NUTS AND BOLTS OF
FAMILY LAW
Program Materials 2012
CO-SPONSORS:
Family Law Section, State Bar of Georgia
Institute of Continuing Legal Education in Georgia
Copyright © 2012 by the Institute of Continuing Legal Education in Georgia. All
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Legal Education in Georgia, its officers or employees.
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Printed by
Institute of Continuing Legal Education in Georgia • P.O. Box 1885 • Athens, Georgia 30603-1885
Publication No.
128025
iii
FOREWORD
The Institute is especially grateful to our outstanding Seminar Chairperson, Rebecca L.
Crumrine for providing the necessary leadership, organization and supervision that has
brought this program into a reality. Indeed a debt of gratitude is particularly due our
articulate and knowledgeable faculty without whose untiring efforts and dedication in
the preparation of papers and in appearing on the program as speakers, this program
would not have been possible. Their names are listed on the program at page iv of this
book and their contributions to the success of this seminar are immeasurable.
I would be remiss if I did not extend a special thanks to each of you who are attending
this seminar and for whom the program was planned. All of us hope your attendance
will be most beneficial as well as enjoyable. Your comments and suggestions are always
welcome.
September, 2012
Lawrence F. Jones
Executive Director
Institute of Continuing Legal
Education in Georgia
iv
PROGRAM
Presiding:
Rebecca L. Crumrine, Program Chair, Hedgepeth, Heredia, Crumrine & Morrison,
LLC, Atlanta
7:45
REGISTRATION AND
CONTINENTAL BREAKFAST
(All attendees must check in upon arrival.
A jacket or sweater is recommended.)
8:25
8:30
12:15
WELCOME AND
PROGRAM OVERVIEW
Rebecca L. Crumrine
HOW A FINANCIAL VALUATOR
HELPS YOUR CASE
Ansley L. Callaway, CPA, Callaway Geer,
LLC, Atlanta
Wayne A. Morrison, Hedgepeth, Heredia,
Crumrine & Morrison, Atlanta
12:45
HOW TO PUT YOUR CASE UP WHEN
TIME IS SHORT
Randall M. Kessler, Kessler & Solomiany
LLC, Atlanta
MANAGING THE CLIENT
EXPECTATIONS
Elizabeth Green Lindsey, Davis Matthews &
Quigley, P.C., Atlanta
1:15
JUVENILE CODE
Hon. Stephen E. Franzen, Judge, Juvenile
Court, Gwinnett Judicial Circuit,
Lawrenceville
Hannibal F. Heredia, Hedgepeth, Heredia,
Crumrine & Morrison LLC, Atlanta
1:45
BREAK
2:00
ETHICS AND PROFESSIONALISM
JUDGES PANEL
Moderator: Barry B. McGough, Warner,
Bates, McGough & McGinnis, Atlanta
Panelists:
Hon. Arch W. McGarity, Judge, Superior
Court, Flint Judicial Circuit, McDonough
Hon. Adele P. Grubbs, Judge, Superior
Court, Cobb Judicial Circuit, Marietta
Hon. Christopher C. Edwards, Judge,
Superior Court, Griffin Judicial Circuit,
Fayetteville
Hon. Courtney L. Johnson, Judge, Superior
Court, Stone Mountain Judicial Circuit,
Decatur
3:00
CASE LAW UPDATE
Denise M. Warner, Staff Attorney, Superior
Court of DeKalb County, Decatur
Melody P. Bray, Staff Attorney, Superior
Court of DeKalb County, Decatur
3:30
ADJOURN
9:00
FACEBOOK, TWITTER, EMAILS, OH
MY! AND HOW TO GET INTO
EVIDENCE
Melinda C. “Mindy” Pillow, Davis,
Matthews & Quigley, P.C., Atlanta
9:30
HOW TO PREPARE YOUR CASE FOR
AN ATTORNEY FEE AWARD
Leigh F. Cummings, Warner, Bates,
McGough & McGinnis, Atlanta
10:00
BREAK
10:15
JURISDICTION AND VENUE ISSUES
Regina I. Edwards, Edwards & Associates,
Family Law Attorneys, Atlanta
10:45
CHILD CUSTODY AND THE USE OF
GUARDIANS
Kyla S. Lines, Packman Richardson LLC,
Atlanta
11:15
HOW TO LITIGATE CHILD SUPPORT
Kathleen “Katie” B. Connell, Boyd Collar
Nolen & Tuggle LLC, Atlanta
11:45
LUNCH (Included in registration fee)
v
Table of Contents
Page
Chapter
Foreword ....................................................................................................................................iii
Program Schedule .....................................................................................................................iv
Effective Advocacy When Time Is Short........................................................................... 1–20
Randall M. Kessler
Facebook, Twitter, Emails…Oh My!
Introducing Emails and Social Media Into Evidence........................................................ 1–9
Melinda Cole Pillow
01
02
Top Ten Ways to Position a Case to Obtain an Award of Attorney’s Fees ................... 1–17
Edward J. Coleman, III and Leigh F. Cummings
03
Jurisdiction and Venue: A Practical Approach ................................................................ 1–18
Regina I. Edwards and Margaret Simpson
04
Child Custody and the Use of Guardians ........................................................................ 1–12
Kyla S. Lines
05
How To Litigate Child Support.......................................................................................... 1–47
Katie B. Connell and John T. Gunn
06
Working With a Forensic Accountant/Business Valuator.............................................. 1–24
Wayne Morrison and Ansley Callaway
07
A Lawyer’s Duties and Responsibilities to Others ......................................................... 1–27
Wayne Morrison
7A
Trusted Advisor: Guidelines for Managing Client Expectations ................................... 1–8
Elizabeth Green Lindsey
08
Family Law Issues in Georgia’s Juvenile Courts ............................................................... 1–7
Stephen Franzen and Hannibal F. Heredia
09
Family Law
Case Law Update ................................................................................................................. 1–32
Denise M. Warner and Melody P. Bray
Appendix:
The Institute of Continuing Legal Education in Georgia ..................................................... 1
ICLE Information ...................................................................................................................... 4
Errata Sheet ................................................................................................................................. 5
10
NUTS AND BOLTS OF FAMILY LAW
EFFECTIVE ADVOCACY WHEN TIME IS SHORT
Randall M. Kessler
Kessler & Solomiany, LLC
Atlanta, Georgia
Chapter 1
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EFFECTIVE ADVOCACY WHEN TIME IS SHORT
Randall M. Kessler, Esq.
Kessler & Solomiany, LLC
101 Marietta Street, Suite 3500
Atlanta, Georgia 30303
www.ksfamilylaw.com
[email protected]
TABLE OF CONTENTS
Introduction ...……………………………………………………………………………………………………….1
Temporary Hearing Basics ………….……………………………………………………………................2
What the Client Thinks Is Important Is Not Determinative ……………………………………....3
Outlines, Bullet Points, Videos and Photographs ..…………………………………………………….3
The “Rule of Five (5)” …………………………………………………………………………………………….4
Body Language ……………………………………………………………………………………………………...5
Charts and Diagrams ……………………………………………………………………………………………..6
Don’t Become Angry ………………………………………………………………………………………………6
Again, Emphasize “Telling the Court What We Want” ……………….……………………………..7
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“EFFECTIVE ADVOCACY WHEN TIME IS SHORT”
Randall M. Kessler1
Think of your case as a funnel. The client comes into your office for the initial
consultation and from that moment until the final trial (or settlement) you will be
accumulating, acquiring and deciphering multiple facts. When the ultimate resolution
arrives, it will be based upon your succinct, thoughtful and impactful presentation of the
most pertinent, relevant or poignant facts. In other words, after spending hundreds of
hours learning about your client’s situation, the result may rest upon your ability to
convey what is most important to the fact finder in 1/100th of that amount of time. If
for example you have 2-3 hours to make your presentation, but have been involved in
the case and spent 300 hours learning the facts, you then have only a fraction of the
time to present your case.
Attorneys are often unable to succinctly convey the relevant facts of a case
because they become too emotionally invested in the client/outcome. I believe this is
especially true for domestic attorneys. In fact, keeping an objective eye on your case is
probably one of the hardest (but most important) characteristics to have in this field.
Without an objective eye on the important/relevant facts of your case, you will not be
able to effectively advocate for your client. Remember, the judge knows little or nothing
about your case and will draw his/her first impression based on your ability succinctly
to tell him/her “what you want” and “why you want it.”
1
Randall M. Kessler, is the founding partner of the Atlanta family law firm Kessler & Solomiany, LLC
(www.ksfamilylaw.com). Mr. Kessler was the Chair of the Family Law Section of the ABA (2011-2012), Chair of the Family
Law Section of the State Bar of Georgia (2011-2012) and he teaches family law at the John Marshall Law School in Atlanta. Mr.
Kessler served as Chair of the Atlanta Bar Association’s Family Law Section in 1997. He is also the Co-Editor of the Family
Law Review for the State Bar of Georgia. He has over 20 years of experience in Domestic Relations and Family Law matters
including divorce, custody and child support. Mr. Kessler graduated from Brandeis University in 1985 and received his law
degree from Emory University in 1988.
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Temporary Hearing Basics
Since temporary hearings are very different from ordinary civil proceedings, it is
important to remember that different rules apply. The following is a short list of
practice pointers to keep in mind when preparing for a temporary hearing:
•
The purpose of a temporary hearing is to establish initial financial support,
e.g. temporary child support, alimony, and/or attorney’s fees. Thus, the
merits of the case are not at issue. See O.C.G.A. § 19-6-3.
•
During the hearing, each side may only present oral testimony of the party
and one witness. Any additional witnesses may testify via deposition or
affidavit. See Uniform Superior Court Rule 24.5(A).
•
Witness affidavits must be served upon the opposing party/counsel no less
than twenty-four (24) hours prior to the hearing. Id.
•
If the temporary hearing involves alimony and/or child support, each side
must present a Domestic Relations Financial Affidavit to the court. See
Uniform Superior Court Rule 24.2.
•
The rules of evidence are relaxed during temporary hearings, e.g. the court
may admit hearsay. See Gray v. Gray, 226 Ga. 767, 768, 117 S.E.2d 575
(1970). Remember, however, that hearsay has no probative value.
Keeping these basic rules in mind will allow you to be better prepared and help
you narrow your focus to the relevant issues that the court will be concerned with at the
temporary hearing.
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What the Client Thinks Is Important Is Not Determinative
You cannot be “client-driven.” Many clients are able to put their finger right on
the pulse of the case. However, clients often want to focus on issues that may not
bother, concern, or affect the trial judge. Since many attorneys are solo practitioners,
they often lack the time and resources to “bounce” ideas off of others. This is why an
attorney must attempt to look at the case objectively as if he/she is the judge. Strive for
objectivity and find a mentor or respected peer to be your sounding board. Doing so will
help you step back from the day-to-day grind of the case and look at the “big picture.”
Outlines, Bullet Points, Videos and Photographs
Judges love demonstrative aids because they are easy to understand and they
break up the monotony of endless talking from attorneys. Think about it, if all you did
all day was listen to people talk wouldn’t it be nice to see a chart or diagram once in a
while? You can triple that effect by having color, videos or photographs to help pique
the judge’s curiosity and attention. More importantly, it will magnify the effect of what
you also show it. We perceive geometrically by seeing and by listening. Thus explains
the popularity of the video industry.
But remember that when it comes to visual aids, “less is more.” If you look at the
best magazines or websites, you will often notice empty white space. When there is not
much on a page you pay more attention to what is actually on it. For instance, think
about a website or magazine you have seen where there is a lot of text. You may lose
interest or may not have the energy to read the entire article. However, if you open a
magazine or website and the only word on the page is “Coke” of “Google” that will make
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a mental impression on you. The same is true when you are presenting your case to a
judge—pick out your strongest points/facts and make them quickly.
The “Rule of Five (5)”
While five (5) does not have to be the magic number, it is good to try and narrow
the points you want to make to a certain number (3, 4, 5, 6 or 7 if you have to). As an
exercise, try writing what you think are the five (5) most important facts in any case. If
you can explain your case in five (5) sentences, you will have become a better lawyer.
Consider the following five points as an outline of a case where I am seeking a
significant financial settlement for the wife:
1. 1990-parties married.
2. Two boys, ages 9 and 12.
3. Husband is orthodontist; Wife is a homemaker.
4. Marital estate is $700,000.00 dollars.
5. Wife seeks $5,000.00 per month in temporary support.
Whether you agree or disagree with the amount requested, you now understand
the facts of the case and why we are seeking temporary support. If you are looking at
this as the judge, hopefully your next question is, “Okay, why should I award that
amount?” You have taken away the question of “what” should I do and turned it into
“why” should I do it. That leaves the balance of your argument and case open for you to
argue for the result you are seeking, instead of arguing the facts under the assumption
that the judge will end up with the right conclusion. Stated differently, the key to an
effective argument does not simply consist of presenting your five (5) important
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points/facts in the hope that the judge will understand your end goal—you must also tell
the Court what result you wish to achieve.
Body Language
What judge is going to take you seriously if you ask for relief, but you look down
at the ground, shrug your shoulders or seemingly acknowledge that you are asking for
too much? I once had a client who rejected my advice and said he wanted to make a
very low offer. An associate at my firm said he would make the offer but the client
indicated he did not like the associate’s body language and was therefore concerned
about how the offer would be conveyed. We discussed that the client was refusing our
advice and reassured him that we would make the offer with the utmost confidence and
he was ultimately satisfied. However, it was a learning experience for me and my
associate in that body language is important to whomever you are speaking. When you
are in an initial consult, your body language will be perceived by your potential client.
When you are at mediation, your body language will be perceived by the mediator, your
client and the opposing side. But most importantly, when you are in court your body
language will be perceived by the judge or jury.
We advocate with not just our voice, but with our attitude and everything we
bring into the courtroom. If you do not believe your client is entitled to something, then
neither will the judge. Of course, you must use your best efforts to give your client a
“reality check” so your argument will be believable and credible to the Court. If you
consistently seek much more than you know is reasonable, sooner or later the Court will
discount your arguments and simply look to the other side as to what should be done.
But in any event, let the Court know what you want and why you want it.
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The following method helped me back before there were computers and
PowerPoint programs, but similar techniques can be used with digital technology. At
the beginning of every jury trial I would pull out two (2) poster boards. One would say
“What Do We Want” and the other would say “Why We Want It” and of course, we
would list what we wanted and why we wanted it. After all, those are the two most
important questions, right? If you can explain both of those in five bullet points, you are
on your way.
After those five points are conveyed to a judge or jury, even if they have their
doubts, they will have an understanding of what we were seeking and why we are
seeking it. From there, it is simply a matter of presenting a legitimate argument in a
concise and easy to understand fashion.
Charts and Diagrams
Not all cases are simple and straightforward, but that does not mean you need to
add more bullet points. Rather, develop charts, graphs and diagrams that you can
present to the Court when each of the topics arises. For example, if stock options are a
complicated issue in your case, create a graph or chart of when they were granted, when
they vested, what the strike price is, etc., and have those to give to the Court to study.
Not all judges will understand it the first time you present it and they may need to see it
on a piece of paper or on a board and think about it during the testimony.
Don’t Become Angry
Many of our clients want us to be angry on their behalf, but think about it–when
you hear two people arguing and one is louder than the other, who do you side with?
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Usually you side with the nicer side, right? Similarly, it is common for Courts to want to
help the non-aggressive/less angry. If you can rise above the fray and keep a level head,
the Court will usually look to you for direction. Judges want to make decisions and
move on to the next case. If you can give a calm, rational explanation of what should
happen, the Court will likely use your words as a starting point as opposed to your
opponent’s. An angry party does not benefit from an angry lawyer.
Again, Emphasize “Telling the Court What We Want”
From the moment you step into the Courtroom and begin to speak, the judge has
one question in his/her mind, “What do you want?” As set forth earlier, you must give
the Court a succinct answer to that question. Doing so will help focus the judge’s
attention. Relevant facts are of little significance to the judge if he/she does not know
why they are being presented.
Consider the following analogy: When someone begins to tell a joke, you know
there will be a punch line, so you pay attention. The end result is a laugh (hopefully). A
divorce case is similar except that a judge never knows if you are seeking alimony,
assets, debt division or something else. Therefore, until they know what you are looking
for (the “punch line”), it will be hard for them to pay attention and apply the facts you
give them for their analysis. Only after you tell them what you want can they begin to
draw the mental map of an Order.
Perhaps the most important reason to prepare a bullet point list, chart or an
outline is to keep you organized and to make a good impression on your client. If you
are organized enough to prepare a bullet point outline of what you want, then you have
thought about your case and that is what your client is paying you to do. Clients do not
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pay us to come into Court to “wing it”. They pay us to think about their case, analyze it
and present it in a reasonable, orderly, and persuasive fashion and you taking the extra
steps will be appreciated. Having a chart will also indicate to the Court that you simply
did not pick up the file, run it to Court and then “play it by ear.” You thought about the
case, weeded out irrelevant facts, and tried to hand the judge the situation on a silver
platter. The more you do this, the more likely the Court will be to simply turn to you
and say, “Why don’t you tell me what you want and why you want it?” And finally,
always bring a proposed order for the judge to review. This should be presented by
paper and submitted electronically for the judge’s review.
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“EFFECTIVE ADVOCACY
WHEN TIME IS SHORT”
Randall M. Kessler, Esq.
Kessler & Solomiany, LLC
Atlanta, Georgia
www.ksfamilylaw.com
Chair, ABA Family Law Section
Chair, GA Bar Family Law Section
Professor of Family Law
Preparation for Temporary Hearing
• 
• 
• 
• 
• 
• 
• 
• 
Practice direct exam (with client)
Financial affidavit should be ready (multiple copies).
Ensure client can defend numbers.
Copies of pay stubs.
Child support worksheets.
Proposed Temporary Order(s).
Review with client beforehand.
Witness Affidavits:
–  Have a list of Affidavits.
–  Identify each witness.
–  See example on next page.….
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Rule of Five
1. 
2. 
3. 
4. 
5. 
Most cases can be summarized by 5 key facts.
If limited on time, stick to these 5 main facts.
Hammer these 5 facts home.
Use PowerPoint, overhead or piece of paper.
Present company excluded, some judges have...
Short attention spans.
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Example
1.  Parties married 22 years – 3 children, all grown.
2.  Husband earns $23,000.00 per month; wife unemployed.
3.  Estate is $1.1 million ($600k cash & $500k in house).
4.  Wife seeks house, ½ cash, $8,000.00/month
5.  Leaves husband with $300k in case & $15,000.00/month.
2nd Example
1. 
34-year marriage.
2. 
Children grown.
3. 
Wife has terminal cancer (life expectancy 6 years)
4. 
Husband takes home $18k/month net.
5. 
Wife seeks half of the $18k/month
(will probably only be for 6 years due to illness)
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Example for Husband in this case…
1.  20 year marriage, 2 young boys.
2.  Been living together 20 years.
3.  Father fears parental alienation if kicked out.
4.  Can’t afford two homes at this time.
5.  Minimize disruption for the children.
Example for Wife in this case…
1.  Wife faithful for 20 years, raised the kids.
2.  Husband is orthodontist; Wife is homemaker.
3.  Husband creates tension in the home. He should move.
4.  Marital estate is $700,000.00-he can afford to rent.
5.  $5,000.00/mo. in temporary support is warranted.
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And create a theme
What do these movies have in common?
•  Star Wars
•  Rocky
•  The Godfather
•  To Kill a Mockingbird
•  The War of the Roses
Each created a strong image/theme
(which we all remember and recognize)
• 
• 
• 
• 
• 
Star Wars
Rocky
The Godfather
To Kill a Mockingbird
The War of Roses
Good vs. Evil.
Perseverance.
Family Loyalty.
Courage and Integrity.
Vengeance.
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Have a Theme Supported By the Facts
A few examples:
“Do the right thing” (if your client always does).
“What goes around comes around”.
“Death of a thousand cuts”.
“Mea Culpa” or “He asks forgiveness”.
“Enough is enough”.
“Everybody’s out of step except Gomer”.
“Themes” for this case?
•  Wife:
•  What was the theme of the case for her?
•  “TENSION HURTS KIDS”.
•  Children need stability.
•  Mother = stability.
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Theme for Father?
•  What was the theme of the case for Father?
•  “RESOURCES ARE LIMITED”
•  Stability = keeping family together.
Using Timelines
•  An excellent way to open.
–  Allows you to organize, present, and provide an
overview of the case to the court.
•  Put it on a PowerPoint or overhead if possible.
•  Hand a printout of the timeline to judge.
•  If objected to, you can say “Judge, this is going
to be my opening, I’m just putting it up so you
can follow along”.
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Sample Timeline From a Complicated Case
• 
• 
• 
• 
• 
• 
• 
• 
• 
1971
Parties divorce.
1971 -1986 Ex-Husband timely pays alimony (15 years).
1986
Ex-Wife tells him to stop paying alimony.
1986
Ex-Husband stops paying alimony.
1986 - 2004 No communication (18 years).
2004
She asks for alimony to resume.
2004
He pays for a few months.
2005
He is in wreck at age 79, stops paying.
2007:
She files Contempt case,
Wants alimony from 1986.
We just covered 36 years in 25 seconds.
One-Liners Can Win A Case
•  “Sir, you promised never to hit your wife
again, right?”
•  “Yes”
•  “And two weeks later, what did you do?”
•  “I hit her again”
•  The one liner is: “I hit her again”
•  That quote will remain in the judge’s mind.
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Look at this “One liner”
Mother moved to another county.
Father sued in the new county to get custody:
Q (By Mr. Kessler) And are your concerns, has she gotten a
little bit better, a little bit worse, or about the same? [what was
the “change”]
A No, sir. In Cherokee County there would be no chance of
me getting custody. It's the Fulton County Family Court that
would make a difference. In Cherokee County I'd have to
prove that she's shooting a line in herself right in front of him
to get custody basically.
Or how about this “One Liner”?
“I was only arrested because
you called the police.”
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Good Client Reminders for Temporary Hearings
• 
• 
• 
• 
• 
• 
• 
• 
• 
Suggest the client watch another case.
Confirm date and time the day before.
Tell them to be EARLY.
Prepare them to take the stand and face their spouse.
Explain that both attorneys will ask questions.
Tell them they may explain their answers.
Tell them to dress up. This may be first time in court.
They should always keep their attitude in check.
Remind them the judge is always observing them.
Recap - When time is short:
-Prepare.
-Make 5 points.
-Use timelines.
-Create a “Theme”.
-Prepare the client.
And remember the
most famous
paternity case…..
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Questions/Comments?
•  Other suggestions on how to shorten a case?
•  Or how to get the judge’s attention quickly?
•  How many of you bring proposed Orders?
–  Consider it.
–  Makes it easier for the judge to conclude case.
–  Makes you look prepared.
–  Makes your client pleased.
–  How will you feel if other side has one, and you don’t?
Final Thoughts
Remember, enjoy what you do.
Life’s too short.
Be honest.
The court will remember those who exaggerate.
And you will sleep better at night.
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Thank you for your time.
Randall M. Kessler, Esq.
Kessler & Solomiany, LLC
Atlanta, Georgia
www.ksfamilylaw.com
Chair, ABA Family Law Section
Chair, GA Bar Family Law Section
Professor of Family Law
12
NUTS AND BOLTS OF FAMILY LAW
FACEBOOK, TWITTER, EMAILS…OH MY!
INTRODUCING EMAILS AND SOCIAL MEDIA INTO EVIDENCE
Melinda Cole Pillow
Davis, Matthews & Quigley, P.C.
Atlanta, Georgia
Chapter 2
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FACEBOOK, TWITTER, EMAILS ... OH MY!
INTRODUCING EMAILS AND SOCIAL MEDIA INTO EVIDENCE
Melinda Cole Pillow
Davis, Matthews & Quigley, P.C.
Atlanta, Georgia
TABLE OF CONTENTS
Introduction
1
General Evidentiary Standards
1
Gathering Electronic Evidence - In Brief
2
Discovery
2
Google
3
Subpoenas
4
Authentication and Best Evidence Rule
4
Hearsay
6
Recent Case Law
7
Conclusion
8
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FACEBOOK, TWITTER & E-MAILS, OH MY!
INTRODUCING EMAILS AND SOCIAL MEDIA INTO EVIDENCE
MELINDA C. PILLOW, ESQ.
Davis, Matthews & Quigley, P.C.
3400 Peachtree Road, N.E., Suite 1400
Atlanta, Georgia 30326
Introduction
Facebook and Twitter and E-Mails, oh my! Paraphrasing the memorable words
of Dorothy from the Wizard of Oz, dealing with the new world of social media and
electronic evidence can raise the stress level of a practitioner when the time comes to
gather and utilize evidence from electronic sources including emails and social media.1
The rapid proliferation of social networks, including but not limited to Twitter, YouTube
and Facebook, is raising evidentiary issues that have not been regularly addressed in the
Georgia courts and can be intimidating to practitioners who do not regularly consult the
rules of evidence. This paper is intended to review the basic evidentiary rules at issue
and provide a survey of recent case law concerning electronic evidence from other
jurisdictions.
General Evidence Standards
Instead of being overwhelmed by these unfamiliar sources of electronic evidence,
one must remember that the legal standards that the movant of electronic evidence
must meet in order to admit such evidence are the same as with any other piece of
documentary evidence that one seeks to have admitted at trial. The following four
prongs must be met:
There is a vast body of evidentiary material that is “electronic,” but for the purposes of this paper, emails
and social media documents, posts, tweets, retweets, status updates, etc. will be referred to as "electronic
evidence.”
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1.
Is the evidence relevant?
2.
Is the evidence more probative than prejudicial?
3.
Is the evidence authentic?
4.
Is the evidence hearsay? If so, does it fail under an exclusion or exception
to the hearsay rule?
If the movant can successfully satisfy these four (4) burdens, the tweet from
Twitter, the post from Facebook or YouTube or an email should be admitted into
evidence.
Gathering Electronic Evidence - In Brief
Discovery
The easiest and most economical method by which to gather electronic evidence
is through the use of discovery. A well-crafted discovery request for production of
documents or an interrogatory can provide a wealth of information about an opposing
party's use of email and social media. Typical discovery topics concerning electronic
evidence should include: 1.) a list of the opposing party's Facebook friends or Twitter
followers; 2.) a list of people on Twitter that the other party is following; 3.) all Facebook
activity for the past two (2) years including messages, status updates, links to videos and
photographs, calendars of past and future events, Wall postings, and rejected Friend
requests; 4.) a copy of the opposing party's public Facebook activity; 5.) a copy of the
opposing party's private Facebook activity including messages; 6.) a list of all
usernames, handles, and email addresses that the party currently uses or has used in the
past five (5) years; and 7.) a list of account names for YouTube and other social media
sites. Please note that a discovery request seeking information about Facebook in
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particular should include the following directive to the opposing party: "[a]s a Facebook
user, you can 'Download Your Information' through the 'Account Settings' drop down
menu on your user home page." This tool allows users to download the entire content of
his or her account including all archived material. This tool effectively eliminates an
opposing party's ability to attempt to manipulate the portions of his or her Facebook
page that he or she chooses to produce in discovery.
Google
Attorneys should always conduct a Google search regarding the opposing party or
any key witnesses. People are not always as savvy as they should be with utilizing the
privacy settings on Facebook, and an attorney can frequently learn a great deal from the
public portions of a Facebook page by simply engaging in a Google search. This is also
critically important in light of several recent cases ruling on a party's objections to a
discovery request seeking production of the private portions of his or her Facebook
page. These cases show that a key factor is whether or not there is public activity that
can allow the Court to conclude that private, restricted portions of the party's social
media page may contain relevant, and possibly admissible information.2
See Trail v. Lesko, NO. GD-10-17249, Court of Common Please of Allegheny County,
Pennsylvania, July 3, 2012. The Court was considering competing motions regarding
the parties’ attempts to gain access to the other's Facebook pages during discovery. The
case provides a good summary of decisions in Pennsylvania and other jurisdictions
compelling Facebook information. In dicta, the court noted that Pennsylvania courts
"have considered discovery requests for Facebook information appear to follow a
consistent train of reasoning ... a threshold showing of relevance prior to discovery of
any kind, and ... required a party ... to articulate facts that suggest relevant information
may be contained within the non-public portions of the profile."
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Subpoenas
Subpoenas to Facebook and Twitter as well as to other internet service providers
can be costly and fail to produce results. Such subpoenas have led to a an interesting
body of case law. Service providers including Facebook have advanced the position that
the federal Stored Communications Act ("SCA") prohibits service providers from
disclosing the contents of electronic communications held in electronic storage or
carried or maintained on a remote computing service to any private person. l8 U.S.C. §
2702(a)(l), (2). While there are eight limited exceptions to this prohibition, there does
not appear to be an exception to allow the service providers to respond to subpoenas
issued on behalf of private parties seeking content related communications. See 18
U.S.C. § 2702(b)(l)-(8). It is interesting to note that Facebook, at a minimum, appears
to have taken the position that the SCA absolutely prohibits service providers from
disclosing user content pursuant to subpoenas issued on behalf of private parties. The
SCA only applies to service providers and does not apply to individuals, so take issue if
an opposing party attempts to object to the production of information in discovery
under the guise of protection of the SCA.
Authentication and Best Evidence
According to the newly enacted O.C.G.A. § 24-9-901,
"[t]he requirement of
authentication or identification as a condition precedent to admissibility shall be
satisfied by evidence sufficient to support a finding that the matter in question is what
its proponent claims." The statute contains a number of examples but not limitations of
the methods by which evidence can be authenticated. In the context of electronic
evidence, a practitioner will likely need to look to O.C.G.A. § 24-9-901(b)(1), and plan to
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introduce "testimony of a witness with knowledge that a matter is what it is claimed to
be." The most frequent way to introduce an email or Facebook or Twitter post is
through a printed copy of the material with a witness who has personal knowledge of the
email, page or post that the attorney seeks to admit. Using a Facebook post as an
example, the practitioner would need to have a witness testify to the following
information:
•
Identify this document.
•
What is the date on this post?
•
Whose Facebook page is this?
•
How do you know that the opposing party posted this?
•
Are you familiar with the opposing party s profile picture?
•
Is this or was this the opposing party s profile picture for Facebook?
•
When did you see this post?
•
On what device did you view the post?
•
Did you print this?
•
Is this document a fair and accurate representation of the post you viewed?
After the document has been authenticated, the Facebook post may be entered
into evidence.
The exercise in admitting each document is the same for email. A witness must
establish familiarity with the email, including knowledge that the sender uses the email
address from which the email originated. The practitioner needs to recall that a witness
may not appear as a recipient of an email but may authenticate the email if he or she
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was included as a blind carbon copy recipient or reviewed the email before it was sent or
after it was received.
The practitioner should also consider using Requests for Admission in order to
establish the authentication of any key electronic evidence during the discovery process;
this can be a valuable tool and can avoid any surprises at trial if a witness denies sending
an email or making a post.
The practitioner also must be aware of the Best Evidence Rule. The newly
enacted O.C.G.A. §§ 24-10-1001, et.al allows the use of duplicates of all writings, photos
and videos as well as telephone recordation. However, if the opposing party raises fact
specific reasons why a duplicate may not be allowed, then the court may require
production of the original.
Hearsay
In addition to providing the authenticity of electronic evidence, the evidence
must also satisfy the hearsay rule.
The newly enacted O.C.G.A. § 24-8-801, et.al
provides the Hearsay Rule as well as the hearsay exclusions and exemptions. First, it is
critical to recall that under the rules of evidence, any evidence not offered to prove the
truth of the matter asserted is not hearsay by its very definition. Jennings v. State, 285
Ga. App. 774, 648, SC 2d 105 (2007), cert. denied, 2007 Ga. Lexus 667, Ga. 207.
There are two exclusions to the hearsay rule found in O.C.G.A. § 24-8-801(d)(1)
and (2): prior inconsistent statement and admission of a party opponent. Admission of
a party opponent is probably the cleanest method to overcome a hearsay objection to
electronic evidence. If the evidence is a Facebook post, a tweet made by the opposing
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party, or an item posted on another social media website, the practitioner needs to
simply establish that the opposing party did, indeed, author or post the evidence.
In addition, O.C.G.A. § 24-8-803 contains a number of exceptions to hearsay.
The three exceptions that are most likely to be used in the electronic evidence context
are: present sense impression, an excited utterance, and then existing mental,
emotional, or physical condition. In order to overcome an objection based on hearsay, a
practitioner needs to be prepared to respond with arguments based on one or more of
the exceptions. If the event and the post are not too remote in time of occurrence, an
objection to hearsay can likely be defeated with an exception based on excited utterance.
Recent Rulings Regarding the Use of Social Media
Recent rulings have included the following:
•
The Kentucky Court of Appeals upheld the grant of custody to a father in
part due to Facebook photo in which Mother was tagged drinking alcohol
after she had been warned by her psychiatrists that she could not drink
alcohol on her medication. Lalonde v. Lalonde, unpublished, No. 2009CA-002279-MR, (Ky. Ct. App. February 25, 2011);
•
In a case which involved domestic violence, the husband exchanged
threatening messages with another member of the wife's family through
MySpace. The family member testified that the printed copies of the
message accurately depicted the electronic conversation with husband and
that she printed the messages directly from her MySpace page. The trial
court, upheld by the appellate court, concluded that because the family
member was able to authenticate the documents as having been printed
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from her computer, they were admissible. Dockery v. Dockery, 2009
Tenn. App. LEXIS 717 (Tenn. App. Oct. 29, 2009)
•
One of Defendant's Facebook friends shared the Defendant's Facebook
posts about illegal drug activity with the police who then used the
information to obtain a search warrant for the contents of Defendant's
Facebook page. The Court held that there was no illegal search and seizure
as any expectation of privacy for the Defendant was destroyed when
Defendant made posts that were visible to his friends. United States of
America v. Joshua Meregildo, et. al. 11 Cr. 576 (WHP), Memorandum &
Order, August 10, 2012.
•
A "like" on Facebook is not protected free speech. Bland v. Roberts, 411cv45 (E.D. Va.; Apr. 24, 2012).
•
A party cannot properly effectuate service through Facebook. Fortunato v.
Chase Bank USA N.A., No. 11 Civ. 6608, Memorandum Opinion & Order
(June 7, 2012).
•
The admission of Facebook photos showing the Defendant "drinking and
partying" in a workers compensation case was not an abuse of discretion
due to the broad scope of evidence that the Workers' Compensation
Commission was allowed to consider. Clement v. Johnson's Warehouse
Showroom, Inc., et al., 2012 Ark.App 17 (January 4, 2012).
Conclusion
This area of evidentiary law is rapidly developing due to the expansion of social
media as well as email in daily lives. The changes to the Georgia evidence code on
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January 1, 2013 should ease some of the burden in admitting electronic evidence;
however, it is critical to start planning early in a case in order to ensure that all of the
electronic evidence will be admissible through authentication and the use of hearsay
exclusions and exceptions.
9
NUTS AND BOLTS OF FAMILY LAW
TOP TEN WAYS TO POSITION A CASE TO
OBTAIN AN AWARD OF ATTORNEY’S FEES
Edward J. Coleman, III
Surrett & Coleman, P.A.
Augusta, Georgia
Leigh F. Cummings
Warner, Bates & McGough & McGinnis
Atlanta, Georgia
Chapter 3
i
Table of Contents
Top Ten Ways to Position a Case to Obtain an Award of Attorney’s
Fees1
1. Keep detailed billing records..……………………………………………………………. 1
2. Keep an excellent paper trail…………………………………………………………..…. 3
3. Present detailed billing records to opposing counsel and the court...…….4
4. Maintain an “Attorney’s Fees” file………………………………………………………5
5. Follow the statute applicable to the fee request at issue……………………….6
6. Do not overreach...……………………………………………………………………………13
7. Present a detailed argument for fees….………………………………………………14
8. Review and revise bills before sending them each month..………………….15
9. Know your judge..…………………………………………………………………………….16
10. Know what types of cases are appropriate for a request for fees..………….17
Special thanks to Rebecca L. Crumrine, Esquire, with whom portions of this
material were co-authored.
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Although an attorney can never guarantee a client that he will receive an award of
attorney’s fees from the Court, there are several steps an attorney can take to position
his case as successfully as possible to do so. The attorney should take the first actions in
preparing a case for an award of attorney’s fees long before the argument for attorney’s
fees begins. The preeminent attorney will begin preparing his case for an attorney’s fees
award from the initial client interview and will continue his efforts until he presents his
argument for attorney’s fees.
To manage client expectations, throughout the litigation the attorney should advise
the client about available arguments for attorney’s fees and strengths and weaknesses of
each, but let the client know not to rely on an award of attorney’s fees. The client should
understand that she is paying attorney’s fees that may never be recouped and make
decisions concerning the litigation with that understanding.
1. Keep detailed billing records.
The attorney who keeps careful records of his time as work is performed each
day is more likely to obtain an award of attorney’s fees than an attorney who
keeps general records and/or who attempts to re-create time at the end of the
week or (even worse) the end of the month. For example, it is much more
persuasive for a time entry on a billing statement to read, “Extended
telephone call to client to address various client questions concerning
financial and custody matters, including but not limited to client’s discovery
that Husband removed all funds from the joint checking account, creating a
financial affidavit, obtaining financial records from third parties, Husband’s
refusal to return children, and Husband’s drug use in front of children” as
opposed to “Telephone call to client”. A detailed time entry is even more
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important for time entries for significant lengths of time, inasmuch as it is
likely that entries for longer periods of time will be scrutinized more closely by
the Court and opposing counsel. Trying to re-create a detailed time record at
the end of the day, week or month is tremendously difficult and stress
inducing.
Not only is keeping a detailed record of time as the work is performed
easier for the attorney, but presenting a detailed billing record is a
prerequisite for an award of attorney’s fees. The Court needs to understand
how the attorney has spent his time. And, the time must be justifiable.
For example, a party seeking an award of attorney’s fees pursuant to
O.C.G.A. §19-6-2 must introduce evidence of the time expended on the case,
hourly rates of counsel or some other evidence of the value of services
provided and/or those that will need to be provided. Webb v. Watkins, 283
Ga. App 385, 386 (2007).
Additionally, the opinion testimony of a party’s
present counsel and/or another attorney should be introduced to support the
amount of reasonable attorney’s fees in a certain case. A party’s testimony as
to these matters will not be sufficient. Patton v. Turnage, 260 Ga. App 744,
748 (2003).
