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

• Publication year: 2000

Domestic Relationsby Barry B. McGough^* and

Gregory R. Miller^**

Of the domestic relations appellate cases decided during the survey period, eighteen are digested here.¹ As has been the recent trend, the Legislature and the appellate courts have continued to focus primarily on issues surrounding children.

I. Divorce

The appellate courts considered the admissibility of evidence frequently gathered in domestic relations cases. In Barlow v. Barlow,² the husband wanted to admit into evidence a tape recording of his wife's cordless telephone conversation with an alleged paramour. A neighbor recorded the conversation without the knowledge of either party to the telephone conversation. The trial court refused to suppress the recording.³ The Georgia Supreme Court reversed, holding Georgia's anti-wiretapping statute⁴ applies to telephone calls made on cordless telephones.⁵ The court found users of cordless telephones have an expectation of privacy similar to users of land lines and cellular telephones, which have been expressly included within the anti- wiretapping statute.⁶ The decision does not address whether the neighbor was acting as the husband's agent when the recording was made or whether the agency issue would make any difference in the admissibility of the recording.

In In re Fulton County Grand Jury Proceedings,¹ the Georgia Court of Appeals held a private investigator hired to gather evidence for the husband in a divorce case could testify before a grand jury considering criminal charges against the husband.⁸ The husband's divorce lawyer hired the investigator to investigate an alleged affair by the wife. The alleged paramour was later found murdered. When the victim's family offered a reward, the investigator came forward with evidence amassed during the investigation. The trial court denied the husband's assertion that his conversations with the investigator were subject to the attorney-client privilege.⁹ The appellate court held the conversations occurred after the investigation was concluded and, therefore, were not privileged.¹⁰ Even if privilege attached, the court held the conversations were conducted in furtherance of a crime and therefore admissible under the crime-fraud exception.¹¹

In addition to the evidence questions, the supreme court looked at divorce procedure. In Brown v. Brown,¹² the wife named her mother-in-law as a codefendant, alleging she held title to real property that actually belonged to the divorcing spouses. When the mother-in-law did not file an answer, the wife successfully moved for a default judgment.¹³ The supreme court held the provisions of Official Code of Georgia Annotated ("O.C.G.A.") section 19-5-8, which prohibits default judgments from being granted in divorce, alimony or custody actions, apply to third-party defendants.¹⁴

II. Child Custody

Issues surrounding children, particularly custody, were prevalent in both the Legislature and appellate courts. Despite last year's veto of similar legislation, Governor Roy Barnes signed legislation that requires trial courts to consider the custodial wishes of children over the age of eleven.¹⁵ The trial courts are not bound by the child's decision and must apply the best-interest-of-the-child standard. The election by a child over the age of eleven, but under the age of fourteen, shall not be grounds for a modification action.¹⁶

During this survey period, the appellate courts again considered venue and jurisdiction. In Roach v. Kapur,¹⁷ the court of appeals held it was error for the trial court to allow the father to file a counterclaim for custody modification when the mother had filed an action to modify the support provisions of the parties' divorce decree.¹⁸ The mother filed her action in the county of her residence. Based on the father's motion, the case was transferred to the county of his residence. When the father filed his counterclaim for custody, the mother then moved to transfer venue. The mother appealed when the trial court denied her motion.¹⁹ The court of appeals, citing O.C.G.A. section 19-9-23, held the counterclaim was improper because it was not a separate action nor was it filed in the county of the custodial parent's residence.²⁰ A different panel reached a similar decision in Wilson v. Baldwin.²¹

Also, a trial court may not arbitrarily decline to exercise jurisdiction over child custody. In Patterson v. Patterson,²² the parties presented conflicting evidence as to whether Georgia should exercise jurisdiction over the custody case. Without making any determinations of fact, the trial court decided a trial in Georgia "may not be in the best interest of everybody."²³ For a trial court to decline jurisdiction based on an inconvenient forum rationale, the trial court must find that the alternate forum would be in the child's best interest and that the alternate forum would accept jurisdiction.²⁴ Because the trial court failed to make the necessary inquiries, it was error to decline jurisdiction.²⁵

Relocation has continued to be an issue in custody modification actions. In Ofchus v. Isom,²⁶ the court of appeals held the trial court abused its discretion in modifying custody.²⁷ Based on the mother's decision to relocate with her new husband to Virginia, the trial court modified custody in favor of the father.²⁸ The court of appeals gave no credence to the trial court's findings that the move would be detrimental to the child based on the child's being removed from regular visits with the father and other relatives.²⁹ Because the mother was the primary custodial parent under the divorce decree, she had a prima facie right to continue as the custodial parent.³⁰ To overcome that right, the father needed to show that the mother was no longer able or suited to be the custodial parent, that conditions had changed negatively affecting the child's home life, or that the child's welfare would be promoted by the change of custody.³¹

In Mahan v. McCrae,³² the court of appeals again held the trial court improperly changed custody based on the custodial parent's decision to move out of state.³³ The trial court ruled the modification was warranted not only because of the move, but also because the mother had blocked the father's attempts to visit with the children beyond what was provided for in the parties' judgment.³⁴ The appellate court noted past decisions approving a custody change due to the custodial parent's interference with the visitation rights of the noncustodial parent.³⁵ The court then found no legal support for modifying custody because the custodial parent did not give the noncustodial parent rights beyond what was contained in the visitation order.³⁶ Three judges dissented,³⁷ finding evidence existed that supported the trial court's determination that the mother's actions had emotionally harmed the children.³⁸

Nonparents seeking custody continues to capture the interest of both the appellate courts and the Legislature. Effective July 1, 2000, the Legislature expanded the list of relatives who may seek custody of a child under the best-interest-of-the-child standard to include great-grandparents.³⁹ In In re Stroh,⁴⁰ the court of appeals held that while Georgia law prohibits nonresidents from adopting a child residing in Georgia,⁴¹ nonresidents cannot be prohibited from seeking custody.⁴²

In Stills v. Johnson,⁴³ the maternal and paternal grandmothers were opposing each other for custody of their grandchild. After the mother died of cancer, the father, who was incarcerated, transferred custody to the paternal...