Articles Posted in Supreme Court of Georgia

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In 2015, Robert Shaughnessy and Katie Patten married and conceived a child. Shaughnessy died soon thereafter. In November 2015, the widowed Patten gave birth to a baby girl, and Patten permitted Shaughnessy’s mother, Mary Jo Ardis, to visit with the baby on a couple of occasions. But those visits did not go well, and in November 2016, Ardis filed a petition pursuant to OCGA 19-7-3 (d) for court-ordered visitation with her granddaughter. In Brooks v. Parkerson, 454 SE2d 769 (1995), the Georgia Supreme Court held that the Grandparent Visitation Act of 1988 was unconstitutional to the extent that it authorized courts to award child visitation to a grandparent over the objection of fit parents and without a clear and convincing showing of harm to the child. Seventeen years later, the General Assembly enacted the Grandparent Visitation Rights Act of 2012, a provision of which authorized courts to award child visitation in some circumstances to a grandparent over the objection of a fit parent and without a clear and convincing showing of harm to the child in limited circumstances. Citing Brooks, Patten responded that subsection (d) unconstitutionally impaired a parent’s “right to raise his or her child without undue state interference,” and upon this ground, Patten moved to dismiss the petition for visitation. In May 2017, following a hearing, the trial court held that subsection (d) was constitutional, denied the motion to dismiss, and granted the petition for visitation pursuant to subsection (d), concluding that visitation with Ardis was consistent with the best interests of the girl. Patten appealed, and the Supreme Court reversed and remanded with direction. The Supreme Court determined subsection (d) was unconstitutional, and the trial court erred in granting visitation pursuant to that subsection. View "Patten v. Ardis" on Justia Law

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In July 2015, the Juvenile Court of Cherokee County, Georgia terminated the parental rights of a father and a mother as to their three minor children, I.L.M., I.T.M., and B.M. On October 8, 2015, in a separate case, the Cherokee County Department of Family and Children Services (“DFCS”) filed a petition alleging the parents’ newly-born child E.G.M. to be dependent. That same day, the juvenile court entered a protective custody order and appointed a guardian ad litem for E.G.M.; an adjudication hearing on DFCS’s petition was scheduled for October 22, 2015. At the hearing on that date, all parties announced that they were ready to proceed. However, the court, on its own motion and over the parents’ objections, decided to continue the hearing until a later date, and set the adjudication hearing for November 18, 2015; no written continuance order was entered at that time. The Georgia Supreme Court granted certiorari to the Court of Appeals in the case of In the Interest of E.G.M., 798 SE2d 639 (2017), to determine whether the Court of Appeals erred in the manner in which it applied certain provisions of the Juvenile Code, OCGA 15-11-1, et seq., pertaining to the juvenile court’s decision to order a continuance of a dependency hearing. Finding that the continuance order did not meet the requirements of OCGA 15-11-110, and it was that flawed continuance order that caused the failure to meet the adjudication time limit of OCGA 15-11-118(a), the Supreme Court reversed: "The General Assembly has stated that dependency proceedings are to be completed expeditiously, OCGA 15-11-100 (2) , dismissal of a petition without prejudice furthers that goal by imposing a consequence for a failure to meet the statutory time requirements, see In the Interest of M.D.H., 300 Ga. 46, 57 (6) (793 SE2d 49) (2016), and in the circumstances of this case, we must conclude that the juvenile court abused the discretion afforded it under OCGA 15-11-181(a) to dismiss the petition without prejudice." View "In the Interest of I. L. M. et al., children" on Justia Law

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Appellant David Gallemore, III and appellee Wanda White divorced in 2009. Later, the parties were involved in a dispute over the amount of child support Gallemore was required to pay and whether he was in contempt for failing to pay what had been ordered. The Georgia Supreme Court granted Gallemore’s application for discretionary appeal to examine whether the trial court erred by holding Gallemore in contempt for failing to pay child support and by awarding attorney fees to White. After review, the Supreme Court affirmed contempt order, vacated the order awarding attorney fees, and remanded the case for further proceedings on that issue. View "Gallemore v. White" on Justia Law

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Wife and Husband were divorced in 1995; the final decree of divorce incorporated a settlement agreement that provided for child support and at least half of his Armed Services retirement pay monthly. The child support obligation terminated in 2006, and his first payment of retirement benefits was due to Wife the following month. Husband, however, never paid. Although Wife employed attorneys to demand payment from Husband, Wife took no court action until February 25, 2016, when she filed a motion for contempt. The trial court held that the first payment of retirement benefits became due on July 1, 2006, and the judgment went dormant on July 1, 2013. Although filing a scire facias within three years of dormancy would have revived the judgment if it were dormant, Wife made no such filing. Therefore, the trial court held: that although Husband “clearly and knowingly failed to uphold his obligations under the decree,” it could not hold him in contempt. The Georgia Supreme Court determined the trial court erred in its analysis: Wife’s first viable opportunity to enforce the judgment occurred in July of 2006, when the initial payment became due. The dormancy period did not begin to run until each installment is due. Here, installments that became due within seven years preceding the issuance and recording of the execution are collectible and enforceable. Installments that were dormant remain subject to revival pursuant to OCGA 9-12-61. View "Holmes-Bracy v. Bracy" on Justia Law