However, a Court is not bound by the attorney’s opinion
evidence of the fees he or she believes are reasonable in a given case, and the
Court is entitled make an award in its discretion based upon its own legal
experience. Sweat v. Sweat, 123 Ga. 801, 801 (1905).
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Additionally, if a court has no billing records showing how the attorney’s
time was spent, it cannot properly assess reasonableness of attorney’s fees. Lurry
v. McCants, 302 Ga. App 184, 189 (2010). In McCants, the Court of Appeals
stated that:
McCants made a generalized proffer of evidence concerning the
amount of attorney fees she had incurred prior to the date of the
hearing, but the proffer lacked billing records or other evidence
showing precisely how her attorney's time had been spent. Without
such, the evidence was insufficient to determine whether the
attorney fees were reasonable.
When a party seeking attorney fees has failed to present an
essential element of proof, but the trial court nevertheless awarded
attorney fees, we have consistently reversed or vacated that portion
of the judgment awarding the attorney fees and remanded the case
to the trial court to hold an evidentiary hearing to allow the party,
if possible, to cure the matter. Id.
The attorney should also strongly encourage any expert witnesses working
on the case to keep detailed billing records for the reasons described above.
2. Keep an excellent paper trail.
Many attorneys pride themselves on having stellar recall of facts and the most
minute details of a case. However, the careful attorney will document disputes
concerning issues that unnecessarily increase attorney’s fees in correspondence
to opposing counsel. It is understandable for an attorney to feel as though she
will remember all significant details of a dispute with opposing counsel that has
necessitated the expenditure of significant time and may have resulted in a great
amount of tension during the litigation. However, many domestic cases can take
a long period of time to complete - even those that should resolve quickly. No
matter
how
long
the
case
lingers,
there
are
other
cases
occurring
contemporaneously. These types of communications not only serve as reminders
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for legal argument but also serve to keep the record straight in case opposing
counsel disputes that the issue occurred. Attaching these communications to a
motion for attorney’s fees or an attorney’s fees brief may also prove persuasive to
the Court considering an award of attorney’s fees.
Many attorneys are in the habit of sending written offers of compromise to
opposing counsel. Unfortunately, many attorneys wait until the very end of the
case to extend offers. If an attorney is able to send an offer or multiple offers
throughout the litigation before the attorney’s fees reach their peak, he should
encourage his client to do so. Sending offer letters early and often allows the
Court to see what (hopefully) reasonable positions the client maintained as
attorney’s fees and expenses of litigation are amassed.
3. Present detailed billing records to opposing counsel and the court.
An attorney should present his detailed billing statement to the Court in
support of his request for attorney’s fees no later than the hearing on attorney’s
fees and expenses of litigation or accompanying a letter brief in support of a
request for attorney’s fees. The detailed billing records should be accompanied
by an Affidavit in Support of Attorney’s Fees, which sets forth the following
information:
a) the attorney’s position;
b) the attorney’s length of time in practice;
c) the attorney’s practice concentration;
d) the attorney’s hourly rate;
e) how the attorney’s hourly rate compares with other attorneys in the
geographical area with similar expertise and experience;
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f) a certification that all work performed by the attorney and employees of
the firm were reasonable and necessary; and
g) the total amount of attorney’s fees and costs incurred by the client to
the firm.
Without presenting the billing records to the Court, the Court will not be
able to assess if the fees incurred by the client are reasonable. Opposing counsel
should also have the opportunity to review the billing statement (redacted for
privilege if necessary).
4. Maintain an “Attorney’s Fees” File.
As a case progresses an attorney should maintain a file specifically labeled
“Attorney’s Fees”, so that she can add documents relevant to the claim for
attorney’s fees. It may be tempting to include only those documents and/or
correspondence created by opposing counsel or an opposing party that caused
unnecessarily increased attorney’s fees and expenses of litigation. However, an
attorney’s fees request is stronger if an attorney includes documents reflecting
actions that she took (or offered to take) to reduce attorney’s fees and expenses of
litigation. Moreover, despite the aforementioned stellar recall many attorneys
possess, maintaining an attorney’s fees file as a case advances avoids the
potentially unpleasant experience of gathering supporting documentation for an
attorney’s fees claim from scratch at the end of a case. Odds are improved that an
argument for attorney’s fees that contains numerous examples of why attorney’s
fees were unnecessarily incurred and has supporting documentation for each
example will be more successful.
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5. Follow the Statute Applicable to the Fee Request at Issue.
It is imperative that an attorney follows the specific statute that he will rely
upon for a request for attorney’s fees.
It is well settled that an award for
attorney’s fees is not available unless supported by statute or contract.
Fort v.
Rucker-Fort. 297 Ga. App. 3, 5 (2009). It is also best practice, if not imperative,
that an attorney cites the statute under which he seeks fees in a motion and any
order awarding fees, as further outlined below.
a. O.C.G.A. §19-6-2. Attorney's fees; considerations; grant to be a
final judgment; action to enforce
(a) The grant of attorney's fees as a part of the expenses of litigation, made
at any time during the pendency of the litigation, whether the action is for
alimony, divorce and alimony, or contempt of court arising out of either an
alimony case or a divorce and alimony case, including but not limited to
contempt of court orders involving property division, child custody, and
child visitation rights, shall be:
(1) Within the sound discretion of the court, except that the court
shall consider the financial circumstances of both parties as a part
of its determination of the amount of attorney's fees, if any, to be
allowed against either party; and
(2) A final judgment as to the amount granted, whether the grant is
in full or on account, which may be enforced by attachment for
contempt of court or by writ of fieri facias, whether the parties
subsequently reconcile or not.
(b) Nothing contained in this Code section shall be construed to mean that
attorney's fees shall not be awarded at both the temporary hearing and the
final hearing.
(c) An attorney may bring an action in his own name to enforce a grant of
attorney's fees made to him pursuant to this Code section.
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O.C.G.A. §19-6-2 applies only to cases involving alimony, divorce and
alimony, or contempt of Court arising out of alimony or divorce and alimony
cases, which have issues, including but not limited to those of property
division, child custody and child visitation.
If requesting attorney’s fees in a contempt action, pursuant to O.C.G.A.
§19-6-2, the threshold question is if the proceeding “arises out of the original
alimony and divorce case.” Cothran vs. Mehosky, 286 Ga. App. 640, 642
(2007). In Cothran the trial court did not have the authority to award fees
under O.C.G.A. §19-6-2, even though the husband filed a contempt
application following the parties’ divorce, because the Court found that the
husband’s main cause of action was his request to set aside paternity, which
was established during the divorce, and to modify child support for the child
in question. The Court found that the “proceedings did not arise out of the
original alimony and divorce case, which had been finalized between the
parties approximately eight-and-one-half years earlier, but was for
modification of the original divorce decree and, therefore, outside the
parameters of statute.” Id. at 642.
Additionally, if attorney’s fees are requested pursuant to O.C.G.A. §19-6-2
in a contempt action, a finding of contempt must be authorized to receive a
proper award of attorney’s fees. McGahee v. Rogers, 280 Ga. 750, 754 (2006).
However, the trial Court in Berman v. Berman properly made an award of
attorney’s fees in a contempt hearing for fees associated with a prior contempt
hearing when no contempt was found. 232 Ga. 342, 342 (1974). The Court
found that the award was proper, because subsequent to the initial application
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for contempt by the wife, certain of her contentions were moot by the time of
the final adjudication of contempt. Id.
A party must make a request for attorney’s fees pursuant to
O.C.G.A. §19-6-2 prior to the conclusion of the divorce trial on all remaining
issues. Brochin v. Brochin 277 Ga. 66, 67 (2003); Blanchet v. Blanchet, 251
Ga. 379, 380 (1983). The Supreme Court in Blanchet stated that, “once such a
request [for fees] is made, the issue of attorney fees is preserved, without
further reservation by the trial judge or additional application by the parties,
for decision by the trial court.” 251 Ga. 379, 380.
When making a request for attorney’s fees pursuant to O.C.G.A. §19-6-2, a
lawyer should specifically cite the statute under which he or she is making the
request. However, failure to do so is not necessarily fatal. Gomes v. Gomes,
278 Ga. 568, 569 (2004). In Gomes, the Supreme Court found that the wife
had shown her intention to seek attorney’s fees pursuant to O.C.G.A. §19-6-2
in her motion and supporting materials, and; therefore her failure to
specifically cite the statute did not make the award of attorney’s fees to her
improper. Id.
When drafting an order addressing attorney’s fees pursuant to
O.C.G.A. §19-6-2, an attorney should cite O.C.G.A. §19-6-2. If the order does
not do so, the order will likely be deemed legally insufficient and subject to
remand. Reese v. Grant, 277 Ga. 799, 799 (2004); Moon v. Moon, 277 Ga.
375, 379 (2003); Cason v. Cason, 281 Ga. 296, 300 (2006). But, see Mixon v.
Mixon, where the Supreme Court found that the trial Court’s failure to
specifically cite O.C.G.A. §19-6-2 did not require remand where the language
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used in the order was consistent with O.C.G.A. §19-6-2, neither party filed
motion for attorney’s fees based on O.C.G.A. §9-15-14 and there was no sign
that the court had decided on its own accord to award fees based on O.C.G.A.
§9-15-14, 278 Ga. 446, 446 (2004).
b. O.C.G.A. §19-6-19 (d).
(d) In proceedings for the modification of alimony for the support
of a spouse pursuant to the provisions of this Code section, the
court may award attorneys' fees, costs, and expenses of litigation to
the prevailing party as the interests of justice may require.
O.C.G.A. §19-6-19 (d) is applicable only to alimony modification actions
and provides that an award of attorney’s fees may be available to the prevailing
party “as the interests of justice may require”.
c. O.C.G.A. § 19-6-22. Expenses of litigation where application
filed by party obligated to pay alimony.
Where a petition authorized by subsection (a) of Code Section 19-6-19
is filed by a party obligated to pay alimony, the court may require the
party to pay the reasonable expenses of litigation as may be incurred by
the party's former spouse on behalf of the former spouse in defense
thereof.
O.C.G.A. §19-6-22 is the proper statute to apply for the client who is
defending against an alimony modification action. It is applicable only to
alimony modification actions.
An order awarding attorney’s fees pursuant to O.C.G.A. §19-6-22
must contain a citation to the statute under which fees are being awarded.
Wehner v. Parris, 258 Ga. App. 772, 773 (2002). In Wehner, the order
failed to state whether the attorney’s fees were awarded on the basis of
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O.C.G.A. §19-6-22 or §9-15-14, and the award of attorney’s fees was
vacated and remanded on those grounds.
d. O.C.G.A. 19-9-3(g).
(g) Except as provided in Code Section 19-6-2, and in addition to the
attorney's fee provisions contained in Code Section 19-6-15, the judge may
order reasonable attorney's fees and expenses of litigation, experts, and
the child's guardian ad litem and other costs of the child custody action
and pretrial proceedings to be paid by the parties in proportions and at
times determined by the judge. Attorney's fees may be awarded at both the
temporary hearing and the final hearing. A final judgment shall include
the amount granted, whether the grant is in full or on account, which may
be enforced by attachment for contempt of court or by writ of fieri facias,
whether the parties subsequently reconcile or not. An attorney may bring
an action in his or her own name to enforce a grant of attorney's fees made
pursuant to this subsection.
O.C.G.A. 19-9-3(g) is the applicable statute for a child custody action. This
statute provides that a court may award fees and expenses for experts and the
guardian ad litem as well as other costs (in addition to attorney’s fees). These fees
and expenses can be “paid by the parties in proportions and at times determined
by the judge.” It should also be noted that “an attorney may bring an action in his
or her own name to enforce a grant of attorney's fees” awarded under ” O.C.G.A.
19-9-3(g). Also see, Viskup v. Viskup, 727 S.E.2d 97, 101 (2012) confirming that
O.C.G.A. 19-9-3(g) is the applicable statute for an attorney’s fees request in an
action for modification of custody and/or visitation.
e. O.C.G.A. §9-15-14.
(a) In any civil action in any court of record of this state, reasonable
and necessary attorney's fees and expenses of litigation shall be
awarded to any party against whom another party has asserted a
claim, defense, or other position with respect to which there existed
such a complete absence of any justiciable issue of law or fact that it
could not be reasonably believed that a court would accept the
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asserted claim, defense, or other position. Attorney's fees and
expenses so awarded shall be assessed against the party asserting
such claim, defense, or other position, or against that party's
attorney, or against both in such manner as is just.
(b) The court may assess reasonable and necessary attorney's fees
and expenses of litigation in any civil action in any court of record
if, upon the motion of any party or the court itself, it finds that an
attorney or party brought or defended an action, or any part
thereof, that lacked substantial justification or that the action, or
any part thereof, was interposed for delay or harassment, or if it
finds that an attorney or party unnecessarily expanded the
proceeding by other improper conduct, including, but not limited
to, abuses of discovery procedures available under Chapter 11 of this
title, the “Georgia Civil Practice Act.” As used in this Code section,
“lacked substantial justification” means substantially frivolous,
substantially groundless, or substantially vexatious.
(c) No attorney or party shall be assessed attorney's fees as to any
claim or defense which the court determines was asserted by said
attorney or party in a good faith attempt to establish a new theory
of law in Georgia if such new theory of law is based on some
recognized precedential or persuasive authority.
(d) Attorney's fees and expenses of litigation awarded under this
Code section shall not exceed amounts which are reasonable and
necessary for defending or asserting the rights of a party. Attorney's
fees and expenses of litigation incurred in obtaining an order of
court pursuant to this Code section may also be assessed by the
court and included in its order.
(e) Attorney's fees and expenses under this Code section may be
requested by motion at any time during the course of the action but
not later than 45 days after the final disposition of the action.
(f) An award of reasonable and necessary attorney's fees or
expenses of litigation under this Code section shall be determined
by the court without a jury and shall be made by an order of court
which shall constitute and be enforceable as a money judgment.
(g) Attorney's fees and expenses of litigation awarded under this
Code section in a prior action between the same parties shall be
treated as court costs with regard to the filing of any subsequent
action.
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(h) This Code section shall not apply to proceedings in magistrate
courts. However, when a case is appealed from the magistrate
court, the appellee may seek litigation expenses incurred below if
the appeal lacks substantial justification.
A claim for attorney’s fees and expenses of litigation pursuant to
O.C.G.A. §9-15-14 is applicable where a party, and/or the party’s attorney asserts
a claim, defense or other position that is found to have “a complete absence of
any justiciable issue of law or fact that it could not be reasonably believed that a
court
would
accept
the
asserted
claim,
defense,
or
other
position.”
O.C.G.A. §9-15-14(a). When such finding is made, attorney’s fees and costs of
litigation shall be assessed. Id. When met, O.C.G.A. §9-15-14(a) mandates an
award of fees.
In contrast, an award pursuant to O.C.G.A. §9-15-14(b) is discretionary.
The Court may asses attorney’s fees and expenses of litigation when, upon
motion by a party or motion sua sponte, the court finds that an action, defense,
“or any part thereof” was “substantially frivolous, substantially groundless, or
substantially vexatious”, or was brought for purpose of “delay or harassment”.
O.C.G.A. §9-15-14(b). But, assessment shall not be made in the event a claim or
defense asserted is “a good faith attempt to establish a new theory of law in
Georgia if such new theory of law is based on some recognized precedential or
persuasive authority.” O.C.G.A. §9-15-14(c).
A request for fees and expenses pursuant to O.C.G.A. §9-15-14 must be by
motion, and may be made no later than forty-five (45) days after final disposition.
O.C.G.A. §9-15-14(e). It is good practice, however, to put the opposing party and
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attorney on notice of the intention to seek fees pursuant to O.C.G.A. §9-15-14
previous to final adjudication, to bolster the fee and expenses claim.
To properly prosecute a claim pursuant to O.C.G.A. §9-15-14, the attorney
should (1) file a separate motion specifically putting the party and representing
attorney on notice that he is seeking fees. (See Glass v. Glover, 241 Ga. App. 838,
838 (2000) where the party pursuing a §9-15-14 claim asserted the claim in the
answer and counterclaim to the complaint and in the joint pre-trial order but the
court found the request insufficient pursuant to the plain meaning of the statute,
as §9-15-14 fees were not sought via motion); (2) file the motion no earlier than
the beginning of litigation, and no later than 45 days after final determination;
(3) cite the specific applicable subsection(s) of O.C.G.A. §9-15-14; (4) specify the
amount of fees and expenses sought under each subsection and provide
testimony as to the reasonableness and necessity of the fees and expenses; (5)
provide the evidentiary evidence requiring or supporting the requested award;
and (6) request a hearing, and (7) serve notice of the hearing to the opposing
party.
6. Do Not Overreach.
Courts are increasingly frustrated by attorneys who make requests for
awards of attorney’s fees that exceed the amount of the parties’ entire marital or
separate estate and/or which amount would take years by the obligated party to
repay. An attorney needs to evaluate a case and develop a litigation strategy
keeping this in mind and discussing the realities of the client’s finances with the
client. Undoubtedly, there are certain cases where attorney’s fees and expenses
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of litigation escalate rapidly; the issues are simply unable to be resolved by
agreement; and, the case cannot be finalized without a trial. In such cases, the
attorney should be able to clearly demonstrate to the court that the case was
unresolvable by agreement and how he acted to minimize fees. If a fee request
appears unreasonable on its face when viewed objectively, one can anticipate a
chilly reception from the court during the hearing on the request for attorney’s
fees.
7. Present a detailed argument for fees.
An attorney requesting that the opposing party pay her attorney’s fees should
present a detailed argument for attorney’s fees and expenses of litigation whether
the argument is presented during a hearing or on brief. Often, the fee request is
argued at the end of a long case when it may be tempting to shift one’s attention
to new matters. Nevertheless, an attorney must be willing to invest the time and
energy to obtain the award of fees for her client. Regardless of how many times
the matter has come before the Court on motions during the case, the attorney
should not assume that the Court recalls the facts or which party caused the
attorney’s fees to increase unnecessarily.
Following the guidelines presented in these materials will make presenting a
detailed attorney’s fees argument easier. For example, for the attorney who has
maintained the Attorney’s Fees file as described herein, introducing or attaching
the letters relevant to the issue of attorney’s fees will be a simple exercise and the
attorney can structure the argument chronologically based upon the documents
in the Attorney’s Fees File. Additionally, preparing detailed bills each month as
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discussed herein, will also enable an attorney to present a detailed argument for
attorney’s fees.
8. Review and revise bills before sending them each month.
Positioning a case for an award of attorney’s fees requires effort from the
inception of a case until the argument for attorney’s fees is presented.
Each month the attorney should review a client’s bill with an objective
(perhaps even a critical) eye before it is sent to the client. In reviewing the bill,
the attorney should envision the bill as part of an exhibit at the attorney’s fees
hearing or to the brief in support of a request for fees. He should anticipate
scrutiny from the court and opposing counsel about his bill and determine if
there is detail that needs to be included or clarified.
Any entries reflecting
unnecessarily duplicative time should be removed or thoroughly explained.
Under O.C.G.A. §19-6-2, it is the Court’s role to ascertain the necessity of
the fees being requested and the reasonable expense for the legal services
performed or to be performed. Veal v. Veal, 226 Ga. 285, 287 (1970). Also see
Webster v. Webster, 250 Ga. 57 (1982) and Rogers v. Rogers, 103 Ga. 763 (1898).
If an award of attorney’s fees is being sought pursuant to O.C.G.A. §9-1514, it is best practice to provide a detailed summary of billing and testimony
regarding the reasonableness of the billing in a motion and at the hearing. See
Southern Cellular Telecom v. Banks, 209 Ga. App 401, 402 (1993). As the
Southern Cellular Telecom court described, “[m]any of the time entries consist of
a simple statement that a conference was held, a letter was written, a telephone
call was made or research was conducted. Such broad statements fail to
demonstrate the function or substance of the task with sufficient particularity to
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permit the court to distinguish between time and expenses attributable to the
successful fraud claim and time and expenses attributable to her other
unsuccessful claims.” 209 Ga. App 401, 402 (1993).
9. Know your judge.
When preparing and presenting an argument for attorney’s fees, an attorney
should keep the ultimate audience, the judge, at the forefront of his thinking. If
the attorney is not familiar with the judge’s tendencies with regard to fees, then
the attorney should ask respected attorneys who frequently practice in front of
the respective judge. For example, a judge may feel strongly that each side
should only be permitted an award of attorney’s fees no greater than what the
opposing party spent. Another judge may feel that regardless of the amount of
attorney’s fees spent by the opposing party, a client needs to be able to fully
litigate the case. However, an attorney should not be hampered unnecessarily by
the judge’s tendencies (or rumored tendencies) and must balance the client’s
need for an award of attorney’s fees and/or the strength of the case with a judge’s
believed partialities. If there is a strong claim for attorney’s fees, an attorney
should not hesitate to present the argument.
An attorney should not wait until the end of the case to learn the predilections
of a judge, because it may assist the lawyer in preparing the case for an award of
attorney’s fees throughout the litigation, which as previously indicated, is a best
practice. Also, explaining a judge’s tendencies to the client, in a diplomatic
fashion, of course, prior to the culmination of a case will also help manage the
client’s expectations with regard to an award of attorney’s fees and enable the
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lawyer and the client to make educated estimates about the likelihood of an
award of attorney’s fees.
10.
Know what types of cases are appropriate for a request for fees.
An attorney should evaluate each case realistically as to whether it is an
appropriate case in which to seek an award of attorney’s fees. Most likely, in just
about any case, a client would prefer that the opposing party be required to pay
all or part of his attorney’s fees. So, the inquiry must involve more than a client’s
desire for an award of attorney’s fees.
The attorney should consider issues
including but not limited to the following: a) whether the marital or separate
estate can absorb a fee award; b) the client’s contribution toward any
unnecessary escalation of attorney’s fees; c) the applicability of the relevant
statute(s) for attorney’s fees; d) the relative financial positions of the parties
(even if not specifically required by statute); and e) the total amount of attorney’s
fees being sought in comparison with the anticipated expense of arguing for an
award attorney’s fees. While it can be difficult to view cases objectively, asking
for attorney’s fees in a case where a fee award would be unwarranted may result
in harm to the client as well as the lawyer’s reputation.
17
NUTS AND BOLTS OF FAMILY LAW
JURISDICTION AND VENUE: A PRACTICAL APPROACH
Regina I. Edwards
Margaret Simpson
Edwards & Associates
Atlanta, Georgia
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Jurisdiction and Venue:
A Practical Approach
Nuts and Bolts of Family Law Seminar | September 14th, 2012
Regina I. Edwards, Edwards & Associates
Materials by Margaret Simpson, Esq. and Regina Edwards, Esq.
For a soft copy of these materials, go to www.EAfamilylaw.com
Table of Contents
JURISDICTION
3
Subject Matter Jurisdiction
Superior Court
Juvenile Court
3
3
3
Personal Jurisdiction
3
In rem Jurisdiction
3
Jurisdiction for Divorce
Requirements for valid jurisdiction for divorce – Subject matter jurisdiction
Personal jurisdiction
How to determine personal Jurisdiction in Georgia for non-residents
3
3
4
4
Jurisdiction for Custody
Jurisdiction Requirements for Original custody cases (Subject Matter Jurisdiction)
Jurisdiction Requirements for Modification of Custody - no one has moved out of Georgia
Jurisdiction Requirements for Modification of Custody - someone has moved out of Georgia
5
5
5
5
VENUE
6
Venue for Divorce
Both parties live in Georgia
6
6
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Defendant resides outside of Georgia
7
Venue for Original Custody
7
Venue for Modification of Custody
No one has moved out of Georgia
7
7
Venue for Child support
8
Venue for Contempt Actions
8
Venue for Legitimation
8
rd
Venue for 3 party custody cases
9
Miscellaneous Venue Issues
Venue is waivable –
9
9
Practical Application of a Typical Venue Issue
Move – Away Case
9
9
APPENDIX 1
11
Long-Arm Statute
11
APPENDIX 2
12
Georgia UCCJEA
12
APPENDIX 3
16
Defenses To Petition For Legitimation, Custody And Visitation
16
APPENDIX 4
17
ENNIS v. ENNIS.
17
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Jurisdiction
Requirements – Subject Matter Jurisdiction + Personal Jurisdiction
Jurisdiction is the imaginary line that separates the types of cases one court hears from another.
There are two types of jurisdiction: subject matter and personal jurisdiction. The court must
have both types of jurisdiction to hear a case.
Subject Matter Jurisdiction = Which Court Has the Power to Hear My Case?
Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases
relating to a specific subject matter.
Superior Court has exclusive jurisdiction over the granting of divorce, alimony or child support.
Juvenile Court has concurrent jurisdiction with superior courts in cases involving … custody and
child support cases, and in proceedings to terminate parental rights.
Personal Jurisdiction is a court's jurisdiction over the parties to a law suit.
In rem Jurisdiction describes describing the power a court may exercise over property or a
"status" against a person over whom the court does not have personal jurisdiction.
Jurisdiction for Divorce
Requirements for valid jurisdiction for divorce – Subject matter jurisdiction
 Valid marriage
 Residence within the state for 6 months prior to filing the action
Georgia courts have subject matter jurisdiction when one of the parties has been a resident of
the state of Georgia for at least six months at the time of the filing of the complaint.
Practical Tip: If your client has not been a resident for at least six months –
explore filing an action for legal separation instead and later convert this to a
divorce once the residency requirement is established. *However, if you do this,
you must re-serve the amended complaint. See Southworth v. Southworth 265
Ga 671 (1995)
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Personal jurisdiction over the Defendant
1. Does the Defendant live in Georgia?
2. If not, then…..
Personal jurisdiction is not required to grant a divorce. The court has "in rem" jurisdiction over
the marriages of residents of the state. The court must, however, have personal jurisdiction
over the defendant if specific relief is requested, such as alimony, child support, division of
property, and debts, etc.
In Ennis v. Ennis, S12A0277 (Ga. 2012), the Georgia Supreme Court unanimously held that
Georgia does not need personal jurisdiction over a nonresident to grant a divorce to a resident –
of the resident has fulfilled the six month residency requirement, the resident is entitled to seek
a divorce in Georgia. (Ennis, citing Abernathy v. Abernathy, 267 Ga. 815, 816 (1997)).
See Appendix 4
Due process requires that a non-resident defendant "have certain minimum contacts with [the
forum] such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 315, 66 S. Ct. 154
(1945) (internal quotation marks omitted). Minimum contacts can be demonstrated through
facts supporting jurisdiction over the defendant. See Helicopteros Nacionales de Colombia, S.A.
v. Hall, 466 U.S. 408, 414, 104 S. Ct. 1868 (1984).
How to determine personal Jurisdiction in Georgia for non-residents
Long-arm statute.
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(See Appendix 1)
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Jurisdiction for Custody
Jurisdiction Requirements for Original custody cases (Subject Matter Jurisdiction)
*****Make sure to check UCCJEA – generally children have lived in Georgia
for 6 months for original custody case (O.C.G.A. § 19-9-61)
Appendix 2
Most Common:
1. Georgia is the home state of the child and the parent has sufficient contact with the
state .
2. Georgia was the child's home state within the last 6 months and the parent filing for
custody lives in Georgia and the child is not in Georgia because the child was wrongfully
taken.
3. The child and at least one of the parents have significant connection with Georgia
4. The child is physically here in Georgia and was abandoned or emergency protection is
necessary (the child was threatened or subjected to abuse or neglect).
5. No other state would have jurisdiction based on 1,2,3, or 4 above.
6. Another state says Georgia has jurisdiction.
Jurisdiction Requirements for Modification of Custody - no one has moved out of
Georgia
Jurisdiction remains in Georgia – then move on to venue below
Once Georgia makes an Initial Custody Determination, then Georgia has continuing exclusive
jurisdiction until they don’t. O.C.G.A. Section 19-9-62(a)
Jurisdiction Requirements for Modification of Custody - someone has moved out of
Georgia
Modification - Once Georgia makes an Initial Custody Determination, then Georgia has
continuing exclusive jurisdiction until they don’t. O.C.G.A. Section 19-9-62(a)
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How do you lose the continuing exclusive jurisdiction?
1. No party lives in Georgia or
2. There is no longer a significant connection with Georgia and substantial evidence is no
longer available in Georgia*
*A determination that has to be made by the original Court. The Court has to decline /
terminate jurisdiction on this basis.
Uniform Child Custody Jurisdiction and Enforcement Act - Ga. Code Ann. § 19-9-40 et seq.
Appendix 2
UCCJEA Covers –
1. Original/Initial Jurisdiction
2. Modification Jurisdiction
3. Enforcement (Includes Emergency Jurisdiction)
Venue
Definition – the county in which the case is filed.
Venue for Divorce
Both parties live in Georgia
You can file where the Defendant resides - Ga. Const. 1983, Art. VI § II ¶ I.
Or
You can file in the county of the marital residence if Plaintiff still resides there and if the
Defendant lived there within last 6 months.
Ga. Const. 1983, Art. VI § II ¶ I., Cooke v. Cooke, 277 Ga. 731 (2), 594 S.E.2d 370 (2004)
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Practical Tip: If you have a choice of counties – do your research before picking
county.
Things to Explore:
Does the county offer a free or reduced-fee mediation program?
How long does it generally take to get a hearing in each county?
What is the travel time to each Court?
Does each Court allow for temporary relief?
Defendant resides outside of Georgia
Divorce cases shall be tried in the county where the defendant resides, if a resident of this state;
if the defendant is not a resident of this state, then in the county in which plaintiff resides. Ga.
Const. (1983), Art. VI, Sec. II, Par. I.
When a Defendant in a divorce action lives outside of Georgia, the action may be brought in the
plaintiff's county of residence. Holtsclaw v. Holtsclaw,269 Ga. 163, 165, 496 S.E.2d 262 (1998).
Remember – you need personal jurisdiction
Venue for Original Custody
Residence of Defendant - Ga. Const. 1983, Art. VI § II ¶ VI.
Venue for Modification of Custody
No one has moved out of Georgia
Venue for custody cases – county of residence of Defendant – Ga. Const. 1983, Art. VI § II ¶ VI.
County of residence of legal custodian of child. O.C.G.A. § 19-9-23(a), Wilson v. Baldwin 239
Ga. App. 327, 519 S.E.2d 251 (1999)
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Venue for Child support
Residence of defendant Ga. Const. 1983, Art. VI § II ¶ VI.
County of residence of legal custodian of child - Hatch v. Hatch, 287 Ga.App. 832, 652 S.E.2d 874
(2007)
Venue for Contempt Actions
An application for contempt must be filed in the Court which rendered the order or judgment in
question.
See generally Rockwood Int'l Sys. Supply v. Rader Cos., 255 Ga.App. 881(1), 567 S.E.2d 104
(2002)
EXCEPT
When venue for a modification lies in a different county,
….Where a superior court other than the superior court rendering the original divorce decree
acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and
venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree.
Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676 (1983)
Venue for Legitimation
Residence of defendant. Ga. Const. 1983, Art. VI § II ¶ VI.
County of residence of mother or legal custodian of child. O.C.G.A. § 19-7-22, Holmes v.
Traweek, 276 Ga. 296, 577 S.E.2d 668 (2004)
If the mother or other party having legal custody or guardianship of the child resides outside the
state or cannot, after due diligence, be found within the state, the petition may be filed in the
county of the father's residence or the county of the child's residence. O.C.G.A. § 19-7-22
If a petition for the adoption of the child is pending, the father shall file the petition for
legitimation in the county in which the adoption petition is filed. O.C.G.A. § 19-7-22
See Defenses to Legitimation raising improper venue.
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Venue for 3rd party custody cases
Residence of defendant. Ga. Const. 1983, Art. VI § II ¶ I.
Or residence of where child lives. O.C.G.A. § 19-9-23(a)
Miscellaneous Venue Issues
Younte v. Mulle, 266 Ga. 729 (1996) Nonresident father who filed petition for modification of
visitation and custody rights thereby subjected himself, by purposeful availment, to personal
jurisdiction in forum state for purposes of resident mother’s counterclaim for modification of
child support.
Venue is waivable – must raise in your first defense – or it is waived FOREVER
O.C.G.A. 9-11-12(h)(1)(B), Bonner v. Bonner, 272 Ga. 545, 546(1), 533 S.E.2d 72 (2000).
Practical Application of a Typical Venue Issue
Move – Away Case
Law:
Venue for custody cases – County of residence of Defendant – Ga. Const. 1983, Art. VI § II ¶VI.
County of residence of legal custodian of child O.C.G.A. § 19-9-23(a), Wilson v. Baldwin 239 Ga.
App. 327, 519 S.E.2d 251 (1999)
OCGA 19-9-23 (a) provides: "Except as otherwise provided in this Code section, . . . any
complaint seeking to obtain a change of legal custody of the child shall be brought as a separate
action in the county of residence of the legal custodian of the child." Baldwin is the legal
custodian under the CCIJA. OCGA 19-9-22. Baldwin argues 19-9-23 (a) required Wilson to file a
separate action in Monroe County.
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Subsection (c) of the same Code section prohibits bringing "a complaint seeking to obtain a
change of legal custody" in two situations: "(1) As a counterclaim or in any other manner in
response to a petition for a writ of habeas corpus seeking to enforce a child custody order; or (2)
In response to any other action or motion seeking to enforce a child custody order."
Case Study:
Mother announced potential to Washington DC. We filed Complaint for modification of custody
in Cobb County. After filing a standing order goes into effect preventing Mom from moving.
What can mom do?
Motion to dismiss (Gallo v. Kofler 289 Ga. 355, 711 S.E.2d 687 (2011) -announcement of
intention to move to New York IS a substantial change in and of itself – you will likely
lose)
No- Counterclaim for change of father’s parenting time allowing her to move (Bailey v.
Bailey 283 G.App. 361, 641 S.E.2d 580 (2007) – mother could not seek change of child
custody through counterclaim per OCGA § 19-9-23(b))
Yes - File new case against Father asking for change in his parenting time to allow her to
move.
See Seeley v. Seeley 282 Ga. App. 394, 395 (2006)
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Appendix 1
Long-Arm Statute
O.C.G.A. § 9-10-91 {redacted version}
§ 9-10-91. Grounds for exercise of personal jurisdiction over nonresident
A court of this state may exercise personal jurisdiction over any …..if he or she:
(1) Transacts any business within this state;
(2) Commits a tortious act or omission within this state, except as to a cause of action for
defamation of character arising from the act;
(3) Commits a tortious injury in this state caused by an act or omission outside this state if the
tort-feasor regularly does or solicits business, or engages in any other persistent course of
conduct, or derives substantial revenue from goods used or consumed or services rendered in
this state;
(4) Owns, uses, or possesses any real property situated within this state;
(5) With respect to proceedings for divorce, separate maintenance, annulment, or other
domestic relations action or with respect to an independent action for support of dependents,
maintains a matrimonial domicile in this state at the time of the commencement of this action
or if the defendant resided in this state preceding the commencement of the action, whether
cohabiting during that time or not. This paragraph shall not change the residency requirement
for filing an action for divorce; or
(6) Has been subject to the exercise of jurisdiction of a court of this state which has resulted in
an order of alimony, child custody, child support, equitable apportionment of debt, or equitable
division of property if the action involves modification of such order and the moving party
resides in this state or if the action involves enforcement of such order notwithstanding the
domicile of the moving party.
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Appendix 2
Georgia UCCJEA
Ga. Code Ann. § 19-9-40 et seq.
(Selected Portions Only)
This article may be cited as the "Uniform Child Custody Jurisdiction and Enforcement Act."
…….
§ 19-9-46. Priority given question of existence or exercise of jurisdiction
If a question of existence or exercise of jurisdiction under this article is raised in a child custody proceeding, the
question, upon request of a party, must be given priority on the calendar and handled expeditiously.
§ 19-9-61. Jurisdiction requirements for initial child custody determinations; physical presence alone
insufficient
(a) Except as otherwise provided in Code Section 19-9-64, a court of this state has jurisdiction to make an initial
child custody determination only if:
(1) This state is the home state of the child on the date of the commencement of the proceeding, or was the
home state of the child within six months before the commencement of the proceeding and the child is absent from
this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the
home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum
under Code Section 19-9-67 or 19-9-68 and:
(A) The child and the child's parents, or the child and at least one parent or a person acting as a
parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child's care, protection, training, and
personal relationships;
(3) All courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise
jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the
child under Code Section 19-9-67 or 19-9-68; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1),
(2), or (3) of this subsection.
(b) Subsection (a) of this Code section is the exclusive jurisdictional basis for making a child custody
determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to
make a child custody determination.
§ 19-9-62. Prerequisites for termination of exclusive, continuing jurisdiction
(a) Except as otherwise provided in Code Section 19-9-64, a court of this state which has made a child custody
determination consistent with Code Section 19-9-61 or 19-9-63 has exclusive, continuing jurisdiction over the
determination until:
(1) A court of this state determines that neither the child nor the child's parents or any person acting as a
parent has a significant connection with this state and that substantial evidence is no longer available in this state
concerning the child's care, protection, training, and personal relationships; or
(2) A court of this state or a court of another state determines that neither the child nor the child's parents or
any person acting as a parent presently resides in this state.
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(b) A court of this state which has made a child custody determination and does not have exclusive, continuing
jurisdiction under this Code section may modify that determination only if it has jurisdiction to make an initial
determination under Code Section 19-9-61.
§ 19-9-63. Prerequisites for modifying custody determination from foreign court
Except as otherwise provided in Code Section 19-9-64, a court of this state may not modify a child custody
determination made by a court of another state unless a court of this state has jurisdiction to make an initial
determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and:
(1) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Code
Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or
(2) A court of this state or a court of the other state determines that neither the child nor the child's parents
or any person acting as a parent presently resides in the other state.
§ 19-9-64. Temporary emergency jurisdiction; continuing effect; communicating with other courts
(a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has
been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the
child is subjected to or threatened with mistreatment or abuse.
(b) If there is no previous child custody determination that is entitled to be enforced under this article and a
child custody proceeding has not been commenced in a court of a state having jurisdiction under Code Sections 19-961 through 19-9-63, a child custody determination made under this Code section remains in effect until an order is
obtained from a court of a state having jurisdiction under Code Sections 19-9-61 through 19-9-63. If a child custody
proceeding has not been or is not commenced in a court of a state having jurisdiction under Code Sections 19-9-61
through 19-9-63, a child custody determination made under this Code section becomes a final determination, if it so
provides and this state becomes the home state of the child.
