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

• Publication year: 2001

Domestic Relations

[p]by Barry B. McGough^* and

Gregory R. Miller^**

[/p]

Of the domestic relations appellate cases decided during the survey period,¹ twenty-seven are digested here. The legislature enacted the Uniform Child Custody Jurisdiction Enforcement Act² to address the implementation and enforcement of child custody orders. The appellate courts similarly focused on issues involving children as well as a range of other domestic relations topics.

I. Divorce: Procedure

The supreme court addressed several issues concerning procedure in a divorce case. In Bonner v. Bonner,³ the supreme court held that the husband's signing of a settlement agreement did not waive his rights to service of process or objections to venue.⁴ The husband acknowledged service of the complaint; however, he was not served with a copy of the summons as required by section 9-11-4 of the Official Code of Georgia Annotated ("O.C.G.A.") of the Civil Practice Act.⁵ Even though the husband had entered into a settlement agreement, he moved to dismiss the wife's divorce action based on lack of service and improper venue.⁶

The trial court rejected the husband's motion to dismiss on both grounds, finding the failure to serve a summons harmless error because the husband filed an answer.⁷ "[S]ervice of a petition to which no [summons] is attached where [summons] had not been waived, as distinguished from the waiver of all further service, is not service of [summons] and would not give the court jurisdiction to render judgment therein."⁸ The acknowledgement of service did not contain a provision waiving service of the summons. The wife's failure to serve the husband with a copy of the summons, therefore, was fatal.⁹ The trial court's ruling that the entry of the settlement agreement was a waiver of the venue objection was also reversed.¹⁰ The husband's answer timely raised the venue objection.¹¹

The high court considered application of the long-arm statute in Strickland v. Strickland.¹² The parties married in Georgia in 1978 and moved to North Carolina where the husband was stationed with the United States Marines. The parties continued to list the husband's mother's address in Georgia as their official residence for income tax purposes for many years. When the parties purchased a residence in North Carolina in 1995, they changed their official state of residence to North Carolina. When the parties separated in 1999, the wife moved back to Georgia and the husband stayed in North Carolina until eventually moving to Wisconsin. The wife filed an action for separate maintenance that she later amended to include a claim for divorce. Thereafter, the husband was served in Wisconsin with both pleadings.¹³

The long-arm statute confers personal jurisdiction over a nonresident defendant in domestic relations cases where the nonresident defendant "maintains a matrimonial domicile in [Georgia] at the time of the commencement of th[e] action or, if the defendant resided in [Georgia] preceding the commencement of the action, whether cohabiting during that time or not."¹⁴ Because the husband never physically resided in Georgia during the marriage, the supreme court found the husband did not have the requisite minimum contacts¹⁵ necessary for Georgia courts to assume personal jurisdiction over him.¹⁶

In Lucas v. Lucas,¹⁷ the supreme court addressed the issue of notice of the final trial. The wife filed for divorce, and the husband acknowledged service but did not file responsive pleadings. While the case was pending, both parties continued to reside in the marital residence. Several months later, the police were called during an altercation between the parties, and the husband was taken into custody. The wife, with no notice to the husband or his counsel, obtained both a protective order and a final judgment in the divorce case. The husband's motion to set aside the divorce or to have a new trial based on lack of notice was denied by the trial court.¹⁸ The supreme court affirmed, holding the husband's failure to file defensive pleadings a waiver of any right to notice of the final trial.¹⁹ The majority distinguished the facts from Green v. Green,²⁰ in which the supreme court reversed a divorce decree obtained without notice to a pro se defendant.²¹ In Lucas Justice Carley, joined by Chief Justice Benham, wrote a concurring opinion stating that while the wife's counsel's failure to notify the husband's counsel was within the law, it "may have exceeded the bounds of professional and ethical conduct governing attorneys."²² Justice Hunstein, in her dissent, found the "lack of fundamental fairness at the heart of this case" demanded the trial court to set aside the judgment.²³

In Hussey v. Hussey,²⁴ the trial court considered the right to open and conclude closing arguments. The husband filed for divorce and sought an equitable division of the marital property. The wife filed a counterclaim seeking the additional relief of alimony and damages. Subsequent to the presentation of evidence at trial, the wife's counsel moved for a directed verdict on the issue of divorce, which was granted. The parties also came to an agreement on the property division, leaving only the issue of alimony to be decided by the jury. The wife's counsel's request to open and conclude closing arguments was denied by the trial court.

