Denney v. Denney

2017 Ga. LEXIS 99

February 27, 2017

This case addresses the standard to be applied by the court regarding a name change for a child. The parties were married, but separated prior to the birth of their child. When the child was born, the mother gave the child her maiden name and did not put the father’s name on the birth certificate. The mother filed for divorce and the father was served with the complaint shortly after the child’s birth.                       

The parties settled all matters in their divorce except the issues of the child’s name, which was put before the trial court. In ruling on the name change, the trial court held that it was without authority to change the name of the child without the consent of the parties under O.C.G.A. § 19-12-1(c). The father appealed.

The Supreme Court disagreed with the trial court, finding that the trial court’s determination that the father was the biological and legal father triggered O.C.G.A. § 31-10-9(e)(3), under which the court had authority to make a finding as to the child’s surname. However, the Supreme Court noted that it “found no authority in Georgia providing the standard by which the court is to make a finding with regard to the child’s surname.” The court noted several cases from other jurisdictions as well as related Georgia cases, which pointed to the best interests of the child as the proper standard. Thus, the Court held that the trial court not only had authority to consider the name change but that in doing so it should apply the “best interest of the child.”

Tate v. Tate

2017 Ga. App. LEXIS 67

February 23, 2017

At a temporary hearing on a modification action brought by the mother, the trial court switched custody from the father to the mother and terminated the mother’s child support obligation. Several months later, the mother filed for contempt alleging that the father had failed to pay child support. The trial court found the father in contempt, despite there being no order requiring that he pay child support.

On appeal, the mother attached to her brief evidence of an agreement regarding child support. The Court of Appeals noted that it would not consider the mother’s evidence attached to her brief, as it was not part of the record. The Court further noted that the authority cited by the mother in support of her position was distinguishable as arising from a motion to enforce, whereas the instant case arises from a finding of contempt.

The Court of Appeals reversed the trial court, finding that there was no order requiring father to pay child support and therefore he could not be held in contempt of court.

Rasheed v. Sarwat

2017 Ga. LEXIS 97

February 27, 2017

After lengthy settlement negotiations and announcements from both parties to the court that the matter had been settled, the parties agreed that counsel for wife would draw up the formal settlement agreement. Unfortunately, disagreements regarding the twenty-page, formal settlement agreement precluded its execution.

Wife moved to enforce and, after a hearing on the matter, the trial court entered a two-page order enforcing the agreement and setting out its terms. The husband appealed and the Supreme Court reversed and remanded. The Supreme Court found that based upon the order entered by the trial court, the terms of the divorce agreement appeared incomplete, noting that the trial court’s order “omit[ted] fundamental considerations such as the custody of the minor children.” Thus, the agreement was too incomplete to have been enforced.

Lowry v. Winenger

2017 Ga. App. LEXIS 70

February 23, 2017

Father filed a petition for modification, which the trial court granted after a hearing that included testimony from a guardian ad litem. The evidence presented showed that mother had moved approximately 50 minutes away from father, with whom she shared physical custody on an approximately equal basis, and attempted to conceal where she and the child resided. The move had also meant a change in school for the child. The mother had additionally converted to Mormonism and had involved the child heavily in the church, over the objection of the father, who had final decision-making over religion. The trial court found that the totality of the evidence supported that a material change in circumstances had occurred and that these changes had resulted in harm to the child. The court granted father’s request and made him the primary physical custodian. The mother appealed.

Noting that the standard of review on such a matter is abuse of discretion and that “where there is any evidence to support the trial court’s finding, [the court] will not find there was an abuse,” the Court of Appeals held that the record was sufficient to support the ruling of the trial court. The mother also contended that the trial court had impermissibly considered “potential future negative impacts.” The Court of Appeals found that this contention by mother mischaracterized part of the ruling of the trial court, which the Court of Appeals read as an analysis of the child’s best interest. Accordingly, the Court found no error.

Sullivan v. Bunnell et al.