(c) If there is a previous child custody determination that is entitled to be enforced under this article, or a child
custody proceeding has been commenced in a court of a state having jurisdiction under Code Sections 19-9-61 and
19-9-63, any order issued by a court of this state under this Code section must specify in the order a period that the
court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction
under Code Sections 19-9-61 through 19-9-63. The order issued in this state remains in effect until an order is
obtained from the other state within the period specified or the period expires.
(d) A court of this state which has been asked to make a child custody determination under this Code section,
upon being informed that a child custody proceeding has been commenced in,or a child custody determination has
been made by, a court of a state having jurisdiction under Code Sections 19-9-61 through 19-9-63, shall immediately
communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Code Sections
19-9-61 through 199-63, upon being informed that a child custody proceeding has been commenced in, or a child
custody determination has been made by, a court of another state under a statute similar to this Code section, shall
immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and
the child, and determine a period for the duration of the temporary order.
§ 19-9-67. Finding of inconvenient forum; conditions
(a) A court of this state which has jurisdiction under this article to make a child custody determination may
decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the
circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may
be raised upon motion of a party, the court's own motion, or request of another court.
(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is
appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties
to submit information and shall consider all relevant factors, including:
(1) Whether family violence has occurred and is likely to continue in the future and which state could best
protect the parties and the child;
(2) The length of time the child has resided outside this state;
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(3)
(4)
(5)
(6)
The distance between the court in this state and the court in the state that would assume jurisdiction;
The relative financial circumstances of the parties;
Any agreement of the parties as to which state should assume jurisdiction;
The nature and location of the evidence required to resolve the pending litigation, including
testimony of the child;
(7) The ability of the court of each state to decide the issue expeditiously and the procedures
necessary to present the evidence; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.
(c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more
appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly
commenced in another designated state and may impose any other condition the court considers just and proper.
(d) A court of this state may decline to exercise its jurisdiction under this article if a child custody
determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over
the divorce or other proceeding.
§ 19-9-69. Information required as part of pleading or affidavit; continuing duty; sealing of information;
children residing in family violence shelters
(a) In a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information,
if reasonably ascertainable, under oath as to the child's present address or whereabouts, the places where the child has
lived during the last five years, and the names and present addresses of the persons with whom the child has lived
during that period. The pleading or affidavit must state whether the party:
(1) Has participated, as a party or witness or in any other capacity, in any other proceeding concerning the
custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child
custody determination, if any;
(2) Knows of any proceeding that could affect the current proceeding, including proceedings for
enforcement and proceedings relating to family violence, protective orders, termination of parental rights, and
adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
(3) Knows the names and addresses of any person not a party to the proceeding who has physical custody
of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the
names and addresses of those persons.
(b) If the information required by subsection (a) of this Code section is not furnished, the court, upon motion
of a party or its own motion, may stay the proceeding until the information is furnished.
(c) If the declaration as to any of the items described in paragraphs (1) through (3) of subsection (a) of this
Code section is in the affirmative, the declarant shall give additional information under oath as required by the court.
The court may examine the parties under oath as to details of the information furnished and other matters pertinent to
the court's jurisdiction and the disposition of the case.
(d) Each party has a continuing duty to inform the court of any proceeding in this or any other state that
could affect the current proceeding.
(e) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or
child would be jeopardized by disclosure of identifying information, the information must be sealed and may not be
disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which
the court takes into consideration the health, safety, or liberty of the party or child and determines that the
disclosure is in the interest of justice.
(f) In providing the information required by subsection (a) of this Code section, a party who is disclosing that
the child is or has been a resident of a family violence shelter shall provide only the name of the shelter and the state
in which the shelter is located to avoid a violation of Code Section 19-13-23. A disclosure of the name of the shelter
and the state in which the shelter is located shall be sufficient for the purposes of subsection (a) of this Code section.
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§ 19-9-83. Recognition of foreign custody decrees; remedies
(a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the
latter court exercised jurisdiction in substantial conformity with this article or the determination was made under
factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified
in accordance with this article.
(b) A court of this state may utilize any remedy available under other laws of this state to enforce a child
custody determination made by a court of another state. The remedies provided in this part are cumulative and do
not affect the availability of other remedies to enforce a child custody determination.
§ 19-9-85. Registering foreign custody determinations; requirements of registering court; contesting
registration; confirmation of registered order
(a) A child custody determination issued by a court of another state may be registered in this state, with or
without a simultaneous request for enforcement, by sending to the superior court in the appropriate venue in this
state:
(1) A letter or other document requesting registration;
(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement
under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order
has not been modified; and
(3) Except as otherwise provided in Code Section 19-9-69, the name and address of the person seeking
registration and any parent or person acting as a parent who has been awarded custody or visitation in the child
custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a) of this Code section, the registering court
shall:
(1) Cause the determination to be filed as a foreign judgment, together with one copy of any
accompanying documents and information, regardless of their form; and
(2) Serve notice upon the persons named pursuant to paragraph (3) of subsection (a) of this Code section
and provide them with an opportunity to contest the registration in accordance with this Code section.
(c) The notice required by paragraph (2) of subsection (b) of this Code section must state that:
(1) A registered determination is enforceable as of the date of the registration in the same manner as a
determination issued by a court of this state;
(2) A hearing to contest the validity of the registered determination must be requested within 20 days
after service of notice; and
(3) Failure to contest the registration will result in confirmation of the child custody determination and
preclude further contest of that determination with respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after
service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting
registration establishes that:
(1) The issuing court did not have jurisdiction under Part 2 of this article;
(2) The child custody determination sought to be registered has been vacated, stayed, or modified by a
court having jurisdiction to do so under Part 2 of this article; or
(3) The person contesting registration was entitled to notice, but notice was not given in accordance with
the standards of Code Section 19-9-47 in the proceedings before the court that issued the order for which
registration is sought.
(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is
confirmed as a matter of law, and the person requesting registration and all persons served must be notified of the
confirmation.
(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes
further contest of the order with respect to any matter that could have been asserted at the time of registration.
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Appendix 3
IN THE SUPERIOR COURT OF CLAYTON COUNTY
STATE OF GEORGIA
JOHN DOE
Petitioner
v.
MARY SMITH
Respondent
CASE # 2009 DR XXXXXX
Defenses To Petition For Legitimation, Custody And Visitation
Comes now, the Respondent files this Defense to Petition For Legitimation, Custody And Visitation:
1.
I, and the minor child, live in Cobb County. The Petitioner’s Petition for Legitimation must be filed
where I and the child live.
2.
The Petitioner admits in his Petition that I live in Cobb County.
3.
Venue is proper only in Cobb County.
WHEREFORE, The Respondent prays that:
a.
b.
c.
The Case be transferred to Cobb County
That The Petitioner be responsible for the costs of the transfer
For other relief that the Court find proper.
Respectfully submitted, this the ________ day of June, 2012.
VERIFICATION
Defendant, MARY SMITH, personally appears and under oath attests that the facts contained in her
Defenses are true and correct to the best of her personal knowledge.
_________________________________
MARY SMITH
Petitioner
SWORN to and subscribed before me this ____ day of _________________, 2012.
_______________________________
Notary Public, State of Georgia
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Appendix 4
ENNIS v. ENNIS.
S12A0277. ENNIS v. ENNIS.
HUNSTEIN, Chief Justice.
We granted Gail Burgess Ennis’s (Wife) application for interlocutory review on January
18, 2011, to determine whether the trial court erred by denying her motion to dismiss for lack of
personal jurisdiction. Finding that the Wife did not have sufficient “minimum contacts” within
the State of Georgia, we hold that the trial court does not have personal jurisdiction over the
Wife. The trial court does, however, have jurisdiction over the res of the marriage under OCGA §
19-5-2. Accordingly, we affirm in part and reverse in part.
Appellee Robert Sheldon Ennis (Husband) filed this action for divorce on June 28, 2010
seeking divorce, alimony, division of marital property, and attorney fees. Husband relies solely
on Georgia’s long-arm statute, OCGA § 9- 10-91 (5), for personal jurisdiction over Wife. Wife
answered on August 20, 2010, raising lack of personal jurisdiction as her first affirmative
defense. She also filed a motion to dismiss for lack of personal jurisdiction.
The parties were married on June 16, 1973 in Richmond, Virginia. The
couple lived in Georgia for approximately 18 months in the mid-1980s, but did not own a home
here. The couple returned to Georgia in 1996 and lived in Bogart, Georgia and then Savannah,
Georgia. However, they did not own property in either location. The couple then moved to
Richmond, Virginia in the fall of 2003, where Wife remains. The couple separated in 2005 after
an episode of domestic violence, which caused Wife to leave the home and Husband to receive
mental health treatment. Though Husband returned to Georgia in April 2005, Wife has had no
contact with him since their separation. Wife has never owned property in Georgia. She has
visited Georgia twice since the separation: once to deliver Husband’s belongings and once to
visit her stepdaughter for two days. She did not have any contact with Husband during either
trip.
1. Georgia’s long-arm statute is Husband’s sole basis for arguing that the court has
personal jurisdiction over Wife. See OCGA § 9-10-91 (5). Georgia’s long-arm statute states that a
court may exercise personal jurisdiction over a nonresident with respect to proceedings for
divorce if the nonresident “maintains a matrimonial domicile in this state at the time of the
commencement of this action or, if the defendant resided in this state preceding the
commencement of the action, whether cohabiting during that time or not.” Id. (Emphasis
supplied.) This Court has set forth a three-part test for “minimum contacts” needed to confer
personal jurisdiction over a nonresident. Smith v. Smith, 254 Ga. 450, 453 (3) (330 SE2d 706)
(1985). The test requires that: (1) the nonresident must purposefully avail herself of the
privilege of doing some act or consummating some transaction with or in the forum; (2) the
plaintiff must have a legal cause of action against the nonresident that arises out of activities of
the defendant within the forum; and (3) if the first two prongs are met – a “minimum contact”
between the nonresident and the forum exists – then “the assumption of jurisdiction must be
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found to be consonant with the due process notions of ‘fair play’ and ‘substantial justice.’”
Smith, 254 Ga. at 453. (Citation omitted.) The applicability of the long-arm statute must be
assessed on a caseby-case basis, and there must be a substantial connection between the
nonresident’s activities in the forum and the subject matter of the suit. Marbury v. Marbury,
256 Ga. 651, 654-655 (2) (352 SE2d 564) (1987).
Examining the facts of this case, we find there were not sufficient minimum contacts for
Wife to “reasonably anticipate being haled into court” in Georgia. Marbury, supra, 256 Ga. at
654. (Citation and punctuation omitted.) Wife has not lived in Georgia since 2003. Wife does not
own any property in
Georgia and has not transacted any business in Georgia since 2003. The last marital domicile
was in Richmond, Virginia, and the circumstances giving rise to the dissolution of the marriage
occurred in Virginia. Wife’s only connection with Georgia has been brief visits during which she
had no contact with Husband. Since the first two prongs of the test have not been met, the
court below does not have personal jurisdiction over the Wife. Accordingly, the trial court
improperly denied Wife’s motion to dismiss the issues related to alimony, division of marital
property, and attorney fees.
Nevertheless, a Georgia court does not need personal jurisdiction over the Wife to grant
the divorce. Abernathy v. Abernathy, 267 Ga. 815, 816 (1) (482 SE2d 265) (1997). OCGA § 19-5-2
entitles the Husband to gain access to Georgia courts for the purpose of dissolving his marriage
so long as he has lived in the state for at least six months. Id. Since he returned to the state in
2005, Husband meets this residency requirement. Therefore, the trial court did not err in
denying the Wife’s motion to dismiss the divorce proceeding, and the trial court has jurisdiction
to grant a divorce.
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NUTS AND BOLTS OF FAMILY LAW
CHILD CUSTODY AND THE USE OF GUARDIANS
Kyla S. Lines
Pachman Richardson, LLC
Atlanta, Georgia
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i
CHILD CUSTODY AND THE USE OF GUARDIANS
KYLA S. LINES, ESQ.
PACHMAN RICHARDSON, LLC
75 14th Street, Suite 2840
Atlanta, GA 30309
(404) 888-3730
TABLE OF CONTENTS
Introduction………………..……………………………………………………………………………...…………1
Uniform Superior Court Rule 24.9……………………………………………………………………………1
Types of Custody……………………………………………………………………………………………………3
The Parenting Plan…………………………………………………………………………………………………3
Definition and Application of Best Interest Standard…………………………………………………4
Affidavits of Election………………………………………………………………………………………………6
Modification of Custody………………………………………………………………………………………….7
Third Party Claims for Custody and Visitation………………………………………………………….8
Claims for Custody by Third Party Relatives……………………………………………………8
Claims for Visitation by Grandparents……………..…………….………………………………9
Procedural Issues to Keep in Mind in Custody Cases………………………………………………..10
Additional Tools at Court’s Disposal……………………………………………………………………….11
Custody Evaluation…………….………………………………………………………………………11
Psychological Evaluation……………………………………………………………………………..11
Drug/Alcohol Experts………………………………………………………………………………….11
Co-Parent Counselor……………………………………………………………………………………11
Conclusion………………………………………………………………………………………………………..…12
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CHILD CUSTODY AND THE USE OF GUARDIANS
Introduction
Custody in Georgia is mostly dependent on one single factor if you are going to
litigate the issue: your judge. Judges have an enormous amount of discretion in
determining custody. Knowing the legal provisions regarding custody disputes and
applying them correctly to the facts of your case is the best way to persuade a judge to
rule in your client’s favor. As an advocate, it is your job to tell the judge why the
Parenting Plan you are advocating meets the ultimate standard the judge will apply in
determining any custody case: the best interest of the child.
In addition to knowing your judge and the applicable law, a very effective tool in
custody litigation is a Guardian ad Litem. A Guardian is appointed by the judge to act as
an “arm of the court” and help the court ferret out the facts of the case. Uniform
Superior Court Rule 24.9 governs the role of a Guardian ad Litem. Title 19, Chapter 9,
Article 1 of the Georgia Code governs the general provisions of child custody. As an
advocate, it is important to understand the provisions of both, and how they intertwine.
Uniform Superior Court Rule 24.9
Uniform Superior Court Rule 24.9 provides for the appointment of a Guardian ad
Litem by a judge presiding over a contested custody case. According to the Rule, the
Guardian can be any person who is trained as a Guardian, and who is familiar with the
applicable law, including the correct standard to be applied in the case, and applicable
procedures.
The Guardian ad Litem represents the best interests of the child. He or she acts
as an officer of the court to assist the parties and the court in reaching a decision. The
Guardian is not the child’s lawyer, as there is no confidential relationship between the
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child and the Guardian. The Guardian is generally required to prepare a written report
of his or her investigation, and is required to testify at trial. The Guardian’s role
terminates upon final disposition of the case.
The Guardian’s main duties include interviewing the parties, the child, speaking
with collateral witnesses, and obtaining records related to the child. The Guardian may
ask for examination of the child and/or parents by a mental health professional. This
request may include either a mental fitness or custody evaluation.
The written report prepared by the Guardian is required to provide a summary of
the investigation, and to provide a recommendation to the court regarding custody. The
report is filed with the Clerk under seal. It is provided to the judge, parties, counsel and
experts, but shall not be released to others. Unauthorized dissemination of the report
subjects the offending party to sanctions, including contempt. The report is filed under
seal.
One of the most important provisions of Rule 24.9 recognizes the Guardian as an
expert witness regarding the best interests of the child. This allows the Guardian to
provide hearsay testimony.
This provision of the rule has not yet been tested in
Georgia’s appellate courts.
The Guardian ad Litem generally does not question witnesses or present
argument at trial. The Guardian may, however, file motions and pleadings and issue
subpoenas.
The Guardian must approve any settlement agreement, and generally
assists the parties and attorneys is drafting the Parenting Plan.
While the Rule
specifically provides for the Guardian to have open communication with the parties and
counsel, regardless of the presence of the other side, the Rule expressly prohibits the
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Guardian from having ex parte communication with the Judge. The Rule does allow for
the Guardian to be removed from the case by the court “for good cause shown.”
Types of Custody
As both an advocate and as a Guardian ad Litem, it is vitally important to
understand the basics of child custody law. The two main types of custody, physical and
legal, are defined by O.C.G.A. § 19-9-6. Physical custody simply refers to who has the
child and when.
The Parenting Plan defines the terms of the physical custody
arrangement. It is worth noting that the statute does not define or provide for “primary
physical custody” or “secondary physical custody” although we often see clients get hung
up on this terminology. “Joint physical custody” is defined by O.C.G.A. § 19-9-6(6) as
both parents having substantially equal time and contact with the child.
Legal custody refers to who makes legal decisions regarding the child. There are
four specific areas of legal custody: healthcare, education, extracurricular activities, and
religious upbringing. While the law makes no presumption in favor of either parent or
any form of legal custody, we almost always see it agreed upon and ordered as joint legal
custody. This requires the parties to consult and confer with each other regarding all
legal custody decisions. The law requires the Parenting Plan to designate a tie-breaker
in the event the parties cannot reach a consensus in any of the four designated areas.
The Parenting Plan
An experienced Guardian ad Litem may draft a proposed Parenting Plan to
submit to the court, and should, at a minimum, approve any agreed upon Parenting
Plan. O.C.G.A. § 19-9-1 requires the entry of a Parenting Plan in every case involving
custody. The statute sets forth certain language which must be included in a Parenting
Plan. Uniform Superior Court Rule (“USCR”) 24.10 includes a form that can be used.
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USCR 24.10 requires each party to submit a Parenting Plan in all cases involving
permanent custody or custody modification.
The form is required to include the
following:
•
Recognition that a close and continuing relationship between the parents
and child and continuity in the child’s life will be in the child’s best
interest;
•
Recognition that the child’s needs will change as the child matures, and
that the parents will make an effort to parent taking this into account so
that future modifications to the parenting plan are minimized;
•
Recognition that the parent with physical custody will make day to day
decisions and emergency decisions while the child is residing with that
parent; and
•
that both parents have access to all of the child’s records and information
including, but not limited to, education, health, extracurricular activities,
and religious communications.
In addition, unless otherwise ordered by the judge or agreed upon by the parties,
a parenting plan shall also include:
•
The establishment of a physical custody schedule (including holidays)
including where the child will be every day of the year;
Recitation of transportation arrangements;
•
If supervision is necessary, the terms of supervision;
•
Allocation of final decision-making authority;
•
Any limitations on contact with the child for the parent without physical
custody.
•
Definition and Application of Best Interest Standard
O.C.G.A. § 19-9-3 is the most important statute to be familiar with when acting as
an advocate in a custody dispute. It sets forth the best interest standard, and gives
judges guidance by providing statutory guidelines for determining what is in the best
interest of the child. The factors provided are not mandatory, they are simply factors
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the judge may consider in determining custody. Whether you are advocating your case
to a judge or trying to persuade a Guardian to make a recommendation in your favor,
you should use these factors in presenting your case.
The statute recognizes that the judge, not a jury, shall “determine solely what is
for the best interest of the child and what will best promote the child’s welfare and
happiness.” The statute also provides that there can be no prima facie right to custody
in favor of either the mother or the father, and no presumption in favor of any form of
custody (legal or physical).
O.C.G.A. § 19-9-3 allows the judge to consider any factor he or she deems
relevant in determining the best interests of the child. O.C.G.A. § 19-9-3(a)(3) includes
a list of 17 factors the court “may consider.” An advocate should always examine the
factors and apply them to the facts and circumstances of the case. The factors are:
•
The love, affection, bond and emotional ties between parent and child;
•
The love, affection, bond and emotional ties between child and siblings,
step-siblings, half siblings, and the residence of such other children;
•
Capacity and disposition of each parent to provide love and guidance;
•
Knowledge of and familiarity with the child’s needs;
•
Capacity of each parent to provide food, clothing, medical care, day to day
needs and basic care, with consideration for the potential payment of child
support by the other parent;
•
Home environment of each parent;
•
The importance of continuity and stability in the child’s life;
•
Stability of the family unit and presence or absence of support systems
within the community to benefit the child and parent.
•
Mental and physical health of each parent;
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•
Each parent’s involvement or lack of involvement in the child’s
educational, social, and extracurricular activities;
•
Parent’s employment schedule;
•
The home, school, and community record of the child, and any health or
educational special needs of the child;
•
Parties’ past performance of parenting responsibilities and ability to
perform in the future;
•
Willingness and ability to facilitate relationship with other parent;
•
Any recommendation by a custody evaluator or GAL;
•
Any evidence of family violence, abuse, or criminal history of either
parent;
•
Any evidence of substance abuse by either parent.
Affidavits of Election
O.C.G.A. § 19-9-3(a)(5) contains the statutory provisions regarding affidavits of
election by minor children over the age of 14 years old. The statute allows for a minor
child, at the age of 14, and beyond, to elect to live with one parent over another. That
choice “shall be presumptive unless the parent so selected is determined not to be in the
best interests of the child.” The election may be considered a change of circumstances
sufficient to warrant a modification of custody however “such selection may only be
made once within a period of two years from the date of the previous selection and the
best interests of the child standard shall apply.” O.C.G.A. §19-9-3(a)(5). In essence, the
statute provides consistency that it is the judge who is empowered with making a
decision of custody in the best interests of the child – not the minor child by virtue of
being 14 years of age or beyond. A Guardian will often be appointed in these types of
cases to help determine whether the election is knowing and voluntary, or if it has been
coerced by the parent in whose favor it has been executed.
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In the event a minor child 11 years of age, but not yet 14, makes an election, “[t]he
judge shall have complete discretion in making this determination, and the child's
desires shall not be controlling.” O.C.G.A. §19-9-3(a)(6). Unlike the election of a child
14 years old or beyond, the election of an 11 to 14 year old shall not, according to the
statute, be a change in circumstances. Interestingly, the statute has a built in ‘trial
period’ of change of custody on a temporary basis available to the judge for children age
11 to 14 (which does not specifically extend to those minor children 14 and beyond.).
“The judge may issue an order granting temporary custody to the selected parent for a
trial period not to exceed six months regarding the custody of a child who has reached
the age of 11 but not 14 years where the judge hearing the case determines such a
temporary order is appropriate.”
Modification of Custody
Under O.C.G.A. § 19-9-3(b), if an initial custody decision has been reached, it can
be modified based on a material change in circumstances affecting the welfare of the
child. Once that threshold has been met, it must be shown that a modification of
custody is in the best interest of the child. Visitation or parenting time, on the other
hand, may be modified without a showing of a material change in circumstances. It may
be changed on the motion of either party, or on the court’s own motion. O.C.G.A. § 199-3(b) statute only allows modification of parenting time or visitation without showing a
material change in circumstances only once every two years.
The standard for a
modification of visitation is also the best interest of the child.
After an initial custody determination has been reached, the relocation of either
the custodial or non-custodial parent is sufficient to create a change in circumstances
affecting the welfare of the child. Bodne v. Bodne, 277 Ga. 445 (2003). Additionally, a
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planned relocation by the custodial parent may also create a change in circumstances
affecting the child’s welfare according to Gallo v. Kofler, 289 Ga. 355 (2011).
Although relocation may create a change of circumstances, such a change
requires the court to examine the best interests of the child at the time of the relocation.
Therefore, it is not enforceable to include provision in a settlement agreement
prohibiting relocation or providing for what will happen regarding custody in the event
of relocation. Scott v. Scott, 276 Ga. 372 (2003).
Third Party Claims for Custody and Visitation
Claims for Custody by Third-Party Relatives
O.C.G.A. § 19-7-1(b.1) allows custody of a child to be granted to certain thirdparty relatives under very narrow circumstances. The statute limits third parties who
may assert a claim for custody to grandparents, great-grandparents, aunts, uncles, great
aunts or uncles, siblings or adoptive parents. The statute specifies that the best interest
standard applies. The Georgia Supreme Court has recognized, however, that parents
have a constitutional right under both the United States Constitution and the Georgia
Constitution to the care and custody of their children. Clark v. Wade, 273 Ga. 587
(2001). Thus, the Court determined that there is a rebuttable presumption that parental
custody is in the best interest of the child. The Court then interpreted the “best interest
of the child” standard in parent versus third party custody disputes to require the third
party relative to show that parental custody would harm the child to rebut the statutory
presumption in favor of the parent. Once this presumption is overcome by clear and
convincing evidence, the third party relative must then show that an award of custody to
the relative will best promote the child’s health, welfare, and happiness.
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Claims for Visitation by Grandparents
In 2012, the Georgia Legislature passed significant changes to O.C.G.A. § 19-7-3
which allows a grandparent to file an independent action for visitation with a child, or to
intervene in a pending matter and seek visitation when custody is at issue. The statute
grants a grandparent the ability to intervene “in any action in which any court in this
state shall have before it any question concerning the custody of a minor child, a divorce
of the parents or a parent of such minor child, a termination of the parental rights of
either parent of such minor child, or visitation rights concerning such minor child or
whenever there has been an adoption in which the adopted child has been adopted by
the child's blood relative or by a stepparent.” It also allows a grandparent whose child
has died or been incapacitated or incarcerated to be awarded reasonable visitation if the
court determines it to be in the child’s best interest. In such cases, the court is required
to give deference to the custodial parent, but such deference “shall not be conclusive.”
The statute is only applicable when parents are separated, and it does not apply
when the child lives with both parents. The law provides a list of factors the court must
look at to determine whether the “health or welfare of the child would be harmed unless
such visitation is granted, and if the best interests of the child would be served by such
visitation.” The court may find that harm is “reasonably likely to result” if prior to the
original action or intervention:
•
The minor child resided with the grandparent for six months or more;
•
The grandparent provided financial support for the basic needs of the
child for at least one year;
•
There was an established pattern of regular visitation or child care by the
grandparent with the child; or
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•
Any other circumstance exists indicating that emotional or physical harm
would be reasonably likely to result if such visitation is not granted.
Procedural Issues to Keep in Mind in Custody Cases
Once a judgment awarding custody and parenting time is entered, it may be
necessary for one parent to ask the court to hold the other parent in contempt for
violation of the provisions regarding custody and parenting time.
In a contempt
proceeding, the trial court has the authority to interpret the meaning of a divorce decree.
The court does not, however, have the authority to modify a final judgment and decree
of divorce. Harper v. Smith, 261 Ga. 286 (1991).
The trial court also cannot effect a
change in custody under the guise of modifying visitation rights. Martin v. Buglioli, 185
Ga. App. 702 (1988). The court can, however, modify visitation rights in a contempt
proceeding on the motion of either party, or on the courts own motion pursuant to
O.C.G.A. § 19-9-3(b).
Family law practitioners should also take note of the venue provisions of O.C.G.A.
§ 19-9-23. That code section requires any action seeking to obtain a change of legal
custody to be brought as a separate action in the county of residence of the legal
custodian. If the complaint is brought by the legal custodian, it must be brought in the
county of residence of the Defendant, in compliance with Article VI, Section II,
Paragraph VI of the Georgia Constitution. The statute also states that a complaint for
modification of legal custody cannot be brought as a counterclaim to any action seeking
to enforce a custody order.
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Additional Tools at the Court’s Disposal
Custody Evaluation
In addition to the appointment of a Guardian ad Litem O.C.G.A. § 19-9-3(a)(7)
recognizes the authority of a judge to order a psychological custody evaluation of the
family or an independent medical evaluation. A custody evaluation generally involves
psychological testing of the parties, interviews with the parties, interviews with the
child, observations of interactions between the parties individually with the child, and
an analysis and recommendation regarding custody by the evaluator.
Psychological Evaluation
Rather than a full custody evaluation, a judge may order a psychological
evaluation of one or both parties or the child. A psychological evaluation is different
from a custody evaluation because it only involves testing of the parties. It does not
generally involve interviews with the child or any analysis of psychological data and
application of the testing to the particular facts of the case.
Drug/Alcohol Experts
When there are allegations of drug or alcohol abuse, a court may appoint a drug
and/or alcohol expert to conduct an assessment of either or both parties.
Co-Parent Counselor
The court may order the parties to attend co-parenting counseling with a
qualified therapist. Co-parent counseling can be an effective way to assist separated or
divorced parenting to keep communication about the child constructive and civil. A
good co-parent counselor can help shield children from conflict between the parents,
promote consistency in both homes, and promote consistency in discipline.
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Conclusion
Whether you are advocating a custody case or serving as a Guardian ad Litem, it
is imperative that you know the law applicable to the situation. Always apply the factors
outlined in O.C.G.A. § 19-9-3(a)(3) to your case. Further, if you find yourself using a
Guardian in a custody case, remember that your advocacy role translates to the
Guardian as well as to the judge. Although a Guardian only makes a recommendation to
the court, that recommendation generally carries substantial weight. You should be in
contact with the Guardian, be ready to answer any questions the Guardian has, and be
focusing the Guardian on why your client’s position is in the best interest of the child.
12
NUTS AND BOLTS OF FAMILY LAW
HOW TO LITIGATE CHILD SUPPORT
Katie B. Connell
Boyd, Collar, Nolen & Tuggle, LLC
Atlanta, Georgia
John T. Gunn
The Gunn Firm
Marietta, Georgia
Special Thanks to John Gunn of The Gunn Firm.
John presented this same topic at the August 2012 Nuts and Bolts in Savannah and was kind
enough to share his materials for the preparation of this paper related presentation.
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I.
Introduction
Georgia’s public policy requires parents to support their minor children regardless of
marital status or legitimation. O.C.G.A. §19-7-2. Parents have a duty to provide support
for their minor child until the child “reaches the age of majority, dies, marries, or
becomes emancipated….” O.C.G.A. § 19-6-15(e).
The failure to provide support for a
period exceeding 30 days may be a misdemeanor; failure to provide support for over a
year or to leave the state without doing so may be a felony in Georgia and/or under
Federal law.
Family lawyers should not take off their “litigation hat” when calculating child
support. I cringe every time I hear a family lawyer refer to child support as “no big deal
– it’s just a formula.” It makes me wonder if that lawyer has analyzed the individual
case and understands that in that particular circumstance the formula without deviation
really will apply or if they are simply being lazy or do not know that there could be a lot
more to child support then “just a formula.” Furthermore, even in a situation where
“plugging the numbers into the formula” is all that is really necessary for an appropriate
child support calculation, that is hardly all that is necessary for actually finalizing the
case. The requirements to ensure that the final order is entered accurately and will not
be reversed on appeal for further findings of fact for example are rather stringent.
Litigating Child support involves many complex substantive and procedural
issues. An improperly prepared final order or child support worksheet without findings
of fact to substantiate any deviation is vulnerable to a motion for new trial under
O.C.G.A. § 9-11-52.
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II.
THE FOUNDATION – PRE TRIAL TIPS AND TRAPS
Domestic Relations Financial Affidavits – U.S.C.R. 24.21
Domestic Relations Financial Affidavits (DRFA’s) are required in all cases involving
child support and are controlled by Uniform Superior Court Rule 24.2. All DRFAs must
be submitted under oath (notarized) and must substantially comply with the form
presented therein. Most counties have a pre-printed version of the DRFA form on the
Superior Court Circuit’s web page.
•
The party requesting the hearing shall serve and file at least 15 days prior to any
hearing involving support. (10 days prior to court ordered mediation).
•
The responding party must file 5 days after the other party.
•
Note that DRFA’s are not required to be filed or served in cases filed with
completed settlement agreements.
DRFA Practice Tips
•
A month is comprised of 4.33 weeks and any entry of weekly expenses should be
multiplied by 4.33.
•
Witnesses are often impeached for inaccurate DRFA entries in an effort to reduce
their credibility before the judge or jury.
Wherever possible entries should be
substantiated with financial records and/or receipts.
Divorce clients are
notorious for understating income and omitting assets and debts, judges are well
aware of these problems, make sure your client has the supporting documents to
avoid the credibility attack.
1
Excerpts of U.S.C.R. 24 are attached as an exhibit.
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•
If the case is a modification of support check the DRFA income in the present
case against the settlement agreement and/or previous order as well as the DRFA
from the previous case. Discrepancies can be disastrous if discovered late in the
process. If your client’s income was understated in the previous case then a
downward modification may be difficult because there may not be a substantial
change in income from the finding of fact in the previous case. Your client will
inevitably tell you his/her ‘actual’ income at the time of the previous case rather
than the finding of fact on record which the court will use.
•
Caution is also warranted when settlement agreements are submitted and the
filed DRFA and settlement agreement omit any asset - particularly stock options
which may have zero value as of the date of filing but could mature into great
value in the future. Assets should be identified even if valued at zero dollars to
avoid opening the door to a possible motion for new trial or motion to set aside
based upon hidden assets.
The Child Support Worksheet – and the Deadlines under U.S.C.R. 24.2
•
Served and filed contemporaneously with the DRFA.
•
The Child Support Work Sheet must be attached to the final order.
Effective January 1, 2007 the Georgia Child Support Guidelines were based upon an
“income shares” model which incorporates the income of the parties, determines a
presumptive amount of support and provides for the ability to modify the presumptive
amount to incorporate specific and non-specific deviations. The court may deviate from
the presumptive amount of support in order to 1) address the best interest of the child 2)
account for the circumstances of the parties 3) accommodate deviations permitted by
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statute and to 4) afford to children of unmarried parents a similar standard of living
comparable to children living in intact families. O.C.G.A §19-6-15(c)(1).
The State of Georgia Child Support Commission has authored a helpful booklet
available via online download that addresses a myriad of frequently asked questions
regarding the completion of the child support worksheets (CSWS).
The guide is
organized to follow the child support worksheet section by section, is easy to follow and
fairly comprehensive. It is an invaluable supplement and available at the following web
address:
http://www.georgiacourts.org/csc/CompanionGuide_V2.pdf
Be sure to download a current version of the Worksheets for each case. The child
support worksheet are updated frequently and available for download at:
http://www.georgiacourts.org/csc/
Required Schedules are identified by check boxes at the bottom of the first
section. You are not required to file schedules which are not identified by the check
boxes on the second page of the worksheet. In other words, do not file the blank
Schedule C, and if you do not use Schedule B, D or E do not file those pages either.
Schedules not identified via a check in the box at the bottom of the second page of the
Worksheet- just above the actual child support number- contain no entries on the CSWS
which would require them to be incorporated.
III.
Litigating Income
Typically, if the question of child support is going to be litigated, the first issue is
establishing the gross income for each parent. Gross income for child support shall
include “all income from any source... whether earned or unearned.” O.C.G.A. §19-6Litigating Child Support
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15(f)(1)(A). Where one or both of the parents is a W-2 employee with no component of
variable income in their salary, such as bonuses, and no other sources of income,
establishing gross income for the child support calculation should not be particularly
complicated. However, where one or both of the parents is self-employed, unemployed
or under employed, receives certain fringe benefits, or has a variable income component
to their gross income such as bonuses or commissions, child support calculations can
become very complicated very quickly and that is before the first deviation is
considered.
Where establishing the gross income for one or either party is an issue, discovery
is critical. How often, for example, do you hear from your own client or opposing
counsel when referring to bonus income of a parent that “bonuses are not guaranteed?”
The Child Support Guidelines require an average of variable income over a “reasonable”
period of time. What would litigators do without the word “reasonable” in our statues?
When calculating child support, if one or both parties has historically received a bonus
or is eligible for one in the near future it is your job to argue what period of time is
reasonable to use as an average under the circumstances.
Self-employment income, as defined by the Child Support Guidelines, is income
from self-employment, and includes, but is not limited to income from business
operations, work as an independent contractor or consultant, sales of goods or services,
and rental properties, less ordinary and reasonable expenses necessary to produce such
income. Income from self-employment, rent, royalties, proprietorship of a business, or
joint ownership of a partnership, limited liability company, or closely held corporation
is defined as gross receipts minus ordinary and reasonable expenses required for selfemployment or business operations. O.C.G.A. §19-6-15(f)(1)(B).
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The unemployed or underemployed parent creates gross income issues too. If a
parent fails to produce reliable evidence of their income, such as tax returns for prior
years, check stubs, or other information for determining current ability to pay child
support, and there is no other reliable evidence presented related to the parent’s income
or income potential, gross income for the current year should be determined by
imputing gross income based on a 40 hour workweek at minimum wage. O.C.G.A §196-15(f)(4).
When in doubt, there is always minimum wage. In Brogdon v. Brogdon, the trial
court properly imputed income to wife based on a 40 hour work-week at the national
minimum wage of $7.25 per hour, because O.C.G.A. § 19-6-15(f)(4)(A) is clear that such
imputation is mandatory when a party has no other proof of income. 290 Ga. 618
(2012).
This does not mean that every house-wife should have minimum wage imputed
to her, as litigators it is our job to present evidence that will support an appropriate
income to be imputed to that parent using the examples of the types of things that
should be considered in the statute i.e. education, work history, length of
unemployment, reason for unemployment, etc. The trial court has the discretion to
determine what income should be imputed to the unemployed parent. For example, the
trial court’s findings were upheld by the Supreme Court of Georgia when it found that
despite the father’s disabilities, the father still had the ability to obtain funds to support
his child. Larizza v. Larizza, 286 Ga. 461 (2010). Even though the father received SSI
funds, which are excluded as income in child support cases, the court imputed a
monthly income of $1,100.00, which includes part time employment at minimum wage.
Id.
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Evidence of income or earning potential can be presented by either side. It would
be unwise to assume because you represent the unemployed spouse you do not need to
make a case. In Caldwell v. Meadows, the trial court was within its discretion to
consider evidence of mother’s past employment and her reasons for voluntarily
terminating her employment in determining whether and what amount of income to
impute to mother. 312 Ga. App. 70 (2011). No evidence was offered that mother could/
could not obtain her former income following her relocation.
IV.
Litigating Deviations
On the one hand, the standard for the appropriate finding of a deviation appears
to be very high where the trial court “must find that the application of the presumptive
amount of child support would be unjust or inappropriate and that the best interest of
the child for whom support is being determined will be served by deviation from the
presumptive amount of child support.” Willis v. Willis, 288 Ga. 577 (Ga. 2010). See
also O.C.G.A. § 19-6-15(c)(2)(E)(iii).
However, where a trial court includes the statutorily-required findings of fact
related to allowing or granting a requested deviation in child support that decision is
likely to be upheld as the abuse of discretion standard applied to the appellate review
appears to be high.
