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

• Jurisdiction: Georgia,United States
• Publication year: 2007
• Citation: Vol. 59 No. 1

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

This survey period¹ saw domestic relations law continue to evolve through new legislation and new case law. The 2006 Georgia legislature made dramatic changes to the child support calculations that took effect in 2007. The 2007 Georgia legislature has turned its focus to child custody issues, including passing laws requiring parenting plans in custody, allowing attorney fee awards, and allowing for direct appeals in child custody cases. The Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases, and as a result, the appellate courts have been able to give guidance to those interested in domestic relations law.

I. Divorce: Procedure

The Georgia Supreme Court decided a variety of cases involving procedural issues in family law cases. In Hammack v. Hammack,² the supreme court affirmed the entry of a divorce decree prior to the expiration of forty-five days from the filing of the acknowledgment of service.³ The husband filed for divorce in January 2005. The wife signed an acknowledgment of service on March 17, 2005; however, the husband did not actually file the document until April 29, 2005. The wife served the husband with an answer on June 13, 2005, but the husband then informed the wife that the trial court had entered a decree on June 6, 2005.⁴ The trial court declined to set aside the decree under Georgia Uniform Superior Court Rule ("U.S.C.R.") 24.6 (B),⁵ finding that the decree was entered more than forty-six days after service was perfected.⁶

The supreme court determined that the Georgia Civil Practice Act⁷ allows for the entry of divorce decrees at any time more than thirty days after service is perfected.⁸ Where U.S.C.R. 24.6 (B) requires parties to wait until after forty-five days have lapsed in unanswered divorce cases,⁹ the rule conflicts with statutory law, and the statutes must govern.¹⁰

Certain defenses must be raised in the initial pleadings; however, reconciliation is not one of them.¹¹ When a divorce is sought on the grounds that the marriage is irretrievably broken, reconciliation is a defense to the pending action, but it is not a ground to have a decree set aside.¹² In McCoy v. McCoy,¹³ the parties resumed cohabitation and sexual relations while the trial court had taken the divorce case under advisement. During the period of cohabitation, the husband continued to request the trial court to enter a decree; however, the husband did not inform the trial court of the parties' cohabitation.¹⁴ The supreme court held that the failure to raise the defense prior to the entry of the judgment amounted to a waiver.¹⁵

In Howington v. Howington,¹⁶ the supreme court also held that a party's inaction constituted a waiver.¹⁷ The parties had been separated for six years when the wife filed for divorce in 1997 in DeKalb County, where she resided. Even though the husband resided in North Carolina, the wife served the complaint on the husband's adult son, a resident of Fulton County. When the husband did not respond to the complaint, the trial court entered a divorce decree, which awarded the wife fifty percent of the husband's pension benefits. Over six years later, the husband filed a motion to set aside the decree based on lack of service, which the trial court granted in December 2004. Despite the decree being set aside, the wife continued to receive one-half of the husband's pension benefits. The husband filed a counterclaim, and the trial court conducted a new trial. At the trial, the husband requested the court to order the wife to pay him back for the pension payments she had received since the original divorce decree was set aside. Although the husband's counterclaim did not contain his request, the wife allowed the issue to be litigated at trial without objection.¹⁸ Therefore, the supreme court held that the wife waived her right to complain.¹⁹ "'When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.'"²⁰

II. Alimony

The Georgia Supreme Court considered the propriety of an alimony award in Rieffel v. Rieffel.²¹ In Rieffel the husband challenged the trial court's award of alimony as excessive.²² Unlike with child support,²³ there are no mathematical guidelines to control the amount of alimony awarded to a spouse.²⁴ Georgia law does, however, provide a list of factors that the finder of fact "shall" consider in determining the amount of alimony.²⁵ In making its alimony award to Mrs. Rieffel, the trial court specifically referenced several of these factors, including the duration of their twenty-seven year marriage, the wife's absence from the workforce to raise the parties' six children, and the difficulty the wife will have in reentering the labor force after such a lengthy absence.²⁶ Where the record shows that the trial court had evidence of the parties' financial position and the required factors in Official Code of Georgia Annotated ("O.C.G.A.") section 19-6-5,²⁷ the appellate court will not disturb the wide discretion given to the finder of fact.²⁸

