying downward the former husband's child support obligation.³⁶ The trial court found a substantial decrease in the former husband's income and a substantial increase in the income of the former -wife but made no finding of special circumstances in setting the new award.³⁷ The supreme court held that the trial court must make written findings of special circumstances in order to deviate, up or down, from the child support guidelines.³⁸ Moreover, the court found that "indirect payments," such as insurance premiums, can only be used to vary the guideline's required support award which is ascertained by multiplying the applicable statutory percentage by the obligor's gross income.³⁹ Finally, the support obligation is to be based on the number of children for whom support is to be ordered in the proceeding.⁴ 0 If the obligor has additional children, such obligations can vary the final award.⁴¹ In Faulkner v. Frampton,⁴² the court remanded the trial court's upward modification of child support for the determination of the obligor's gross income and a calculation of the required support award⁴³ .In Pearson v. Pearson,⁴⁴ the trial court approved an oral settlement agreement which increased the obligor's child support obligation.⁴⁵ Because the order did...