Justia Family Law Opinion Summaries

Husband and wife were divorced in 2008 and husband subsequently filed a petition for downward modification of his child support obligation. The trial court read a divorce settlement to forbid changes to child support payments below a floor amount, even though the settlement agreement lacked a "clear and express waiver" of the modification right to any degree. The court reversed in light of Varn v. Varn and held that the trial court erred in refusing to allow husband to seek a modification of child support as provided by OCGA 19-6-15(j).

Wife and husband were married in 1993 and, after a bench trial, were awarded a final decree of divorce on July 14, 2010. The court granted wife's application for discretionary review under this court's previously instituted Pilot Project for domestic relations cases. On appeal, wife contended that the trial court erred when it improperly designated her Scottrade account as marital property; improperly applied the source of funds rule, improperly made an erroneous finding of fact, improperly valued husband's separate property, and improperly valued property adjacent to the marital home. The court held that the trial court erred in designating the Scottrade account as marital property and the error was not harmless. Accordingly, the order denying the motion for new trial was reversed as to this issue and the matter remanded for the marital property to be equitably divided. The court also held that the trial court did not commit reversible error in its varied treatment of husband's office and of the $210,000 funds from wife's Scottrade account. The court further held that there was no merit in wife's claim that husband's testimony, regarding his contribution, was insufficient proof where the trial court had the right to credit husband's testimony on that matter. The court finally held that the trial court did not err in applying the source funds rule where wife had acquiesced to the trial court's use of county tax records to determine the value of the various real estate properties at issue. The court sustained the trial court's denial of the motion for new trial where wife's remaining enumeration of error was without merit.

Appellant challenged the probate court's declaratory judgment interpreting her father's will to require equal distribution of his personal property and residual estate among his eight children. The court held that the probate court correctly ruled that appellant acted beyond her discretion in her distribution of the assets to date. Therefore, the court found no error, because under the correct interpretation of Items III and IV of the will, appellant did not have the discretion to distribute the bulk of the estate to herself to the exclusion of her seven siblings. Accordingly, the judgment was affirmed.

Husband and wife were married in 1983 and wife filed a petition for an uncontested divorce on April 26, 2000. The trial court signed a final decree granting a divorce on June 1, but the decree was not filed with the clerk until August 1, 2002. In the meantime, husband and wife, believing they had already been divorced, were married again on June 25, 2000. Wife filed a complaint for divorce on June 29, 2010 where the parties, soon thereafter, learned that the final decree of divorce was not filed in the previous action until August 1, 2002. At issue was whether a nunc pro tunc order could be used to backdate the entry of a divorce decree. The court held that the entry of the divorce decree nunc pro tunc to the date of the signing of the decree was advantageous to husband, as well as wife, because it accurately reflected his intention to re-enter the bond of marriage on June 25, 2000. Accordingly, the court held that the trial court did not err in asking wife's counsel to prepare the nunc pro tunc order and the judgment was affirmed.

Nu-Day Partnership, LLLP, ("Nu-Day"), a family limited partnership, filed an action against Norma Day for, among other things, quiet title in an attempt to clarify that Nu-Day was still the owner of certain property in Atlanta ("Bishop Street property"). At issue was whether Lon Day's 2001 transfer of his interest in LLD Management to his children was an ultra vires act and therefore void. The court held that an ultra vires act had nothing to do with the actions of an individual who simply chose to transfer his own interest in a company to other individuals, as such actions had nothing to do with the corporation itself acting beyond the scope of its legal authority. The court also held that the record indicated that Lon Day clearly intended to, and did, in fact, execute legal documents that transferred all of his interest in LLD Management to his children, who served as sole owners of Nu-Day.

Appellee filed an application for contempt after appellant failed to make the first installment payment on the lake house the parties owned and missed the July and August child support and home maintenance payments pursuant to a Divorce Agreement Settlement. At issue was whether the trial court impermissibly modified the divorce decree by requiring appellant to put the lake house on the market and pay appellee the money he owed her from the proceeds of the sale. The court held that the record supported the trial court's finding that appellant willfully failed to meet the extended deadline of the final consent order and therefore, the court did not abuse its discretion in holding him in contempt of the final consent order. The court held, however, that the court erred in ordering appellant to sell the lake house in order to pay appellee. The court further held that the trial court did not err by requiring appellant to pay appellee for interest in the lake house and rejected appellant's claim that the attorney fee award was erroneous.

