Justia Family Law Opinion Summaries

Mother and father were divorced in 2003 and these appeals were from their most recent post-divorce litigation. At issue, inter alia, was whether the trial court had jurisdiction to enter the award on attorney fees in May 2010 while an application for discretionary appeal was pending in this court, and whether mother had a right to appeal directly the trial court's denial of her motion to set aside the attorney-fee award. The court affirmed and held that the trial court did not err when it denied mother's motion to set aside the award of attorney fees since its underlying judgment was final and the trial court's award of attorney fees did not supplement, amend, alter or modify the April 2010 order and judgment, which were the subjects of the pending discretionary application and notice of appeal. Therefore, the supercedeas of the May 20 application and notice of appeal did not deprive the trial court jurisdiction to enter the award of attorney fees. The court also held that mother was required to file an application for discretionary appeal since OCGA 5-6-35(a)(8) required that review of an order denying a motion to set aside be preceded by an application for discretionary review.

Husband and wife were married in Addis Ababa, Ethiopia and two daughters were born in Georgia during the marriage. After husband and wife divorced, wife was awarded custody of the children and husband subsequently appealed an order that denied the motion to vacate the 2006 judgment of divorce and award of child custody and an order modifying the child custody order to this court contending that the court had subject-matter jurisdiction because husband had sought to vacate the judgment of divorce. The court held that husband's challenges to the divorce court's jurisdiction were rendered moot by the trial court's entry of the 2010 custody modification and parenting plan order, where it was uncontested that the children resided in DeKalb County, as did the wife, and husband submitted himself to personal jurisdiction of the court when he filed his modification pleading and appeared for the hearing. The court also held that the trial court did not err in making jurisdictional findings regarding the children's home state where the trial court did not find any authority that alleged such findings were required by the Uniform Child Custody Jurisdiction Enforcement Act and where the trial court did not decline jurisdiction on the basis of being an inconvenient forum or stay the matter because of another custody action in a foreign jurisdiction.

Husband and wife executed a will in 1980, which was expressly identified as being "joint and mutual," bequeathing all of their property to each other as the survivor in fee simple and at the death of the survivor, the residue of the estate was to be divided equally among husband's two children, David and Darrell, and wife's two children, Deana and Diane. After husband died in 2005, wife probated the 1980 will, became the executor, and conveyed husband's estate to herself. In November 2005, wife executed another will which could, at her death, leave 20% of the estate to appellant, Deana, and the residue to the children of Deana and Diane. Deana then obtained wife's power of attorney and conveyed all of her mother's real estate to her two children and to appellee, Diane's child. When wife died in 2008, Deana offered the 2005 will for probate and Diane filed a caveat and also sought to petition the 1980 will as the last will and testament. The court held that the trial court did not err when it applied the law in place before the 1998 probate code was adopted to determine whether husband and wife had a contract not to revoke the 1980 will; when it concluded that the 1980 will was joint and mutual and that husband and wife had an enforceable contract not to revoke the 1980 will; when it did not in fact find that the fee simple conveyance to wife was a marital trust; when it made no rulings as to whether wife's 2005 will was a contract, and as such, that issue could not be raised on appeal; and when the 1980 will specifically provided that the residue of the survivor's estate was to be divided equally among the four children. Accordingly, the court affirmed the trial court's order that the 1980 will would be specifically enforced by equity.

After 16 years of marriage, Michael Abt filed for divorce from his wife Kerry. The couple had two children. The trial court conducted a temporary hearing and awarded the parties joint custody of the children with the wife being the primary custodian. During the next few months, the children revised their election of custodial parent because the wife had moved her new boyfriend into her home. The wife moved to have a guardian ad litem appointed to address the childrenâs decisions for custodial parent. On the eve of trial, the parties announced they had settled the custody issues; remaining issues were tried to a jury. Following the trial and entry of the verdict, the parties entered a consent agreement adopted by the court which granted a new trial. In the agreement, the parties agreed to a non-jury trial and prohibited the children from being in the presence of the wifeâs new boyfriend. After the non-jury trial, the court entered a final judgment and decree of divorce, and ordered wife to pay husband attorney fees. The wife filed an application for discretionary appeal claiming the lower court abused its discretion in its award of fees. The Supreme Court held that the record demonstrated that the trial court did not abuse its discretion by awarding attorney fees, and affirmed the lower courtâs decision.

Donald Greenwood and Joan Greenwood were divorced November 6, 2008. Pursuant to the divorce decree, the Husband was awarded the marital residence; however the decree required him to refinance the residence before October 1, 2009 in order to remove the Wife completely from the mortgage on the home; failing to do so under the decree accrued penalties payable to the Wife. The Husband did not refinance the home as required, and he did not pay the Wife any penalty. The Wife filed a motion for contempt on June 29, 2010. After a hearing, the trial court entered a final order September 21, 2010, holding the Husband in contempt for failure to pay the penalty. The court ordered that rather than as an immediate payment, the penalty would be converted into a lien against the residence. The court would not force the sale of the residence to remove the Wife from the mortgage. The Wife filed an application for discretionary review of the lower courtâs ruling. The Supreme Court found the trial court erred by improperly modifying the divorce decree by imposing the lien on the marital residence and by giving the Husband âa reasonable period of timeâ beyond October 1, 2009 to remove the Wife from the mortgage. The Court reversed the judgment and remanded the case for further proceedings.

Husband and Wife divorced in March, 2010; Wife filed a discretionary appeal with the Supreme Court seeking the inclusion of certain evidence and an award of attorneys fees. Wife maintains the trial court denied her the ability to present evidence pertaining to her husband's post separation adultery, income and assets before rendering its decision. The Supreme Court upheld the lower court's holding, finding no evidence of error in the records to grant Wife's appeal.