Domestic Relations - Barry B. Mcgough and Elinor H. Hitt

• Publication year: 2010

Domestic Relations

by Barry B. McGough* and Elinor H. Hitt**

This survey period¹ saw continued evolution of domestic relations law through changes in legislation and case law.² Legislation passed in the 2009 Session of the Georgia General Assembly took effect during this survey period, and the Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, which provides guidance to those interested in domestic relations law.

I. Prenuptial Agreements

During this survey period, the supreme court clarified which prenuptial agreements are subject to section 19-3-63 of the Official Code of Georgia Annotated (O.C.G.A.).³ This statute provides in pertinent part that "[e]very marriage contract in writing, made in contemplation of marriage . . . must be attested by at least two witnesses."⁴ In Dove v. Dove,⁵ the supreme court determined that the trial court erred in finding a prenuptial agreement unenforceable because it was not attested by two witnesses.⁶ The trial court held that the agreement, which addressed issues of alimony, was made in contemplation of

* Partner in the firm of Warner, Mayoue, Bates & McGough, Atlanta, Georgia. University of California at Berkley (A.B., 1963; LL.B., 1966). Member, State Bar of Georgia.

** Associate in the firm of Warner, Mayoue, Bates & McGough, Atlanta, Georgia. University of Georgia (B.S.Ed., 1993; M.S.W., 1996); Georgia State University College of Law (J.D., 2007). Member, State Bar of Georgia.

1. This Survey chronicles developments in Georgia domestic relations law from June

1, 2009 to May 31, 2010.

2. For an analysis of Georgia domestic relations law during the prior survey period, see Barry B. McGough & Elinor H. Hitt, Domestic Relations, Annual Survey of Georgia Law, 61 MERCER L. REV. 117 (2009).

3. O.C.G.A. § 19-3-63 (2010).

4. Id.

5. 285 Ga. 647, 680 S.E.2d 839 (2009).

6. Id. at 647, 680 S.E.2d at 840.

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marriage and subject to the dual attestation requirement in O.C.G.A. § 19-3-63.⁷ On appeal, the supreme court held the trial court's determination was erroneous for two reasons.⁸ First, it is well settled that prenuptial agreements that address alimony issues "are made in contemplation of divorce, not marriage."⁹ Further, the definitive criteria articulated by the supreme court for lower courts to use in determining whether a prenuptial agreement made in contemplation of divorce is valid are as follows:

the party seeking enforcement bears the burden of proof to demonstrate that: (1) the antenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts; (2) the agreement is not unconscionable; and (3) taking into account all relevant facts and circumstances, including changes beyond the parties' contemplation when the agreement was executed, enforcement of the antenuptial agreement would be neither unfair nor unreasonable.¹⁰

Similarly, in Lawrence v. Lawrence,¹¹ the wife challenged the enforceability of the parties' prenuptial agreement because it was attested by only one witness.¹² The supreme court held that the agreement in issue, which addressed alimony and referred to the possibility of divorce, was a contract made in contemplation of divorce, not in contemplation of marriage.¹³ The court reasoned that a contract made in contemplation of divorce "is not subject to the dual attestation requirement of [O.C.G.A.] § 19-3-63."¹⁴

On the other hand, in Sullivan v. Sullivan,¹⁵ when faced with a prenuptial agreement that did not address divorce or alimony but did include language waiving each spouse's rights in the other's property either before or after marriage, the supreme court determined that the agreement was made in contemplation of marriage; therefore, the agreement was subject to O.C.G.A. § 19-3-63.¹⁶ However, the agreement in issue had only one witness and was rendered unenforceable

7. Id.

8. See id. at 647-51, 680 S.E.2d at 840-42.

9. Id. at 647, 680 S.E.2d at 840.

10. Id. at 650, 680 S.E.2d at 842 (quoting Blige v. Blige, 283 Ga. 65, 67, 656 S.E.2d 822, 824 (2008) (internal quotation marks omitted) (citing Scherer v. Scherer, 249 Ga. 635, 641, 292 S.E.2d 662, 666 (1982)).

11. 286 Ga. 309, 687 S.E.2d 421 (2009).

12. Id. at 311, 687 S.E.2d at 423.

13. Id. at 311-12, 687 S.E.2d at 423-24.

14. Id. at 312, 687 S.E.2d at 424.

15. 286 Ga. 53, 684 S.E.2d 861 (2009).