For example, the Supreme Court held that an upward deviation of
$907 based on extraordinary educational, medical and extracurricular needs of the
children was not an abuse of the trial court’s discretion, where the order stated how the
application of the guidelines presumptive amount would be unjust and how the best
interests of the children would be served by the deviation. Autrey v. Autrey, 288 Ga.
283 (2010).
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The converse is true for when a trial court declines to include a deviation. For
example, no abuse of discretion was found where the trial court declined to deviate from
the statutory child support to add the child’s cheerleading expenses to father’s monthly
child support obligation. Ellis v. Ellis, 290 Ga. 616 (2012).
Be prepared to present evidence related to your requested deviations. Why is the
particular deviation outside the scope of what was anticipated by the Georgia Child
Support Guidelines’ presumptive amount? Why would the presumptive amount be
unfair or unjust? Why the proposed deviations (activities, private school, medical care,
parenting time, etc.) are in the best interest of the child? If you do not present this
evidence the judge will likely ask for it or deny the request for the deviation.
Common Deviations.
Parenting Time. The court may order a parenting time deviation “when special
circumstances make the presumptive amount of child support excessive or inadequate
due to extended parenting time as set forth in the order of visitation or when the child
resides with both parents equally.” O.C.G.A. §19-6-15(i)(2)(K)(i).
Many judges seem to consider custodial to noncustodial time ratios from 50/50
up to roughly 70/30 to be within the range of normal shared custody. If the noncustodial parent’s anticipated or actual time with the child falls below 30%
or
approaches 50% of the calendar days in a given year you may wish to consider a
parenting time deviation to account for the additional costs incurred while the child is
with the parent who has contributed the greater share of parenting time. Obviously the
opposing party may attempt to immediately exercise additional time once on notice of
the petition. A critical item for the hearing will be a calendar or other demonstrative
device showing the monthly days or hours spent with your client versus the opposing
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party. Also include all receipts and notations regarding additional expense incurred on
behalf of the child due to the non-standard visitation (soccer practices, doctor visits and
all other “best interest of the child” trips and expenses your party incurs).
Travel Expenses. Anticipate that the Judge may inquire and require testimony as
to which parent relocated necessitating the travel for parenting time, if the relocation
was forced on the non-custodial parent, and the move impacted the no-custodial
parent’s parenting time (and consequently the best interest of the child) that may
influence the court.
Be certain to advise your client that the failure to exercise substantial parenting
time (and hence substantial travel) may result in the opposing party petitioning for a
modification to rescind the travel expense deviation.
Nonspecific Deviations.
It is critical to craft any petition for a nonspecific
deviation to mirror the “best interest of the child” standard. A nonspecific deviation
“may be appropriate for reasons in addition to those established under this subsection”
with the focus being on issues outside the typical contemplation of the legislature when
they drafted the language. Even so, a nonspecific deviation may only be granted “when
the court or the jury finds it is in the best interest of the child.” O.C.G.A. §19-6-15(c).
This is where the litigator needs to make sure that the language related to the
required findings of facts is included in the final order, even where all you did was round
the final child support to an even number. We have all done it, the child support
worksheets provided that child support should be $1,496.00 per month and the parties
agreed to $1,500.00 per month at mediation. The lawyers use a non-specific deviation
of $4.00 to ensure that the worksheets and the settlement agreement match, but did not
filling the findings of fact on Schedule E- this will be remanded for further proceedings.
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Remember the cautionary tale of Holloway v. Holloway where the parties
agreed to a child support amount that was $18.00 different from the presumptive
amount. The difference of $18.00 was made for rounding purposes and went in the
mother’s favor.
However, she was paying child support and apparently did not
appreciate the $18.00 break. She appealed the final Order as neither it, the Agreement
nor the Worksheets included any language related to the required findings of fact. The
trial court denied her motion for new trial and gave father attorney’s fees, presumably
because of the ridiculous attempt on her part to get a second chance at the agreed upon
child support number. However, the trial court was reversed, because even an $18.00
deviation for rounding must include findings of fact. 288 Ga. 147 (2010).
Documenting Deviations. Be aware that some courts will not grant a deviation if
the factual justification on the child support worksheet is a conclusion. Language along
the lines of “X deviation should be granted because it is in the best interest of the child”
may be rejected even in the presence of agreement of the parties. Some courts view the
statute as requiring the language to state factually why such a deviation is in the best
interest of the child. i.e., “the proposed deviation will allow the father (mother) to
budget for travel expenses permitting monthly visitation with the child which would
otherwise not be possible and is in the best interest of the child in order to continue the
strong bond and frequent visitation between the child and his father (mother).”
Avoid Future Modifications.
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•
Where your client’s income is about to go up (promotion or job change is planned
or expected) use the higher rather than lower income if child support is set via
deviation by settlement agreement.
This may preempt foreseeable future
grounds for modification due to marginally increased income which both parties
anticipated at the time of the original order.
•
Avoid incorporating excessive parenting time your client is unlikely to exercise.
Failure to exercise significant parenting time can be a ground for future
modification.
•
Phrase discretionary parenting time as such: “in the event the Mother chooses to
exercise additional parenting time during the child’s Fall Break….” or “the mother
shall have the option to exercise additional parenting time in addition to the above
listed schedule during the child’s fall break.”
Child Support Deviations in a nutshell:
They are all in the court’s discretion. Any court so applying these guidelines shall not
abrogate its responsibility in making the final determination of child support based on
the evidence presented to it at the time of the hearing or trial. O.C.G.A. §19-6-15.
V.
Child Support Addendum2
Child Support Addendums are often required by local rule and should be
submitted with the final order or incorporated therein. They are utilized by the court to
ensure that all findings of fact required by OCGA §§ 19-6-15 & 19-5-12 have been
2
A Fulton County Child Support Addendum is attached as an exhibit.
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incorporated into the final order thus, greatly reducing that possibility that the final
order can be overturned due to a technical oversight.
The Augusta Judicial Circuit provides a valuable written overview of a standard
Child Support Addendum in a letter written by Judges Michael N. Annis, Sheryl B. Jolly
& J. David Roper at:
http://www.augustabar.org/
(Click on “Rules,” “State Court Local”, “Child Support Addendum”).
VI.
Income Deduction Orders.
Income Deduction Orders (State form) and Income Withholding Orders (Federal
form) must be submitted with Final Orders unless the court issuing the order finds that
there is good cause not to require withholding and such a finding must be based on at
least a written determination that implementing wage withholding would not be in the
best interest of the child, or a written agreement is reached between both parties which
provides for an alternative arrangement.”3 § O.C.G.A. 19-6-32(a)(1)
Effective June 1, 2012 the Federal Office of Child Support Enforcement (OCSE)
and the Office of Management and Budget (OMB), under 42 U.S.C. § 666, have issued a
revised Income Withholding Order (IWO) that is required to be sent to employers with
ALL income deduction orders issued on or after May 31, 2012 (ie, now).4 The
consequence of not using the required IWO form is that the employer must reject the
income deduction order and return it to the sender, potentially causing an unnecessary
delay in the custodial parent receiving the child support.
3
4
A Georgia Income Deduction Order with instructions is attached as an exhibit.
A copy of the Federal IWO form with instructions is attached as an exhibit.
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Also note that Georgia U.S.C.R. 24.2 effectively prohibits you from filing the
completed Federal form in Georgia.
The Federal form requires the social security
number but U.S.C.R 24.2 forbids you from filing any form which includes a social
security number. Hence, the State form should be signed by the Judge and filed, and
the Federal form should be sent directly to the employer.
The Child Support Commission in conjunction with the Georgia Division of Child
Support Service (DCSS) created a guideline to help streamline the process of preparing
IDO’s and IWO’s. The guide, along with frequently asked questions, forms and other
resource materials are available at the following website:
www.georgiacourts.gov/csc/iwo.
VII. THE HEARINGS
Notice of the date of any temporary hearing must be served upon the opposing
party at least 15 days in advance as required by Uniform Superior Court Rule 24.2. Note
that this is a “shall” rule (unless otherwise ordered by the court) and can result in the
granting of a motion to set aside if the court moves forward with a temporary hearing
without the proper notice absent an explicit ruling from the court otherwise. This rule
was modified a few years ago increasing the notice time substantially.
Getting before the Judge when Opposing Counsel doesn’t want it there!
In instances where the opposing party’s interest is in avoiding any change in the
status quo the opposing party has a vested interest in keeping the case away from the
judge. Be quick to utilize the following suggestions:
•
Ensure all pleadings are filed in advance of deadlines
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•
File a motion for a temporary hearing in a support only case.
•
Ensure your Rule Nisi identifies the issues to be heard (thus avoiding
Opposing Counsel’s claim that only some portion of the petition/counterclaim
or non-support issues were intended to be heard).
•
Assume any newly filed leave of absence will include the hearing date and be
prepared to object.
•
Bring the opposing counsel’s conflict letter to any calendar call (to avoid the
suddenly appearing mysterious conflict).
•
Schedule mediation early or file a request to waive mediation early. Assume
opposing counsel will object on the day of the hearing on the sudden discovery that
the parties haven’t mediated. If getting a mediation scheduled could cause a delay
then go ahead and schedule it while you’re waiting for the motion to waive mediation
to be granted.
•
Use a pre-hearing checklist 21 days prior to the hearing!5
All Support Hearings
It does not have to be so complicated - keep it simple!
Only print the child support worksheet schedules that are required for your case
(as identified on the first page of the CSWS by check boxes). Use caution if you consider
proposing more than two CSWS scenarios. Two CSWS’s together with the schedules
required for deviations and calculations can quickly exceed the Judge’s available desk
space. If the Judge cannot follow your paperwork it is much more likely they will adopt
opposing counsel’s suspect but simple argument and CSWS.
Be sure to bring a soft copy of the paperwork; it will inevitably need to be
redrafted.
5
A sample checklist is attached as an exhibit.
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Temporary Hearing
Temporary hearings in a domestic relations case shall not be set less than 15 days
after service of the date of the temporary hearing. U.S.C.R. 24.2. Only one live witness
and the party may testify unless the court rules otherwise. Other witnesses may testify
via affidavit. (U.S.C.R. 24.5). One should presume or at least be prepared for an
“emergency hearing” to be handled under the same rules and in the same manner as a
temporary hearing.
Included within the scope of temporary alimony are attorney’s fees and expenses
of litigation awarded to a spouse so that she may contest all the issues raised in the
pending action. O.C.G.A. §§ 19-6-2, 19-6-3. Brown v. Brown, 224 Ga. 90 (1968).
Can the Judge Allow That?
In temporary hearings the Judge has more leeway than most civil hearings in
terms of procedure and what evidence is admitted. “The rules of evidence are not as
strictly applied at an interlocutory hearing on an application for temporary alimony as
in the final trial of the case.” Gray v. Gray, 226 Ga. 767 (1970).
Affidavits in Temporary Hearings: U.S.C.R. 24.5(a)
Affidavits must be served upon opposing counsel more than 24 hours in advance
of the hearing. Be sure to advise your affidavit submitters that conclusory information
and hearsay are not admissible in affidavits. They must make their statements based
upon their personal knowledge.
It is helpful to permit time to review and offer
suggested revisions to the affidavits prior to the final draft. Some attorney’s interview
each affiant and draft the affidavit themselves relying upon the interview with the
affiant. The affiant then has the opportunity to review and revise the affidavit.
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Introducing Affidavits:
There are a number of ways to introduce affidavits to a court. Generally, courts
prefer the least time consuming alternative. Many courts put far less confidence in the
testimony offered via affidavit due to the lack of cross examination.
•
Inclusion in closing statement.
•
Cross Examination of the opposing party with regard to events, testimony in
affidavit form.
•
Generally avoid reading them to the judge (other than a highlight or two)!
•
Many attorneys will send a courtesy copy to the judge at the time of service to
opposing counsel. When in doubt check with the judge’s clerk – some judges
do not care for this practice.
Final Hearings:
You must create the record at the final hearing as if the court has never seen or
heard from the parties before. In other words, evidence from a temporary hearing must
be introduced again unless there is a stipulation of counsel that the court may consider
evidence from the temporary or other hearing. “[T]he nature and quality of the evidence
presented at a temporary hearing is likely to be different than that which is ultimately
presented at the final hearing. . . .” Pace v. Pace, 287 Ga. 899 (2010). The Georgia
Supreme Court held that “absent express notice to the parties, it is error for a trial court
to rely on evidence from the temporary hearing in making its final custody
determination.” Id. While this holding explicitly refers to a custody hearing there is no
indication the holding would not equally apply to support only hearings and the Court’s
rational is identical.
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VIII. ODDS & ENDS
Split Parenting Custody – how do I calculate child support now?
O.C.G.A. § 19-6-15 (l) provides as follows:
In cases of split parenting, a child support worksheet shall be prepared separately
for the child for whom the father is the custodial parent and for the child for whom the
mother is the custodial parent, and those worksheets shall be filed with the clerk of
court. For each split parenting custodial situation, the court shall determine:
(1) Which parent is the obligor;
(2) The presumptive amount of child support;
(3) The actual award of child support, if different from the presumptive amount
of child support;
(4) How and when the sum certain amount of child support owed shall be paid;
and
(5) Any other child support responsibilities for each parent.
In short for split parenting situations (one or more children live with each of the
two parents) you must file two Child Support Worksheets.
The Child Support
Addendum also contemplates this situation and contains language to address it.
Typically the court will “net” the two support worksheets and order the net difference to
be paid to the parent with the lower obligation.
Can I do that on a petition for contempt?
Yes, you can modify child support on a petition for contempt action if by consent
of both parties. “Considerations of judicial economy dictate that parties to a contempt
proceeding be allowed to present the court with a binding consent judgment settling the
matter of future child support payments, rather than requiring the contempt proceeding
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to be dismissed and a modification proceeding filed, and that the same agreement be
made the subject of consent judgment in the new proceeding.” Moody v. Moody, 252
Ga. 210 (1984).
Findings of Fact!
•
The appellate courts seem downright frustrated with the number of
appeals they are receiving that do not include the required findings of fact.
Do your judge a favor and make sure they are included.
•
For examples see:
o Turner v. Turner- Where the Supreme Court reversed a trial court’s
application of a parenting-time deviation without making the
statutorily-required findings of fact. 285 Ga. 866 (1) (2009).
o Johnson v. Ware- Issue of child support was remanded to the trial
court where even the appellee acknowledges that the proper finds of
fact are not included in the order and “the court’s award of tuition
outside of the support award was an unexplained deviation.” 313
Ga. App. 774 (2012).
o Brogdon v. Brogdon- “This Court has repeatedly emphasized the
statute’s clear directive that . . . written findings must be included in
the final child support order if a deviation is made . . . when any of
the required findings are omitted, we have no choice but to reverse
the trial court’s judgment and remand the case to the trial court for
further proceedings.” 290 Ga. 618 (2012).
Practice Tips
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•
The worksheets are updated frequently and a fresh copy should be downloaded
prior to use.
•
In addition to entering the Children’s names on the child support worksheet you
must check the corresponding box indicating that the child is included in the
order. The calculator will blindly increase the child support obligation if more
boxes are checked than children are identified and will decrease the child support
obligation if the check box opposite each child’s name is not checked.
•
Ensure that your CSWS includes your party’s full name in the “Filed by” field or
“Counsel for the Defendant” etc. The judge will want to know very quickly when
he or she sorts through the paperwork at the end of the hearing which worksheet
is submitted by whom.
Days later (or years in the case of a subsequent
modification) the case can hinge on which spreadsheet was filed by whom.
Use the “Check Boxes” on the front of the first CSWS page to identify which schedules
need to be printed and filed. The CSWS will automatically identify which schedules are
required based upon the information entered.
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SUPERIOR COURT OF FULTON COUNTY
STATE OF GEORGIA
FAMILY DIVISION
,
Petitioner,
and
CIVIL ACTION
FILE NO.____________________
,
Respondent.
CHILD SUPPORT ADDENDUM
…
…
The parties have agreed to the terms of this Order and this information has been furnished
by both parties to meet the requirements of OCGA §19-6-15. The parties agree on the terms
of the Order and affirm the accuracy of the information provided, as shown by their
signatures at the end of this addendum.
This addendum includes findings of fact and conclusions of law and fact made by the Court,
in compliance with OCGA §19-6-15.
Application of Child Support Guidelines. The statutory requirements of OCGA §19-6-15
have been applied in reaching the amount of child support provided under the Final Order in this
action. The specifics are as follows:
1.
Gross Income - The Father’s gross monthly income (before taxes) is $
Mother’s gross monthly income is $
(before taxes).
2.
Number of Children - The number of children for whom support is being provided under
this order is
.
3.
Attachments - The Child Support Worksheet and Schedule E are attached and made a part of
this Addendum, along with any other applicable schedules.
4.
Child Support Amount – The ___________________ shall pay to the
support of the minor children, the sum of
Dollars ($
) per month, beginning on
5.
; the
, for the
, 20
.
Duration of Child Support
[You must check & complete only one of the following paragraphs.]
… (a) Beyond Age 18 for High School - The child support shall continue monthly thereafter
until each child reaches the age of eighteen, dies, marries, or otherwise becomes emancipated;
provided that if a child becomes eighteen years old while enrolled in and attending secondary
school on a full-time basis, then the child support shall continue for the child through the
Child Support Addendum
Fulton County Family Division
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month when the child has graduated from secondary school or through the month when the
child reaches twenty years of age, whichever occurs first.
… (b) Stops at Age 18 - The child support shall continue monthly thereafter until each
child reaches the age of eighteen, dies, marries, or otherwise becomes emancipated.
… (c) Until Further Order - This is not a final order, so the child support shall continue
until further order of this Court.
… (d) Until Specific Date - The child support shall continue monthly thereafter until
.
6.
Deviation from Presumptive Amount
[You must check & complete only one of the following paragraphs.]
… (a) No Deviation - It has been determined that none of the Deviations allowed under
OCGA §19-6-15 applies in this case, as shown by the attached Schedule E. The amount of
support in Paragraph 4 above is the Presumptive Amount of Child Support shown on the
attached Child Support Worksheet.
… (b) Deviation - It has been determined that one or more of the Deviations allowed under
OCGA §19-6-15 applies in this case, as shown by the attached Schedule E. The
Presumptive Amount of Child Support that would have been required under OCGA §19-615 if the deviations had not been applied is $
per month, as shown on the
attached Child Support Worksheet. The attached Schedule E explains the reasons for the
deviation, how the application of the guidelines would be unjust or inappropriate
considering the relative ability of each parent to provide support, and how the best interest
of the children who are subject to this child support determination is served by deviation
from the presumptive amount of child support.
7.
Split Parenting - A split parenting situation occurs when the parents have two or more
children together, where at least one of the children spends more than 50% of the time with
one parent, and at least one of the children spends more than 50% of the time with the other
parent.
[You must check & complete only one of the following paragraphs.]
… (a) Not Split Parenting Case - This case does not involve Split Parenting.
… (b) Split Parenting Case - This is a Split Parenting case. Separate Child Support
Worksheets have been filed for the children living with the Mother and for the children
living with the Father, and a Child Support Order Addendum has been entered in this action
for each parent. At this time, the Mother is obligated to pay the sum of $
__ per
month to the Father, and the Father is obligated to pay the sum of $________________ per
month to the Mother.
[If you checked (b) above, you must check & complete only one of the following sub-paragraphs.]
… (1) Net Payment - For so long as these amounts remain in effect, the ______________
shall pay only the difference between the two amounts (which is $
) to the
Child Support Addendum
Fulton County Family Division
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________
the other parent.
, who shall not be required to pay the child support obligation to
… (2) Zero Payment - The parents’ child support obligations are equal. For so long as
the amounts remain equal, neither parent shall pay any child support payment to the other
parent.
… (3) Full Payment From Each - Each parent shall pay the full amount of his or her
child support obligation to the other.
8.
Health, Dental & Vision Insurance for Children
[You must check & complete all parts of only one of the following paragraphs, (a) or (b).]
… (a) Insurance Available - The following insurance for the children involved in this
action is available at a reasonable cost to the
through that
parent’s employer or the PeachCare program:
… Health (medical, mental health and hospitalization) … Dental … Vision.
So long as it remains available to that parent, the
shall maintain the
types of insurance checked above for the benefit of the minor children, until each child
reaches the age of eighteen, dies, marries, or otherwise becomes emancipated; except that if
a child becomes eighteen years old while enrolled in and attending secondary school on a
full-time basis, then the insurance shall be continued for the child until the month when the
child has graduated from secondary school or through the month the child reaches twenty
years of age, whichever occurs first.
(1) The parent who maintains the insurance shall provide the other parent with an
insurance identification card or such other acceptable proof of insurance coverage
and shall cooperate with the other parent in submitting claims under the policy.
(2) All money received by one of the parties for claims processed under the
insurance policy shall be paid within five (5) days after the party receives the money,
to the other party (if that other party paid the applicable health care service provider)
or to the applicable health care provider (if the provider has not been paid by one of
the parties).
… (b) Insurance Not Available - Insurance (other than Medicaid) is not available at this
time to either party at a reasonable cost. If health insurance for the children later becomes
available to the parent who is required to pay child support for these children, then that
parent must obtain the following types of insurance, unless it is then being provided by the
other parent:
… Health (medical, mental health and hospitalization) … Dental … Vision.
When insurance has been obtained by either party, Paragraphs 8 (a)(1) and (2) shall apply.
9.
Uninsured Health Care Expenses - The
and the
shall pay
Child Support Addendum
Fulton County Family Division
shall pay
%
% of all expenses incurred for the
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children’s health care (including medical, dental, mental health, hospital and vision care)
that are not covered by insurance. The party who incurs a health care expense for one of the
children shall provide verification of the amount to the other party. That other party shall
reimburse the incurring party (or pay the health care provider directly) for the appropriate
percentage of the expense, within fifteen (15) days after receiving the verification of a
particular health care expense.
10.
Parenting Time Amounts - The approximate number of days of parenting time per year
according to the visitation order is
days for the Father and
days for the Mother.
11.
Social Security Benefits
[You must check & complete only one of the following paragraphs.]
… (a) Not Received - The children do not receive Title II Social Security benefits under
the account of the parent ordered to pay child support.
… (b) Received - The children receive Title II Social Security benefits under the account of
the parent ordered to pay child support. The benefits received by the children shall be
counted as child support payments, and shall be applied against the final child support order
to be paid by that parent.
(1) If the amount of benefits received is less than the amount of support ordered, the
obligor shall pay the amount exceeding the Social Security benefit.
(2) If the amount of benefits received is equal to or more than the amount of
support ordered, the obligor’s responsibility is met and no further support shall be
paid.
(3) Any Title II benefits received for the children’s benefit shall be retained by the
custodial parent or nonparent custodian for the children’s benefit, and it shall not be
used as a reason for decreasing the final child support order or reducing arrearages.
12.
Modification
[You must check & complete only one of the following paragraphs.]
… (a) Not Modification Action - This is an initial determination of child support, not a
modification action.
… (b) Support Not Modified - This action is a modification action, but the order does not
modify the amount of child support that was previously ordered for these children The date
of the initial support order concerning this child support case was:
.
… (c) Support Amount Modified - The Order modifies the amount of child support that
was previously ordered for these children. The basis for the modification is:
… (1) Substantial change in the income and financial status of the Father;
… (2) Substantial change in the income and financial status of the Mother;
… (3) Substantial change in the needs of the Children;
… (4) The noncustodial parent failed to exercise visitation provided under the prior
order;
… (5) The noncustodial parent has exercised more visitation than was provided in
the prior order.
The date of the initial support Order concerning this child support case was:
.
Child Support Addendum
Fulton County Family Division
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13.
Continuing Garnishment for Child Support - Whenever, in violation of the terms of the
order, there shall have been a failure to make the support payments, so that the amount
unpaid is equal to or greater than the amount payable for one month, the payments required
to be made may also be collected by the process of continuing garnishment for support.
14.
Income Deduction Order
[You must check & complete only one of the following paragraphs: (a), (b) or (c).]
… (a) An Income Deduction Order shall be entered by the Court, under OCGA § 19-6-32,
for payment of the child support and alimony (if any) provided. The Income Deduction
Order shall take effect:
[To finish (a), you must check either (1) or (2). Do not check both.]
… (1) immediately upon entry by the Court.
… (2) upon accrual of a delinquency equal to one month’s support. The Income
Deduction Order may be enforced by serving a “Notice of Delinquency,” as
provided in OCGA §19-6-32 (f).
… (b) The parties agree that an Income Deduction Order is not immediately necessary.
… (c) The Court finds that there is good cause not to require income deduction, having
determined that income deduction will not serve the children’s best interests and that there
has been sufficient proof of timely payment of any previously ordered support.
Parties’ Consent (if applicable) - We knowingly and voluntarily agree on the terms of this Order.
Each of us affirms that the information we have provided in this Addendum is true and correct.
_______________________________
Father’s Signature
Child Support Addendum
Fulton County Family Division
______________________________
Mother’s Signature
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ORDER
The Court has reviewed the foregoing Child Support Addendum, and it is hereby
made the Order of this Court.
This Order entered on
, 20
.
________________________________________, JUDGE
SUPERIOR COURT OF FULTON COUNTY
ATLANTA JUDICIAL CIRCUIT
Child Support Addendum
Fulton County Family Division
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THE GUNN FIRM HEARING CHECKLIST
15 Days Prior to Hearing
Item
Maiden Name
Checked by
Parties' Names and CAFN on Last Page of Court Order
AOS Filing Date 35 days
Complaint Filing Date 35 days
CS Addendum
Report of Divorce (Form) / Final Disposition (Form)
Check the Docket
Proposed Order
Parenting Class
Fee Paid / Drivers License
Domestic Relations Financial Affidavit(s) & Pay stubs
Child Support Worksheet
Current Attorney / Billing Statement
Consent to Venue and Jurisdiction (Plaintiff)
Character Affidavits Submitted to Opposing Counsels
Receipts and spreadsheet for children’s expenses
Witnesses have been subpoenaed
Do we have OP’s current pay stubs and DRFA (ask to
supplement stubs if case has been dormant for some time).
Settlement Agreement
Parenting Plan
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NUTS AND BOLTS OF FAMILY LAW
WORKING WITH A
FORENSIC ACCOUNTANT/BUSINESS VALUATOR
Wayne Morrison
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, Georgia
Ansley Callaway, CPA/CFF, CVA, CDFA
Callaway Geer, LLC
Atlanta, Georgia
Chapter 7
i
Working with a Forensic Accountant/Business Valuator
Wayne Morrison
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, GA
and
Ansley Callaway
Callaway Geer, LLC
Atlanta, GA
Table of Contents
I.
What is Forensic Accounting? ............................................................................................. 1
II.
A Forensic Accountant can be of assistance in various ways: ............................................. 2
a.
Investigative Accounting .................................................................................................... 3
b.
Litigation Support ............................................................................................................... 3
III.
Tracing ................................................................................................................................. 4
a.
The Equitable Division of Marital Property. ........................................................................ 4
b.
Mixed Property and the “Source-of-Funds” Rule. .............................................................. 5
IV.
Business Valuation ............................................................................................................... 9
a.
Why is finding a “qualified” business valuation expert so important? ................................ 9
b.
Access to Information and Materials ................................................................................ 11
c.
Guidelines and Valuation Methodologies ......................................................................... 13
d.
Preparing for Mediation and Trial ..................................................................................... 18
V.
Conclusion .......................................................................................................................... 20
APPENDIX A ....................................................................................................................... 21
APPENDIX B ....................................................................................................................... 23
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I.
What is Forensic Accounting?
The integration of accounting, auditing and investigative skills yields the
specialty known as Forensic Accounting. "Forensic", according to the Webster's
Dictionary means, "Belonging to, used in or suitable to courts of judicature or to public
discussion and debate." "Forensic Accounting", provides an accounting analysis that is
suitable to the court which will form the basis for discussion, debate and ultimately
dispute
resolution. Forensic Accounting encompasses both
Litigation
Support and Investigative Accounting.
Forensic Accountants utilize accounting, auditing and investigative skills when
conducting an investigation. Equally critical is their ability to respond immediately and
to communicate financial information clearly and concisely in a courtroom setting.
Forensic Accountants are trained to look beyond the numbers and deal with the
business reality of the situation.
A Forensic Accountant is often retained to analyze, interpret, summarize and
present complex financial and business related issues in a manner which is both
understandable and properly supported. Forensic Accountants can be engaged in public
practice or employed by insurance companies, banks, police forces, government
agencies and other organizations.
A Forensic Accountant is often involved in the following:
•
•
•
•
Investigating and analyzing financial evidence;
Developing formulas, calculations or schedules to assist in the analysis and
presentation of financial evidence;
Communicating their findings in the form of reports, exhibits and collections of
documents; and
Assisting in legal proceedings, including testifying in court as an expert witness
and preparing visual aids to support trial evidence.
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In order to properly perform these services a Forensic Accountant must be
familiar with legal concepts and procedures. In addition, a Forensic Accountant must
be able to identify substance over form when dealing with an issue.
II.
A Forensic Accountant can be of assistance in various ways:
Role of Valuation Experts in Divorce
Property division between the spouses is an important issue in a divorce
proceeding. Ascertaining the correct and proper value of the assets and
properties of the spouses is key to ensuring a fair and equitable division of
the parties' assets. The advice of an expert, who is skilled either by
training, special knowledge, education or experience in the specific field
beyond the knowledge of an ordinary layman, will be of great help for
clearly defining and ascertaining the value of property for future divisions
and tax procedures, etc. A common example would be an accountant with
specific knowledge of the formulas utilized to calculate the present value of
various retirement interests.
Many valuation questions arise in divorce cases involving pension plans,
partnerships, other closely held business or corporation, jewelry and other
collectibles such as expensive artifacts, souvenirs, or paintings. If the
divorcing couple cannot afford to employ an expert, counsel may apply to
the court for an award of interim fees to pay for the services of an expert.
Expert fees are a part of expenses that are involved in a divorce petition.
If the divorcing spouses own a closely held business, an expert may be
needed to assess the distinctive nature and value of separate property of
the spouses. In general, accountants, business strategists, surveyors, home
appraiser, custody evaluator, actuary, real estate brokers, loan evaluators,
consultants either free lancers or employees of banks or financial
institutions, agents etc. are considered as experts. The experts can help in
the discovery process as well.
An expert bridges the gap of understanding complex financial terms, and
breaks it into simple language for easy understanding by a layman. When
divorce proceedings involve complex property issues, the role of an expert
witness can be critical in helping to determine the value of the parties'
assets.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.
2
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a. Investigative Accounting
•
•
•
•
Review of the factual situation and provision of suggestions regarding possible
courses of action.
Assistance with the protection and recovery of assets.
Co-ordination of other experts, including:
o Real Estate Appraisers
o Art and Collectible Appraisers;
o
Private investigators;
o Other Consultants.
Assistance with the recovery of assets by way of civil action or criminal
prosecution.
One of the main components of forensic accounting in family law includes
tracing. Tracing is an accounting technique that involves the flow of funds. It reflects
the flow of funds from either bank to bank, person to person or entity to entity or a
combination of each. It’s primary purpose in civil cases is to trace funds from a source
to the end receiver.
b. Litigation Support
•
•
•
•
•
•
•
Assistance in obtaining documentation necessary to support or refute a claim.
Review of the relevant documentation to form an initial assessment of the case
and identify areas of loss.
Assistance with Examination for Discovery including the formulation of
questions to be asked regarding the financial evidence.
Attendance at the Examination for Discovery to review the testimony, assist with
understanding the financial issues and to formulate additional questions to be
asked.
Review of the opposing expert's damages report and reporting on both the
strengths and weaknesses of the positions taken.
Assistance with settlement discussions and negotiations.
Attendance at trial to hear the testimony of the opposing expert and to provide
assistance with cross-examination.
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III.
Tracing
Introduction
Property interest can be non-marital, marital or mixed. A property interest
brought by one party into the marriage is a non-marital asset and is not subject to
division. Also, an asset or property interest acquired during the marriage by a party by
gift, inheritance, bequest or demise remains the separate asset of the party that acquired
it.1 Where an asset is acquired by the parties during the marriage using marital funds, it
is a marital asset and is subject to equitable division.2
Property may be mixed - consisting of marital and non-marital components.
Where real property was in one party’s name prior to the marriage but marital funds
were utilized to reduce the amount owed on the mortgage or other debt against the
property; the property contains both a separate and a marital component. The
determination of the marital and separate components of equity is based on the “source
of funds” rule.3
a. The Equitable Division of Marital Property.
In a divorce action, a party may assert a claim to property titled in the other
spouse’s name based upon two legal theories: alimony or the equitable division of
property. “The equitable division of property is an allocation to the parties of the assets
acquired during the marriage, based on the parties’ respective equitable interests. The
purpose behind the doctrine of equitable division of marital property is ‘to assure that
property accumulated during the marriage be fairly distributed between the parties.” 4 It
1
See Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982).
See Moore v. Moore, 24 Ga. 27, 287 S.E.2d 185 (1982).
3
Thomas v. Thomas, 259 Ga. 73, 377 S.E.2d 666 (1989).
4
Payson v. Payson, 274 Ga. 231, 231-32, 552 S.E.2d 839, 841 (2001) (citations omitted).
2
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is important to remember that equitable does not mean equal. “[A]n equitable division
of
marital property does not necessarily mean an equal division.”
5
“Only property acquired as a direct result of the labor and investments of the
parties during the marriage is subject to equitable division. A property interest brought
to the marriage by one of the marriage partners is a non-marital asset and is not subject
to equitable division since it was in no sense generated by the marriage.6
b. Mixed Property and the “Source-of-Funds” Rule.
The same property may be both marital and separate. That is, some portions of
the property may have been acquired with marital assets or efforts and other portions
may have been acquired with separate assets. Examples of these assets include property
acquired with separate and marital funds or separate property that appreciates during
the marriage due to marital funds and/or efforts. Different states use different
approaches to classify this property.
Some states use all or nothing approaches. For example, jurisdictions using the
“inception of title” approach classify the property as marital or separate at the time of
acquisition, and this classification is fixed, regardless of the subsequent contributions of
marital funds. 7 Other states follow the “transmutation of property” theory, where
separate property converts to marital property if there is any contribution of marital
property whatsoever. Id.
Georgia employs the “Source-of-Funds” Rule. Thomas v. Thomas, is the seminal
case in which the Georgia Supreme Court defines the “source of funds rule.” In Thomas,
5
Fuller v. Fuller, 279 Ga. 805, 808, 621 S.E.2d 419, 422 (2005).
Payson, 274 Ga. at 232 (citations omitted). Payson, 274 Ga. at 232 (citations omitted).
7
Thomas, 259 Ga. at 76
6
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the Husband appealed from the order of the Superior Court of Fulton County dividing
the parties’ property upon the dissolution of the marriage. At issue was the division of
the proceeds from the sale of the marital home, which was in Wife’s name and had been
purchased by her shortly before the marriage. Wife paid a down payment of $75,000.00
and obtained a mortgage against the property in the amount of $185,000.00 to meet the
sales price of $260,000.00 for the house. Wife made the mortgage payments between
November of 1982, the date of the purchase, through the date of the marriage in July of
1983. Throughout the marriage, the mortgage was further reduced to $177,000.00 with
marital funds. A month after Husband and Wife separated in November of 1986, the
house was sold for $351,000.00. The trial judge awarded Wife almost all of the
proceeds from the sale of the house, and Husband appealed, arguing that all the
appreciation and value of the house which occurred during the marriage should have
been classified as marital property subject to equitable division.
The net appreciation in the house amounted to $90,905.00. The trial court
found that in addition to the down payment, both parties had reduced the loan balance
$7,265.00, and that the total equity paid by both parties was $82,623.00. Of the
$7,265.00 reduction in debt which had resulted from the monthly mortgage payments,
the trial court determined that $1,017.00 had been paid by Wife and $6,391.00 had been
paid out of marital assets. As a result, a ratio of the amount paid by marital assets
($6,393.00) to total equity paid ($82,623.00) works out to seven percent (7%) of the
payments on the equity being marital. Therefore, seven percent of the appreciation of
$90,905.00 was subject to marital distribution as a marital asset.
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The Supreme Court noted that the method of division used by the trial court is
referred to as the “Source of Funds Rule,” which holds:
A spouse contributing non-marital property is entitled to an interest in the
property in the ration of the non-marital investment to the total nonmarital and marital investment in the property. The remaining property is
characterized as marital property and its value is subject to equitable
distribution. Thus, the spouse who contributed non-marital funds, and
the marital unit that contributed marital funds each receive a
proportionate and fair return on their investment.
Thomas, 259 Ga. at 76 (citing Harper v. Harper, 294 Md. 54, 80, 448 A.2d 916, 929
(1982). The Thomas Court further noted that fundamental to the adoption of the source
of funds theory is the recognition that property is not necessarily “acquired” on the date
that a legal obligation to purchase is created. Rather, the term “acquired” should be
defined as the on-going process of making payment for property. Id. at 77.
The Husband in Thomas argued that the entire appreciation in value of the
parties’ interest in the house resulted from their joint efforts to maintain and pay for it.
The Court, however, found this argument was not supported by the evidence, noting
that the parties’ payments reduced the principal debt and were responsible for the
resulting increase in equity caused by that reduction. The Court further noted that the
only material cause for the remaining appreciation was outside market forces and that
the source of funds method utilized assured that the property accumulated during the
marriage was fairly distributed between the parties, while at the same time preserving
the separate property for the benefit of the spouse to whom it belonged.
Under this rule, the “characterization of property as non-marital or marital
depends upon the source of each contribution as payments are made, rather than the
time at which legal or equitable title to or possession of the property is obtained.” Id. at
77. “The method of equitable division utilized at trial is the ‘source-of-funds’ rule which
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provides that a spouse contributing non-marital property is entitled to an interest in the
property in the ratio of the non-marital investment to the total non-marital and marital
investment in the property.” Maddox v. Maddox, 278 Ga. 606, 607, 604 S.E.2d 784, 786
(2004). “The remaining property is characterized as marital property and its value is
subject to equitable distribution. Thus, the spouse who contributes non-marital funds,
and the marital unit that contributes marital funds each receives a proportionate and
fair return on their investment.” Id. As such, “property is considered both separate and
marital in proportion to the contributions (monetary or otherwise) separately and
jointly provided.” Hubby v. Hubby, 274 Ga. 525, 526, 556 S.E.2d 127, 128 (2001).
