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

• Publication year: 2008

Domestic Relationsby Barry B. McGough^* and Elinor H. Hitt^**

This survey period¹ saw continued evolution of domestic relations law through changes in legislation and caselaw. Legislation passed by the 2007 Georgia General Assembly took effect during this survey period. The Georgia Supreme Court continued to accept nonfrivolous appeals in divorce cases that offer guidance to those interested in domestic relations law.

I. Accepting Benefits of a Final Judgment

In a plurality opinion,² the Georgia Supreme Court overturned prior caselaw by holding that even when a party accepts benefits under a final judgment and decree, there is still a right to appeal.³ In Grissom v. Grissom,⁴ the wife filed for divorce in May 2005, and a decree was entered in January 2006. The wife appealed the trial court's determination that certain assets were the husband's separate property. The husband argued that the wife waived any right to appeal when she accepted the benefits of the final judgment and decree, including a lump sum payment, an interest in real property, an income tax refund, and child support payments.⁵

The supreme court affirmed the wife's right to appeal and overruled earlier cases "to the extent that [they could] be read to hold that the acceptance of any benefit under a final judgment and decree of divorce results in an automatic waiver of the right to appeal any aspect of that judgment."⁶ The court favored an approach that looks to the specific circumstances of the case, including whether the nonappealing party disputes the appealing party's right to the benefits accepted.⁷

The dissent asserted that the plurality had overruled more than one hundred years of precedent which required that "one . . . who accepts a benefit conferred by a divorce decree[] cannot challenge the judgment in any respect unless and until those benefits have been returned."⁸ The dissent argued that adherence to the principle of stare decisis would mandate summary affirmance of the trial court's judgment because the wife clearly accepted and retained certain benefits from the divorce decree that she was now attempting to challenge.⁹

II. ATTORNEY FEES

Two significant cases were decided this year regarding attorney fees, one in the Georgia Court of Appeals and the other in the Georgia Supreme Court. In Cothran v. Mehosky,¹⁰ the former husband filed an action to set aside a finding of paternity in the divorce decree and to modify child support. He also obtained a court order requiring the former wife to submit to DNA testing. He then filed a contempt motion against the former wife after she refused to comply with the order. Prior to the contempt hearing, the parties entered into an agreement, leaving unresolved the issue of the former husband's request for attorney fees.¹¹ Pursuant to Official Code of Georgia Annotated (O.C.G.A.) Sec. 19-6-2 (a),¹² which authorizes attorney fees in "alimony, divorce and alimony, or contempt" proceedings, the trial court awarded $3,705 in attorney fees to the former husband and the wife appealed.¹³

The court of appeals stated that "although contempt proceedings arose when [the former wife] later failed to comply with the court's order for DNA testing, these proceedings did not arise out of the original divorce case, as required by OCGA Sec. 19-6-2, but arose instead out of the paternity and modification action."¹⁴ Therefore, the court held that the trial court lacked authority to award the former husband attorney fees for his counsel's work in preparation for the contempt hearing.¹⁵

The supreme court considered the propriety ofan attorney fees award in Padilla v. Padilla.¹⁶ After filing two previous divorce actions, each dismissed without prejudice, the wife filed an action for divorce in April 2006. A final order granting the divorce was entered on June 14, 2006, and among other matters, the order awarded the wife attorney fees. The award of attorney fees included fees paid to her current counsel, fees paid to an attorney who represented the wife in a prior divorce proceeding, and fees paid to an attorney who represented the wife in proceedings before the Internal Revenue Service (IRS) related to tax debt from the husband's business.¹⁷ The husband appealed, alleging that "the trial court lacked the necessary statutory basis to award the $7,200 in fees incurred in the separate proceedings."¹⁸

The wife argued that such an award of attorney fees was proper under O.C.G.A. Sec. 19-6-2(a), which "authorizes an award of attorney fees 'as a part of the expenses of litigation . . . [in an] action . . . for alimony, divorce and alimony, or contempt of court arising [therefrom].'"¹⁹ The supreme court reversed the award of attorney fees incurred in the litigation occurring prior to and separate from (though related to) the divorce action.²⁰ The court noted that "neither the plain language of OCGA Sec. 19-6-2(a), nor its purpose of ensuring the adequate representation of the respective needs of both spouses in a divorce, supports the inclusion of fees from separate litigation in a fee award under OCGA Sec. 19-6-2(a)."²¹

