Domestic Relations - Barry B. Mcgough and Gregory R. Miller
| Publication year | 2006 |
Domestic Relationsby Barry B. McGough* and Gregory R. Miller**
This survey period1 saw continued changes to domestic relations law in Georgia. The Georgia General Assembly completed its sweeping revisions of the child support guidelines. The electorate passed an amendment to the Georgia Constitution defining "marriage." The Georgia Supreme Court extended its 2003 pilot project for the third year, agreeing to accept all "non-frivolous" applications filed in divorce and alimony cases during the 2006 calendar year.2 As a result, all persons interested in domestic relations law have benefited from many more substantive decisions from the appellate courts.
I. Divorce: Procedure
While a trial court is not authorized to grant a default judgment in a divorce case, the trial court is vested with wide latitude to oversee its docket and enforce its orders. In Bayless v. Bayless,3 the husband failed to appear at a rule nisi hearing he had requested and failed to comply with two separate discovery orders. The husband also failed to personally appear at a mediation session as ordered by the trial court. When the husband failed to appear at the final trial, the trial court rejected the motion for continuance made by his counsel and dismissed the husband's counterclaim. The trial court allowed the husband's counsel to make arguments and cross-examine the wife's witnesses; however, the husband's counsel was not permitted to offer witnesses on the husband's behalf.4 The supreme court acknowledged that Uniform Superior Court Rule 10.45 neither requires a party to appear at trial nor authorizes the trial court to punish a party who does not appear.6 Nevertheless, the supreme court noted that the trial court does have statutory authority to "compel obedience to its orders and to control the conduct of everyone connected with a judicial proceeding before that court."7
Looking at the husband's conduct as a whole rather than the husband's single act of failing to appear for trial, the supreme court held that the trial court was within its discretion to strike the husband's answer and counterclaim.8 As a result, the trial court acted properly in barring the husband's presentation of witnesses while allowing the husband's attorney to participate in all other aspects of the trial.9
II. Alimony
The supreme court addressed a variety of issues involving the payment of alimony. In Benton v. Benton,10 the court addressed whether a party was estopped from requesting alimony.11 During the litigation, the wife filed a Chapter 7 bankruptcy proceeding. When the wife filed her bankruptcy action, she included a "Statement of Financial Affairs," which included the divorce action as litigation to which she was a party.12 On another required document, the wife was asked if there was any "[a]limony, maintenance, support, and property settlements to which [she] is or may be entitled."13 The wife responded, "None."14
After the wife's debts were discharged, the husband filed a motion for partial summary judgment based on the application of the doctrine of federal judicial estoppel. This doctrine is most commonly used to bar debtors from pursuing claims that were not disclosed during the bankruptcy. The husband argued that because the wife failed to disclose to the bankruptcy court that she was seeking alimony and property division in the divorce action, she should be barred from doing so after the bankruptcy discharge.15
In response to the husband's motion for partial summary judgment, the wife filed a motion to reopen the bankruptcy action to allow her to amend the bankruptcy schedule in dispute. The bankruptcy court granted the motion, and the wife amended her bankruptcy documents.16
Generally, judicial estoppel is inapplicable when a plaintiff has successfully amended his or her bankruptcy petition to include any claim against the defendant as a potential asset because then it cannot be said that the position in the trial court is inconsistent with the position asserted by the plaintiff in the bankruptcy proceeding . . . .17
The supreme court, however, held that additional factors existed that supported the trial court's refusal to apply federal judicial estoppel.18 First, the wife did disclose the existence of the pending divorce action in her petition.19 Second, there was no evidence that the wife derived any actual benefit from the alleged nondisclosure.20 Finally, the application of federal judicial estoppel to divorce cases should be met with hesita-tion.21 The court reasoned that a spouse's right to financial support and a division of the marital estate should not be discarded lightly.22
In Farrish v. Farrish,23 the supreme court addressed the propriety of the amount of a spousal support award.24 Unlike awards of child support,25 the Official Code of Georgia Annotated ("O.C.G.A.") provides no guidelines regulating the amount of alimony awards.26 In Farrish the court ordered the husband to pay the wife $2000 per month as alimony and $3000 per month as child support for the parties' five children.27 The husband's gross income was $10,374 per month.
