Domestic Relations - Barry B. Mcgough

• Jurisdiction: Georgia,United States
• Publication year: 1997
• Citation: Vol. 49 No. 1

Domestic Relationsby Barry B. McGough^*

The survey year¹ produced a wide array of appellate opinions with no discernible area of focus. Of particular interest were decisions holding that the relocation of a custodial parent is not alone grounds to change custody and that notice of trial by publication alone contravenes the due process rights of a pro se litigant in a divorce action in which custody of minor children is at issue. A resident can sue for divorce and an award of Georgia property even though the nonresident spouse has never been in the state. However, a resident cannot enforce a foreign divorce decree when the nonresident's only Georgia contact is via mail and telephone.

I. Divorce

A. Alimony

In Metzler v. Metzler,² the jury awarded the wife alimony in the amounts of fifty thousand dollars in the first year, forty thousand dollars in years two through four, and thirty thousand dollars in the fifth and final year. The alimony was to be paid in twelve equal payments per year and to cease only upon the death of either party. The Supreme Court of Georgia affirmed in part and reversed in part the trial court's final divorce decree that provided only monthly payments and added termination events of the remarriage or cohabitation of the wife.³

The court held that "parties themselves are free to contract for the automatic termination of alimony in the event of cohabitation."⁴

However, Official Code of Georgia Annotated ("O.C.G.A.") section 19-6-19(b)⁵ does not require termination or reduction of alimony obligations.⁶ Because the husband and wife had not agreed to terminate alimony in the event of the wife's cohabitation, the trial court could not impose that limitation in the final decree.⁷

The Supreme Court of Georgia held it was without jurisdiction to entertain the husband's appeal from an interlocutory order awarding temporary alimony in Bailey v. Bailey.⁸ The husband had filed an application for discretionary appeal under O.C.G.A. section 5-6-35(a)(2) for review of the award of alimony made by the trial court.⁹

The supreme court held that although O.C.G.A. section 5-6-35 provides for discretionary review of awards granting or denying temporary alimony, a party was "not excuse[d]" from obtaining a certificate of immediate review under O.C.G.A. section 5-6-34(b).¹⁰ Because the husband had not complied with the requirements of the interlocutory appeal procedure, the court was without jurisdiction.¹¹

B. Enforcement of Settlement Agreements

On an interlocutory appeal from an order denying the motion of the husband to enforce a settlement agreement, the Supreme Court of Georgia in Mathes v. Mathes¹² held that ineffective assistance of counsel was not a defense and remanded the case to the trial court.¹³ The court held the defense of ineffective counsel was only applicable in criminal, not civil, cases.¹⁴

In Kendricks v. Childers,¹⁵ the Supreme Court of Georgia held valid a settlement agreement that allowed for cost of living increases in child support payments because it was specific and did not contravene a statute or violate public policy.¹⁶ The trial court had found the provision unenforceable.¹⁷

The court found this increasing payment provision did not contravene O.C.G.A. section 19-6-15.¹⁸ The court stated: "While the guidelines create a rebuttable presumption of the correctness of the statutory formula, parents are free to exceed this level of support . . . just as the trier of fact may exceed the guidelines amount under O.C.G.A. Sec. 19-6-15(c)."¹⁹ Because the provision was specific in amount, did not contravene O.C.G.A. section 19-6-15, and did not violate public policy, the court enforced the agreement.²⁰

C. Equitable Division

In deciding the identity of the beneficiary of annuity benefits payable from the Survivor Benefits Plan ("SBP") of a United States Air Force retiree, the Supreme Court of Georgia in King v. King²¹ held the divorce decree awarding the first wife an annuity was preempted by federal law.²² The annuity had accrued during the husband's first marriage and was awarded to his first wife when they divorced. He subsequently remarried, and upon his death the annuity was paid to his second wife. The trial court awarded the annuity to the first wife on the basis of the divorce decree, and the supreme court reversed.²³

The SBP annuity accrued during the first marriage and therefore was marital property subject to equitable division in the divorce.²⁴ However, entitlement to benefits from the SBP is also governed by 10 U.S.C. Sec. 1447-1455.²⁵ Although state law governs domestic relations issues, federal law preempts state law when the state law squarely conflicts with the express terms of the federal law and '"its consequences sufficiently injure the objectives of the federal program.'"²⁶ The court cited 10 U.S.C. Sec. 1450(f)(3) and subsequent amendments that clearly specified the conditions under which a former spouse could become the beneficiary.²⁷ The conditions called for either the retiree or spouse to notify the government secretary of who would be the beneficiary. Because neither the husband nor the first wife complied with the statute, enforcing the state law divorce decree would conflict with the express provisions of the federal law. Accordingly, the second wife was entitled to the annuity.²⁸