Applying the “source of funds rule”, the trier of fact must “determine whether any
appreciation in the value of the properties during the marriage was attributable to the
party's, or the spouse's, or their joint efforts, or to market forces. Any appreciation
found to be attributable to the husband's or the wife's individual or joint efforts would
be a marital asset subject to equitable division, but to the extent the appreciation is only
the result of market forces, it is a non-marital asset and therefore not subject to
equitable division.” Maddox, 278 Ga. at 609. For example “[i]n applying the ‘source of
the funds’ rule to the equitable division of a home which was brought to a marriage, the
trial court must determine the contribution of the spouse who brought the home to the
marriage, and weigh it against the total nonmarital and marital investment in the
property.” Hubby, 274 Ga. at 525.
A forensic accountant can be of great assistance in performing a Thomas analysis
showing the requested division of equity in real estate as well as the balance of bank,
investment and /or retirement accounts. A forensic accountant can analyze account
statements determining and segregating various sources of appreciation due to
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additional investment, reinvestment of dividends, and/or capital appreciation. The
forensic accountant can also review historical statements to see the impacts of loans and
withdrawals. Further, the forensic accountant can analyze multiple statements to help
determine the source of funds deposited into an account and the migrations of funds
from one account to another matching these with the parties’ earnings and reported
gifts and/or inheritances. In the end the forensic accountant can testify as well as help
prepare a summary exhibit so that their analysis may be easily explained to the trier of
fact. Attached hereto as Exhibit “A.” is a worksheet that can be used to help you prepare
and perhaps better understand the calculations involved in a Thomas Analysis.
IV.
Business Valuation
a. Why is finding a “qualified” business valuation expert so important?
Many certified public accountants believe that they have the skill set to perform a
business valuation. In fact, many of them do possess the necessary skills; what they are
lacking is the proper training and experience. A qualified Valuation Analyst should
adhere to certain established standards, guidelines and procedures. Their valuations
should be well supported.
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Qualifications and Qualities
There are certain criteria one should look for when hiring a valuation analyst.
First and foremost, a valuation professional should be accredited. The four
organizations that have business valuation designations are as follows:
•
•
•
•
The National Association of Certified Valuation Analysts (NACVA) Certified
Valuation Analyst (CVA) or Accredited Valuation Analyst (AVA)
American Institute of Certified Public Accountants’ (AICPA) Accreditation in
Business Valuation (ABV)
American Society of Appraisers (ASA) Accredited Member (AM), Accredited
Senior Appraiser (ASA) and Fellow Accredited Senior Appraiser (FASA)
Institute of Business Appraisers (IBA) Accredited by IBA (AIBA, Certified
Business Appraiser (CBA), Master Certified Business Appraiser (MCBA) and
Business
Valuator Accredited for Litigation (BVAL)
Most certifications require either one or a combination of the following: an exam,
submission of valuation report(s), accreditation of another organization and an
experience requirement. If the potential BusinessValuator has one or more of these
accreditations, you can have a certain level of comfort that the they have received
additional training to assist in performing the business valuation. However,
designations alone should not be the sole factor in determining if an appraiser is
“qualified”.
The potential candidate should also possess other attributes, including
experience, the ability to communicate and teach and ethical behavior. To find someone
with experience, ask questions and check references. The candidate may be needed to
provide other services including identifying assets and liabilities, substantiating income,
tracing of funds, addressing tax issues and assisting with settlement options and
structures.
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Given the inherent subjectivity in all valuation jobs, it is preferable to engage a
practitioner who not only possesses the technical knowledge, but one who also has the
practical experience in valuation engagements to make the inevitable subjective
decisions, but make them in an independent, and non-biased manner.
If the Business Valuator is able to explain the valuation process, such as what
documents were examined and utilized, what assumptions were made, how the general
economy and industry trends were considered, how rules of thumb and market data
were applied, what discounts were used and why, among other issues, it is easier for the
parties to accept and understand the process and conclusion.
b. Access to Information and Materials
We suggest that you retain your business valuation expert as early in litigation as possible.
Discuss the expert’s role in the case and whether it is best for them to perform a valuation or
for them to review and critique a valuation performed by the other party. Consideration
should also be given to an expert serving as a neutral.
When asking an expert to value a busine ss it is important to ensure that they
have an opportunity to form an appropriate opinion and are ready to defend that
opinion on cross examination. Working with your expert it is crucial to make certain
that they have a ccess to all of the information they need to complete their valuation.
Work with your expert in formulating discovery requests to ensure that all materials
that might be needed are asked for. Arrange a meeting with your client and the expert
you recommend. Make certain that the client understands the expert’s role. If y
represent a spouse who controls the busine
ou
ss in question, obtaining documents and
information to assist the Business Valuator should be as simple as givi ng your client a laundry
list of items to collect for you and the expert.
If you represent the spouse who does not have
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direct access to the business' information, obtaining necessary materials may be more difficult.
Your client may not understand why so man y materials are needed and you must carefully plan
your discovery so as to make certain that all materials possibly necessary for the valuation are
requested.
While each case is unique a number of items should be requested in most cases: Attached
hereto a Exhibit “B.” is a list of items we recommend that you request. It is important to realize
that different items listed may not always exist. That an item does not exist does not lessen the
importance of asking for them. In completing their analysis and in preparing for direct as well as
for cross examination a valuation expert should not what was asked for and what was and was not
available.
If the business is a corporation, an LLC, an LLP or a similar entity, you
should
consider using a Subpoena for Deposition and Notice to Produce pursuant to O.C.G.A. § 911-30(b)(6). This will require the business to designate an i
ndividual to respond to
document requests and questions on behalf of the business. Additionally, you may need to
depose the business' accountant and key employees of the business. Again, you seek the
assistance of your expert to help craft document requests and questions for these
individuals. In addition to depositions and Notices to Produce your expert will likely
need to make a site visit to the business. In the event that opposing counsel will not or
cannot agree to such a visit, you can use the provisions of O.C.G.A § 9- 11-36 to compel
the opposition to allow the visit.
Depending on the temperament of your case, rather than going through the formal
discovery outlined above an informal approach may be utilized. An informal approach may
be as simple as a letter to opposing counsel with the list of necessary materials attached as
an exhibit.
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c. Guidelines and Valuation Methodologies
The American Institute of Certified Public Accountants (AICPA) requires all of its
members to follow set guidelines for business valuations. The AICPA developed the
valuation standard - called the Statement on Standards for Valuation Services No. 1
(SSVS#1) - to improve the consistency and quality of practice among its members who
perform valuations. SSVS#1 provides a comprehensive guideline for performing quality
valuation services providing the following benefits:
•
•
•
•
Specifies generally-accepted valuation approaches.
Encourages the standardization of the contents and format of business valuation
reports.
Describes the type of documentation that should be considered in the valuation
process.
Adopts a glossary business valuation terms.
When valuing a business, an expert should consider the three most common
valuation approaches - the income approach (converting anticipated economic benefits
into a present amount), the market approach (comparing the subject business to similar
businesses that have been sold), and the asset approach (taking the value of the assets
net of liabilities). The guidelines state that “rules of thumb” or industry guidelines are
not a valuation method, but may be used as a reasonableness check against the results
found under the other methods.
The guidelines state that an expert must also consider whether adjustments
should be made to the indicated value, including a discount for lack of marketability, a
discount for lack of ownership control, or a premium for ownership control. I
t is
important to review these guidelines with your expert when reviewing their analysis as well
as the analysis conducted by an opposing expert.
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After your expert states their conclusion they should list the information and
materials relied upon in forming their conclusion. Where a business is valued, your expert
should testify as to the different methodologies they applied, the weight given to each and
the basis for the same. The weight given to various valuation methods includes:
•
•
•
•
•
•
the historical earnings history of the subject entity
the entity's competitive market position
the strength and experience of the entity's management
the availability of reliable information
the marketability of the equity interest
the specific characteristics of the entity
The AICPA standards referenced above provide that, when developing a valuation,
the three most common valuation approaches should be considered:
• Income (Income-based) approach
• Asset (Asset-based) approach; and
• Market (Market-based) approach
The Statement also recommends that the "rule of thumb" or "industry benchmark
indicator" be used as a "reasonableness check."
Income (Income-Based) Approach
Two frequently used valuation methods under the income approach include the
capitalization of benefits method and the discounted future benefits method. Among
other factors these approaches consider: 1) Taxes, 2) Capital structure and financing
costs, 3) capitalization rates and 4) Expected changes in earnings or cash flows. For
intangible assets these approaches consider additional factors including the remaining
useful life of the asset, the asset’s position in the life cycle, expenses needed to support
the asset and the allocation of income attributable to the asset.
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Asset (Asset-Based) Approach
A frequently used method under the asset approach is the adjusted net asset
method. The adjusted net asset method of valuing a business, business ownership
interest, or security, considers among other factors: 1) Identification of the assets and
liabilities, 2) Value of the assets and liabilities and 3) Liquidation costs.
Market (Market-Based) Approach
Three frequently used valuation methods under the market approach for valuing
a business, business ownership interest, or security are: 1) Guideline public company
method, 2) Guideline company transactions method and 3) Relief from royalty method.
In essence the market approaches focus on comparable uncontrolled transactions
looking at arm’s-length sales and at comparable profit margins. The Relief from Royalty
method looks at a royalty rate, often expressed as a percentage of revenue that the
subject entity that owns or operates the intangible asset would be obligated to pay to a
hypothetical third-party licensor for the use of that intangible asset.
The results obtained under the different methods should be correlated and
reconciled and that the reliability of the results obtained using the different methods
should be ascertained to determine if one method should be relied upon or whether a
combination of the methods should be relied upon. T
he three methodologies for
determining value have different strengths and should be given different weight
depending on the circumstances. The incom e approach is of greater value whenever
the earnings capacity or cash flow generated from the subject entity is a significant factor
to a hypothetical buyer considering the purchase of s uch entity. The market approach is
of greater value if an ownership interest in the subject company was sold and acquired
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recently in an arms-length transaction. In addition, it may be of value if a corporation
engaged in a similar line of business
However other factors must be c
(which is listed on an exchange) is traded openly.
onsidered (differences in size, markets, geography,
customer base...). The asset based approach is often utilized to value a holding company
or real estate entity where there has been poor financial performance but the
underlying value is really tied up in the net assets.
Regardless of which method is employed, certain issues as to the value
may
arise. One issue that arises regularly is wh ether a discount for a lack of marketability is
appropriate. For example, assume a business va luation of your client's limited liability
company is being conducted in the context of a divorce a ction. Assume your client owns
a 50% membership interest in the limi
ted liability company and the op erating
agreement requires that the interest must first be offered to t
he other 50% owner.
What effect does this have on the valuation? This restriction will result in discounting
the value of the business, and your client's interest in the business, for lack of
marketability.
Georgia courts have addressed the question of whether a non-shareholder spouse is
bound by a buy-sell agreement of a closely held corporation. In Barton v. Barton, 281 Ga. 565,
639 S.E.2d 481 (2007), the Husband owned one-half of the stock of a closely-held
corporation. The Husband's stock was subject to a buy-sell agreement that values his stock at
$342,000. Despite this buy-sell agreement, the arbitrator valued the stock at $508,000 and
divided the marital property based upon that valuation. The H usband argued that the Wife
should be bound by the terms of the buy-sell. The S upreme Court of Georgia disagreed with
the Husband and held that the Wife was not bound by the buy-sell. The Court pointed out in
this case of first impression that its decision brings Georgia in line with the majority of
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jurisdictions. The Court reasoned that the buy-sell price in a closely-held c orporation can be
manipulated and does not necessarily reflect true market value.
Another issue that commonly arises is the question of whether one can value professional
goodwill as a marital asset.
Jurisdictions across the country are split as to whether
professional goodwill can or should be valued. This issue was addressed by the Supreme
Court of Georgia in Miller v. Miller, 288 Ga. 274 (2010). At issue was real property owned by
the parties as well as the valuation of the husband’s internal medicine practice. In its opinion
the Court notes that generally a professional practice’s most valuable asset is its good will. Id.
at 275. The court notes that the Wife’s expert, a forensic accountant, utilized the income or
capitalized earnings method, the market approach method and the cost approach method. Id.
Husband argued that the using the market approach was improper because there was no
market for solo medical practices. However, Wife’s expert testified to relying on two national
databases in her analysis and that the use of such databases was an accepted method for
valuing a professional practice and its goodwill. Id. at 276. Husband further argued that it was
erroneous to divide professional goodwill because it is not a martial asset. Analyzing this
argument the Court noted that enterprise or commercial goodwill is transferred whenever the
enterprise to which it is attached is bought or sold. Id. at 278. However, Individual or
personal goodwill is not transferrable with a sale but continues to reside in the personal
reputation of the owner. Id. The Court notes that enterprise goodwill must be included when
valuing a business entity but that the treatment of individual goodwill in divorce cases is
divided . Id. The Court followed the majority holding that enterprise goodwill is included in
the valuation of a professional practice as part of marital property. Id. The Court further hel d
that for Miller only individual goodwill does not constitute marital property and that the trial
court in accepting the testimony of the wife’s expert excluded individual goodwill. Id. A more
thorough analysis of the treatment of enterprise and individual goodwill may be found in an
Article authored by Will Greer and Allen F. Harris titled: Dividing Goodwill After
Miller v.
Miller in The Family Law Review, Spring 2012. However, the final analysis may be found in
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the Court’s opinion: “[I]t is clear today that a determination of good will is a question of fact
and law… [i]t must be recognized that there is no precise formula for this determination and
that even though it is difficult, it must be undertaken...Cits. omitted.” Id at 279 and the
Court’s earlier recognition that: “[V]aluation is an art rather than a science.” Id at 275.
d. Preparing for Mediation and Trial
It will often be beneficial for experts retained by opposing parties to talk. This
provides an opportunity for the experts to compare their understanding of the business
venture and differences in the respective approaches they may be taking. A fter your expert
receives all of the information needed to form an a ppropriate opinion, they may or may not
prepare written report of their findings. Careful consideration should be given to the plusses
and minuses of such a report. Remember opposing counsel will likely take the deposition of
your expert prior to trial. In some situations opposing counsel may r
ahead of trial and obtain copies of prior valuations performed by
esearch your witness
the expert, transcripts of
his or her testimony in previous actions and copies of s peeches and the consistency of his or
her opinion in the case at hand with previously completed valuations, publications, and
presentations your expert may have contributed to or made.
Once trial begins, your direct examination of a forensic accountant, business valuator
or similar expert should begin by qualifying them as an expert witness. O.C.G.A. § 24-9-67.1
governs the admissibility of expert opinion in ci vil actions. While the qualification of your
expert will generally occur at trial, O.C.G.A, § 24-9-67.1,(allows the court, upon the motion of
a party, to conduct a pretrial he aring to determine whether the witness qualifies as an expert
and whether the expert's testimony satisfies the requirements of the Code section. Upon your
formal tender of an expert witness, the opposing party has an opportunity to
voir dire the
witness as to his or her credentials and the basi s of his or her opinion. Because the trial court
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may, in its discretion, limit the scope of your expert's t estimony, you may want to request a
pretrial hearing to insure that your expert will be qualified by the court to the extent to
which you expect him or her to testify.
When laying out the qualifications of your expert, you
should elicit information
contained in the typical curriculum vitae: the experts' education, c
ertifications and
licensing, continuing education, publications and presentations, as well as experience
specific to the issues in the case at hand. Opposing counsel may q uickly stipulate to your
witness' qualifications as an expert so as to minimize the bolstering effect of a lengthy
recitation of the witness' background. In such an instance it may benefit you to still stress
certain qualifications your expert possesses especially if the qualifications may be used to
distinguish your expert from opposing counsel’s expert.
After your witness has been qualified as an expert, you should then elicit testimony
from the witness as to his or her opinion of the value of the business in
question. The
provisions of O.C.G.A. § 24-9-67.1(a) will govern the items upon w hich the expert may rely
in forming his or her opinion.
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known t
o the
expert at or before the hearing or trial. If of a type reasonably relied upon by
experts in the particular field in forming opinions or i nferences upon the
subject, the facts or data need not be a dmissible in evidence in order
for the opinion or inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their probative value
in assisting the jury to evaluate the expert's opinion substantially
outweighs their prejudicial effect.
Please note that this statute does not change the rule that an expert may rely
upon hearsay in forming his or her opinion.
8
However, the hearsay relied upon will not
be disclosed to the jury unless the court determines that it passes the "probative value
8
See, e.g., Braswell v. Henderson, 234 Ga. App, 504, 507 S.E.2d 237 (1998).
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vs. prejudicial effect" balancing test set out in the passage quoted above. The issues of
whether an expert bases his or her opinion on hearsay or other, otherwise inadmissible
evidence goes to the weight of the testimony, not its admissibility.
V.
Conclusion
A Forensic Accountant or Valuator can serve a number of roles, particularly in
family law. The services they most typically perform include forensic accounting,
tracing, business valuation and litigation support. A good Forensic Accountant or
Valuator provides valuable assistance analyzing complex financial issues simplifying
those issues so they may be more easily and better explained to a fact finder.
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APPENDIX A
THOMAS WORKSHEET
(Each Party contributes separate funds to purchase property, and they also contribute
some marital money)
Variables
A
Amount H contributed
____________*
B
Amount W contributed
____________*
C
Amount contributed that was marital
____________*
D
Amount of marital funds used to reduce principal
____________*
E
Present value of property (equity)
____________*
F
Total $ contributed = A+B+C+D
____________
G
H's percentage of appreciation (A ÷ F)
(which is his separate prop.)
H
W's percentage of appreciation (B ÷ F)
(which is her separate prop.)
____________%
I
Marital portion of appreciation (C+D) ÷ F
(which is subject to eq. division)
____________%
____________%
(CHECK: G + H + I = 100%)
J
Appreciation since purchase (E — F)
____________
K
H's separate interest = G x J
____________
L
W's separate interest = H x J
____________
M
Marital interest = I x J
____________
(CHECK: K + L + M = J)
H gets K + equitable share of M
W gets L + equitable share of M
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(One Party - - Husband - - comes into the marriage with separate property)
Variables
A
Value at time of marriage (equity)
____________*
B
Amount paid toward principal since marriage
____________*
C
Present value of property (equity)
D
Total $ toward property (A + B)
____________
E
Husband's separate portion (A ÷ D)
____________%
F
Marital portion (B ÷ D)
____________*
____________%
(CHECK: E + F = 100%)
G
Appreciation since marriage (C — D)
____________
H
Husband's separate portion of appreciation
(E x G)
____________
I
Marital portion of appreciation (F x G)
____________
(CHECK: H + I = G)
J
Husband's separate property (A + H)
____________
K
Marital property (subject to division) (B + I)
____________
Husband gets J + an equitable share of K
Wife gets an equitable share of K
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APPENDIX B
DOCUMENT REQUEST LIST
1. Annual financial statements for the last 5 years.
2. Interim financial statements for the most recent 12 months and preceding 12month period.
3. Federal income tax returns and state returns for the last 5 years.
a. All applicable forms, schedules, and supporting schedules, work papers
and documentation. If consolidations of multiple businesses or locations
are necessary for the tax return preparation, provide all supporting
documentation for consolidation or combining purposes including, but not
limited to all locations or business entities included in the return.
4. Payroll tax returns for each of the five years ended 12/31/02. If payroll tax
returns are prepared under a common federal identification number, please
provide payroll tax returns for the common federal identification number.
5. List of cash accounts including bank statements and cancelled checks for the last
five years for this business and/or consolidating parent company.
6. Detailed general ledgers for the last 2 years.
7. Copies of any forecasts or projections.
8. List of subsidiaries or other businesses in which the subject company has an
ownership interest, together with their financial statements.
9. Aged accounts receivable listing-current and most recent year-end.
10. Fixed asset register or depreciation schedule-most recent year-end.
a. If this information is part of a consolidated or combined return, please
provide all fixed asset for the consolidating or combining return.
11. List of items comprising significant other asset balances (including intangible
assets and inventory).
12. List of inter-company receivables and payables with all related parties- current
and most recent year-end.
13. Accounts payable listing, preferably aged-current and most recent year-end.
14. Analyses of significant accrued liabilities.
15. List of notes payable and other interest-bearing debt.
16. List of items comprising significant other liability balances.
17. Schedule of sales by product for each period that an income statement is obtained.
18. Copies of sales, capital, or operating budgets.
19. Copies of any business plans.
20. Schedule of officers and directors' compensation for each of the previous five
years.
21. Schedule of key person life insurance.
22. Reports of other professionals:
a. All Appraisals (including appraisals on specific assets.)
b. Reports of other consultants.
c. Reports of independent auditors.
23. Brochures, price lists, catalogs, or other product information.
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24. List of stockholders or partners, showing the amount of stock and percentage
owned by each person.
25. Organization chart.
26. List of five largest customers and suppliers and the total amount of sales and
purchases, respectively, for each during the last year.
27. Details of transactions with related parties.
28. Copies of significant leases and loans, including notes receivable and notes
payable.
a. Copies of any operating and capital lease agreements for property for each
of the five years
29. Copies of stockholder or partnership agreements, including any stock option
agreements and related Form K-1s.
30. Minutes of board of directors meetings.
31. List of all members of the board of directors who have served during the last five
years.
32. Copies of any buy-sell agreements and/or written offers to purchase or sell
company stock.
33. Copies of key managers' employment contracts or ex-employee termination
agreements (including non-compete agreements).
34. Copies of any major sale or purchase contracts.
35. Details of any litigation, including pending or threatened lawsuits.
36. Details of any employee benefit plans, including pension plans, profit-sharing
plans, and employee stock option plans.
37. Collective bargaining agreement.
38. Reports of examination issued by government agencies such as EPA, OSHA, IRS,
DOL, or EEOC.
39. Attorney's invoices/billing statements.
40. Details of transactions in the company's stock during the last 5 years.
41. List of any of the following:
a. Patents,
b. Copyrights,
c. Trademarks,
d. Similar intangibles.
42. List of all intellectual property owned individually, or by related business entities.
43. Copies of all appraisals of intellectual property owned individually, or by related
parties.
44. Details of any contingent liabilities (such as guarantees, warranties, or derivative
financial instruments) or off balance sheet financing (such as letters of credit).
45. Resumes or a summary of the background and experience of all key personnel.
46. Copies of any other value indicators, such as property tax appraisals.
47. Copies of W-2s for the last 2 years.
48. List of duties performed by owners.
49. Management interview of all persons having relevant knowledge.
24
NUTS AND BOLTS OF FAMILY LAW
A LAWYER’S DUTIES AND RESPONSIBILITIES TO OTHERS
Wayne Morrison
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, Georgia
The focus of this paper is to highlight a lawyer’s responsibilities to clients, opposing parties,
other lawyers and tribunals. As the author has experienced several recent instances where questions were asked that concern electronic data a brief overview of discovery and computer related
crimes is included.
Chapter 7-A
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A Lawyer’s Duties and Responsibilities to Others
Wayne Morrison
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, GA
Table of Contents
I.
GEORGIA'S RULES OF PROFESSIONAL RESPONSIBILITY, INCLUDING THE
ASPIRATIONAL STATEMENT ON PROFESSIONALISM .................................................... 1
II.
DEALING WITH OTHERS ..................................................................................................... 8
A.
CLIENTS ............................................................................................................................ 8
1.
RULE 1.4 COMMUNICATION ........................................................................................ 8
2.
RULE 1.16 DECLINING OR TERMINATING REPRESENTATION ................................. 9
3.
RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE ............................................... 11
4.
RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT ........................................... 13
5.
RULE 2.1 ADVISOR ..................................................................................................... 17
B.
PRO SE LITIGANTS ........................................................................................................ 18
C.
DEALINGS WITH OTHER LAWYERS ............................................................................ 19
1. RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS AND SUPERVISORY
LAWYERS ........................................................................................................................... 20
2.
D.
RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER ............................... 21
DEALING WITH TRIBUNALS (RULE 3.3 CANDOR TOWARD THE TRIBUNAL) .......... 21
III. DISCOVERY AND GEORGIA LAW ON COMPUTER-RELATED CRIMES ....................... 24
A.
Computer Theft ................................................................................................................ 24
B.
Computer Trespass........................................................................................................... 25
C.
Computer Invasion of Privacy .......................................................................................... 25
D.
Computer Password Disclosure ....................................................................................... 25
E.
"Without Authority" ........................................................................................................... 26
F.
Unlawful Transmission of Data .......................................................................................... 26
G. Penalties .......................................................................................................................... 27
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I.
GEORGIA'S RULES OF PROFESSIONAL RESPONSIBILITY,
INCLUDING THE ASPIRATIONAL STATEMENT ON
PROFESSIONALISM
Georgia's Rules of Professional Responsibility, including the Aspirational
Statement on Professionalism is a starting point for an attorney with questions
regarding how to deal with other attorneys, pro se litigants, courts and the public.
Lawyer's Creed and Aspirational Statement on Professionalism
The Lawyer's Creed and Aspirational Statement on Professionalism were
developed by the Commission to encourage, guide and assist individual lawyers, law
firms, and bar associations. These documents have been widely distributed among the
lawyers and judges of Georgia through CLE programs and Commission events. A
number of local bar association have used these documents as the basis for bar pledges
and creeds. Several law firms have incorporated these documents into their firm mission
statements. The Commission's hope is that members of the profession will recognize the
special obligations that attach to their calling and will also recognize their responsibility
to serve others and not be limited to the pursuit of self-interest. The Creed and
Aspirational Statement cannot be imposed by edict because moral integrity and
unselfish dedication to the welfare of others cannot be legislated. Nevertheless, a public
statement of principles of ethical and professional responsibility can provide guidance
for newcomers and a reminder for experienced members of the bar about the basic
ethical and professional tenets of their profession. The Lawyer's Creed and Aspirational
Statement on Professionalism were adopted by the Commission in 1990 and by
Supreme Court order made a part of the Rules and Regulations for the Organization and
Government of the State Bar of Georgia.
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The Lawyer's Creed and Aspirational Statement on Professionalism have been
adopted by the Chief Justice's Commission on Professionalism and incorporated into
the Rules and Regulations for the Organization and Government of the State Bar of
Georgia. The purpose of the Lawyer's Creed and Aspirational Statement on
Professionalism is to serve as encouragement, guidance and assistance to individual
lawyers, law firms, and bar associations as they recognize the special obligations that
attach to their calling and their responsibility to serve others.
The Creed and Aspirational Statement cannot be imposed by edict because moral
integrity and unselfish dedication to the welfare of others cannot be legislated.
Nevertheless, a public statement of principles of professionalism can provide guidance
for newcomers and a reminder for experienced members of the bar about the basic
tenets of our profession.
A LAWYER’S CREED
To my clients, I offer faithfulness, competence, diligence, and good judgment. I will
strive to represent you as I would want to be represented and to be worthy of your trust.
To the opposing parties and their counsel, I offer fairness, integrity, and civility. I
will seek reconciliation and, if we fail, I will strive to make our dispute a dignified one.
To the courts, and other tribunals, and to those who assist them, I offer respect,
candor, and courtesy. I will strive to do honor to the search for justice.
To my colleagues in the practice of law, I offer concern for your welfare. I will
strive to make our association a professional friendship.
To the profession, I offer assistance. I will strive to keep our business a profession
and our profession a calling in the spirit of public service.
To the public and our systems of justice, I offer service. I will strive to improve the
law and our legal system, to make the law and our legal system available to all, and to
seek the common good through the representation of my clients.
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ASPIRATIONAL STATEMENT ON PROFESSIONALISM
The Court believes there are unfortunate trends of commercialization and loss of
professional community in the current practice of law. These trends are manifested in
an undue emphasis on the financial rewards of practice, a lack of courtesy and civility
among members of our profession, a lack of respect for the judiciary and for our systems
of justice, and a lack of regard for others and for the common good. As a community of
professionals, we should strive to make the internal rewards of service, craft, and
character, and not the external reward of financial gain, the primary rewards of the
practice of law. In our practices we should remember that the primary justification for
who we are and what we do is the common good we can achieve through the faithful
representation of people who desire to resolve their disputes in a peaceful manner and
to prevent future disputes. We should remember, and we should help our clients
remember, that the way in which our clients resolve their disputes defines part of the
character of our society and we should act accordingly.
As professionals, we need aspirational ideals to help bind us together in a
professional community. Accordingly, the Court issues the following Aspirational
Statement setting forth general and specific aspirational ideals of our profession. This
statement is a beginning list of the ideals of our profession. It is primarily illustrative.
Our purpose is not to regulate, and certainly not to provide a basis for discipline, but
rather to assist the Bar's efforts to maintain a professionalism that can stand against the
negative trends of commercialization and loss of community. It is the Court's hope that
Georgia's lawyers, judges, and legal educators will use the following aspirational ideals
to reexamine the justifications of the practice of law in our society and to consider the
implications of those justifications for their conduct. The Court feels that enhancement
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of professionalism can be best brought about by the cooperative efforts of the organized
bar, the courts, and the law schools with each group working independently, but also
jointly in that effort.
General Aspirational Ideals
As a lawyer, I will aspire:
(a) To put fidelity to clients and, through clients, to the common good, before selfish
interests.
(b) To model for others, and particularly for my clients, the respect due to those we
call upon to resolve our disputes and the regard due to all participants in our
dispute resolution processes.
(c) To avoid all forms of wrongful discrimination in all of my activities including
discrimination on the basis of race, religion, sex, age, handicap, veteran status, or
national origin. The social goals of equality and fairness will be personal goals for
me.
(d) To preserve and improve the law, the legal system, and other dispute resolution
processes as instruments for the common good.
(e) To make the law, the legal system, and other dispute resolution processes
available to all.
(f) To practice with a personal commitment to the rules governing our profession
and to encourage others to do the same.
(g) To preserve the dignity and the integrity of our profession by my conduct. The
dignity and the integrity of our profession is an inheritance that must be
maintained by each successive generation of lawyers.
(h) To achieve the excellence of our craft, especially those that permit me to be the
moral voice of clients to the public in advocacy while being the moral voice of the
public to clients in counseling. Good lawyering should be a moral achievement
for both the lawyer and the client.
(i) To practice law not as a business, but as a calling in the spirit of public service.
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Specific Aspirational Ideals
As to clients, I will aspire:
(a) To expeditious and economical achievement of all client objectives.
To fully informed client decision-making. As a professional, I should:
(1) Counsel clients about all forms of dispute resolution;
(2) Counsel clients about the value of cooperation as a means towards the
productive resolution of disputes;
(3) Maintain the sympathetic detachment that permits objective and independent
advice to clients;
(4) Communicate promptly and clearly with clients; and,
(5) Reach clear agreements with clients concerning the nature of the
representation.
(b) To fair and equitable fee agreements. As a professional, I should:
(1) Discuss alternative methods of charging fees with all clients;
(2) Offer fee arrangements that reflect the true value of the services rendered;
(3) Reach agreements with clients as early in the relationship as possible;
(4) Determine the amount of fees by consideration of many factors and not just
time spent by the attorney;
(5) Provide written agreements as to all fee arrangements; and
(6) Resolve all fee disputes through the arbitration methods provided by the State
Bar of Georgia.
(c) To comply with the obligations of confidentiality and the avoidance of conflicting
loyalties in a manner designed to achieve the fidelity to clients that is the purpose
of these obligations.
As to opposing parties and their counsel, I will aspire:
(a) To cooperate with opposing counsel in a manner consistent with the competent
representation of all parties. As a professional, I should:
(1) Notify opposing counsel in a timely fashion of any cancelled appearance;
(2) Grant reasonable requests for extensions or scheduling changes; and,
(3) Consult with opposing counsel in the scheduling of appearances, meetings,
and depositions.
(b) To treat opposing counsel in a manner consistent with his or her professional
obligations and consistent with the dignity of the search for justice. As a
professional, I should:
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(1) Not serve motions or pleadings in such a manner or at such a time as to
preclude opportunity for a competent response;
(2) Be courteous and civil in all communications;
(3) Respond promptly to all requests by opposing counsel;
(4) Avoid rudeness and other acts of disrespect in all meetings including
depositions and negotiations;
(5) Prepare documents that accurately reflect the agreement of all parties; and
(6) Clearly identify all changes made in documents submitted by opposing
counsel for review.
As to the courts, other tribunals, and to those who assist them, I will aspire:
(a) To represent my clients in a manner consistent with the proper functioning of a
fair, efficient, and humane system of justice. As a professional, I should:
(1) Avoid non-essential litigation and non-essential pleading in litigation;
(2) Explore the possibilities of settlement of all litigated matters;
(3) Seek non-coerced agreement between the parties on procedural and discovery
matters;
(4) Avoid all delays not dictated by a competent presentation of a client's claims;
(5) Prevent misuses of court time by verifying the availability of key participants
for scheduled appearances before the court and by being punctual; and
(6) Advise clients about the obligations of civility, courtesy, fairness, cooperation,
and other proper behavior expected of those who use our systems of justice.
(b) To model for others the respect due to our courts. As a professional I should:
(1) Act with complete honesty;
(2) Know court rules and procedures;
(3) Give appropriate deference to court rulings;
(4) Avoid undue familiarity with members of the judiciary;
(5) Avoid unfounded, unsubstantiated, or unjustified public criticism of members
of the judiciary;
(6) Show respect by attire and demeanor;
(7) Assist the judiciary in determining the applicable law; and,
(8) Seek to understand the judiciary's obligations of informed and impartial
decision-making.
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As to my colleagues in the practice of law, I will aspire:
(a) To recognize and to develop our interdependence;
(b) To respect the needs of others, especially the need to develop as a whole person;
and,
(c) To assist my colleagues become better people in the practice of law and to accept
their assistance offered to me.
As to our profession, I will aspire:
(a) To improve the practice of law. As a professional, I should:
(1) Assist in continuing legal education efforts;
(2) Assist in organized bar activities; and,
(3) Assist law schools in the education of our future lawyers.
(b) To protect the public from incompetent or other wrongful lawyering. As a
professional, I should:
(1) Assist in bar admissions activities;
(2) Report violations of ethical regulations by fellow lawyers; and,
(3) Assist in the enforcement of the legal and ethical standards imposed upon all
lawyers.
As to the public and our systems of justice, I will aspire:
(a) To counsel clients about the moral and social consequences of their conduct.
(b) To consider the effect of my conduct on the image of our systems of justice
including the social effect of advertising methods.
(c) To provide the pro bono representation that is necessary to make our system of
justice available to all.
(d) To support organizations that provide pro bono representation to indigent
clients.
(e) To improve our laws and legal system by, for example:
(1) Serving as a public official;
(2) Assisting in the education of the public concerning our laws and legal system;
(3) Commenting publicly upon our laws; and,
(4) Using other appropriate methods of effecting positive change in our laws and
legal system.
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State Bar of Georgia Handbook, Part IV, "Georgia Rules of Professional
Conduct", (2010-2011).
II.
DEALING WITH OTHERS
A. CLIENTS
1. RULE 1.4 COMMUNICATION
A lawyer shall explain a matter to the extent reasonably necessary to permit the
client to make informed decisions regarding the representation, shall keep the client
reasonably informed about the status of matters and shall promptly comply with
reasonable requests for information.
The maximum penalty for a violation of this Rule is a public reprimand.
Comment:
[1A] The client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which they
are to be pursued, to the extent the client is willing and able to do so. For example, a
lawyer negotiating on behalf of a client should provide the client with facts relevant to
the matter, inform the client of communications from another party and take other
reasonable steps that permit the client to make a decision regarding a serious offer from
another party. A lawyer who receives from opposing counsel an offer of settlement in a
civil controversy or a proffered plea bargain in a criminal case should promptly inform
the client of its substance unless prior discussions with the client have left it clear that
the proposal will be unacceptable. See Rule 1.2(a): Scope of Representation. Even
when a client delegates authority to the lawyer, the client should be kept advised of the
status of the matter.
[1B] The timeliness of a lawyer's communication must be judged by all of the controlling
factors. "Prompt" communication with the client does not equate to "instant"
communication with the client and is sufficient if reasonable under the relevant
circumstances.
[2] Adequacy of communication depends in part on the kind of advice or assistance
involved. For example, in negotiations where there is time to explain a proposal, the
lawyer should review all important provisions with the client before proceeding to an
agreement. In litigation a lawyer should explain the general strategy and prospects of
success and ordinarily should consult the client on tactics that might injure or coerce
others. On the other hand, a lawyer ordinarily cannot be expected to describe trial or
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negotiation strategy in detail. The guiding principle is that the lawyer should fulfill
reasonable client expectations for information consistent with the duty to act in the
client's best interests, and the client's overall requirements as to the character of
representation.
…
…
Withholding Information
[4] In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client
when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer's own interest or convenience.
Rules or court orders governing litigation may provide that information supplied to a
lawyer may not be disclosed to the client. Rule 3.4(c): Fairness to Opposing Party and
Counsel directs compliance with such rules or orders.
AUTHOR’S COMMENTS: ENDEAVOR TO RETURN PHONE CALLS OR
CORRESPONDENCE WITHIN TWENTY FOUR HOURS OR ON THE NEXT
BUSINESS DAY. DO NOT UNDERESTIMATE THE VALUE OF PROVIDING A
CLIENT WITH A WRITTEN EXPLANATION . DEPENDING ON THE SITUATION,
CONSIDER HAVING THE CLIENT SIGN AND RETURN A COPY OF THE
WRITING.
2. RULE 1.16 DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client
if:
(1) the representation will result in violation of the Georgia Rules of
Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's
ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a
client if withdrawal can be accomplished without material adverse effect on
the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that
the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers
repugnant or imprudent;
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(4) the client fails substantially to fulfill an obligation to the lawyer regarding
the lawyer's services and has been given reasonable warning that the
lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the
lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When a lawyer withdraws it shall be done in compliance with applicable laws and
rules. When ordered to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client's interests, such as giving reasonable
notice to the client, allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and refunding any advance
payment of fee that has not been earned.
The maximum penalty for a violation of this Rule is a public reprimand.
Comment:
[1] A lawyer should not accept representation in a matter unless it can be performed
competently, promptly, without improper conflict of interest and to completion. But
see Rule 1.2(c): Scope of Representation.
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if the client
demands that the lawyer engage in conduct that is illegal or violates the Georgia Rules of
Professional Conduct or other law. The lawyer is not obliged to decline or withdraw
simply because the client suggests such a course of conduct; a client may make such a
suggestion in the hope that a lawyer will not be constrained by a professional
obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal ordinarily
requires approval of the appointing authority. See also Rule 6.2: Accepting
Appointments. Difficulty may be encountered if withdrawal is based on the client's
demand that the lawyer engage in unprofessional conduct. The court may wish an
explanation for the withdrawal, while the lawyer may be bound to keep confidential the
facts that would constitute such an explanation. The lawyer's statement that
professional considerations require termination of the representation ordinarily should
be accepted as sufficient.