2017 Ga. App. LEXIS 58

February 21, 2017

Mr. Bunnell and Ms. Sullivan were formerly husband and wife. Pursuant to the divorce decree, Mr. Bunnell was to submit his monthly pension payment to Ms. Sullivan. Mr. Bunnell’s daughter, who lived in California, actively communicated with her father’s counsel during these negotiations and shortly after the divorce she was given power of attorney by her father, who suffered increasingly from dementia.

After her father’s condition worsened, the daughter sent correspondence, through local counsel, to Ms. Sullivan, stating that she would no longer be sending the monthly payments from the pension because her father’s condition required care in an assisted-living facility. Ms. Sullivan filed contempt against Mr. Bunnell and his daughter, both individually and in her capacity as her father’s representative.

The daughter moved to dismiss for want of personal jurisdiction or subject matter jurisdiction. The trial court granted the motion to dismiss on both counts and the Court of Appeals reversed as to both.

Regarding personal jurisdiction, the court found that the daughter’s engagement of counsel to communicate with Ms. Bunnell as her father’s agent about ceasing the payments satisfied the minimum contacts test and that subjecting her to personal jurisdiction did not offend notions of fairness or substantial justice.

As to subject matter jurisdiction, the Court clarified that the relief plead for by the daughter seemed to in fact be a motion to dismiss for failure to state a claim upon which relief could be granted. The court noted that a superior court has subject matter jurisdiction over contempt in a divorce. Thus, the question was whether Ms. Sullivan had a claim against the daughter for contempt of an order to which she was not a party. The court noted caselaw stating that violation of an order by someone who is not a party can be contempt if the “contemnor had actual notice of the order.” The Court therefore found that Ms. Sullivan had put forth sufficient facts such that her case should not have been dismissed for failure to state a claim upon which relief could be granted, and reversed the trial court.

Hooper v. Hedgepath

340 Ga. App. 163

February 7, 2017

Mr. Hedgepath sent his daughter to live with Ms. Hooper, who at the time believed herself to be the child’s great-aunt, while he sought employment. Shortly thereafter he was incarcerated, and Ms. Hooper ultimately got guardianship from probate court, to which Mr. Hedgepath consented. Ms. Hooper later filed to adopt the child, which Mr. Hedgepath opposed. The trial court declined to terminate his parental rights and denied the adoption.

Ms. Hooper appealed, arguing that the trial court erred in applying O.C.G.A. § 19-8-10(b) rather than O.C.G.A. § 19-8-10(a). The Court of Appeals agreed and reversed the trial court.

At the hearing, Mr. Hedgepath contested the relationship between Ms. Hooper and the child and the trial court determined that there was not sufficient evidence to prove the familial relationship. Thus O.C.G.A. § 19-8-10(b) was inapplicable, as she was not considered to be a relative. The Court of appeals remanded with instruction to apply the correct standard of O.C.G.A. § 19-8-10(a) as to the issue of terminating the father’s parental rights.

Epstiner v. Spears

2017 Ga. App. LEXIS 40

February 10, 2017

Spears filed a motion to set aside the trial court’s order on legitimation and custody because it did not accurately reflect the court’s oral ruling. While this inaccuracy was undisputed, Epstiner argued that Spears’ counsel consented to the order and therefore could not seek relief under O.C.G.A. § 19-11-60. Epstiner also contested the new order put in place by the trial court after setting aside the first order, as failing to meet the requirements of O.C.G.A. § 19-9-1.

With regard to the first contention by Epstiner, the Court of Appeals noted that despite granting the motion to set aside, the action taken by the trial court was not in fact to set aside the order, because it had left parts of the order intact. However, the Court noted that in construing orders it looks to the substance and function rather than “merely nomenclature.” Accordingly, it determined the trial court’s order to be a permissible modification under O.C.G.A. § 19-9-3, because the modifications affected visitation which may be reviewed and modified at any time. Thus, the court affirmed the trial court’s entry of the new order.

However, the Court of Appeals agreed with Epstiner that the order failed to meet the statutory requirements of O.C.G.A. § 19-9-1. The order plainly left out many of the required findings and was therefore vacated by the Court and remanded for the entry of an order in compliance with O.C.G.A. § 19-9-1.