III. CHILD CUSTODY

The 2007 Georgia General Assembly made several changes pertaining to child custody that came into effect during this survey period. Section

19-9-1.1 of the O.C.G.A.²² was amended to allow "the parents of a child to agree to binding arbitration on the issue of child custody and matters relative to visitation, parenting time, and a parenting plan."²³

An amendment was also made to O.C.G.A. Sec. 19-9-3²⁴ to make clear that in cases between two parents in which the custody of a child is at issue, "[t]here shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent."²⁵ Further, the amendment to subsection (a)(2) ensures that determinations regarding custody of a child shall be made by a judge, not a jury.²⁶ Finally, subsection (a)(3) was amended to provide a list of relevant factors the judge hearing an issue of custody may consider in determining the best interests of the child.²⁷

IV. CHILD SUPPORT

Child support was the issue in cases brought before both the Georgia Supreme Court and the Georgia Court of Appeals during this survey period. The case considered by the court of appeals was initiated after the current Georgia Child Support Guidelines²⁸ became effective on January 1, 2007.²⁹ In Hamlin v. Ramey,³⁰ the father appealed a denial of a downward deviation in the presumptive amount of child support.³¹ The father's proportional share of parenting time was determined by the trial court to be 35.8% annually.³² The father argued that "because his share of the annual total parenting time [was] far more than the 'normal' amount of annual custodial time upon which the child support guidelines are based," he should have been awarded a downward deviation in the amount of support owed.³³

In its analysis, the court of appeals stated,

[T]he current child support guidelines are premised on a rebuttable presumption that each parent should contribute to the financial support of their child in the same proportion as that parent's income

relates to the sum of the parents' incomes, without regard to the amount of time the child spends with each parent.³⁴

A deviation from the presumptive amount is discretionary and is only allowed "when the child resides with both parents equally or when special circumstances exist and such a deviation serves the best interest of the child."³⁵ The court ofappeals held that the father failed to prove that the proportional amount of his parenting time constituted a special circumstance which made the presumptive amount of child support excessive and that the child's best interest would be served by a downward deviation.³⁶ Therefore, the father failed to show that the trial court abused its discretion in denying the parenting-time deviation.³⁷

In Scarborough v. Scarborough,³⁸ the Georgia Supreme Court reviewed a case regarding social security retirement benefits paid on behalf of a child as an offset to child support payments.³⁹ On May 4, 2001, the parties reached a settlement agreement obligating the husband to pay the wife child support of $1,000 per month. The agreement was incorporated into a final decree of divorce on October 15, 2001. On October 10, 2001, the husband turned sixty-five and began receiving social security retirement benefits. Simultaneously, the wife began receiving social security retirement benefits on behalf of the parties' minor children, and the husband ceased his child support payments.⁴⁰ "Neither the separation agreement nor the divorce decree addressed the receipt of future social security retirement benefits . . . ."⁴¹ On February 11, 2005, the wife filed a petition for contempt, alleging that the husband was in arrears in child support payments. The trial court ordered the husband to pay the accumulated arrearage, and he appealed.⁴²

The supreme court reversed the lower court, recognizing that a parent is generally entitled to a credit against his support obligation for social security disability payments paid for the benefit of the child and retirement benefits received on behalf of the child.⁴³ The wife argued that the social security benefits were intended to augment, not supplant, the child support obligation and cited Koch v. Martin⁴⁴ as authority.⁴⁵ In Koch the supreme court held,

[c]hild support obligations cannot be offset by pre-existing social security disability benefits paid for the benefit of dependent children where the non-custodial parent's disability . . . benefits were presently being paid on behalf of children at the time that the parties entered a settlement agreement and that agreement did not make any special provision regarding receipt of those disability payments.⁴⁶

In Koch the court assumed that because the social security benefits were being paid at the time the agreement was written and the noncustodial parent's child support obligation was...