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Discharge
[4] A client has a right to discharge a lawyer at any time, with or without cause,
subject to liability for payment for the lawyer's services. Where future dispute
about the withdrawal may be anticipated, it may be advisable to prepare a written
statement reciting the circumstances.
…
…
Optional Withdrawal
[5] The lawyer has the option to withdraw if it can be accomplished without material
adverse effect on the client's interests. Withdrawal is also justified if the client persists in
a course of action that the lawyer reasonably believes is criminal or fraudulent, for a
lawyer is not required to be associated with such conduct even if the lawyer does not
further it. Withdrawal is also permitted if the lawyer's services were misused in the
past even if that would materially prejudice the client. The lawyer also may withdraw
where the client insists on a repugnant or imprudent objective. The lawyer's
statement that professional considerations require termination of the representation
ordinarily should be accepted as sufficient.
[6] A lawyer may withdraw if the client refuses to abide by the terms of an
agreement relating to the representation, such as an agreement concerning
fees or court costs or an agreement limiting the objectives of the
representation.
Assisting the Client upon Withdrawal
[7] Even if the lawyer has been unfairly discharged by the client, a lawyer
must take all reasonable steps to mitigate the consequences to the client.
[8] Whether or not a lawyer for an organization may under certain unusual
circumstances have a legal obligation to the organization after withdrawing or being
discharged by the organization's highest authority is beyond the scope of these Rules.
AUTHOR’S COMMENTS: ENDEAVOR NOT TO BE THE FOURTH LAWYER.
GENERALLY SPEAKING LIFE IS SHORT ENOUGH.
3. RULE 1.7 CONFLICT OF INTEREST: GENERAL RULE
(a) A lawyer shall not represent or continue to represent a client if there is a
significant risk that the lawyer's own interests or the lawyer's duties to another
client, a former client, or a third person will materially and adversely affect the
representation of the client, except as permitted in (b).
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(b) If client consent is permissible a lawyer may represent a client notwithstanding a
significant risk of material and adverse effect if each affected or former client
consents, preferably in writing, to the representation after:
(1) consultation with the lawyer,
(2) having received in writing reasonable and adequate information about the
material risks of the representation, and
(3) having been given the opportunity to consult with independent counsel.
(c) Client consent is not permissible if the representation:
(1) is prohibited by law or these rules;
(2) includes the assertion of a claim by one client against another client
represented by the lawyer in the same or substantially related proceeding; or
(3) involves circumstances rendering it reasonably unlikely that the lawyer will
be able to provide adequate representation to one or more of the affected
clients.
The maximum penalty for a violation of this Rule is disbarment.
Comment:
Loyalty to a Client
[1] Loyalty is an essential element in the lawyer's relationship to a client. If an impermissible
conflict of interest exists before representation is undertaken the representation should be
declined. The lawyer should adopt reasonable procedures, appropriate for the size and type
of firm and practice, to determine in both litigation and non-litigation matters the parties
and issues involved and to determine whether there are actual or potential conflicts of
interest.
[2] If an impermissible conflict arises after representation has been undertaken, the
lawyer should withdraw from the representation. See Rule 1.16: Declining or Terminating
Representation. Where more than one client is involved and the lawyer withdraws
because a conflict arises after representation, whether the lawyer may continue to
represent any of the clients is determined by Rule 1.9: Conflict of Interest: Former
Client. See also Rule 2.2(b): Intermediary. As to whether a client-lawyer relationship
exists or, having once been established, is continuing, see Comment to Rule 1.3:
Diligence; and Scope.
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[3] As a general proposition, loyalty to a client prohibits undertaking representation
directly adverse to that client without that client's consent. Paragraph (a) expresses that
general rule. Thus, a lawyer ordinarily may not act as advocate against a person the
lawyer represents in some other matter, even if it is wholly unrelated. On the other hand,
simultaneous representation in unrelated matters of clients whose interests are only
generally adverse, such as competing economic enterprises, does not require consent of
the respective clients. Paragraph (a) applies only when the representation of one client
would be directly adverse to the other.
…
…
Conflicts in Litigation
[8] Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in
some other matter, even if the other matter is wholly unrelated. However, there are
circumstances in which a lawyer may act as advocate against a client. …
Interest of Person Paying for a Lawyer's Service
[10] A lawyer may be paid from a source other than the client, if the client is informed of
that fact and consents and the arrangement does not compromise the lawyer's duty of
loyalty to the client. …
4. RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT
(a) A lawyer who has formerly represented a client in a matter shall not thereafter
represent another person in the same or a substantially related matter in which
that person's interests are materially adverse to the interests of the former client
unless the former client consents after consultation.
(b) A lawyer shall not knowingly represent a person in the same or a substantially
related matter in which a firm with which the lawyer formerly was associated had
previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6:
Confidentiality and 1.9(c): Conflict of Interest: Former Client, that is
material to the matter; unless the former client consents after
consultation.
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(c) A lawyer who has formerly represented a client in a matter or whose present or
former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the
former client except as Rule 1.6: Confidentiality of Information or Rule
3.3: Candor Towards the Tribunal would permit or require with respect to
a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as Rule 1.6:
Confidentiality of Information or Rule 3.3: Candor Towards the Tribunal
would permit or require with respect to a client.
The maximum penalty for a violation of this Rule is disbarment.
Comment:
[1] The principles in Rule 1.7: Conflict of Interest determine whether, and to the extent
the interests of a present and former client are adverse. Thus, a lawyer could not
properly seek to rescind on behalf of a new client a contract drafted on behalf of the
former client. A lawyer who has prosecuted an accused person could not properly
represent the accused in a subsequent civil action against the government concerning the
same transaction.
[2] The scope of a "matter" for purposes of this Rule may depend on the facts of a
particular situation or transaction. The lawyer's involvement in a matter may be one
of degree. The underlying question is whether the lawyer was so involved in the matter
that the subsequent representation can be justly regarded as a changing of sides in the
matter in question.
Lawyers Moving Between Firms
[3] Reserved.
[4] Reconciliation of these competing principles in the past has been attempted under
two rubrics. One approach has been to seek per se rules of disqualification. For
example, one view is that a partner in a law firm is conclusively presumed to have
access to all confidences concerning all clients of the firm. Under this analysis, if a
lawyer has been a partner in one law firm and then becomes a partner in another law
firm, there may be a presumption that all confidences known by the partner in the
first firm are known to all partners in the second firm. This presumption might
properly be applied in some circumstances, especially where the client has been
extensively represented, but may be unrealistic where the client was represented only for
limited purposes. Furthermore, such a rigid rule exaggerates the difference between a
partner and an associate in modern law firms.
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[5] The other rubric formerly used for dealing with disqualification is the appearance of
impropriety proscribed in Canon 9 of the ABA Model Code of Professional Responsibility.
This rubric has a two-fold problem. First, the appearance of impropriety can be taken to
include any new client-lawyer relationship that might make a former client feel anxious.
If that meaning were adopted, disqualification would become little more than a
question of subjective judgment by the former client. Second, since "impropriety" is
undefined, the term "appearance of impropriety" is question-begging. It therefore has
to be recognized that the problem of disqualification cannot be properly resolved
either by simple analogy to a lawyer practicing alone or by the very general concept of
appearance of impropriety.
Confidentiality
[6] Preserving confidentiality is a question of access to information. Access to
information, in turn, is essentially a question of fact in particular circumstances, aided
by inferences, deductions or working presumptions that reasonably may be made about
the way in which lawyers work together. A lawyer may have general access to files of all
clients of a law firm and may regularly participate in discussions of their affairs;
yielding an inference that such a lawyer in fact is privy to all information about all the
firm's clients. In contrast, another lawyer may have access to the files of only a limited
number of clients and participate in discussions of the affairs of no other clients; yielding
an inference that such a lawyer in fact is privy to information about the clients actually
served but not that of other clients.
[7] Application of paragraph (b) depends on a situation's particular facts.
[8] Paragraph (b) operates to disqualify the lawyer only when the lawyer
involved has actual knowledge of information protected by Rules 1.6:
Confidentiality and 1.9(b): Conflict of Interest: Former Client. Thus, if a
lawyer while with one firm acquired no knowledge or information relating to
a particular client of the firm, and that lawyer later joined another firm,
neither the lawyer individually nor the second firm is disqualified from
representing another client in the same or a related matter even though
the interests of the two clients conflict. See Rule 1.10(b): Imputed Disqualification
for the restrictions on a firm once a lawyer has terminated association with the firm.
[9] Independent of the question of disqualification of a firm, a lawyer changing professional
association has a continuing duty to preserve confidentiality of information about a client
formerly represented. See Rules 1.6: Confidentiality and 1.9: Conflict of Interest: Former
Client.
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Adverse Positions
[10] The second aspect of loyalty to a client is the lawyer's obligation to decline
subsequent representations involving positions adverse to a former client arising in
substantially related matters. This obligation requires abstention from adverse
representation by the individual lawyer involved, but does not properly entail
abstention of other lawyers through imputed disqualification. Hence, this aspect of the
problem is governed by Rule 1.9(a): Conflict of Interest: Former Client. Thus, if a
lawyer left one firm for another, the new affiliation would not preclude the firms
involved from continuing to represent clients with adverse interests in the same or
related matters, so long as the conditions of paragraphs (b) and (c) concerning
confidentiality have been met.
[11] Information acquired by the lawyer in the course of representing a client may not
subsequently be used or revealed by the lawyer to the disadvantage of the client.
However, the fact that a lawyer has once served a client does not preclude the lawyer
from using generally known information about that client when later representing
another client.
[12] Disqualification from subsequent representation is for the protection of former
clients and can be waived by them. A waiver is effective only if there is disclosure of the
circumstances, including the lawyer's intended role in behalf of the new client.
[13] With regard to an opposing party's raising a question of conflict of interest, see
Comment to Rule 1.7: Conflict of Interest. With regard to disqualification of a firm with
which a lawyer is or was formerly associated, see Rule 1.10: Imputed Disqualification.
AUTHOR’S COMMENTS: THERE IS NO “CHINESE WALL” IN GEORGIA.
HOWEVER, JUST BECAUSE AN ATTORNEY AT A PRIOR FIRM HAS A CLIENT
DOES NOT MEAN THAT YOU LEARNED OR HAD ACCESS TO INFORMATION
DETRIMENTAL TO THE PRIOR FIRM’S CLIENT.
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5. RULE 2.1 ADVISOR
In representing a client, a lawyer shall exercise independent professional
judgment and render candid advice. A lawyer should not be deterred from giving candid
advice by the prospect that the advice will be unpalatable to the client.
The maximum penalty for a violation of this Rule is disbarment.
Comment:
Scope of Advice
[1] A client is entitled to straightforward advice expressing the lawyer's honest
assessment. Legal advice often involves unpleasant facts and alternatives that a client may
be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's
morale and may put advice in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by the prospect that the advice
will be unpalatable to the client.
[2] In rendering advice, a lawyer may refer not only to law but to other
considerations such as moral, economic, social and political factors that may be
relevant to the client's situation. Advice couched in narrowly legal terms may be of little
value to a client, especially where practical considerations, such as cost or effects on
other people, are predominant. Purely technical legal advice, therefore, can
sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical
considerations in giving advice.
[3] A client may expressly or impliedly ask the lawyer for purely technical advice.
When such a request is made by a client experienced in legal matters, the lawyer may
accept it at face value. When such a request is made by a client inexperienced
in legal matters, however, the lawyer's responsibility as advisor may
include indicating that more may be involved than strictly legal
considerations.
[4] Matters that go beyond strictly legal questions may also be in the domain of another
profession. Family matters can involve problems within the professional competence of
psychiatry, clinical psychology or social work; business matters can involve problems
within the competence of the accounting profession or of financial specialists. Where
consultation with a professional in another field is itself something a
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competent lawyer would recommend, the lawyer should make such a
recommendation. At the same time, a lawyer's advice at its best often consists
of recommending a course of action in the face of conflicting recommendations of
experts.
Offering Advice
[5] In general, a lawyer is not expected to give advice until asked by the client.
However, when a lawyer knows that a client proposes a course of action that is likely
to result in substantial adverse legal consequences to the client, duty to the client
under Rule 1.4: Communication may require that the lawyer act if the client's course
of action is related to the representation. A lawyer ordinarily has no duty to initiate
investigation of a client's affairs or to give advice that the client has indicated is
unwanted, but a lawyer may initiate advice to a client when doing so appears to be
in the client's interest.
AUTHOR’S COMMENTS: WE ARE LAWYERS. MOST OF US ARE NOT ALSO
QUALIFIED THERAPISTS OR MEDICAL DOCTORS. IF ASKED FOR AN OPINION
OUTSIDE YOUR AREA OF PRACTICE REFER YOUR CLIENT TO SOMEONE
QUALIFIED TO HELP. TAKE TIME TO PREPARE YOUR CLIENT FOR WHAT YOU
KNOW ABOUT – DEPOSITIONS, MEDIATIONS AND TRIALS. TALK TO THEM
ABOUT HOW TO DRESS FOR COURT. EXPLAIN THE OATH THEY WILL TAKE
AND JUST HOW BAD IT CAN BE IF THEY DO NOT TELL THE TRUTH.
B. PRO SE LITIGANTS
A "pro se" or unrepresented person should be treated with particular care.
Georgia Rules of Professional Conduct Rule 4.3 specifically governs dealing with
an unrepresented person but applies only when dealing with such a person "on behalf
of a client." This rule provides that a lawyer shall not:
(a) state or imply that the lawyer is disinterested; when the l a w y e r k n o w s o r
r e a s o n a b l y s h o u l d k n o w t h a t t h e unrepresented person
misunderstands the lawyer's role in the matter, the lawyer shall make
reasonable efforts to correct the misunderstanding;
(b) give advice other than the advice to secure counsel; and
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(c) initiate any contact with a potentially adverse party in a matter concerning
personal injury or wrongful death or otherwise related to an accident or
disaster involving the person to whom the contact is addressed or a relative of
that person, unless the accident or disaster occurred more than 30 days
prior to the contact.
The maximum penalty for a violation of this Rule is disbarment.
C. DEALINGS WITH OTHER LAWYERS
1.
In 1892, the Georgia Supreme Court held that it is cause for disbarring a
lawyer where the attorney "intermeddled between a brother attorney and
his client, grossly slandered the former, and endeavored to induce the
client to forsake the advice of her own counsel, and follow his instead,
offering to advise without charge. Baker v. State, 15 S.E. 788 (Ga. 1892).
2. Specifically, Rule 3.4 examines the issues of fairness to opposing counsel,
stating a lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter,
destroy or conceal a document or other material having potential
evidentiary value. A lawyer shall not counsel or assist another person to do
any such act;
(b)
(1) falsify evidence;
(2) counsel or assist a witness to testify falsely;
(3) pay, offer to pay, or acquiesce in the payment of compensation to a witness
contingent upon the content of the testimony or the outcome of the case.
But a lawyer may advance, guarantee, or acquiesce in the payment of:
(i) expenses reasonably incurred by a witness in preparation,
attending or testifying;
(ii) reasonable compensation to a witness for the loss of time in
preparing, attending or testifying;
(iii) a reasonable fee for the professional services of an expert
witness;
…
…
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(f) request a person other than a client to refrain from voluntarily giving
relevant information to another party unless;
(1) the person is a relative or an employee or other agent of a client; or
(2) the information is subject to the assertion of a privilege by the client; and
(3) the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information and the
request is not otherwise prohibited by law;
(g) use methods of obtaining evidence that violate the legal rights of
the opposing party or counsel; or
(h) present, participate in presenting or threaten to
present criminal charges solely to obtain an advantage
in a civil matter.
The maximum penalty for a violation of this Rule is disbarment.
AUTHOR’S COMMENTS: DON’T THREATEN PROSECUTION. DON’T THREATEN
PROSECUTION...
1. RULE 5.1 RESPONSIBILITIES OF PARTNERS, MANAGERS AND
SUPERVISORY LAWYERS
(a) A law firm partner as defined in Rule 1.0 (l), and a lawyer who individually or
together with other lawyers possesses comparable managerial authority in a law
firm, shall make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that all lawyers in the firm conform to the Georgia
Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make
reasonable efforts to ensure that the other lawyer conforms to the Georgia Rules
of Professional Conduct.
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(c) A lawyer shall be responsible for another lawyer's violation of the Georgia Rules
of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the
conduct involved; or
(2) the lawyer is a partner or has comparable maganerial authority in the law
firm in which the other lawyer practices or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time when
its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
The maximum penalty for a violation of this Rule is disbarment.
2. RULE 5.2 RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Georgia Rules of Professional Conduct notwithstanding
that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Georgia Rules of Professional Conduct
if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution
of an arguable question of professional duty.
The maximum penalty for a violation of this Rule is disbarment.
D. DEALING WITH TRIBUNALS (RULE 3.3 CANDOR TOWARD THE
TRIBUNAL)
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the client and
not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered
material evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding,
and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
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(d) In an ex parte proceeding, other than grand jury proceedings, a lawyer shall
inform the tribunal of all material facts known to the lawyer that the lawyer
reasonably believes are necessary to enable the tribunal to make an informed
decision, whether or not the facts are adverse.
The maximum penalty for a violation of this Rule is disbarment.
Comment
[1] The advocate's task is to present the client's case with persuasive force. Performance of
that duty while maintaining confidences of the client is qualified by the advocate's duty
of candor to the tribunal. However, an advocate does not vouch for the evidence
submitted in a cause; the tribunal is responsible for assessing its probative value.
Representations by a Lawyer
[2] An advocate is responsible for pleadings and other documents prepared for
litigation, but is usually not required to have personal knowledge of matters asserted
therein, for litigation documents ordinarily present assertions by the client, or by
someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1:
Meritorious Claims and Contentions. However, an assertion purporting to be on the
lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open court,
may properly be made only when the lawyer knows the assertion is true or believes it to
be true on the basis of a reasonably diligent inquiry. There are circumstances where
failure to make a disclosure is the equivalent of an affirmative misrepresentation.
Whether disclosure is necessary shall be considered in light of all of the relevant
circumstances. The obligation prescribed in Rule 1.2(d): Scope of Representation not to
counsel a client to commit or assist the client in committing a fraud applies in litigation.
Regarding compliance with Rule 1.2(d): Scope of Representation, see the Comment to
that Rule. See also the Comment to Rule 8.4(b): Misconduct.
Misleading Legal Argument
[3] Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(3), an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction which has not been
disclosed by the opposing party. The underlying concept is that legal
argument is a discussion seeking to determine the legal premises properly
applicable to the case.
False Evidence
[4] When evidence that a lawyer knows to be false is provided by a person who is not the
client, the lawyer must refuse to offer it regardless of the client's wishes.
[5] When false evidence is offered by the client, however, a conflict may arise between
the lawyer's duty to keep the client's revelations confidential and the duty of candor to
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the court. Upon ascertaining that material evidence is false, the lawyer should seek to
persuade the client that the evidence should not be offered or, if it has been offered, that
its false character should immediately be disclosed. If the persuasion is ineffective, the
lawyer must take reasonable remedial measures.
[6] Except in the defense of a criminal accused, the rule generally recognized is that, if
necessary to rectify the situation, an advocate must disclose the existence of the client's
deception to the court or to the other party. Such a disclosure can result in grave
consequences to the client, including not only a sense of betrayal but also loss of the
case and perhaps a prosecution for perjury. But the alternative is that the lawyer
cooperate in deceiving the court, thereby subverting the truth-finding process which
the adversary system is designed to implement. See Rule 1.2(d): Scope of
Representation. Furthermore, unless it is clearly understood that the lawyer will act upon
the duty to disclose the existence of false evidence, the client can simply reject the
lawyer's advice to reveal the false evidence and insist that the lawyer keep silent.
…
…
Remedial Measures
[11]If perjured testimony or false evidence has been offered, the
advocate's proper course ordinarily is to remonstrate with the client
confidentially. If that fails, the advocate should seek to withdraw if that
will remedy the situation. If withdrawal will not remedy the situation or is
impossible, the advocate should make disclosure to the court. It is for the
court then to determine what should be done-making a statement about the matter to
the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that
of the client, the client may controvert the lawyer's version of their communication
when the lawyer discloses the situation to the court. If there is an issue whether the client
has committed perjury, the lawyer cannot represent the client in resolution of the issue,
and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to
produce a series of mistrials and thus escape prosecution. However, a second such
encounter could be construed as a deliberate abuse of the right to counsel and as such a
waiver of the right to further representation.
AUTHOR’S COMMENTS: BE RESPECTFUL OF THE COURT. KNOW THE
PLEADINGS AND THE LAW. HAVE EXHIBITS NUMBERED AND HAVE AN
EXHIBIT LIST. WHEN A JUDGE SPEAKS LISTEN. TELL THE JUDGE WHAT
RELIEF YOU WANT AND WHY.
LAWYERS AND JUDGES CAN BE VERY GRACIOUS WITH THEIR TIME. IF YOU
HAVE QUESTIONS ASK. HOWEVER, DEPENDING ON THE SITUATION YOU
MIGHT NOT WANT TO ASK OPPOSING COUNSEL.
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III.
DISCOVERY AND GEORGIA LAW ON COMPUTER-RELATED
CRIMES
Emails search engines and other forms of electronic data can supply relevant
information that not only may be determinative but may send lawyers to bed with
visions of cross –examination dancing in their heads. However, the rules permitting
access to such data are balanced against the protection of privacy interests.
The
unwary risk criminal and/or civil liability. Before using electronic data at trial and
possibly before even letting it into your office a lawyer needs to determine if their
client violated any laws in obtaining the data.
The Georgia Computer Systems Protection Act, 0.C.G.A. §§ 16-9-90 et seq., (the
"GCSPA") is part of Georgia's Criminal Code. The GCSPA regulates unlawful access to
stored electronic data, including the crimes of Computer Theft, Computer Trespass,
Computer Invasion of Privacy, Computer Forgery, and Computer Password Disclosure.6
The GCSPA does not preclude the applicability of any other law which presently applies
or in the future may apply to acts which violate the statute. O.C.G.A. § 16-9-93(f).
A. Computer Theft
The crime of computer theft is committed when any person "uses a computer
or computer network with knowledge that such use is without authority and with
the intention of: (1) taking or appropriating any property of another, whether or
not with the intention of depriving the owner of possession; (2) obtaining
property by any deceitful means or artful practice; or (3) converting property to
such person's use in violation of an agreement or other known legal obligation
to make a specified application or disposition of such property." O.C.G.A. § 16-9-
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93(a).
B. Computer Trespass
The crime of computer trespass is committed when any person "uses a
computer or computer network with knowledge that such use is without authority and
with the intention of: (1) deleting or in any way removing, either temporarily or
permanently, any computer program or data from a computer or computer network;
(2) obstructing, interrupting, or in any way interfering with the use of a computer
program or data; or (3) altering, damaging, or in any way causing the malfunction of a
computer, computer network, or computer program, regardless of how long the
alteration, damage, or malfunction persists." O.C.G.A. § 16-9-93(b).
C. Computer Invasion of Privacy
The crime of computer invasion of privacy is committed when any person "uses a
computer
or
computer
network
with
the
intention
of
examining
any
employment, medical, salary, credit, or any other financial or personal data
relating to any other person with knowledge that such examination is without
authority." O.C.G.A. § 16-9- 93(c).
D. Computer Password Disclosure
The crime of computer password disclosure is committed when any person
"discloses a number, code, password, or other means of access to a computer or
computer network knowing that such disclosure is without authority and which
results in damages...to the owner of the computer or computer network in excess of
$500.00." 0.C.G.A. § 16-9-93(e).
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E. "Without Authority"
In the case of Computer Theft, Computer Trespass, Computer Invasion of
Privacy, and Computer Password Disclosure — see O.C.G.A. § 16-9-93(a), (b), (c) and
(e) — a key element is whether the intrusion at issue was "without authority."
"Without authority" is defined as follows:
"Without authority" includes the use of a computer or computer
network in a manner that exceeds any right or permission granted by
the owner of the computer or computer network.
O.C.G.A. § 16-9-92(18).
Even the adverse positions of Husband and Wife as parties to a divorce action
may indicate that a party lacked authority to access their spouse’s e-mail. See
Fugarino v. State, 243 Ga. App. 268, 270 (2000) (holding there was sufficient
evidence that defendant's use of computer was without authority where owner of
company testified that he did not give defendant authority or permission to delete
portions of computer program, and that the vindictive and retaliatory manner in
which defendant deleted large amounts of computer code indicates that he knew he
lacked authority to do so).
F. Unlawful Transmission of Data
The GCSPA also makes it unlawful to transmit data through a computer
network "for the purpose of setting up, maintaining, operating or exchanging data
with an electronic mailbox" using a name falsely to identify the person transmitting
the data. O.C.G.A. § 16-9-93.1(a).
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G. Penalties
Violations of the GCSPA, including computer theft, computer trespass,
computer invasion of privacy, and computer forgery, generally subject the
offender to both criminal penalties and civil liability for damages. O.C.G.A. § 16-993(g), (h).
The GCSPA sets forth the applicable criminal penalties. "Any person
convicted of the crime of computer theft, computer trespass, computer invasion of
privacy, or computer forgery shall be fined not more than $50,000.00 or imprisoned
not more than 15 years, or both." O.C.G.A. § 16-9-93(h)(1). "Any person convicted
of computer password disclosure shall be fined not more than $5,000.00 or
incarcerated for a period not to exceed one year, or both." 0.C.G.A. § 16-9-93(h)(2).
Additionally, the GCSPA provides for a civil cause of action for damages. Any
person who is injured by a violation of any provision of the GCSPA may bring a civil
action to recover damages, and the GCSPA does not limit any person's right to pursue
additional civil remedies otherwise allowed by law. O.C.G.A. § 16-9-93(g). A civil action
under the GCSPA "must be brought within four years after the violation is discovered or
by exercise of reasonable diligence should have been discovered." O.C.G.A. § 169-93(g)(4).
27
NUTS AND BOLTS OF FAMILY LAW
TRUSTED ADVISOR:
GUIDELINES FOR MANAGING CLIENT EXPECTATIONS
Elizabeth Green Lindsey
Davis, Matthews & Quigley, P.C.
Atlanta, Georgia
Chapter 8
i
TRUSTED ADVISOR:
GUIDELINES FOR MANAGING CLIENT EXPECTATIONS
Elizabeth Green Lindsey
Davis, Matthews & Quigley
Atlanta, Georgia
TABLE OF CONTENTS
Introduction. .............................................................................................................................1
Rule 1 – Maintain independence, integrity and boundaries as a lawyer.. ..........................2
Rule 2- Be competent and strive for excellence in the practice of law.. ..............................3
Rule 3 – Charge for your time and be fair with your fees and billing.. ..............................3
Rule 4 – Do not accept every client and do not be afraid to fire a client.. ..........................4
Rule 5 – Listen to your client. .................................................................................................5
Rule 6 - Communications with a client in person or by phone – do not rely solely on
e-mail ............................................................................................................................ 6
Rule 7 – Make the client part of the team.. ............................................................................6
Rule 8 – Prepare the client for important events.. ................................................................7
Rule 9 – Obtain client approval for all offers.. ......................................................................7
Rule 10 – Deal with bad news promptly.. ..............................................................................7
Rule 11 – Protect your client’s self-esteem.. ..........................................................................7
Conclusion.. ..............................................................................................................................8
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TRUSTED ADVISOR:
GUIDELINES FOR MANAGING CLIENT EXPECTATIONS
ELIZABETH GREEN LINDSEY, ESQ.
Davis, Matthews & Quigley, P.C.
3400 Peachtree Road, N.E., Suite 1400
Atlanta, Georgia 30326
Developing and managing relations with clients is one of the most important aspects of
being a lawyer and one that is not taught in law school. The lawyer-client relationship is one of
privilege and comes with many responsibilities.
The protection afforded client’s
communications with the lawyer is virtually sacrosanct and is essential to the development of
trust. The art of emerging from a mere mouthpiece for the client to becoming their leader,
confidant and trusted advisor is what makes the difference in the lawyer’s and the client’s
satisfaction. The measure of success for such relationships is to attain the status of “trusted
advisor.” As a trusted advisor, the lawyer has created a relationship with the client that goes
beyond the technical, expert legal advice, but expands that role into one where the lawyer’s that
the judgment and leadership are valued.
Just like first impressions, the initial consultation will set the stage for the future of the
lawyer-client relationship. Thus, from the start, the lawyer must take the time to get to know the
client personally, begin to uncover the facts of the client's case, understand the client’s goals and
begin to mold the client's expectations as to what actually can be accomplished. This interview
is the roadmap for how the lawyer will communicate with the client, how the roles of lawyer and
client will be defined, and how the lawyer’s fees will be billed. In that interview, the lawyer
needs to establish independence (i.e., that the lawyer will not do everything a client wants),
empathy, integrity, conviction and the ability to see the big picture. The lawyer may not have all
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the answers, but will ask the right questions to get to the facts that will develop into answers and
the best strategy.
Being a trusted advisor requires self-awareness, competence, confidence and maturity.
One can speed the development of these traits by being intentional and self-aware.
One
fundamental issue to understand is the reason that a career in law was chosen, and more
specifically, why family law. Chances are the lawyer wants a career that helps people in difficult
times. This desire to be a “white knight” cannot overshadow the objectivity that is required to be
a good advocate and advisor. Setting realistic expectations and objectives for the client and not
falling into the trap of over committing are essential to creating and maintaining satisfied clients.
A client will never have a chance of understanding a good result based on the facts if unrealistic
results were set by the lawyer. Having satisfied clients, a happy office staff and a loving family
will require the lawyer to be clear, consistent and honest with his client.
The following guidelines will be helpful in managing client expectations and making
your life as a practitioner, and your relationship with your client, more fulfilling and will lead to
becoming a trusted advisor.
Rule 1-Maintain independence, integrity and boundaries as a lawyer.
There are many reasons that people enter the practice of law. For some it has been a
lifelong passion, a family tradition, a calling. For others, it is a means to a financial end. For
many, public service and meaning are priorities too. After all, what is more important to a
person than his or her family, money, and children? The pressure to solve all problems can be
immense if the lawyer wants to the “white knight.”
But alas, there is no magic wand or magic eight ball that can make everything “right” or
predict what will happen in the case. A lawyer cannot put Humpty Dumpty together again. The
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client has come to a lawyer with a “broken situation.” A lawyer can only help clients through
the problem, give them options and an opinion on the best course of action through the problem.
The pull to erode principles and integrity can be intense and subtle. It can cause strain on
other professional relationships and with the client. In these circumstances, it is critical to
maintain independence and integrity and to not waiver. Having the resolve to maintain this
integrity and independence is the mark of a leader who understands the big picture and can be
objective. Such are the traits that lead to being a trusted advisor.
Even a difficult client will trust a lawyer if the client has the experience to know that the
lawyer is empathetic, understands the issues and facts and has not made promises that he cannot
keep. If a client refuses to follow a lawyer’s advice, then the client does not trust the lawyer and
the lawyer does not need to represent that client.
Set boundaries for personal time and access in the off hours, weekends, and vacations.
The cell phone presents challenges to boundaries between the client and lawyer, so consider
carefully those who have access to the lawyer’s personal cell phone number.
Rule 2 - Be competent and strive for excellence in the practice of law.
Be the expert in the area of law and practice at the highest level. Be creative and
intellectually curious. Study, read and learn. Know when not to handle a matter.
when the answer is not known.
Do not guess
Remember to use common sense and experience. Be a problem
solver and look for solutions.
Rule 3 - Charge for your time and be fair with your fees and billing.
The practice of law is a “for profit” institution. If it is difficult to remember, then fill
your office with pictures of your family and your favorite vacation spots. Nothing will bring
home the matter more than missing a staff payroll. Pro bono work is intentional and should not
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be by default. Clients need to know that lawyers’ bill for their time and that lawyers’ time is
valuable.
Be fair and clear with fees and billing practices. Always have a fee agreement. Be ready
and willing to discuss problems with fees. Bill regularly—at least monthly -- and look at work in
progress when key events are taking place.
Many people do not understand that family law involves intricate tax issues, nor do they
understand the costs involved in valuing a business and forensic accounting to trace separate
property or to trace for hidden funds. Nobody understands the costs of a custody case can be
astronomical. A realistic conversation about these costs in the initial interview will go a long
way in setting realistic expectations.
Rule 4 -Do not accept every client and do not be afraid to fire a client.
Lawyers are not indentured servants. If a client has danger written all over them,
consider whether or not you wish to work with this person. Here are some clues that you have a
potentially very difficult client:
1.
The client is rude to your staff and assistants.
2.
You are the second, third or fourth lawyer.
3.
You have a visceral reaction when you meet the client.
4.
The client is so unrealistic and has such unreal expectations as to potential results
that you could never make them happy.
5.
The client is unwilling or unable pay your fees.
6.
The client is substantially impaired with alcohol and/or drugs and does not appear
to have any desire to rehabilitate themselves.
7.
The client lies to you.
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8.
The client behaves impulsively and erratically.
9.
A client with personality disorders
10. A client lacks empathy.
11. A client is set on revenge and is only on the attack.
12. A client with increasing complaints about the lawyer’s performance and how the
case is unfolding.
13. A client threatens to file grievances or malpractice actions.
14. A client is paranoid.
15. A client who does not listen to your advice.
16. Desperate people will do desperate things, so take any veiled threat seriously.
Rule 5 - Listen to your client.
It is really important to listen to clients. While he is looking for advice, a client will not
hear the advice if he has not been heard. Even if heard, the client may not be ready to hear how
the process works or what realistic expectations are. Listening builds empathy. The client’s
story reveals their fears, which can be loss of identity, financial insecurity, a loss of a parentchild relationship, heartbreak or loss of control. Empathy does not require that you endorse the
client’s morality or way of life, but you need to listen to what their concerns are.
After listening to your client, make sure to explain the law and the procedures. Avoid the
mistake of believing that the client will understand the process and law in one meeting. The law
and the process can be complex and the terms are a foreign language. It is wise to ask your
client to repeat what you have said and ask them questions to see if he or she understands. How
many times do you have to explain to a client what “irretrievably broken” means and that the
other party will get a divorce even if they don’t want a divorce? You may have to explain to the
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client multiple times what alimony is and what the parameters of alimony are and what evidence
you need. You need to explain equitable division and separate property and tracing. Therefore,
it may be wise that you have several meetings with the client to discuss these issues as well as
the process and to include the client in the strategy to accomplish goals.
Rule 6 -Communications with a Client in Person or by Phone—do not rely solely on e-mail.
While e-mail is effective in times of transmittal of documents and appointments, it is the
worst medium possible for communications on highly nuanced areas of the law. Significant
issues need to be dealt with in person or at least by telephone. Document phone calls and the
issues discussed as well as the client’s position and statements during the phone call.
Promptly return all calls and e-mails. If the lawyer is unavailable, have someone in the
office communicate with the client within twenty-four (24) hours of the client’s call, if not
sooner.
Attorney-Client communications need to be kept confidential. More than anything,
e-mails create major problems with those privileged communications. Clients will forward the
lawyer’s e-mail to friends, family, witnesses and experts, thereby waiving privileges
inadvertently. Explain to clients the need to keep the communications between the lawyer and
client confidential.
Rule 7- Make the Client Part Of the Team.
The client’s ownership in the process will aid in setting expectations. Prompt and
thorough response to discovery and preparation of a Domestic Relations Financial Affidavit, as
well as identifying potential witnesses, will keep the client involved and part of the process.
The more ownership the client takes in the process the more they will become to understand the
nuances and the difficulties of the case.
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Rule 8 - Prepare the Client for Important Events.
Meet with the client before a status conference, mediation, deposition and all hearings.
Prepare the client in advance. Have conversations with the client about the witnesses and
affidavits. Provide them with all information. Clients will be confident if they are prepared.
Be realistic with your client. Give them realistic parameters. Have a heart-to-heart talk
before mediation or a hearing and let them know the range of possible results. Clients do not
like surprises. Prepare them for the possibility of the worst. Do not offer false reassurances or
empty promises to reduce the anxiety the client might feel. If the client believes you are with
them, the client will appreciate your services.
Rule 9 - Obtain Client Approval For all Offers.
Always get the client’s approval before any settlement offer or position statement goes
out. If sending a letter containing factual allegations, make sure the client has approved. Precise
communications with opposing counsel are critical both with the relationship with the opposing
counsel and the client.
Rule 10 - Deal With Bad News Promptly.
Do not avoid bad news. When bad news comes, call the client immediately.
Address angry clients promptly and determine if it is possible to work out the relationship
or whether you need to part ways. When a lawyer has not handled a matter in the way promised
to the client, admit it and make it right. Take responsibility for your actions.
Rule 11 - Protect your client’s self-esteem.
A client who knows that his lawyer is on his side, even if the facts are not on his side,
will trust the lawyer.
Being an effective advocate does not mean that a lawyer argues
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unreasonable positions. Loyalty is not compromised by being realistic. A trusted advisor will
protect the client’s self esteem in the process.
Conclusion
Developing and managing client’s expectations requires flexibility and conviction. A
lawyer needs to understand that his job is to push the client’s agenda (not his own) within the
bounds of law and the facts. There is no one size fits all solution to the problems family law
client’s face. The lawyer must be proactive, have a game plan and approach the client’s matter
with in-depth analysis and advice, rather than reacting to the fire of the day. There is no
leadership if you are only responding to the “tyranny of the urgent.” Leadership demands that
the lawyer maintain integrity, conviction and independence and not be afraid to take difficult
positions for the client. Further, the client needs to know that the lawyer is treating his matter
with individual interest. If the lawyer handles his cases with these principles and follows the
guidelines in the paper, the lawyer will be that trusted advisor.
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NUTS AND BOLTS OF FAMILY LAW
FAMILY LAW ISSUES IN GEORGIA’S JUVENILE COURTS
Honorable Stephen Franzen
Juvenile Court, Gwinnett Judicial Circuit
Lawrenceville, Georgia
Hannibal F. Heredia
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, Georgia
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Family Law Issues in Georgia’s Juvenile Courts
Honorable Stephen Franzen
Juvenile Court, Gwinnett Judicial Circuit
Lawrenceville, GA
Hannibal F. Heredia
Hedgepeth, Heredia, Crumrine & Morrison
Atlanta, GA
Table of Contents
I.