The jury awarded the wife damages but not alimony.²⁵ Because the wife had the burden of proof on her claim for alimony, the appellate court held she was entitled to open and conclude closing arguments to the jury.²⁶ Even though the husband claimed the wife was not entitled to alimony, "an attempt to negate a claim for alimony does not shift the burden of proof to the party contesting alimony."²⁷

II. Divorce: Evidence

The supreme court clarified some rules of evidence in its recent decisions. In Woodruff v. Woodruff²⁸ the court examined the Child Hearsay Statute,²⁹ which provides a hearsay exception for statements by a child concerning physical abuse. At trial the wife in Woodruff was allowed to use this hearsay exception over the husband's objections to introduce out of court statements by the parties' children concerning alleged abuse by the husband.³⁰ Although the Georgia Child Hearsay Statute provides an exception to the rule against hearsay, the supreme court held the exception does not apply unless the declarant is both available and competent to testify.³¹ In criminal cases, children claiming abuse are statutorily deemed to be competent;³² however, there is no such rule in civil cases.³³ Because there was no evidence that the Woodruffs' children were either available or competent to testify, the hearsay exceptions did not apply.³⁴

In McGinn v. McGinn,³⁵ the supreme court reversed the trial court's refusal to grant a motion to compel the discovery of evidence.³⁶ After the husband filed for divorce, the wife counterclaimed seeking custody, child support, alimony, and an equitable division of marital property. The wife sought discovery relating to a family trust in which the husband was one of the trustees and one of the beneficiaries. The trust was funded by stock in a private business owned by the husband's family.³⁷ The trial court ruled the corpus of the trust was not subject to the wife's claims, but the supreme court disagreed.³⁸ While the corpus was the husband's separate property and not subject to equitable division,³⁹ the husband's separate estate could be considered in determining the award of alimony and child support;⁴⁰ therefore, the wife should have been allowed to proceed with her requests for discovery.⁴¹

III. Child Custody: Divorce

The supreme court issued two decisions concerning the trial court's discretion in determining child custody. In Urquhart v. Urquhart,⁴² each parent sought custody of the parties' minor child. The court appointed a guardian ad litem who employed a custody evaluator. Both the guardian and the evaluator recommended the wife receive custody; however, the trial judge awarded custody to the husband. The trial court expressly rejected a joint custody arrangement because of the parties' inability to communicate and cooperate with each other.⁴³ The supreme court held there was evidence to support the trial court's decision, therefore the decision was affirmed.⁴⁴

The supreme court reached a different conclusion in Woodruff v. Woodruff⁴⁵ in which the mother alleged that the father sexually molested the children. Although an investigation ensued, the father was never charged with a crime. During the divorce case, the mother was unable to present any probative evidence⁴⁶ of abuse.⁴⁷ The trial court, however, decided the best interest of the children would be served by the children having no contact at all with the father.⁴⁸ "The express policy of this state is to allow visitation rights to divorced parents who have demonstrated the ability to act in their minor children's best interests . . . . Therefore, only in exceptional circumstances should the non- custodial parent be denied the right of access to his child."⁴⁹ Without any probative evidence of the alleged molestation, the trial court abused its discretion in denying visitation to the father.⁵⁰

IV. Child Custody: Nonparents

Custody cases brought by third parties (parties other than the biological parents) continue to be a contested issue in the courts. In Clark v. Wade,⁵¹ relatives of the children sought custody from the children's respective fathers. In each case the trial court held "the-best-interest-of-the-child" standard unconstitutional due to the fundamental rights of the parents and therefore awarded custody in each case to the father.⁵² The supreme court reversed both cases by interpreting the statute to require "clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent. Once this showing is made, the third party must then show that an award of custody to him or her will best promote...