16. Id. at 53-54, 684 S.E.2d at 862.

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because an unattested marriage contract is not effective between the

signatories.¹⁷

In Lawrence the wife also challenged the enforceability of the prenuptial agreement on a second basis.¹⁸ The wife argued there was not complete disclosure of the husband's financial status as mandated by the first prong of the three-part test articulated in Scherer v. Scherer,¹"⁹ which requires that "(1) the antenuptial agreement was not the result of fraud, duress, mistake, misrepresentation, or nondisclosure of material facts."²⁰ It was undisputed that the wife never saw a financial statement or any formal documentation before signing the antenuptial agreement.²¹ The supreme court ultimately held that the wife had sufficient knowledge of the husband's business dealings and personal financial condition to support the trial court's ruling that there was full and fair disclosure prior to the execution of the agreement.²² However, the court noted "that attaching to the antenuptial agreement financial statements showing both parties' assets, liabilities, and income, while not necessary, 'is the most effective method of satisfying the statutory [disclosure] obligation in most circumstances,' thereby deterring protracted and expensive litigation if the antenuptial agreement is later invoked."²³

II. Pleadings

In Ellis v. Ellis,²⁴ the supreme court ruled against a woman who argued the lower court erred in conducting the final hearing in her divorce without her being present.²⁵ The husband filed for divorce in June 2008. At the time, the wife acknowledged service of the husband's complaint but was not represented by counsel and did not file any response. The wife later retained counsel who filed an entry of appearance but no responsive pleadings. The husband's attorney notified the wife's attorney of the final hearing date, which was continued, and depositions were set for February 2009. The wife's

17. Id. at 54, 684 S.E.2d at 862.

18. See Lawrence, 286 Ga. at 312-13, 687 S.E.2d at 424.

19. 249 Ga. 635, 292 S.E.2d 662 (1982).

20. Lawrence, 286 Ga. at 312, 687 S.E.2d at 424 (quoting Blige v. Blige, 283 Ga. 65, 67, 656 S.E.2d 822, 824 (2008)) (internal quotation marks omitted) (citing Scherer, 249 Ga. at

641, 292 S.E.2d at 666).

21. Id. at 313, 687 S.E.2d at 424.

22. Id. at 313-14, 687 S.E.2d at 425.

23. Id. at 313, 687 S.E.2d at 424 (alteration in original) (citations omitted) (quoting Blige v. Blige, 283 Ga. 65, 69 n.12, 656 S.E.2d 822, 826 n.12 (2008)).

24. 286 Ga. 625, 690 S.E.2d 155 (2010).

25. Id. at 625, 690 S.E.2d at 156.

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attorney later testified that the husband's attorney agreed to give him notice of the final hearing once it was scheduled by the court.²⁶

Prior to the depositions, a new attorney entered an appearance on behalf of the husband and "moved the trial court to enter a final judgment of divorce on the pleadings without holding an evidentiary hearing."²⁷ After the trial court granted the husband's motion, the wife filed a motion for new trial, relying on the supposed agreement made by the husband's first attorney to provide the wife notice of the date of any final hearing. The trial court denied the motion, finding that notwithstanding any outside agreement between the parties' counsel, the wife waived notice by failing to file a response.²⁸ The wife appealed.²⁹

Generally, "[w]hen a defendant in a divorce action fails to file defensive pleadings, the divorce is, by definition, uncontested. Failure to file defensive pleadings constitutes waiver of notice of the hearing on the final decree."³⁰ Further, O.C.G.A. § 9-11-5(a)³¹ provides that

the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment, and all service in the action, except service of pleadings asserting new or additional claims for relief.³²

The supreme court held that the wife waived any final hearing notice in this case and that the trial court did not err in denying the wife's motion for new trial.³³

III. Child Custody

In Mongerson v. Mongerson,³⁴ following entry of the final judgment and decree of divorce, the husband appealed the trial court's ruling in part, arguing the trial court abused its discretion in prohibiting him "from exposing the children to his homosexual partners and friends."³⁵ Public policy in Georgia encourages divorced parents to participate in

26. Id.

27. Id.

28. Id. at 625-26, 690 S.E.2d at 156-57.

29. See id. at 625, 690 S.E.2d at 156.

30. Id. at 626, 690 S.E.2d at 157 (alteration in original) (quoting Hardwick v. Hardwick, 245 Ga. 570, 571, 266 S.E.2d 184, 185 (1980)) (internal quotation marks omitted).

31. O.C.G.A. § 9-11-5(a) (2006 & Supp. 2010).

32. Id.; Ellis, 286 Ga. at 626, 690 S.E.2d at 157.

33. Ellis, 286 Ga. at 627, 690 S.E.2d at 157-58.

34. 285 Ga. 554, 678 S.E.2d 891 (2009).

35. Id. at 555, 678 S.E.2d at 894 (internal quotation marks omitted).

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the raising of their children.³⁶ At the same time, a trial court may, at its discretion, terminate the visitation rights ofa noncustodial parent in the presence of certain individuals if the evidence shows that exposure to the prohibited individuals would have an adverse affect on the children or that the children were exposed to inappropriate conduct involving the individuals specified.³⁷ In this case, the supreme court held there was no evidence in the record that any member of the gay and lesbian community "ha[d] engaged in...