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

• Publication year: 1999

Domestic Relationsby Barry B. McGough^* and

Gregory R. Miller^**

Of the domestic relations cases decided by the Georgia Supreme Court and the Georgia Court of Appeals during the survey period,¹ twenty-seven are digested here. Possibly the most notable events of the survey period were pieces of legislation that were not enacted. A bill to restore direct appeals for certain domestic relations cases did not make it to the Governor's desk, and the Governor vetoed a bill that would have required trial judges hearing custody cases to consider the custodial elections of children between the ages of twelve and fourteen.² While the Georgia General Assembly otherwise focused on ways to aid in enforcing child support judgments, the appellate courts addressed a variety of issues.

I. Divorce Procedure

The supreme court reviewed two cases in which one spouse sought to set aside the divorce decree obtained by the other. In Wright v. Wright,³ the supreme court held that the husband's motion to set aside the parties' divorce decree should have been granted.⁴ When the husband's attorney withdrew his representation, the order stated that further notices should be sent to the husband. When the trial court scheduled the final trial, the court did not mail the husband notice because of a clerical error. Two days before trial, the wife's counsel issued the husband a subpoena for the production of documents. Believing the wife provided inadequate notice, the husband did not respond to the subpoena. The trial court struck the husband's answer and demand for jury trial and entered a decree of divorce. Subsequently, the trial court denied the husband's motion to set aside the judgment.⁵ On discretionary appeal, the supreme court reversed, finding that the wife provided insufficient notice of the trial.⁶ The subpoena may have put the husband on notice that something was scheduled in the case; however, the husband was entitled to notice of the specific nature of the scheduled hearing.⁷

In Pierce v. Pierce,⁸ the supreme court again held that procedural errors warranted setting aside the parties' divorce decree.⁹ The husband obtained permission to serve the wife by publication, stating the wife's last known address was "General Delivery, Kansas." After obtaining the divorce, the husband mailed the decree to the former marital home in Missouri, and the postal service forwarded the decree to the wife's new address in Missouri. The wife moved to set aside the decree, alleging that the husband's petition contained material misrepresentations and that the husband knew the wife's phone number as well as the addresses and phone numbers of her lawyer and parents in Kansas.¹⁰ The supreme court held that a party must use due diligence to discover the opposing party's address and still be unable to locate that party before service by publication is warranted.¹¹ The issues raised by the wife's motion to set aside the divorce decree demonstrated the husband's lack of due diligence.¹²

In Shah v. Shah,¹³ the supreme court held that a party may not add independent tort claims against a third-party defendant in a divorce case.¹⁴ The wife added her father-in-law as a third-party defendant based on her allegations that the husband was fraudulently conveying marital assets to his father. Alleging fraud, the wife then added tort claims against her father-in-law. The jury returned a verdict in favor of the wife.¹⁵ While Georgia law expressly allows one spouse in a divorce case to join claims against the other spouse, the code is silent as to the joinder of claims against a third-party defendant, except when a fradulent conveyance claim is present.¹⁶ Absent statutory authorization, the supreme court held that the jury in the divorce case was not entitled to consider the tort claims against the father-in-law.¹⁷

II. Child Support

In Gruben v. Gittelman,¹⁸ the supreme court held that a trial court correctly refused to grant a motion to set aside a divorce decree based solely on an order of child support that was inconsistent with the Child Support Guidelines.¹⁹ A jury verdict obligated the father to pay $1250 per month as support for the parties' one child.²⁰ Although the Guidelines suggest that child support should be in the range of seventeen to twenty-three percent of the father's gross income,²¹ the jury verdict required that the father pay only eight percent of his gross income.²² The verdict found no special circumstances to justify deviating from the Guidelines. Seventeen months later, the wife filed a motion to set aside the divorce decree.²³ The court found that the wife failed to exercise due diligence by failing to object to the verdict when it was rendered.²⁴ Absent due diligence or a showing that the interests of the child were adversely affected by the amount of child support awarded, she was not entitled to have her motion granted.²⁵

