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

• Publication year: 2004

Domestic Relationsby Barry B. McGough^* and Gregory R. Miller^**

Of the domestic relations appellate cases decided during this survey period,¹ twenty-three are discussed below. 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 permission of the appropriate appellate court to file an appeal.³ As part of a pilot project, the Georgia Supreme Court began accepting all "non-frivolous" applications filed in domestic relations cases during the 2003 calendar year.⁴ The supreme court extended the pilot project for the 2004 calendar year; however, the supreme court limited the pilot project to applications filed from divorce cases.⁵ The pilot project does not include cases that would be appealed to the court of appeals first,⁶ writs of certiorari,⁷ or interlocutory appeals.⁸ The domestic relations bar remains hopeful that the pilot project will be extended again for the 2005 calendar year or made permanent; however, no decision has been announced as of yet. The pilot project has enabled courts to address a variety of domestic relations issues that will benefit the domestic relations bar and future litigants.

I. Divorce: Jurisdiction

The supreme court twice addressed the application of Georgia's Long-Arm Statute.⁹ In Walters v. Walters,¹⁰ the parties were married in Denmark and lived abroad during much of their marriage due to the husband's military service. When they returned to the United States, they set up a matrimonial domicile in Georgia. When the parties separated, the husband moved to Florida. After several years the wife filed for divorce in Georgia.¹¹

Although the trial court granted the husband's motion to dismiss, based on lack of jurisdiction, the supreme court reversed.¹² Section 910-91 of the Official Code of Georgia Annotated ("O.C.G.A.") "allows a Georgia court to exercise personal jurisdiction over a nonresident in the same manner as if he were a resident of the state if certain requirements are met."¹³ Specifically, the Long-Arm Statute allows for jurisdiction to be exercised in divorce cases when either the nonresident spouse maintains a matrimonial domicile in Georgia at the time the action was filed or when the nonresident spouse resided in Georgia prior to the action being filed.¹⁴ The nonresident must also have "minimum contacts" with the state to satisfy the due process rights of the nonresi-dent.¹⁵ The court determined that when the husband participated in establishing and maintaining a marital residence in Georgia, he assumed certain rights and obligations.¹⁶ Notions of fair play and substantial justice would require the husband to return to Georgia to resolve the issues related to the parties' marriage as opposed to forcing the wife to seek relief in a state where she never had any contacts.¹⁷

Similarly, in Cooke v. Cooke,¹⁸ the supreme court held that the trial court erroneously dismissed a divorce action based on the wife's relocation to England.¹⁹ The parties, an Irish husband, an English wife, and their six children moved to Georgia in 1992. The wife returned to England with the children in 1999; however, the husband remained in Georgia. The parties continued to file joint tax returns, claiming to be full-time Georgia residents. In 2003 the husband filed for divorce in Georgia. The wife moved to dismiss the Georgia action based on lack of personal jurisdiction, improper venue, and forum non conveniens. The trial court granted the wife's motion on the two former counts, but the trial court did not address the latter.²⁰

In reversing, the supreme court held that the maintenance of the matrimonial domicile in Georgia satisfied Georgia's Long-Arm Stat-ute.²¹ The fact that the Georgia residence was the last residence where the parties lived together as a family unit, provided the minimum contacts necessary to satisfy any due process concerns.²²

II. Divorce: Procedure

The supreme court addressed several issues concerning trial procedure in family law cases. First, in Blaylock v. Blaylock,²³ the court considered whether one party has a right to a jury trial when the other party has not yet filed defensive pleadings.²⁴ O.C.G.A. section 19-5-1(a) provides that a jury trial is authorized when "'an issuable defense is filed as provided by law and a jury is demanded in writing ... on or before the call of the case [to] trial . . . .'"²⁵ Noting that a defendant in a divorce case is not required to file a formal answer and default judgments cannot be entered in divorce cases, the supreme court held that an issuable defense can be filed in documents other than an answer.²⁶ In this case the wife's demand for a jury trial was denied by the trial court because the husband had not filed an answer. The husband did participate in the preparation of a pre-trial order, wherein he admitted that the wife was entitled to receive child support and an equitable division of the property; however, he disagreed with the amount of child support and the actual division of assets being requested by the wife.²⁷ Even when the defense is a partial one, as in this case, the supreme court held that either party has a substantive right to demand a jury trial.²⁸