While Georgia does not have statutory "alimony guidelines," Georgia law does provide a list of factors that may be considered by the trier of fact in determining whether to award alimony and how much to award.28 In this case, the trial court properly considered "[t]he condition of the parties, including the . . . earning capacity . . . of the parties."29 The court noted that the wife was unemployed and would need training to obtain any job that paid more than minimum wage.30 The court determined that the trial court was also within its discretion to consider the husband's resources beyond his income.31 For example, during the parties' separation, the husband took $55,000 in marital assets without accounting for the appropriated assets.32 The trial court was also authorized to consider the husband's conduct during the marriage, including his amassing debt and paying the expenses of his paramour and her family.33 Consequently, the supreme court concluded that there was no abuse of the wide discretion vested in the trial court to determine the amount of alimony.34
The supreme court decided two cases concerning the award of alimony from one spouse's separate property. In Smelser v. Smelser,35 the trial court determined that the marital home was the husband's separate property; however, the trial court awarded as alimony to the wife exclusive use of the home until she remarried or until the youngest child reached age twenty. The trial court further ordered the husband to pay the mortgage, taxes, insurance, and fifty percent of all repairs over $200. The trial court also allowed the wife to sell the residence at any time and receive fifty percent of the net proceeds from the sale.36 "[A]limony may be awarded either from the [H]usband's earnings or from the corpus of his estate, as by granting to the [W]ife the title or use of property in the possession of the [H]usband."37 Therefore, the supreme court confirmed that the trial court did not err in making the alimony award.38
Similarly, in Searcy v. Searcy,39 the supreme court affirmed the wife's right to seek an alimony award from the husband's interest in his deceased parents' unprobated estates.40 The supreme court, however, held that the wife was not entitled to join the co-executors of the estates as parties.41 The property controlled by the co-executors was not marital property,42 and there was no evidence that either the husband or the executors had acted in a manner to defraud the wife.43
In Findley v. Findley,44 the supreme court considered the issue of when a spouse's alimony obligation terminates.45 Absent an expressed intent otherwise, alimony automatically terminates upon the death of the payor.46 When the parties divorced in 1975, the husband agreed to pay $500 per month in alimony to the wife until she died or remarried, whichever occurred first. The agreement did not expressly state the parties' intent should the husband predecease the wife. The husband died in 2004, and his estate refused to continue making the alimony payments. The wife sued the husband's estate, and the trial court dismissed the action.47
At the time of the parties' divorce, the prevailing case law was Ramsay v. Sims.48 In Ramsay the Georgia Supreme Court held that language similar to that contained in the Findley's agreement was sufficient to express an intent that alimony was to continue beyond the husband's death.49 The alimony terminated only upon those conditions specifically set forth in the agreement.50 In Dolvin v. Dolvin,51 a 1981 case, the supreme court overruled Ramsay, holding that agreements stating that alimony terminated on the death or remarriage of the recipient were insufficient to create an obligation on the payor's estate.52
Case law is typically applied retroactively.53 However, Georgia appellate courts will not apply a decision retroactively (1) where the decision is intended only to be applied prospectively, (2) where the retroactive application would cause substantial inequities, or (3) where the retroactive application would unjustly impact parties that justifiably relied on the prior case law.54 In applying the test to the facts of this case, the supreme court first noted that the decision in Dolvin did not expressly address prospective application; however, the court applied its own decision retroactively.55 Additionally, while the wife would be injured by the retroactive application, the injury would not be the type of "'substantial inequitable results'" contemplated by the test.56 Furthermore, the potential class that would be adversely impacted by retroactive application would be small.57 As a result, the supreme court affirmed the trial court's dismissal of the wife's action.58
Some courts have eliminated the need to have alimony extend beyond the death of the payor by requiring life insurance as part of the alimony...
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