Mother and Father were divorced pursuant to a Final Decree in March 2009 which gave the parties joint legal custody of their minor child and named Mother as the primary legal custodian. Father then filed a complaint to modify child custody in June 2009 and the trial court transferred primary legal and physical custody of the child to him. Mother appealed from the ruling and contended that the trial court erred by transferring primary custody to Father based on Mother's planned move to New York. Mother also claimed that the trial court erred by failing to make written findings of fact regarding the material change in circumstances that justified the change in custody to Father. The court held that, in light of the trial court's consideration of the evidence and the best interest of the child, the trial court did not abuse its discretion by changing primary custody to the Father. The court also held that the record was devoid of any request by either party for written findings. Accordingly, the judgment of the trial court awarding primary custody to Father was affirmed.

Husband appealed the final judgment of divorce and of an order, which he claimed held him in contempt of a temporary order. At issue was whether the trial court erred in awarding wife alimony because husband alleged that wife failed to show a need for alimony; husband had no ability to pay alimony because he was disabled and unemployed; and wife's misconduct and the short duration of the marriage made alimony inappropriate. The court held that the trial court did not abuse its discretion in awarding wife alimony because there was some evidence in the record to support the award and it was not made pursuant to an erroneous legal analysis where wife was disabled due to her medical problems and needed alimony; where both husband's living expenses and costs to keep wife on his health insurance were lower than he claimed; and where husband's long-term disability income, future earnings, and personal property would enable him to keep wife on his health insurance for two years and make her car payments for one year. The court also reviewed the record and concluded that the trial court did not err in dividing the parties' property. The court further held that the trial court, in fact, did not hold husband in contempt. Accordingly, the court affirmed the judgment of divorce.

Lucien Cabrel died in December 1963 and Cabrel's wife and four minor children were the recipients of a joint award of year's support in 1964. In 2000, Cabrel's two daughters filed a petition to partition real property in Henry and Spalding counties in which property the daughters claimed an interest by virtue of the 1964 joint award of year's support. The daughters also sought an accounting and to recover from their mother income generated by the property between 1964-1997. In Case No. S11A0212, the mother appealed the denial of summary judgment on the partitioning issue and in Case No. S11A0214, the daughters took issue with the trial court's denial of their motion for summary judgment, its failure to conduct a hearing on their motion for attorney fees, and its determinations that they were barred from having an accounting and were not entitled to prejudgment interest. The court held that since the motion to set aside was filed more than three years after the entry of judgment of partition and that judgment was made by a court with jurisdiction, the trial court did not err when it denied the mother's motion to set aside the judgment of partition. The court held also that the partitioning judgment was not appealed and the daughters cannot now complain that they had a greater interest in the property than that which was awarded in 2004; that the trial court did not err in concluding that the daughters were not entitled to income from the property where they did not meet certain contingencies; and that the trial court did not err when it did not award attorney fees since the daughters were not awarded any damages.

Mother and father were divorced in March 2007 and father was awarded primary physical custody of the parties' two young children and mother was awarded substantial visitation and was required to pay child support. Mother subsequently filed an action seeking to hold father in contempt of the final divorce decree, to obtain sole custody of the children, and to obtain child support in the event child custody was given to her. Mother appealed the trial court's ruling in favor of husband and contended that the trial court erred by adding the visitation provision and in awarding attorney fees. The court held that the trial court abused its discretion in adopting a provision that restricted against "any overnight male guests" which would prohibit mother from having visitors with whom she had no romantic relationship and for whom the record did not support a finding of harmful effect on her children. The court also held that the trial court erred in awarding attorney fees when it failed to specify the statutory basis for its award either at the final hearing or in its written order. Accordingly, the court vacated the award of attorney fees and remanded the issue to the trial court to explain the statutory basis of the award and make any findings necessary to support it.