In Bradley v. Bradley,²⁶ the supreme court held that a trial court lacked the authority to award the child dependency exemption to the noncustodial parent.²⁷ When the parties were unable to reach agreement on all the issues in their divorce case, they agreed to submit the remaining issues to the trial court. The trial court awarded the dependency exemption to the noncustodial parent and ordered a reduction in child support if the other parent successfully appealed the issue.²⁸ Relying on the rationale in Blanchard v. Blanchard,²⁹ the supreme court held that the trial court lacked the authority to award the dependency exemption to the noncustodial parent.³⁰ A contrary result would (1) provide the state with a taxation power reserved to the federal government, (2) prevent uniformity as contemplated by the federal statute, and (3) burden Georgia courts with case-by-case determinations.³¹ The court further held that the automatic reduction of child support was invalid because the reduction set child support outside the Child Support Guidelines without enumerating any special circumstances warranting the departure.³² The dissent found no merit in the majority's rationale and noted that most states have ruled in favor of allowing their courts to determine which parent receives the dependency exemption.³³

In Koch v. Martin,³⁴ the supreme court reversed the trial court's ruling that the father was entitled to offset dependent social security disability payments against his child support obligation.³⁵ Prior to the divorce, the father began receiving social security disability payments, and the parties' child began receiving dependent social security disability payments.³⁶ While previous Georgia cases allowed offsets of disability payments against child support obligations, none of them involved disability payments that began prior to the divorce.³⁷ Because the basis of the parties' child support award was the father's receipt of disability benefits and not the child's dependency benefits, the trial court erred in allowing the offset.³⁸

In Mooney v. Mooney,³⁹ the court of appeals held that a party could sustain an action for child support based on promissory estoppel.⁴⁰ The wife alleged that she agreed to become the guardian of her grandchild in exchange for her husband's promise to contribute to the support of the child. When the parties divorced, no provision was made for child support. The wife then filed an action seeking support based on the custody award. The trial court dismissed the action, holding that the husband could not be compelled, absent an agreement, to support his grandchild.⁴¹ The appellate court reversed, finding that the mother presented sufficient evidence to allow her case to proceed on the theory of promissory estoppel.⁴² According to the court, an obligation to pay child support can arise from '"parentage or contract.'"⁴³

III. Modification of Child Support

In Wingard v. Paris,⁴⁴the supreme court was asked to interpret the modification statute.⁴⁵ The supreme court held that the custodial parent need only show that either the noncustodial parent's income or the child's needs have increased to obtain a modification of child support.⁴⁶ The trial court found that the father's income had substantially increased but then erroneously denied the request for modification because the mother had not proven an increase in the child's needs.⁴⁷ The supreme court found that because modifications are permitted upon a showing of a '"change in the income and financial status of either former spouse or in the needs of the child,'" the trial court misapplied the statute by requiring the mother to show both a change in the father's income and the needs of the child.⁴⁸

The court of appeals also decided issues concerning the Full Faith & Credit for Child Support Orders Act ("FFCCSOA").⁴⁹ In Connell v. Woodward,⁵⁰ the court of appeals held that Georgia courts cannot modify Florida child support orders when one party continues to reside in Florida.⁵¹ While the father was in Georgia visiting the parties' child, the mother had the father served with a petition to domesticate the Florida child support judgment, a petition to modify child support, and a motion for contempt. When the father did not appear for the hearing, the mother received the relief she requested. The father then filed a motion to set aside, which the trial court denied.⁵² The appellate court agreed with the father that Florida retained continuing, exclusive jurisdiction under the FFCCSOA.⁵³ A state retains continuing, exclusive jurisdiction if the state remains the residence of the child or either parent.⁵⁴ Even though the father was served in Georgia, his permanent residence in Florida prevented Georgia from exercising jurisdiction over the child support issues.⁵⁵ The fact that the parties' child support order was entered prior to the enactment of the FFCCSOA was of no consequence.⁵⁶ The FFCCSOA applies to all child support modification actions initiated after its effective date, regardless of the date of the underlying order.⁵⁷

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