III. CHILD CUSTODY

The Georgia Supreme Court accepted two appeals in which each of the fathers alleged that the trial court erred in awarding the mother physical custody of the parties' children in lieu of joint custody.²⁹ In Cook v. Cook,³⁰ the trial court was presented with evidence that showed both parties to be fit parents.³¹ Trial courts are authorized to award joint physical or joint legal custody.³² Georgia appellate courts have held that when both parties are fit and equally capable of caring for the child, it is error not to consider joint custody as an option.³³ A trial court, however, is not required to order joint physical custody.³⁴ The record showed that the trial court did consider joint custody; however, the trial court determined that joint physical custody was not in the child's best interests due to the parties' lack of communication.³⁵ The supreme court "will not interfere with the decision of the trial court to award custody of a child to one fit and proper parent over another, unless the trial court abused its broad discretion."³⁶ The supreme court reached an identical holding in Jones v. Smith,³⁷ where the court awarded the mother physical custody.³⁸ The father's appeal did not include a trial transcript; therefore, the appellate court was required to presume that the evidence supported the trial court's decision.³⁹

IV. Child Custody: Non-Parents

Cases between parents and non-parents continued to reach the appellate courts. Under O.C.G.A. section 19-7-1(b.1),⁴⁰ the court may award custody to a close relative⁴¹ of the children if clear and convincing evidence shows that parental custody would harm the children physically or emotionally and that custody by the non-parent would promote the children's health, welfare, and happiness.⁴² The statute, however, does not include a step-parent as a relative.⁴³

In Veal v. Veal,⁴⁴ the husband and wife married the month after the wife gave birth to another man's child. Although the husband signed the child's birth certificate and treated the child as his own, the husband did not formally adopt the child. When the husband and wife divorced, the decree was silent with respect to the child born before the parties' marriage. The husband successfully moved to set aside the decree for failing to address the custody of the child.⁴⁵ The supreme court reversed, holding that the husband's failure to adopt the child left him without standing to seek custody of the child.⁴⁶ Because the husband was not the child's biological parent, the legitimation statute⁴⁷ could not provide any relief to the husband.⁴⁸

In Georgia, courts may grant visitation only to grandparents.⁴⁹ The grant of visitation to grandparents is conditioned on a finding that (1) the health or welfare of the child would be harmed unless the court grants such visitation and (2) such visitation would serve the best interests of the child.⁵⁰ In Luke v. Luke,⁵¹ the court of appeals held that the paternal grandfather's testimony alone sufficed to show that the children would be harmed if he were not granted visitation rights.⁵²

V. CHILD CUSTODY: MODIFICATION

Both the appellate courts and the legislature have contributed to development of the law pertaining to child custody modifications. In Upchurch v. Smith,⁵³ the Georgia Supreme Court considered a venue case of first impression.⁵⁴ The parties were divorced in Fulton County, where the court awarded the parties joint legal and physical custody of the parties' minor children with the mother designated as the primary physical custodian. The father filed a complaint to modify custody in Cobb County, where the mother had relocated; however, the trial court denied the petition. The mother later relocated to California, and the father filed a new complaint to modify custody in Fulton County. The case was transferred to Cobb County, where the new complaint was denied.⁵⁵ The supreme court affirmed the change of venue.⁵⁶ Even though the trial court in Cobb County declined to modify the Fulton County decree, the supreme court held that the Cobb County court had rendered a decision on the merits in conformity with the Uniform Child Custody Jurisdiction and Enforcement Act.⁵⁷ Therefore, Cobb County retained continuing exclusive jurisdiction.⁵⁸

In Moses v. King,⁵⁹ the supreme court held that parties seeking a custody modification must not only show a change of conditions, but they must also show a change of conditions substantially affecting the interests and welfare of the children involved.⁶⁰ The father brought his action wherein he made various allegations against the mother; however, the trial court based its modification solely on the mother's current cohabitation in a meretricious relationship with another woman and the mother's several previous relationships with women who were...