When there are factual issues to be determined, the supreme court also held that trial courts cannot reject a party's request to make a closing argument, even during a bench trial.²⁹ In Wilson v. Wilson,³⁰ the wife's attorney made a request to make a closing argument; however, the judge denied the request.³¹ The supreme court recognized that some states allow arguments as an absolute right,³² while other states give the trial judge discretion whether to allow closing arguments in a bench trial.³³ The supreme court decided, however, to follow a more intermediate approach.³⁴ The supreme court held that a trial court may not deny a party the right to make a closing argument; however, a trial court may limit the argument in time and content.³⁵

III. CHILD CUSTODY

The supreme court was presented with an unusual set of facts in Baker v. Baker.³⁶ Although the wife was two months pregnant when the parties met, they married prior to the child's birth. The biological father was incarcerated and would not be released until 2011. The husband provided emotional and financial support to the wife throughout the pregnancy. The husband was listed as the child's father on the birth certificate. When the husband filed for divorce, he sought custody of the child.³⁷

Although a child born during a marriage is presumed to be the child of the husband,³⁸ the presumption can be rebutted by clear and convincing evidence.³⁹ The wife challenged the husband's request for custody, stating that the husband was not the biological father. When the biological father intervened, the trial court ordered DNA testing, which confirmed that the husband was not the biological father. The trial court indicated that the child's best interests would be served by the husband remaining as the child's father; however, the wife had successfully rebutted the presumption of paternity.⁴⁰

In a four-to-three decision, the supreme court reversed the trial court, holding that the trial court was required to find that the presumption of parentage was not only rebutted by clear and convincing evidence, but also that the rebuttal was in the child's best interests.⁴¹ The dissent claimed the majority opinion overstepped judicial authority by allowing trial courts to utilize the "best interests of the child standard" to determine whether the trial courts should follow statutory procedures passed by the legislature and signed into law by the governor.⁴²

IV. CHILD CUSTODY: NON-PARENTS

Cases between parents and grandparents continued to reach the appellate courts. In Jones v. Burks,⁴³ the court of appeals reversed an award of custody to the maternal grandmother in an action contested by the children's father.⁴⁴ Under O.C.G.A. section 19-7-1(b.1),⁴⁵ custody may be awarded to a close relative of the children if clear and convincing evidence shows that parental custody would harm the children physically or emotionally, and custody by the non-parent would promote the children's health, welfare, and happiness.⁴⁶ In awarding custody to the maternal grandmother, the trial court failed to include any written findings to support its decision.⁴⁷ The court of appeals remanded the case to the trial court for findings consistent with the requirements of O.C.G.A. section 19-7-1(b.1).⁴⁸ Similarly, in Rainey v. Lange,⁴⁹ the court of appeals reversed an award of visitation, under O.C.G.A. section 19-7-3,⁵⁰ to the maternal grandparents when written findings of fact were not included in the trial court's order.⁵¹

V. Child Custody: Modification

A divided supreme court made new law in the area of relocation by reversing established case law from the court of appeals. In Bodne v. Bodne,⁵² the supreme court considered whether a primary custodian's move may be considered a basis for a custody modification.⁵³ The court of appeals had previously ruled that a custodial parent's relocation affected visitation rights; however, a move alone was not a change of circumstances warranting a change of custody.⁵⁴

In Bodne the father was awarded primary custody when the parties divorced. The father, remarried and planning to move to Alabama, filed an action to modify the mother's visitation rights. The mother filed a counterclaim for custody. The trial court heard evidence that supported the mother's claim that the proposed relocation would not be in the children's best interests, and the trial judge awarded custody to the mother. The father appealed to the court of appeals, which reversed the trial court's decision based on the established precedent.⁵⁵

The supreme court granted certiorari in the case.⁵⁶ The supreme court reversed the court of appeals because it determined a bright line...