Introduction ..................................................................................................................1
II. Third Party Deprivation ................................................................................................ 1
III. Termination of Parental Rights ....................................................................................3
IV . Transfer from Superior Court.....................................................................................4
V.
Legitmation ………………………………………………………………………………………………….4
VI.
Child Support……………………………………………………………………………………………….5
VII. Temporary Guardianship ...........................................................................................5
VIII. Conclusion……............................................................................................................6
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Family Law Issues in Georgia’s Juvenile Courts
by
The Honorable Stephen Franzen and Hannibal F. Heredia
When one thinks of the types of actions that are adjudicated in Georgia Juvenile
Courts, one often thinks of the criminal cases involving minors (delinquency cases) and
a case brought by the Department of Family and Children Services (DFCS) involving the
placement of a minor child(ren) (a deprivation action brought by the state). In this
presentation we will present the other family issues that can arise in Georgia’s Juvenile
Courts.
Third Party Deprivation
Georgia’s Juvenile Courts have original and exclusive jurisdiction over
delinquency and deprivation matters O.C.G.A. § 15-11-28. Delinquency matters are
those that involve, generally, a person who is under seventeen (17) years of age, or a
person under 21 years of age who has committed an act designated as a crime before
reaching seventeen (17). O.C.G.A §15-11-2. Deprivation matters are those in which it is
alleged a child under eighteen (18) years of age is without proper parental care or
control, subsistence, education as required by law, or other care or control necessary for
one's physical, mental or emotional health or morals; or a child who has been placed for
care or adoption in violation of law; or a child who has been abandoned by parents or
other legal custodian; or a child who is without a parent, guardian or custodian. O.C.G.A
§15-11-2.
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As it relates to a deprivation action, a review of the definition reveals that there is
not a requirement as to who can bring a deprivation action in Juvenile Court. While it is
often thought that these cases are brought only by DFCS, anyone – relative, friend,
neighbor, etc. – can allege a child is deprived as set out under the statute. However, a
limitation exists that in that the purpose of the Juvenile Code is not to settle questions of
custody between the parents of a minor child. Neal v. Washington , 158 Ga.App 39
(1981). Therefore a close examination will made of a deprivation petition in which a
parent alleges the child is deprived while in the care/control/custody of the other
parent. In re R.R.M.R., 169 Ga. App. 373 (1983). A situation that arises in which a
parent has a concern that would elevate itself to an allegation of deprivation as it relates
to the other parent is properly and exclusively handled by the Georgia Superior Courts.
The appropriate remedy would be a Petition for Modification with an emergency
hearing request. Otherwise a deprivation action can be relative against parent; putative
father against parent; or any third party against the parent.
It should be noted that while a third party as outlined above can file deprivation
action against a parent, there are certain unique aspects to the Juvenile Code that a
practitioner should be aware of. First, a higher burden of proof exists in Juvenile Court
as the allegations must be proved by “clear and convincing” evidence that a child is
deprived. Second, the Court is not required to place the child(ren) with the petitioner.
The Court can grant custody to another third party or even the State (DFCS). Third, the
Order granting custody often starts as a temporary order for a period of twenty-four
(24) months that may be converted upon petition to a permanent order. Also, note that
a deprivation proceeding may be commenced in the venue where the child is physically
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present as well as the venue of the child’s residence. OCGA 15-11-29(a). Finally, a
Guardian ad litem shall be appointed in these cases to serve the best interests of the
child(ren).
Conversely, the Superior Court does not have jurisdiction to make a finding of
deprivation and grant custody to DFACS or a third party. For example see Phillips v.
Phillips a brand new Ct. of Appeals case in which Superior Court found that the mother
was unfit in divorce/custody case and granted custody to step/father. The Superior
Court can only grant custody to third parties when there is a contest between parent(s)
and certain enumerated third parties (see OCGA 19-7-1(b.1).(grand parent, aunt/uncle,
sibling, adoptive parent, et. al.) and the court must make additional findings as set out
by the Supreme Court in Clark v. Wade 273 GA 587 (2001). The third party has to prove
by clear and convincing evidence that the child would suffer physical or emotional harm
if custody were awarded to the biological parent. The third party then has to show that a
custody award to the third party would promote the child’s welfare and happiness.
Termination of Parental Rights
In Georgia the Superior Courts may only terminate a parent’s parental rights in
the context of an adoption proceeding. The Superior Courts do not have the jurisdiction
to terminate parental rights in a divorce or child custody case. Amerson v. Vandiver,
285 Ga. 49 (2009). In contrast the Juvenile Courts have exclusive and original
jurisdiction to terminate the legal parent-child relationship and to terminate the rights
of the biological father who is not the legal father of the child, other than that in
connection with adoption proceedings and then there is concurrent jurisdiction with the
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Superior Courts. O.C.G.A § 15-11-28 (a)(2)(c). In the recent decision of Brine v. Shipp,
2012 WL 2866249 (July 13, 2012), the Georgia Supreme Court made clear that the
Courts must examine what the substance of the action pending in the Court is, not the
nomenclature, and if the result is that parental rights are to be terminated then that
action , unless it is an adoption, cannot be heard by the Superior Court since the
Juvenile court is vested with original and exclusive jurisdiction.
As opposed to a balance of plus and minuses as they exist in a custody case there
must be clear and convincing evidence of parental misconduct or inability. O.C.G.A §
15-11-94 (a). Once the Court determines that parental misconduct or inability exists,
then the court shall consider whether termination of parental rights is in the best
interest of the child, after considering the physical, mental, emotional, and moral
condition and needs of the child who is the subject of the proceeding, including the need
for a secure and stable home. O.C.G.A § 15-11-94 (a). The statute, O.C.G.A § 15-11-94,
provides further instances when the Court may terminate the parental rights to his or
her child.
Transfer from Superior Court
“Other courts, in handling divorce, alimony, habeas corpus, or other cases
involving the custody of a child or children, may transfer the question of the
determination of custody, support, or custody and support to the juvenile court for (1)
investigation and a report back to the superior court, or (2) for investigation and
determination. “ O.C.G.A. 15-11-30.1(b). As a result if the transfer is for investigation
and determination, then the Juvenile Court shall proceed to handle the case as though it
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has original jurisdiction in compliance with the order of the superior court. O.C.G.A. 1511-30.1(b). Therefore, it can hear issues on contempt , child support and other matters
related to the custody issue that has been transferred to it. Without the transfer, as
noted earlier, the Juvenile Court will be without jurisdiction to hear such issues. At any
time prior to the determination of any such question, the juvenile court may transfer the
jurisdiction of the question back to the referring superior court. O.C.G.A. 15-11-30.1(b).
Legitimation
In certain instances the Juvenile Court has concurrent jurisdiction as to
legitimation petitions. The following are those instances:
First, the Juvenile Court shall have concurrent jurisdiction to hear any
legitimation petition transferred to the juvenile court by proper order of the superior
court. O.C.G.A § 15-11-28(e). Second, and most commonly, the juvenile court shall have
jurisdiction to hear a legitimation petition filed as to a child with respect to whom a
deprivation proceeding is pending in the juvenile court at the time the legitimation
petition is filed. O.C.G.A § 15-11-28(e).
The latter situation arises when a putative father had been identified in a
deprivation action. He will be advised on his rights once it is determined that he is the
biological father of legitimating the child at issue. The legitimation matter ordinarily
would originate in Superior Court, but as noted may be filed in Juvenile Court in
connection with an ongoing deprivation action.
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Child Support
Regardless of the above grant of jurisdiction to the Juvenile Court, if after a
petition for legitimation is granted or any other issue that may arise as to custody as
discussed above, if a demand for a jury trial as to child support has been properly filed
by either parent, then the case shall be transferred to superior court for such jury trial.
See O.C.G.A § 15-11-28(c).
Temporary Guardianship
While customarily a temporary guardianship arises in Georgia’s Probate Courts,
Juvenile Courts are presented with the opportunity to handle these matters in a specific
instance. The guardianship that originates in Probate Court may be voluntary. That is,
in certain instances the legal custodian will voluntarily file a petition electing a third
party to have temporary guardianship over his or her child(ren). At any time
subsequent to the guardianship being created, the legal custodian (natural guardian)
can petition the Probate Court to revoke the guardianship. O.C.G.A. § 29-2-8 (b).
Notice shall be provide the Guardian. If the temporary guardian objects to the
termination of the temporary guardianship within ten (10) days of the notice, the
Probate Court shall have the option to hear the objection or transfer the case related to
the temporary guardianship to the Juvenile Court. The Juvenile Court then shall
determine, after notice and hearing, whether a continuation or termination of the
temporary guardianship is in the best interest of the minor. O.C.G.A. § 29-2-8 (b). In
the authors’ experience most Probate Courts will elect to make the transfer to the
Juvenile Court.
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The above are the primary examples of issues that one ordinarily thinks of family
law issues that are routinely handled in the Superior Court but are also found, as
outlined above, in Juvenile Court pursuant to the Juvenile Code and applicable Georgia
appellate case law.
NUTS AND BOLTS OF FAMILY LAW
FAMILY LAW
CASE LAW UPDATE
Denise M. Warner
Staff Attorney to the Honorable Michael Anthony Scott
DeKalb County Superior Court
Decatur, Georgia
Melody P. Bray
Staff Attorney to the Honorable Courtney L. Johnson
DeKalb County Superior Court
Decatur, Georgia
Special Acknowledgment to Rebecca L. Crumrine, Esq. for her contributions to this paper.
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2012 NUTS AND BOLTS
OF
FAMILY LAW
FAMILY LAW CASE LAW UPDATE
Denise M. Warner, Esq.
Melody P. Bray, Esq.
Staff Attorney to the
Honorable Mark Anthony Scott
DeKalb County Superior Court
Decatur, Georgia
[email protected]
Staff Attorney to the
Honorable Courtney L. Johnson
DeKalb County Superior Court
Decatur, Georgia
[email protected]
TABLE OF CONTENTS
Jurisdiction …………………………………………………………………………………………..1
What to Ask For …………………………………………………………………………………....3
What You Can Rely Upon ……………………………………………………………………….4
When You Will/Will Not Have a Remedy …………………………………………………5
Legitimation………………………………………………………………………………………….5
Child Support ……………………………………………………………………………………….7
Child Custody ………………………………………………………………………………………10
Child Custody – Initial Determinations……………………..………………….10
Child Custody – Modifications……………………………………………………..12
Child Custody – Third Party Considerations ………….…………………..…14
Termination of Parental Rights …………………………………………..…………………14
Grandparent Visitation …………………………………………………………………………17
Equitable Division …………………………………………………………………………….….19
Prenuptial and Postnuptial Agreements …………………………………………………25
Alimony……………………………………………………………………………………………….26
Contempt …………………………………………………………………………………………….27
Attorney’s Fees …………………………………………………………………………………….30
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JURISDICTION
Sumner v. Batchelor, 313 Ga. App. 878 (2012)
Jurisdiction for Modification of Custody in County of Legal Custodian of the
Child
Statutory provision is clear and unequivocal. “[A]fter a court has
determined who is to be the legal custodian of a child, any complaint seeking to
obtain a change of legal custody of the child shall be brought as a separate action
in the county of residence of the legal custodian of the child.” O.C.G.A. §19-9-23
(a).
Lowe v. Lowe, 314 Ga.App. 689 (March 9, 2012)
Venue For Custody Modification Is The County Of The Legal Custodian, If In
Georgia. If Not in Georgia, In The County Where Custody Determination
Initially Made O.C.G.A. §§ 19-9-23(a) and 19-9-62(a).
Bates v. Bates, No. A12A0552 (July 11, 2012)
Prior Judgment in which it was determined second-parent adoption was
valid was res judicata as to the validity of the adoption decree in
subsequent child custody action
Adoption by same sex couple in county outside their residence via “second
parent” adoption. Upon break up of relationship, biological mother attempted to
set aside adoption as void. Court denied as outside time frame pursuant to
adoption code (6 months of entry of decree).
Biological Mother/Former Partner seeks in county of residence custody and
attacks validity of decree after denial of motion to set aside in county in which
adoption ordered. Appellate Court found county of adoption has jurisdiction –
once ordered, res judicata from litigating in county of residence in custody
dispute.
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Delgado v. Combs, 314 Ga. App. 419 (February 29, 2012)
In UCCJEA Determination Of Jurisdiction Continuing State Must Relinquish
Jurisdiction
Initial determination of custody in Kansas. Father relocated to Georgia
with child subject to modification action in Kansas. Father moved for permanent
custody order in Georgia action for emergency custody. Service attempted at
Mother’s last known address in Kansas one time. Found Father did not exhaust
all attempts to locate Mother and that he had knowledge of friends and relatives
who could have assisted in locating her. As well, returned mail provided Mother
had a new address.
Dearth of law in Georgia supplemented through this case – adoption of recent
Colorado determination regarding burden on Petitioner: “the parent petitioning
the new state to assume jurisdiction bears the burden of proving, not only that
the new state would have jurisdiction to enter an initial child custody order, but
that the issuing state has lost or declined to exercise jurisdiction as well.”
Ennis v. Ennis, No. 290 Ga. 890 (April 24, 2012)
Court May Award Divorce With Jurisdiction Over Res Of Marriage Without
Minimum Contacts of One Party
Even where minimal contacts analysis does not permit exercise of
personal jurisdiction over one party, divorce may be entered based upon in rem
jurisdiction over marriage itself.
Pennington v. Pennington, 291 Ga. 165 (May 29, 2012)
Court properly struck litigants pleadings and proceed with a bench trial as
sanction for failure to appear for a noticed final hearing on child custody one
day prior to noticed jury trial.
Party failed to appear at bifurcated, noticed custody trial. The trial court
properly struck pleadings, proceeded with bench trial as to all issues, took divorce
on the counterclaim, awarded custody and all marital property to appearing
party.
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WHAT TO ASK FOR
Lopez v. Olson, 314 Ga. App. 533 (March 2, 2012)
In determining jurisdiction to modify an Order pursuant to UCCJEA, no
requirement to Register Foreign Judgment & Standard for Obtaining Custody
Back from a Third Party
When a third party previously was granted permanent custody (ie. Parent
has lost all parental power or declared unfit), the roles of the third party and the
natural parent “switch” such that the third party has the prima facie right to
custody; and, the parent may only regain permanent custody by clear and
convincing evidence of harm to the child otherwise. However, when temporary
custody provided to third party and reunification of parent sought, standard is
the best interests of the child.
Birchby v. Carboy, 311 Ga. App. 538 (2011)
Petitions for Family Violence – No Requirement of Findings of Fact; Mandatory
Inclusion Into Registry; No “Rolling Up” Into Pending Divorce Without
Petitioner’s Consent
In this case, the wife of a divorcing couple filed a petition for relief from
family violence, and the trial court conducted a contentious three day hearing.
With reluctance, and despite finding neither party particularly credible, the judge
entered a twelve month protective order against the husband. Upon appeal, the
husband contended that a number of errors were committed by the judge,
including: 1) his failure to include specific findings of fact and conclusions of law
supporting that order; 2) the judge’s conclusion that he could not exercise any
discretion as to whether or not the order was sent to the Georgia Registry; and 3)
the judge’s refusal to convert the order into a civil restraining order in the parties’
pending divorce without the petitioner’s consent.
The Georgia Court of Appeals upheld the trial court’s actions on all three
counts. O.C.G.A. § 19-13-4 does not require written findings of fact and
conclusions of law, nor must a judge include them in temporary alimony / child
support / child custody orders. Because O.C.G.A. § 19-13-53(b) provides that
“[t]he clerk of the issuing court shall electronically transmit a copy of the
protective order or modification thereof to the registry as expeditiously as
possible” (italics added), the trial judge had no authority to prevent the order,
however insubstantially founded, from being registered. Finally, without the
wife’s consent that the family violence petition be “rolled up” into a pending
divorce action (in the form of a civil restraining order), the trial court had no
authority to take this alternate step so as to avoid the registration requirement
applicable to the family violence order.
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Jordan v. Jordan, 313 Ga. App. 189 (2011)
Settlement Agreement Incorporated Into Final Judgment and Decree of Divorce
Cannot be Collaterally Attacked Without First Setting Aside the Decree Itself
An ex-husband could not collaterally attack a settlement agreement
incorporated into a divorce decree on the ground of fraud. On the contrary, his
proper remedy would be to move to set aside the divorce decree itself on a fraud
basis as set forth O.C.G.A. § 9-11-60.
Kent v. Kent, 289 Ga. 821 (2011)
To Waive the Right to Receive a Transcript of a Proceeding, A Party Must
Expressly Decline to Participate in Take-Down
This case is not specific to family law. It is worth noting, however, because
it confirms a bright-line rule with respect to a party’s right to the transcript of a
proceeding: a party must expressly decline to participate in take-down in order to
bar him or her from the right to request and pay for a transcript later. Any party
or judge who wishes to avoid a transcript dispute should confirm expressly and
on the record at the beginning of the proceeding that the other side wishes to
waive his or her right to a transcript.
WHAT YOU CAN RELY UPON
Vaughn v. David, 290 Ga. 351 (2012)
Trial Court Cannot Rely on Evidence Of Custody Adduced At Temporary
Hearing For Final Trial
“Absent express notice to the parties, it is error for a trial court to rely on
evidence from the temporary hearing in making its final custody determination.”
Graham v. Graham, 291 Ga. 1 (April 24, 2012)
Parties Failure To Provide His Portion Of The PreTrial Order Cannot Be Basis
For Said Parties Rescheduling of Final Trial
“[S]uch an argument is absurd because it allows one party to affect
singularly the timing of trial by simply failing to submit his portion of the pretrial
order. This argument acts in complete contradiction to the long-held rule that
parties who fail to present a proposed pretrial order or to appear at a pretrial
conference as required by the trial court are subject to sanctions. .”
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Gresham-Green v. Mainones, 290 Ga. 721 (March 19, 2012)
Report of the Guardian Ad Litem Cannot Be Substituted For Testimony Of The
Guardian At Final Trial
WHEN YOU WILL/WILLNOT HAVE A REMEDY
Edge v. Edge, 290 Ga. 551 (2012)
Motion to Set Aside Pursuant to O.C.G.A.§9-11-60(d)(2) Must Be Without
Negligence Of The Litigant
Husband’s Motion to Set Aside was granted in error where his address
provided by previous counsel was incorrect. Husband has obligation to assure
Court has correct address.
Brabant v. Patton, No. 728 S.E.2d 244 (April 27, 2012)
Interim Custody Determination Is Subject To Direct Appeal
LEGITIMATION
Brine v. Shipp, No. S12F0626 (July 2012)
Superior Court lacked subject matter jurisdiction over biological father’s
petition to terminate husband’s parental rights
In divorce and custody case between a mother and legal father (i.e. child
born in wedlock , but Husband is not the biological father) The biological father
intervenes and seeks legitmation. The “focus shifts” to paternity from divorce
and custody, and when a Superior Court finds that biological father has not
abandoned his opportunity, the issues becomes whether to grant the petition to
legitimate because to do so would delegitimate the child ( all children born in
wedlock are deemed legitimate) and sever the existing father-child relationship.
Trial court granted the legitimation, and as part of the divorce, terminated
the Husband’s rights as the legal father. The husband appealed the superior
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court’s order severing his rights as legal father and granting the biological father’s
petition to legitimate.
The Georgia Supreme Court reversed the trial court’s decision holding that
a biological father’s petition to legitimate a child born in wedlock can only be
granted by first terminating the legal father’s parental rights. The Superior Court
does not have jurisdiction over the termination decision.
Note: This case overrules the following cases to the extent they determined that
the superior court had jurisdiction to sever parental rights because the
termination issue was ancillary to the biological father’s petition to legitimate.
Matthew v. Dukes, 314 Ga.App. 782 (2012)
Ghrist v. Fricks, 219 Ga.App. 415 (1995)
Caldwell v. Meadows, 312 Ga. App. 70 (2011)
Standard to Support Grant of Legitimation
In this legitimation case, the Court of Appeals noted that “a father’s
lack of involvement prior to a child’s birth ‘is as significant as such a
disregard after the child is born.’” Despite the fact that the father had
failed to provide any emotional or financial support during four months of
the mother’s pregnancy, however, the trial court in this case did not abuse
its discretion in granting the legitimation, given the father’s efforts to be
involved in the child’s life and to pay informal support after he was born.
Magdangal v. Hendrix, 313 Ga. App. 522 (2012)
Court’s Determination of Legitimation and Subsequent Custody And Parenting
Time Rights Rely On Facts At Trial And Trial Court’s Determination Of
Credibility Of Witnesses
Legitimation 2 prong determination. At first prong (whether father
abandoned his opportunity interest), inquiry is not whether father “could have
done more”, but whether father “has done so little to constitute abandonment”
Fact findings shall not be set aside unless clearly erroneous. Due regard
given to trial court’s determination of credibility of the witness
Brewton v. Poss, 728 S.E.2d 837 (June 14, 2012)
If an adoption is filed, legitimation petition filed in response must be filed
separately under a separate civil action number; however, it remains
permissible to counterclaim or legitimation in a paternity suit
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Sauls v. Atchison, No. A12A0776 (Ga.App.) (July 11, 2012)
Service by publication permissible where Father failed to give address to
custodians of child and actively and deliberately concealed his whereabouts.
CHILD SUPPORT
Brogdon v. Brogdon, 290 Ga. 618 (2012)
Findings of Fact When Applying Discretionary Deviations in Calculation of
Child Support: Don’t Forget 7% Inclusion
Child Support Calculation Statute is clear. Imputed Income when a party has
no proof of income is mandatory (“shall”).
The Appellate Courts have provided this time and time again – the Order,
the worksheet and the addendum must all comply with the law, and must all
“agree.” As Justice Nahmias states: “this Court has repeatedly emphasized the
statute’s clear directive that [] written findings must be included in the final child
support order if a deviation is made. . . when any of the required findings are
omitted, we have no choice but to reverse the trail court’s judgment and remand
the case to the trial court for further proceedings.”
Husband testified stipulation to be responsible for all extracurricular
activity expenses – cannot then complain on appeal (see Finklea)
Jackson v. Irvin, A12A0040 (July 3, 2012)
In case for determination of legitimation, custody and support, trial court
erred in applying non-specific deviation for support for a child born subsequent
to child at issue, and no evidence was provided that the subsequent child was
living with the Father, that Father provided any financial assistance and no
evidence regarding the income of the Mother to the subsequent child.
Johnson v. Ware/ Ware v. Johnson, 313 Ga. App. 774 (2012)
Issues Not Pled May Be Tried By Express Or Implied Consent
Child Support – Discretionary Deviations Mandate Findings of Fact
Issue of custody not pled in a modification of visitation action may be tried
by express or implied consent of the parties.
Any time a trial judge provides for a discretionary deviation there must be
findings of fact (USE SCHEDULE E!)
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Rowden v. Rowden, 290 Ga. 65 (2011)
No Willful Underemployment; No Obligation by Trial Court to Abate Child
Support During Non-Custodial Parent’s Summer Parenting Time
Upon appeal, the Georgia Supreme Court upheld the trial court’s final
divorce judgment with respect to child custody and child support. The appellate
court found that the trial court properly exercised its discretion as to child
custody where, despite evidence that both parents were involved and spent
quality time with the children, the mother demonstrated that she, unlike father,
had “a concrete childcare plan for the children,” enrolled the children in “ageappropriate activities with other children,” and “planned social events . . . . such
as birthday parties.” As for the child support issues upon appeal, the trial court
properly refused to find that the mother was willfully under-employed in light of
its specific findings that she was doing her best to get back on her feet,
financially, after her former medical practice caused her to go bankrupt. Finally,
the trial court was not obligated to suspend the father’s child support obligations
during the summer, and it did not err in refusing to do so, particularly in light of
the complete lack of evidence that such an arrangement served the children’s best
interests.
Ellis v. Ellis, 290 Ga. 616 (2012)
Verification of Calculation of Self-Employment Income For Purposes Of
Calculation Of Child Support
Dean v. Dean, 289 Ga. 664 (2011)
Child Support Floors – In Order to Be Enforceable, Must Include
Varn Express Alimony Waiver Language
A settlement agreement executed between a former wife and husband
provided that child support would be recalculated each year based upon the exhusband’s then-applicable income, and that, “[i]n no event shall the annual
recalculation of . . . child support result in [the ex-husband] paying less than” a
set figure per month. A little over two years later, the ex-husband filed for
modification of his child support based upon an involuntary loss of income as
that concept is defined in O.C.G.A. § 19-6-15(j). The ex-wife contended that the
ex-husband failed to state a claim upon which relief could be granted because his
child support could not reduced below the set amount in the settlement
agreement.
Upon appeal, the Georgia Supreme Court reiterated that child support is a
form of alimony. As a result, a full or even a partial waiver of a payor’s right to
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seek a downward modification of child support (such as the one with which it had
been presented) would only be enforceable if Varn express waiver language were
also included in the settlement agreement. Only with such language could it be
ensured that the ex-husband knowledgeably and voluntarily waived his right to
modify his support payments.
Finklea v. Finklea, 290 Ga. 357 (2012)
Trial Court Did Not Abuse Discretion In Determination of Child Custody Nor
Support
Parties must request written findings of fact supporting determination of
custody.
In calculating child support, party cannot appeal trial court’s usage of
stipulated facts. A party “may not complain about the trial court’s use of the
amount she asked it to use in its child support calculations.” Barred by doctrine
of induced error.
Bagwell v. Bagwell, 290 Ga. 378 (2012)
Two Year Bar to Modify Child Support
Father exhausted right to modify child support when modification
dismissed as sanction for failure to respond to discovery – 2 year bar in place.
Father’s attempt to file a downward modification action 14 days after
dismissal of downward modification action barred by 2 year limit. Second suit
was not an involuntary reduction, but instead plead exactly the same allegations
and prayers for relief of first suit which was dismissed as sanction.
Morgan v. Bunzendahl, 2012 WL 2362368 (Ga.App) (June 22, 2012)
When calculating back child support related to a contempt citation, that portion
of the obligation attributable to lost income does not accrue after service of the
modification petition on the other party
The trial court impermissibly found that Galvin v. Galvin, 288 Ga 125
(2012) foreclosed retroactive modification pursuant to O.C.G.A. §19-6-15(j).
Note Judge McFadden’s concurrence in judgment only; therefore,
“[b]ecause I concur in the judgment only, our decision today is not binding on the
trial courts. Ct. App. R. 33(a). I respectfully suggest that this issue merits further
consideration by our Supreme Court.”
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CHILD CUSTODY
CHILD CUSTODY – INITIAL DETERMINATIONS
Avren v. Garten, 289 Ga. 186 (2011)
Trial Court Properly Dismissed Modification Proceeding While Legal Guardian
Withholding Visitation Rights; Supersedeas Upon Appeal Does Not Preclude
Judge From Entering Attorneys’ Fees Order Arising Out of Appealed Case.
In this case, the Georgia Supreme Court held that, based upon O.C.G.A. §
19-9-24(b), the trial court could properly dismiss a mother’s modification action
where she was found to have withheld certain visitation rights from father. The
appellate court also upheld the trial court’s authority to enter an award of
attorneys’ fees in the case, despite the mother’s appeal of the judgment out of
which the attorneys’ fees claim had arisen. As the opinion notes, “The
supersedeas that stems from the filing of an application or notice of appeal is
limited in that it ‘supercedes only the judgment appealed; it does not deprive the
trial court of jurisdiction as to other matters in the same case not affecting the
judgment on appeal.’”
Ward v. Ward, 289 Ga. 250 (2011)
Overnight Guest Prohibition; Attorneys’ Fees Award In Custody Modification
Action
The trial court abused its discretion when it revised the original divorce
decree to prohibit the mother from having “any overnight male guests while the
minor children [we]re present.” This language was overly broad, and would
preclude the mother from having individuals present who had not been shown to
pose any risk of harm to her children – including, for example, her father and her
brother.
The Georgia Supreme Court also remanded the trial court’s attorney’s fees
award because it was not clear upon what statutory basis the award had been
made. Although this case involved a custody modification request that was
ultimately denied, this opinion, like the decision of Harris v. Williams, 304 Ga.
App. 390 (2010), appears to indicate that O.C.G.A. § 19-9-3 attorneys’ fees are
not available unless a contempt is also involved (and therefore fees are available
under O.C.G.A. § 19-6-2). In other words, O.C.G.A. § 19-9-3 does not provide an
independent grounds upon which a fees claim may be based. Upon remand, the
Georgia Supreme Court indicated that the trial court had the opportunity to enter
sufficient factual findings to base its fees either on O.C.G.A. § 19-6-2 (comparison
of parties’ financial circumstances) or on O.C.G.A. § 9-15-14 (one party’s
improper expansion of proceedings).
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Spurlin v. Spurlin, 289 Ga. 818 (2011)
Trial Court Made Proper Legal and Physical Custody Award Where, Despite
Postnuptial Agreement Reflecting Identical Arrangement, It Performed
Substantive Analysis As Required Under O.C.G.A. § 19-9-3
In this case, a postnuptial agreement between the parties provided for a
certain legal and physical custody arrangement with respect to the parties’
children. Three years later, in the context of a divorce, the trial court entered an
order that found that a custody arrangement identical to that set forth in the
postnuptial agreement served the parties’ children’s best interests. Because the
trial court performed the proper analysis under O.C.G.A. § 19-9-3 to support this
award, in light of the family’s then-existing circumstances (and independent of
the terms of the postnuptial agreement), the trial court did not abuse its
discretion in essentially ratifying the custody arrangement set forth in the
postnuptial agreement.
NOTE: the Georgia Supreme Court also confirmed that the financial
aspects of the postnuptial agreement were enforceable, despite a lack of financial
statements being attached to that agreement, in light of 1) the listing of most
major assets of the parties in the body of the agreement itself; and 2) the wife’s
level of familiarity with the husband’s family business, income, and assets.
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Blackmore v. Blackmore, 311 Ga. App. 885 (2011)
Relief from Supersedeas in Child Custody Case
In this post-divorce visitation modification action, the trial court exempted
the visitation provisions of its final order from supersedeas once the father had
filed his notice of appeal. The Georgia Court of Appeals confirmed that this
action by the trial court was permissible under Walker v. Walker, 239 Ga. 175
(1977), provided that, per Walker, the trial court found that such relief from the
supersedeas served the children’s best interests. It was not material that the
relief from supersedeas was not requested / included in the original final order,
or in the context of a pending motion for new trial; the trial court had the
authority to enter such relief at any time, including during the pendency of
appeal.
Furthermore, the appellate court noted that, under a recent revision to
Georgia’s appellate statutes, this relief from supersedeas would be the “default
setting” for all appeals filed on or after July 1, 2011. This amended provision
states as follows:
Where an appeal is taken . . . for a judgment or order granting
nonmonetary relief in a child custody case, such judgment or order
shall stand until reversed or modified by the reviewing court unless
the trial court states otherwise in its judgment or order.
O.C.G.A. § 5-6-35(k).
CHILD CUSTODY – MODIFICATIONS
Smith v. Curtis, No. A12A0568 (July 13, 2012)
Voluntary request to relinquish parental rights is deemed a
material change in condition, giving the court authority to modify custody
Noncustodial father petitioned to modify prior child support and visitation
order. During the hearing, after consulting with his trial counsel, Father offered
to surrender his rights to the child. The trial court informed Father that it could
not terminate his parental rights, but that it would take his comment as an intent
not to exercise parenting time. The court modified1 the final order so that Father
did not have “custody, parenting time and parental rights of any type or manner,
connected with the prior court order.”
1
O.C.G.A. §19-9-3 (b) A petition to change child custody should be granted only if the trial court
finds that there has been a material change of condition affecting the welfare of the child since the
last custody award; if there has been such a change, then the court should base its new custody
decision on the best interest of the child.
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Our courts have held that the voluntary surrender of physical custody over a child
by the custodial parent can constitute a material change of condition.2 It follows
that the voluntary request to relinquish visitation, custody or other parental
rights can also be deemed a material change in condition.
Reed v. Reed, 289 Ga. 193 (2011)
No Presumption Against Relocation
This opinion is fact-driven, short, and only notable in the sense that it
reaffirms the concept that, in a custody modification context, there is no
presumption for or against relocation of a child to another state.
Gildar v. Gildar, 309 Ga. App. 730 (2011)
Trial Court Had Authority to Modify Visitation Provisions So As To Lift
Supervision of One Parent’s Visitation in Context of Contempt
The original divorce decree in this case made the mother’s visitation with
the children contingent upon her satisfaction of certain drug- and alcohol-related
safeguards for a period of one year. After that year had expired, if the mother
failed a drug and alcohol test requested by the father per a procedure outlined in
the decree, the mother’s visitation would become supervised, and such
supervision would be at her expense. Such supervision could cease, however,
once the mother received clearance from an authorized addictionologist.
In the context of a contempt action later brought my mother, and in light
of evidence that the mother had in fact been receiving consistent treatment from
an addictionologist, the trial court lifted the supervision restriction. Upon
appeal, the Georgia Court of Appeals held that it was well within the trial court’s
power to make this modification to the mother’s visitation in the context of a
contempt action, and it found that reasonable evidence supported the trial court’s
decision to do so.
Gallo v. Kofler, 289 Ga. 355 (2011)
Trial Court Could Modify Custody Based Upon a Planned Out-of-State Move
In this case, the father of a child filed a custody modification action against
the mother approximately a month before her planned move to New York.
Despite this custody modification action being filed and the standing order
2
Lodge v. Lodge, 230 Ga. 652 (1973)
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issuing, the mother moved to New York with the child. The final trial of the case
took place a year after the mother’s actual move to New York.
Upon appeal, the Georgia Supreme Court held that the trial court had the
authority to modify custody based upon one parent’s planned out-of-state move,
even if the petition alleging a “change of circumstances” was filed before such a
move had, in fact, taken place.
Gottschalk v. Gottschalk, 311 Ga. App. 304 (2011)
Custodial Evaluation Can Be Ordered in Context of Petition Seeking
Modification of Visitation Alone; Due Process Not Violated Where Expert Not
Permitted to Evaluate Contents of Custodial Evaluation to Which He Did Not
Have Court-Authorized Access
In this fiercely litigated modification of visitation case, the father appealed
multiple issues, including 1) the availability of a court-ordered custodial
evaluation where only a change of visitation was sought; and 2) the propriety of
precluding his expert’s testimony as to the flaws in a custodial evaluation to
which his expert had not been granted access by the court. The Georgia Court of
Appeals upheld the trial court on all points, including these two. The appellate
court noted that visitation is a part of custody, and that a custodial evaluation is
therefore a tool that a court can use in a visitation modification context. The
appellate court also found no due process flaw in the trial court precluding the
father’s expert from testifying as to his or her opinion on certain aspects of the
custodial evaluation. Despite a consent order being in place that required court
pre-approval of third parties accessing the contents of the custodial evaluation,
the father ignored its constraints and provided a copy to his expert. The father’s
evidentiary predicament at trial was therefore a product of his own making, and
could have been avoided had he resorted to a procedure clearly available to him
(i.e., seeking court approval of his own expert’s access to the custodial
evaluation).
Sigal v. Sigal, 289 Ga. 814 (2011)
Improper Use of Nunc Pro Tunc When Effect Is To Eliminate Transitory Period
from Supervised to Unsupervised Parenting Time
After a final trial that took place on April 13, 2010, a trial court announced
a ruling under which the father’s parenting time would transition from
supervised to unsupervised over a period of months and subject to at least one
random (and successfully passed) drug test. By the time that the trial court
entered a written order encompassing this ruling, five months had gone by. The
trial court made the transition from supervised to unsupervised parenting time
“nunc pro tunc” back to April 13, 2010; the result of this back-dating was, in
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effect, that no transition period was put in place at all prior to the father receiving
unsupervised parenting time.
Upon appeal, the Supreme Court of Georgia found that the trial court had
abused its discretion in this use of nunc pro tunc. Eliminating “the gradual
transition provision . . . did not serve to conform the decree to the truth or the
justice of the situation as originally intended by the trial court.” Moreover, the
welfare of innocent third parties – here, the parties’ children – was impacted and
adversely affected by this particular use of nunc pro tunc. “Under the unique
circumstances” of this case, the trial court acted improperly in employing “nunc
pro tunc” to back-date the order to the date of the original ruling.
Earle v. Earle, 312 Ga. App. 139 (2011)
Permissible Clarification of Father’s Final-Decision Making Authority
With Respect to Extracurriculars
In this case, the father brought a contempt against the mother
based upon her failure to have their daughter attend certain golf
tournaments during her custodial weekends with her. The trial court,
upon final trial, held that the mother could spend those custodial
weekends with her children “in any way she deems appropriate.”
This directive from the trial court did not constitute an
impermissible modification of the father’s final decision-making authority
with respect to the children’s extracurricular activities, but rather was a
permissible clarification.
Johnson v. Johnson, 290 Ga. 359 (Jan. 9, 2012)
Self Executing Modification of Custody Provisions Contingent Upon
Determination by Person Other than Judge Improper
Trial Court adopted Parenting Plan presented at trial providing for
Father’s supervision to continue until designated therapist determines otherwise.
Supervision based on a future event (ie. Therapist determining no longer
necessary) without judicial scrutiny is a self-executing change and not
permissible as it constitutes a material chane allowable only upon determination
of the best interest of the child at the time of the change.
NOTE: “A self-executing change of custody/visitation is acceptable as long as it
poses no conflict with [Georgia’s] law’s emphasis on the best interests of the
child.”
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CHILD CUSTODY – THIRD PARTY CONSIDERATIONS
In the Interest of J.C.W., 311 Ga. App. 894 (2011)
Requisite Standard To Support Long-Term Third Party Custody Award
Versus Termination of Parental Rights and Adoption
This opinion stands for the proposition that, in order to support a
long-term third party custody award, the trial court must make two
express findings:
1) That “reasonable efforts to reunify a child with his or her family
would be detrimental to the child” per the applicable statute;
and
2) That “referral for termination of parental rights and adoption is
not in the best interest of the child.”
Such findings may not be implied.