The Georgia Court of Appeals upheld the decision of the trial court in Starrett v. Commercial Bank of Georgia,²⁹ ordering the wife either to convey her interest in certain property to the bank or to sell the property and use the proceeds to satisfy the debt.³⁰ The husband's interest in the property was transferred to the bank in lieu of foreclosure after the husband's death. The bank later sued the wife for repayment of the outstanding debt.³¹

The property had been marital property, and the parties' divorce decree provided that the property would be sold and the proceeds used to satisfy the husband's outstanding debt to the bank. After the divorce the property was not sold, and the debt was not paid. The court held that the effect of the divorce decree was to make the bank a third-party beneficiary of the decree. The court mandated that the wife convey her interest to the bank or sell the property and apply the proceeds to the debt.³²

D. Jury Trial

In Franklin v. Franklin,³³ the Supreme Court of Georgia "reversed the final judgment of the trial court based on the findings of an auditor because the wife had demanded and not waived her right to a jury trial.³⁴ The trial court had referred the case to an auditor who conducted an evidentiary hearing and made findings of fact and conclusions of law. The wife appeared without counsel, objected to the appointment of the auditor, and requested a jury trial.³⁵ The court held that the wife had validly exercised her right to request a jury trial pursuant to O.C.G.A. section 19-5-l(a) and that although the trial court has the power to refer the case to an auditor pursuant to O.C.G.A. section 9-7-2, it may not do so when there has been a proper demand for a jury trial.³⁶

E. Jurisdiction

The most controversial decision in the past term was Abernathy v. Abernathy.³⁷ The Supreme Court of Georgia affirmed the trial court ruling that it had jurisdiction over the marriage and property of a husband who resided in Georgia for almost a year, even though the wife had never resided or been present in the state.³⁸ The supreme court held that the trial court had jurisdiction over the res of the marriage and in rem jurisdiction over the property located in Georgia and therefore did not need in personam jurisdiction over the wife.³⁹

The husband and wife were married in Florida and resided in Louisiana until they separated. The husband moved to Georgia and after approximately one year filed a petition seeking divorce and an award of property located within Georgia.⁴⁰ The supreme court rejected the wife's objection to personal jurisdiction and held that O.C.G.A. section 9-10-91⁴¹ ("Long Arm Statute") did not apply because personal jurisdiction was not required in a divorce case and that the trial court had both in rem jurisdiction over the property located in Georgia and jurisdiction over the marital res.⁴²

The dissents of Justices Sears and Fletcher vehemently attacked the majority position and contended that the Long Arm Statute itself requires personal jurisdiction in actions for divorce.⁴³ Further, the United States Supreme Court decisions in Shaffer v. Heitner⁴⁴ and International Shoe Co. v. Washington⁴⁵ require a minimum contacts analysis to ensure basic fairness to the defendant.⁴⁶ Both Justices found that the defendant wife had no minimum contacts with the state and that jurisdiction was improperly exercised.⁴⁷

In Riersgard v. Morton,⁴⁸ the trial court improperly exercised Long Arm Statute jurisdiction in domesticating a foreign divorce decree and attempting to enforce the child support provisions by contempt.⁴⁹ The Supreme Court of Georgia noted "the use of interstate communications" was insufficient to confer jurisdiction.⁵⁰

The parties were divorced in Virginia; the wife moved to Georgia, and the husband moved to Nevada. The wife brought suit in Georgia to domesticate the foreign divorce decree and have the husband found in contempt for nonpayment of child support. The husband was properly served in Nevada.⁵¹ The court rejected the wife's argument that the husband had purposely availed himself of the laws of Georgia by writing letters and speaking on the telephone with his children.⁵² The court said:

Jurisdiction cannot be conferred solely from the use of interstate communications because they are insufficient to rise to the level of "minimum contacts" necessary to confer jurisdiction. Holding otherwise would render state jurisdictional analysis moot, as every person who picks up the phone or a pen to communicate with a nonresident would subject themselves to the laws of the nonresident's state.⁵³

In Norowski v. Norowski,⁵⁴ the Supreme...