TERMINATION OF PARENTAL RIGHTS
Weber v. Livingston, 309 Ga, App. 665 (2011)
Burden of Proof In Context of Termination of Parental Rights
In this case, the Court of Appeals makes it clear that there is a twopronged standard for terminating a parent’s rights, and that both parts of the
standard must be satisfied through clear and convincing evidence presented on
the part of the party seeking to terminate those rights. First, the parent whose
rights are in jeopardy must have had the requisite statutory lapse of support or
contact (failure to communicate / attempt to communicate in meaningful way for
more than one year; failure to provide monetary support for more than one year),
and, second, that lapse must be demonstrated to have been “without justifiable
cause.” Where, as in this case, there were some evidentiary questions as to
whether the mother herself had blocked some connections attempted by the
father, and / or as to how well the father could support the child due to a back
injury in a particular year, the petitioning mother failed to meet her clear and
convincing evidentiary burden as to the second prong – i.e., “without justifiable
cause.”
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GRANDPARENT VISITATION
Note:
Effective May 1, 2012, O.C.G.A. §19-7-3 (c) is amended to include the
following language:
In considering whether the health or welfare of the child would be harmed
without such visitation, the court shall consider and may find that harm to the
child is reasonably likely to result where, prior to the original action or
intervention:
(A) The minor child resided with the grandparent for six months or more;
(B) The grandparent provided financial support for the basic needs of the child
for at least one year;
(C) There was an established pattern of regular visitation or child care by the
grandparent with the child; or
(D) Any other circumstance exists indicating that emotional or physical harm
would be reasonably likely to result if such visitation is not granted.
Kunz v. Bailey, 290 Ga, 361 (2012)
Grandparent Action May Only File Original Action For Visitation When Parents
Are Separated And The Child Is Not Living With Both Parents
Parents of biological father who terminated his paternal rights at time of
adoption of child by Mother’s Husband (“Adopted Father”) sought visitation
rights.
A plain reading of O.C.G.A. §19-7-3(b) offers two avenues by which grandparents
may seek court-sanctioned visitation rights to their grandchildren. They can (1)
file an original action or they can (2) intervene in an existing court action.
Grandparents may intervene in any action where custody of the grandchild is an
issue; in the divorce of the parents or a parent; in the termination of rights case of
either parent, in the termination of visitation rights of either parent; and in the
adoption for the grandchild by a blood relative or by a stepparent. Grandparents
may only file an original action for visitation when the parents are separated and
the child is not living with both parents.
Parents of child, Mother and Adopted Father, were family unit and therefore
Grandparents had no recourse under the statute—“the State had no compelling
basis to interfere with the Bailey family unit which was not separated at the time
the original action was filed.”
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NOTE: Lightfoot v. Hollins, 308 Ga. App. 538, 539 (2011) is disapproved as to
conflicting portions of said opinion with Kunz.
Hudgins v. Harding, 313 Ga. App. 613 (2012)
Grandparent Visitation Rights Determined By Relationship to Child(ren) And
Whether “Parents” Living Together With Child
Trial Court needs to examine and exhaust all ways a Grandparent may
petition for visitation before dismissal of claim. Here, trial court did not make
additional findings of fact concerning whether Mother and Adopted Father were
separated and whether child was living with both Mother and Adopted Father.
Shotwell v. Flip, 314 Ga. App. 93 (2012)
Modification of Custody to Father Where Mother Annually Provided Maternal
Grandmother in loco parentis Without Knowledge of Father
Mother and Father married in August 1998 and resided in Georgia. Minor
child was born November 11, 2000 and lived with both parents until their
separation in March 2002, where he began living solely with his mother. The
parents divorced in July 2002 and entered into a settlement agreement, whereby
the parents would exercise joint legal custody and mother was granted primary
physical custody. The father was granted weekend visitation with the child.
In 2004, Mother moved to Oklahoma for work related reasons and left the
minor child in the care and custody of her mother in Missouri, and in 2006 the
parents modified the visitation agreement to allow extended summer and holiday
visitation. Unbeknownst to the Father, Mother executed a power of attorney in
loco parentis in favor of the grandmother, giving the grandmother temporary
physical custody of the minor child. The Father continued to exercise his
visitation.
Father filed a modification of custody case in 2009, alleging a material
change in circumstances. Trial court granted Maternal Grandmother’s Motion to
Intervene as a party, and subsequently granted the Father’s modification request.
Evidence provided that Mother voluntarily surrendered her custodial rights to
Maternal Grandmother; therefore, a prima facie right of custody is vested in the
non-custodial parent.
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Trotter v. Ayres, 315 Ga. App. 7 (Certiorari denied July 2, 2012)
Proper Standard In Custody Dispute Between Parent and Third Party
(Grandparents)
Father granted custody in divorce proceeding, then abandoned minor
child. Mother filed a motion to modify custody, while child was in paternal
grandparents’ custody. Paternal grandparents moved to intervene as party
defendants.
O.C.G.A. §19-7-1(b.1) establishes a rebuttable presumption that it is in the
best interest of the child to award custody to the parent of the child. The
following three presumptions are implicit in the statute: (1) the parent is a fit
person entitled *9 to custody, (2) a fit parent acts in the best interest of his or her
child, and (3) the child's best interest is to be in the custody of a parent. The
presumption can nonetheless be overcome by the third-party relative showing, by
clear and convincing evidence, that parental custody would harm the child. Harm
in this context has been defined ... as either physical harm or significant, longterm emotional harm, not merely social or economic disadvantages. Once the
presumption has been overcome, the third-party relative must prove that an
award of custody to him or her will best promote the child's health, welfare, and
happiness.
Trial Court upheld in determining best interest of child served by custody
being bestowed to paternal grandparents.
Sheppard v. McCraney, No. A12A0933 (Ga.App.)(July 18, 2012)
Trial Court was required to make specific statutory findings as to whether
the child’s health or welfare would be harmed unless visitation was granted, and
whether visitation was in best interests of child on maternal grandfather’s request
for grandparent visitation
EQUITABLE DIVISION
Jones-Shaw v. Shaw, 291 Ga. 252 (June 18, 2012)
Value of asset prior to marriage needed to determine equitable division of asset
purchased with non-marital funds.
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The parties were married July 7, 2009 and separated on October 27, 2010.
The Wife sought an equitable division of assets, including a closely-held nonprofit corporation that the Husband started about nine years prior to the
marriage between the parties.
A closely held corporation may be a marital asset subject to division in a
divorce.3 A business which was started as the result of separate pre-marital funds
may be subject to equitable division, if there is an appreciation in the value of the
business during the years of the marriage due to the spouses’ individual or joint
efforts.4 The appreciation in value during the marriage does not render the asset
a marital one subject to equitable division if the growth is solely a result of
market forces.5
The Georgia Supreme court held, in this case, that in order for a trial court
to determine that an asset obtained with non-marital property appreciated in
value during a marriage, for the purposes of determining the extent, if any, that
the property is subject to equitable distribution in a divorce, there must be
evidence of the value of the asset at the time of the marriage and its value at the
time of the divorce.
Seiz Joint Venture, LLC v. Seiz, 290 Ga. 719 (March 19, 2012)
Trial court has authorization to add a company to divorce proceedings in order
to ensure party was afforded complete relief in equitable distribution of assets
Elizabeth Ann Seiz (“Wife”) and Thomas Seiz (“Husband”) were married
on May 22, 1981. On January 1, 1988, Husband and his two brothers formed a
general partnership called Seiz Joint Venture #1. Wife filed her divorce action on
June 14, 2007. Pursuant to a Standing Order for the Tallapoosa Judicial Circuit,
“all parties in each divorce or domestic relations case are enjoined and
retrained from selling, encumbering, contracting to sell, or otherwise
disposing of … any of the property belonging to the parties” unless such a
transaction is conducted in the ordinary course of business”.
On February 1, 2008, Husband and his brothers formed SJV, a company in which
Husband held a one-third interest. On February 7, 2008, Seiz Joint Venture #1
transferred to SJV real property valued between $3.2 and $4.6 million. Wife filed
a motion to add SJV as a party to the pending divorce proceedings. The trial
court found that SJV should be added to the proceedings “not [as] an
indispensable party, but [as] a party needed for a full and complete adjudication.
3
Miller v. Miller, 288 Ga. 274 (2010)
Wright v. Wright, 277 Ga. 133, 134(1) (2003)
5
Armour v. Holcombe, 288 Ga. 50, 51-52(1) (2010)
4
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The Georgia Supreme Court held that the trial court was authorized to add SJV as
a part in order to ensure that Wife might be afforded complete relief in the case.
Highsmith v. Highsmith, 289 Ga. 841 (2011)
Source of Funds Rule / Proof of Separate Property
In this divorce case, the wife sold a house that she had purchased before
her marriage. She then placed the resulting proceeds into a Scottrade account
held in her individual name. During the marriage, she moved a total of
approximately $210,000.00 from that Scottrade account into a joint account held
by the parties to fund their investment in rental properties.
The Georgia Supreme Court held that the trial court erred in its marital
property treatment of the Scottrade account, but not in its marital property
treatment of the joint rental property investment account. Because the Scottrade
account was funded with the wife’s premarital property, any residual funds held
therein should not have been included in the marital estate. By contrast, because
the wife failed to provide sufficient “tracing” evidence for a source of funds
analysis of the remaining money in the joint rental property investment account,
it was proper for the trial court to conclude that its entire contents were marital.
For example, the wife did not establish what amount of money was in the joint
account at the time that she contributed the $210,0o0.00, and she had no
accounting of how the $210,000.00 had been spent over eighteen years of
marriage.
The appellate court also upheld the trial court’s analysis of the separate
property and marital property components of the husband’s business. At trial,
the husband testified that he invested $20,000.00 of his premarital money into
his business during the marriage. Because the trial court acts as an “arbiter of
fact,” the Georgia Supreme Court said that this bare testimony alone, in the
absence of any contradictory evidence being presented by the wife, was sufficient
to sustain a finding that this $20,000.00 investment was, in fact, made up of
separate property.
Shaw v. Shaw, 290 Ga. 354 (2012)
Separate Property May Be Converted Into Marital Property By Actions of
Recipient Spouse
Question for court was characterization of inherited property of Husband from
his deceased Mother
Husband inherited real property in Florida, two Morgan Stanley accounts
and two deeded interests in apartment complexes. Husband’s actions converted
property from separate to marital:
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Morgan Stanley Accounts: Husband opened accounts at Morgan Stanley
for sole purpose of transferring inherited funds. Opened said accounts in joint
names of Husband and Wife from outset as joint tenants with right of
survivorship. Court found from outset both parties owned an undivided one-half
interest, so accounts marital in character. Despite Wife never contributing to the
accounts, Lerch applies. Contributions or not does not “vitiate the evidence that
the accounts were transformed into marital property when Husband gave Wife an
ownership interest in the property.”
Florida Property: Husband had property deeded as tenants in common
upon inheritance, changing character, giving each an undivided half interest.
Apartment Complex: Purchased by Wife, Husband and Husband’s brother
in equal shares. Purchased during the marriage with marital funds and therefore
subject to equitable division.
Pina v. Pina, 290 Ga. 878 (April 24, 2012)
Without Baseline Value Of Property Calculation of Appreciation In Value
Impracticable
The parties married in 1998, and Wife filed a complaint for divorce on
December 10, 2008. At issue was equitable division of real property the Wife
purchased prior to the marriage. In 2005, she transferred the property into a
Trust for the benefit of her three children, two of whom are Husband’s children.
The trial court ruled that the property is the Wife’s separate property, but that
Husband has an equitable interest in the property because mortgage payments,
repairs, and improvements on the property were made with marital funds, and
because Husband worked on the property during the marriage. However, only
the subsequent increase in the net equity attributable to marital contributions is a
marital asset, subject to equitable division.6
However, considering the lack of evidence of the value of the maintenance
work performed by Husband, the testimony of Wife that he was paid for this
work, the fact that Husband used a portion of the property rent-free as a
commercial recording studio, and the fact that the property paid for the mortgage
through its own rents, the trial court had evidentiary support for its finding that
any increased value in the property attributable to Husband’s contributions and
the expenditure of marital funds was nominal
“Calculation of appreciation in value of property during marriage was
impractical due to lack of baseline value.”
6
See also Pollard v. Pollard, 279 Ga. 57 (1) (2005 and Hubby v. Hubby, 274 Ga. 525, 556 (2001)
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Hammond v. Hammond, 290 Ga. 518 (February 6, 2012)
Court Determination Of Equitable Division Including Taking Into Consideration
Non-Divisible Pension
The only significant asset of the parties, in this divorce action, was the
Husband’s Teachers Retirement System of Georgia pension, which could not be
attached, subjected to process or assigned.7
The Wife requested the court to equitably divide the Husband’s nondivisible pension in the form of alimony by time rule formula, which determines
the marital interest in a pension by dividing the number of marital years that the
employee spouse earned toward the pension by the number of years of total
service toward the pension.8
The Court awarded the Wife alimony in the amount of $1,250 per month
once husband’s pension matures. “The trial court is vested with broad discretion
in equitably dividing marital assets.”
NOTE: Wife’s complaint on appeal of division of pension as alimony when
Wife suggested that alimony be awarded in lieu of non-division of pension. “[A]
party will not be heard to complain of error induced by their own conduct, nor of
error expressly invited during the course of trial.”
Appleton v. Alcorn et al 291 Ga. 107 (May 29, 2012)
Once funds from ERISA-covered plans are received by the proper participant or
beneficiary, the participant of beneficiary is not judgment proof and the funds
are not sheltered from state law causes of action
Husband and Wife entered into a Separate Maintenance Agreement
(“Agreement”) that was incorporated into Court Order. Agreement stated in
pertinent part that Wife waived any and all rights to any claim or interest in
Husband’s retirement pay, benefit or privileges, and also waived any right to life
insurance policies.
Subsequently, a year later, Husband died, and pursuant to the terms of
Husband’s employer’s 401(k) plan the plan administrator paid the benefits to
Wife, the “surviving spouse.” Additionally, the life insurance proceeds were paid
to Wife who remained the beneficiary of the policy at the time of Husband’s
7
8
O.C.G.A. §47-3-28
In re Marriage of Hunt, 909 P.2d 525, 531 (Colo.1995)
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death.9 Husband’s children brought state claim for breach of contract against
Wife based on terms of Agreement. Trial Court dismissed claim based on Wife’s
argument that ERISA barred the state claim, stating that the “breach of contract
claim was precluded because the waiver executed in the settlement agreement
was not ERISA compliant.” Court of Appeals reversed the Trial Court and the
Supreme Court affirmed the Court of Appeals finding that Husband’s children
could maintain the state court claim, based on contended waiver by Wife, to
recover proceeds distributed to Wife as the beneficiary of the ERISA governed
plan. In holding same, the Supreme Court differentiated between an estate that
could not maintain a state law claim against the employer and plan
administrator; and, as is in the case at bar, contended beneficiaries properly
maintaining a state law claim against a proper beneficiary who received ERISA
covered plan funds based on breach of an Agreement waiving rights to said funds.
“Georgia’s appellate courts have determined that ERISA-covered benefits that
have been paid to the participant or beneficiary are not subject to ERISA’s antialienation provision . . .once funds from ERISA-covered plans are received by the
proper participant or beneficiary, the participant of beneficiary is not judgment
proof and the funds are not sheltered from state law causes of action.”
9
See DeRyke v. Teets, 288 Ga. 160 (2010) where Husband and Wife entered into a settlement
agreement which was incorporated into their final judgment. The agreement provided in
pertinent part:
Each Party expressly waives all of his or her right, title, and interest in and to any
pension, profit sharing, or employee benefits plans of the other Party. This
provision expressly includes 401(k)s, retirement plans, pension plans, and profitsharing plans. This provision shall not prohibit a Party from voluntarily
providing benefits from his or her plan to the other Party at any subsequent date.
Pension, profit sharing, and employee benefit plans are defined to exclude any
and all Social Security or other governmental benefits the Parties may be entitled
to by virtue of marriage.
Five days after the divorce, Wife committed suicide, and died intestate and had not changed the
beneficiary designation on her employer benefit plan. The Supreme Court held that the
settlement agreement provisions unambiguously expressed the intent of the parties that the
beneficiary spouse is releasing any and all interest in the benefits at the time of divorce, and as
such the agreement operated as a complete waiver of the Husband’s beneficiary designation. The
Supreme Court further noted that the opportunity to make the beneficiary change was severely
limited, and speculation of motivation for the failure to act cannot and should not substitute for
the settlement agreement which was concrete action on the part of the Wife.
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PRENUPTIAL AND POSTNUPTIAL AGREEMENTS
Spurlin v. Spurlin, 289 Ga. 818 (2011)
Trial Court Made Proper Legal and Physical Custody Award Where, Despite
Postnuptial Agreement Reflecting Identical Arrangement, It Performed
Substantive Analysis As Required Under O.C.G.A. § 19-9-3
In this case, a postnuptial agreement between the parties provided for a
certain legal and physical custody arrangement with respect to the parties’
children. Three years later, in the context of a divorce, the trial court entered an
order that found that a custody arrangement identical to that set forth in the
postnuptial agreement served the parties’ children’s best interests. Because the
trial court performed the proper analysis under O.C.G.A. § 19-9-3 to support this
award, in light of the family’s then-existing circumstances (and independent of
the terms of the postnuptial agreement), the trial court did not abuse its
discretion in essentially ratifying the custody arrangement set forth in the
postnuptial agreement.
NOTE: the Georgia Supreme Court also confirmed that the financial
aspects of the postnuptial agreement were enforceable, despite a lack of financial
statements being attached to that agreement, in light of 1) the listing of most
major assets of the parties in the body of the agreement itself; and 2) the wife’s
level of familiarity with the husband’s family business, income, and assets.
Sides v. Sides, 290 Ga. 68 (2011)
Affirmation of Enforceability of Prenuptial Agreement
The parties met in 1978 and began dating in 1989. The Wife became
pregnant, and Husband agreed to marry Wife on the condition that the parties
enter a prenuptial agreement. Full financial disclosure was made to the wife,
even though not in the form of attachments to the prenuptial agreement. The
Wife was aware of the Husband’s financial condition, as he owned a
telecommunications company, which had a net worth of approximately $4.2
million. The parties’ estate grew in value to roughly $8 million before the
Husband filed for divorce.
The Georgia Supreme Court confirmed enforceability of the prenuptial
agreement under the Scherer v. Scherer10 three-pronged test.
10
Scherer v. Scherer, 249 Ga. 635 (1982) The Georgia Supreme Court held that when a superior court in
this state is presented with an antenuptial agreement in a divorce proceeding, the trial judge should employ
three criteria in determining whether to enforce such an agreement: (1) was the agreement obtained through
fraud, duress or mistake or through misrepresentation or nondisclosure of material facts? (2) Is the
agreement unconscionable? (3) Have the facts and circumstances changed since the agreement was
executed, so as to make its enforcement unfair and unreasonable.
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ALIMONY
Hardigree v. Smith, 291 Ga. 239 (June 18, 2012)
Affirmation of lump sum alimony
The parties were married on April 3, 1993 and divorced on June 1, 2010.
The Final Decree incorporated a Settlement Agreement that the parties had
entered into, which stated that “Husband will pay to wife monthly alimony of
$2,000.00 per month for 120 consecutive months beginning April 1, 2010.”
Wife remarried on June 12, 2011 and Husband stopped paying alimony on
July 1, 2011. Wife filed a contempt action and Husband denied that his obligation
was for lump sum alimony. The trial court ruled in his favor, finding that
Husband’s obligation was for permanent periodic alimony that terminated upon
Wife’s remarriage.
The Georgia Supreme Court reversed the trial court’s decision. As this
Court has made clear, where ‘the alimony provision set forth in the trial court’s
order states the exact amount of each payment and the exact number of
payments without limitations, conditions or statements of intent, the obligation
is one for lump sum alimony payable in installments, rather than permanent
alimony.”11
Branham v. Branham, 290 Ga. 349 (2012)
Trial Court Cannot Retroactively Modify Alimony
This case stemmed from cross contempts: Husband’s failure to pay
alimony and Wife’s failure to pay the mortgage on the residence. Court reduced
Husband’s periodic alimony obligation that was past due to zero—essentially
“forgiving” all past due alimony. “Retroactive modification of an alimony
obligation would vitiate the finality of the judgment obtained as to each past due
installment . . . a judgment modifying an alimony obligation is effective no earlier
than the date of the judgment.”
Bowerman v. Bowerman, 314 Ga. App. 487 (March 1, 2012)
On Cross-Contempts Court Impermissibly Orders Payment Of Awarded
Attorney’s Fees Reduced from Alimony Payment
11
Patel v. Patel, 285 Ga. 391, 392(1)(b) (2009)
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Father awarded attorney’s fees and expenses of litigation (including costs
associated with testimony of co-parenting counselor) and Court impermissibly
allowed Father to reduce his alimony payments by a specified monthly amount
until awarded fees and expenses were paid in full. “After decree of alimony has
become absolute, there is no authority given under the law by which a trial court
may abrogate or modify the obligation imposed by the decree, unless such a right
has been reserved by consent of the parties in the final decree itself, or an action
is brought as provided under [statutory law].”
PROCEDURAL ERROR WAIVED: Mother improperly filed a counterclaim
for contempt to Father’s contempt. Because Father did not object, objection was
waived.
CONTEMPT
Greenwood v. Greenwood, 289 Ga. 163 (2011)
Trial Court Improperly Modified Decree In Context of Contempt Where
Monetary Penalty Converted Into Lien and Time for Sale of Marital Residence
Extended Due to “Market Conditions”
In the original decree of divorce between the parties, the trial court stated
that, in addition to the ex-husband’s obligation to refinance or sell the marital
residence so as to remove his ex-wife’s name from it, he would, as an additional
remedy, have to pay her a penalty of $10,000.00 if he did not remove her from
the house loan by October 1, 2009. The ex-husband failed to sell the house, and
he did not pay his ex-wife the $10,000.00 penalty.
During a contempt proceeding brought by the ex-wife, the trial court took
two actions, both of which were appealed to the Georgia Supreme Court: 1) rather
than requiring the ex-husband to pay the $10,000.00 penalty immediately, the
trial court permitted that obligation to be converted into a lien against the marital
residence (one that, presumably, would only be satisfied upon sale); and 2) rather
than requiring the ex-husband to sell the home immediately, the trial court gave
the ex-husband a “reasonable period of time” to sell it instead, “given the market
conditions right now.”
The Georgia Supreme Court held that both actions were so contrary to the
intent of the original decree as to constitute improper modifications of its terms.
The moral of the story: even if a trial court, understandably, wants to act as a
problem solver, it is without the power to do so in the context of a contempt
action, and must hold the parties to the original terms of the final judgment of
divorce.
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Doane v. LeCornu, 289 Ga. 379 (2011)
Trial Court Impermissibly Modified Final Decree in Context of Contempt When
It Ordered a Party to Sell an Asset In Order to Purge Himself of Contempt
The trial court impermissibly modified a final decree in the context of a
contempt action when it required an ex-husband to sell a lake house after failing
to “buy out” his ex-wife’s interest in that lake house through a series of three
payments. The appellate court took pains to emphasize that the trial court could
order the husband to pay “a significant sum every day, or even incarcerate him,”
and it recognized that, as a practical matter, the ex-husband might have to sell
the lake house so as to satisfy the contempt, but the trial court could not act as a
“problem-solver” by creating a remedy for the contempt in a manner that
modified the original decree. Under the original decree, the ex-husband had
been awarded the lake house.
Practice pointer: this opinion suggests that the decree should have
contained language requiring the ex-husband to sell the house if he failed to
make the payments / that the decree should have made the ex-husband’s receipt
of the house contingent upon him selling it “by a date certain.”
Cross v. Ivester, 728 S.E.2d 299 (May 3, 2012)
Applicable Contempt Standards Must Be Followed By Court, Including
Exhaustion Of All Resources To Prove Inability To Pay
Scherer v. Testino, 291 Ga. 75 (May 7, 2012)
Permissible Modification Within A Contempt Action
The parties created a sole proprietorship within their two year marriage.
The banking number and medicare number were in the Wife’s name, and the
Husband handled day-to-day operations. The Husband was awarded the
business in the divorce. In the amended settlement agreement, the Wife agreed
to maintain the banking and medicare numbers in her name until July 3, 2008.
On June 25, 2009, Wife notified Husband that she intended to close the bank
account. The Husband stated that the accounts needed to stay open until
September 2009. On July 13, 2009, Wife closed the account and forwarded the
$4,197.33 account balance to Husband.
The trial court found Wife in willful contempt for closing the bank
account, ordered her incarcerated and awarded Husband $52,035.60 in damages
and $33,195.55 in attorneys fees, and provided that Wife could purge herself of
contempt by paying all amounts due within 60 days of the order.
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“When a contractual term of a settlement agreement is clear,
unambiguous, and capable of only one interpretation as written, the provision’s
plan meaning must be strictly enforced.”12
The trial court’s attempt to extend indefinitely the time that Wife was
required to keep the business account open was an improper modification of the
parties’ agreements.
Jett v. Jett, 291 Ga. 56 (May 7, 2012)
Equitable division is non-modifiable.
The parties divorced on October 3, 2007. The final divorce decree
incorporated a settlement agreement, which provided that the marital
residence will be placed on the market for sale, and that the net proceeds
would be divided equally. If the house did not sell within two years, the
Husband would refinance the marital residence and pay Wife one-half of
the equity at the time of refinancing. The marital residence did not sell;
the Husband remarried and purchased a second home with his new wife,
which home was titled in both of their names and the debt solely in his
name.
The Wife filed a motion for contempt. The trial court found
Husband in willful contempt, assigned all risk of any deficiency to the
Husband, and ordered that the Husband “shall sell or liquidate all
available accounts and property and shall pay down the mortgage.”
The Georgia Supreme Court affirmed the willful contempt order,
however, reversed the trial court’s directive as not simply a clarification or
interpretation of the decree, but a modification of the settlement
agreement and divorce decree.
Earle v. Earle, 312 Ga. App. 139 (October 18, 2011)
A court may not modify a previous decree in a contempt order.
However, a court may always interpret and clarify its own orders
The parties divorced in 2005. Pursuant to the divorce decree, the
parties were granted joint legal and physical custody of the two minor
children. The decree further ordered that the father shall have final
authority to make decisions regarding extracurricular activities.
12
Page v. Baylard, 281 Ga. 586, 587 (1) (2007)
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The Father filed a motion for contempt alleging that the Mother
was in contempt for refusing to allow the daughter to participate in certain
golf tournaments during her custodial time, and for continuing to use a
golf instructor for the child that he previously fired. The trial court held
that the golf instructor was forbidden from having any contact related to
golf instruction with the daughter, and that the mother could utilize her
custodial time with the children in any way she deems appropriate.
“The court may not modify a previous decree in a contempt order.
However, a court may always interpret and clarify its own orders. The test
to determine whether an order is clarified or modified is whether the
clarification is reasonable or whether it is so contrary to the apparent
intention of the original order as to amount to a modification.13
The Georgia Supreme court held that the trial court did not
impermissibly modify the earlier decree but instead clarified the extent as
to which the father’s decision making as to children’s extracurricular
activities could encroach upon the mother’s custodial time.
ATTORNEY’S FEES
Abt v. Abt, 289 Ga. 166 (2011)
Proper Award of Fees Based Upon “Improper Conduct” Within the Meaning of
O.C.G.A. § 9-15-14(b)
The trial court’s award of fees under O.C.G.A. § 9-15-14(b) were proper
where the trial court found that the wife had improperly expanded the litigation
by causing the children to “vacillate in their respective custodial elections,” by
exposing the children to a problematic boyfriend, and by otherwise creating
circumstances that led to the need for procedural safeguards such as a guardian
ad litem, a restraining order, and emergency hearings.
Ward v. Ward, 289 Ga. 250 (2011)
Overnight Guest Prohibition; Attorneys’ Fees Award In Custody Modification
Action
The trial court abused its discretion when it revised the original divorce
decree to prohibit the mother from having “any overnight male guests while the
minor children [we]re present.” This language was overly broad, and would
preclude the mother from having individuals present who had not been shown to
13
Cason v. Cason, 281 Ga. 296, 297 (1) (2006)
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pose any risk of harm to her children – including, for example, her father and her
brother.
The Georgia Supreme Court also remanded the trial court’s attorney’s fees
award because it was not clear upon what statutory basis the award had been
made. Although this case involved a custody modification request that was
ultimately denied, this opinion, like the decision of Harris v. Williams, 304 Ga.
App. 390 (2010), appears to indicate that O.C.G.A. § 19-9-3 attorneys’ fees are
not available unless a contempt is also involved (and therefore fees are available
under O.C.G.A. § 19-6-2). In other words, O.C.G.A. § 19-9-3 does not provide an
independent grounds upon which a fees claim may be based. Upon remand, the
Georgia Supreme Court indicated that the trial court had the opportunity to enter
sufficient factual findings to base its fees either on O.C.G.A. § 19-6-2 (comparison
of parties’ financial circumstances) or on O.C.G.A. § 9-15-14 (one party’s
improper expansion of proceedings).
Viskup v. Viskup, 291 Ga. 103 (April 24, 2012)
O.C.G.A. §19-9-3(g) is available to recoup attorney’s fees in custody
modification cases even where O.C.G.A. §19-6-2 does not apply.
Outlaw v. Rye, 312 Ga. App. 579 (2011)
An Attorney Cannot, By Contract, Create a Lienable Interest in a Property that
is Not Otherwise Lienable Under O.C.G.A. § 15-19-14
Where an attorney represented a client in a post-divorce custody
modification action, and did not help that client to secure an interest in a
particular parcel of real property, she did not have proper a lien against her
client’s former house under O.C.G.A. § 15-19-14 as a result of her custody case
work simply because of the following language included in her retainer
agreement: “You agree that, for the purposes of this Representation Agreement,
any real or personal property you have will be deemed to have been recovered as
contemplated by O.C.G.A. § 15-19-14 in proceedings undertaken by the Firm on
your behalf.” Because this statute is in derogation of common law, it must be
strictly construed. Since no portion of O.C.G.A. § 15-19-15 contemplates creation
of a lienable interest in real or personal property through simple contract alone –
on the contrary, the lien may only “attach[] to the fruits of the labor and skill of
the attorney” – then this lien was invalid and foreclosure of the lien was properly
denied by the trial court.
The appellate court seemingly left it an open question as to whether or not
the attorney could have properly placed a lien under O.C.G.A. § 15-19-14 on the
$50,000.00 that the ex-husband received as part of the settlement of the custody
case, and it also hinted that, at times, it might be proper for a trial court to
impose an “equitable lien” against certain property.
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Avren v. Garten, 289 Ga. 186 (2011)
Trial Court Properly Dismissed Modification Proceeding While Legal Guardian
Withholding Visitation Rights; Supersedeas Upon Appeal Does Not Preclude
Judge From Entering Attorneys’ Fees Order Arising Out of Appealed Case
In this case, the Georgia Supreme Court held that, based upon O.C.G.A. §
19-9-24(b), the trial court could properly dismiss a mother’s modification action
where she was found to have withheld certain visitation rights from father. The
appellate court also upheld the trial court’s authority to enter an award of
attorneys’ fees in the case, despite the mother’s appeal of the judgment out of
which the attorneys’ fees claim had arisen. As the opinion notes, “The
supersedeas that stems from the filing of an application or notice of appeal is
limited in that it ‘supercedes only the judgment appealed; it does not deprive the
trial court of jurisdiction as to other matters in the same case not affecting the
judgment on appeal.’”
32
APPENDIX
ICLE Information
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INSTITUTE OF CONTINUING LEGAL EDUCATION IN GEORGIA
BOARD OF TRUSTEES
The State Bar of Georgia and the Law Schools of The University of Georgia, Emory
University and Mercer University established the Institute of Continuing Legal
Education in Georgia in August 1965. In 1984, Georgia State University College of
Law was added to the consortium, and in 2005, John Marshall Law School was
added. The purpose of the Institute is to provide an outstanding continuing legal
education program so that members of the legal profession are afforded a means of
enhancing their skills and keeping abreast of developments of the law. The Institute
is governed by a Board of Trustees composed of twenty-eight members consisting of
the Immediate Past President, the President, the President-elect, the Secretary, and
the Treasurer, all of the State Bar of Georgia; the President, President-elect and the
Immediate Past President of the Young Lawyers Division; nine members to be
appointed by the President of the State Bar of Georgia, each for a term of three years
(the President has three appointments each year); two representatives of each of the
participating law schools; and the Immediate Past Chairperson of the Institute. The
Immediate Past President of the State Bar of Georgia serves as Chairperson of the
Board of Trustees of the Institute.
2011-2012
S. Lester Tate, Cartersville
Chairperson, ICLE
Immediate Past-President, State Bar of Georgia
Term Expires
2012
J. Ralph Beaird, Athens
University of Georgia School of Law
Kimberly S. Boehm, Duluth
At-Large Trustee
2014
Bryan M. Cavan, Atlanta
Immediate Past-Chairperson, ICLE
2012
Thomas C. Chambers, III, Homerville
At-Large Trustee
2014
Robin Frazer Clark, Atlanta
President-Elect, State Bar of Georgia
2012
A. James Elliott, Atlanta
Emory University School of Law
Denny C. Galis, Athens
At-Large Trustee
2013
Michael G. Geoffroy, Covington
Immediate Past-President, YLD, State Bar of Georgia
2012
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Karlisle Y. Grier, Atlanta
At-Large Trustee
2013
Stephanie J. Kirijan, Atlanta
President, YLD, State Bar of Georgia
2012
Laurel P. Landon, Augusta
At-Large Trustee
2012
Ray Lanier, Atlanta
Georgia State University College of Law
Richardson Lynn, Atlanta
Dean, John Marshall Law School
Michael Mears, Atlanta
John Marshall Law School
Jonathan B. Pannell, Savannah
President-Elect, YLD, State Bar of Georgia
2012
Rudolph N. Patterson, Macon
At-Large Trustee
2014
Patrise M. Perkins-Hooker, Atlanta
Secretary, State Bar of Georgia
2012
Charles L. Ruffin, Macon
Treasurer, State Bar of Georgia
2012
Kenneth L. Shigley, Atlanta
President, State Bar of Georgia
2012
David Shipley, Athens
University of Georgia School of Law
Gary Simson, Macon
Dean, Mercer University School of Law
Roy M. Sobelson, Atlanta
Georgia State University College of Law
Hon. Mary E. Staley, Marietta
At-Large Trustee
2012
Nancy Terrill, Macon
Mercer University School of Law
John W. Timmons, Jr., Athens
At-Large Trustee
2013
Derek J. White, Savannah
At-Large Trustee
2012
ICLE Staff
Lawrence F. Jones
Executive Director
Stephen J. Harper
Director of Programs
Daniel U. White
Director of Projects
Douglas G. Ashworth
Associate Director
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ICLE Information
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GEORGIA MANDATORY CLE FACT SHEET
• Every “active” attorney in Georgia must attend 12 “approved” CLE hours of instruction
annually, with one of the CLE hours being in the area of legal ethics and one of the CLE
hours being in the area of professionalism. Furthermore, any attorney who appears as sole
or lead counsel in the Superior or State Courts of Georgia in any contested civil case or in
the trial of a criminal case in 1990 or in any subsequent calendar year, must complete for
such year a minimum of three hours of continuing legal education activity in the area of trial
practice. These trial practice hours are included in, and not in addition to, the 12 hour
requirement. ICLE is an “accredited” provider of “approved” CLE instruction.
• Excess creditable CLE hours (i.e., over 12) earned in one CY may be carried over into the
next succeeding CY. Excess ethics and professionalism credits may be carried over for two
years. Excess trial practice hours may be carried over for one year.
• A portion of your ICLE name tag is your ATTENDANCE CONFIRMATION which
indicates the program name, date, amount paid, CLE hours (including ethics, professionalism and trial practice, if any) and should be retained for your personal CLE and tax
records. DO NOT SEND THIS CARD TO THE COMMISSION!
• ICLE will electronically transmit computerized CLE attendance records directly into the
Official State Bar Membership computer records for recording on the attendee’s Bar record.
Attendees at ICLE programs need do nothing more as their attendance will be recorded
in their Bar record.
• The Commission on Continuing Lawyer Competency staff will mail a prescribed affidavit
form to each active attorney at the end of the year. The form will show the CLE courses
attended and the number of credit hours that are entered in the Bar records. Each attorney
will swear or affirm that the CLE credits claimed on the affidavit were ACTUALLY
ATTENDED. Attorneys who are late attending or have to leave a seminar for a period
of time will have to strike the CLE hours shown on the affidavit and enter the hours
actually attended and claimed; or inform the ICLE staff at the seminar to reduce the hours
in the ICLE records before transmitting the credit hours in the ICLE record!
• If the affidavit is correct, the member need only sign the form confirming actual attendance
and return it to the Commission.
• If the affidavit is incorrect, the member should enter the corrections, sign the form, and
return it to the Commission.
• Do not mail anything to the Commission other than the affidavit. No receipts or other
evidence of attendance are required to support the affidavit unless requested by the
Commission.
• Should you need CLE credit in a state other than Georgia, please inquire as to the procedure
at the registration desk. ICLE does not guarantee credit in any state other than Georgia.
• Any questions concerning attendance credit at ICLE seminars should be directed to Linda
Howard Toll Free: 1-800-422-0893 x306; Athens Area: 706-369-5664 x306; Atlanta Area:
770-466-0886 x306
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TO:
ICLE Seminar Attendee
Thank you for attending this seminar. We hope that these program materials will provide
a great initial reference and resource for you in the particular subject matter area. There
is a chance, however, that you might find an error(s) in these materials, like a wrong case
citation or a typographical mistake that results in an obvious misstatement of blackletter law, such as an incorrect length for the applicable statute of limitations.
In an effort to make them as correct as possible, should you discover a significant
substantive error(s), please note it (them) on the Errata Sheet below. Then, please detach
the sheet and mail it to ICLE, P.O. Box 1885, Athens, GA 30603-1885 or fax it to (706)
369-5899. We will collect all the errata sheets and, after a reasonable time mail a
correction to all seminar attendees and those attorneys who have ordered the book.
Should you have a different legal interpretation or opinion from the author's, the
appropriate way to address this is by giving him or her a call, which by the very nature
of our seminars is always welcome.
Thank you for your help. It is truly appreciated.
ICLE ERRATA SHEET
Seminar Title: _______________________________________
Seminar Date: ___________
Page(s) Containing Error(s): ____
Text of Error(s): ___________________________________________________________________
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