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Appellant Leland Lutz (“Husband”) appeals the final judgment and decree of divorce, as well as the trial court’s order granting attorney’s fees to appellee Deborah Lutz (“Wife”). After review, the Georgia Supreme Court determined that language in the body of the divorce decree misrepresented Husband’s salary. Therefore the divorce decree was reversed in part. Since the final judgment and decree of divorce was partially reversed to the extent it relied on an inaccurate statement of Husband’s income, the alimony award and the attorney’s fee order were also reversed. The matter is remanded so that the trial court could reconsider its rulings on alimony and attorney’s fees. View "Lutz v. Lutz" on Justia Law

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This case arose out of a divorce settlement agreement between Anita and Benjamin Howard. After the final divorce decree was issued on April 28, 2016, Wife filed a petition for contempt against Husband, alleging that he failed to comply with the terms of the settlement agreement that was incorporated into the decree. The trial court denied the petition, and we granted Wife’s application for discretionary review. The issue on appeal was whether the trial court erred when it ruled that Husband was not in contempt for failing to ensure that Wife was designated as the survivor beneficiary of his pension plan. Finding no reversible error, the Georgia Supreme Court affirmed the trial court. View "Howard v. Howard" on Justia Law

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In January 2014, after approximately three years of marriage, Appellant David Patton filed a complaint for divorce against Appellee Jocelyn Vanterpool, M.D. During the pendency of the divorce, the parties consented to Appellee undergoing in-vitro fertilization (IVF) treatment, which would eventually utilize both donor ova and donor sperm. Appellee traveled to the Czech Republic for the IVF procedure. Four days after leaving, a final judgment and decree of divorce was entered in the divorce action. The divorce decree incorporated the parties’ settlement agreement, which reflected that, at the time of the agreement, the parties neither had nor were expecting children produced of the marriage. Approximately 29 weeks later, Appellee gave birth as a result of the IVF procedure. Appellee subsequently moved the superior court to set aside the decree of divorce, seeking to include the minor child in the divorce agreement; this motion was denied. Appellee thereafter instituted a paternity action against Appellant, alleging that he gave written, informed consent for IVF and that OCGA 19-7-21 created an irrebuttable presumption of paternity; Appellee also sought child support. In response, Appellant argued that he did not meaningfully consent to IVF and that, even if he did, OCGA 19-7-21 was unconstitutional. The trial court sided with Appellee, granting her summary judgment on the issue of paternity. In September 2016, the Georgia Supreme Court granted Appellant’s application for discretionary appeal to address whether that irrebuttable presumption applied to children conceived by means of IVF. The Supreme Court concluded that it did not and reversed the judgment of the superior court. View "Patton v. Vanterpool" on Justia Law

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The parties to this appeal were an unmarried couple. Appellant Adam Vargo purchased the real property in which the parties formerly resided in his own name as sole owner, and executed a purchase money mortgage on it. Shortly thereafter, Vargo executed a warranty deed conveying the property to himself and appellee Brittany Adams as joint tenants with the right of survivorship. The couple broke up and Vargo filed a claim for equitable partition. Vargo testified at trial that he contributed the down payment to purchase the property and nearly all the mortgage payments made on the loan, and claimed that an inequity existed, requiring equitable partition of the property, due to the disparity of funds he paid toward the purchase of the property compared to that paid by Adams. The trial court found equitable partition was not an available remedy to parties who hold property as joint tenants with right of survivorship except in actions for divorce. In the order denying Vargo’s petition for equitable partition, the trial judge advised Vargo that he could sever the joint tenancy and then seek either a statutory partition under OCGA 44-6-160, or equitable partition if no sufficient remedy at law existed. The order also granted Vargo certain of his claims for conversion of items of personal property retained by Adams, but denied Vargo’s claim for attorney fees. Vargo filed this appeal, but finding no error in the trial court’s judgment, the Georgia Supreme Court affirmed. View "Vargo v. Adams" on Justia Law

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The Georgia Supreme Court granted discretionary appeal to Lori Provenzano (Wife) to consider whether the trial court erred in its ruling on the petition to modify alimony filed by Forrest Jones (Husband) pursuant to Georgia’s “live-in lover” law, OCGA 19-6-19 (b). The parties were divorced in 2014. Pursuant to the final decree, Husband was to pay Wife alimony of $3,000 per month for sixty months and one-third of any net bonuses or commissions earned by Husband through his employment during that period. In 2016, Husband filed a petition for modification of alimony pursuant to OCGA § 19-619 (b) on the ground that Wife had voluntarily cohabited with her boyfriend “since at least the second half of 2014.” The issue before the Georgia Supreme Court was whether the trial court erred in its conclusion that Wife voluntarily cohabitated with a third party in a meretricious relationship after she obtained a separate apartment from her boyfriend but allegedly maintained an intimate relationship with the boyfriend. Wife argued on appeal that the trial court misapplied the cohabitation requirement by allowing a prior cohabitation to form the basis for modifying future alimony obligations. The Supreme Court determined the record supported the trial court’s finding that Wife had voluntarily cohabited in “a meretricious relationship with a third party.” Accordingly, the trial court did not abuse its discretion in its ruling on Husband’s petition to modify alimony. View "Provenzano v. Jones" on Justia Law

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Husband Ricky Lockamy and Wife Margie Lockamy were divorced in 2009 pursuant to a final decree that incorporated the parties’ settlement agreement. The settlement agreement provided that Wife would receive 40% of Husband’s “military retirement” payments. The trial court awarded these payments as an equitable division of marital property, and it did not award any alimony to Wife. In March 2010, the Navy informed Husband that the payments he thought were for military retirement were actually disability benefit payments and that those payments could not be divided with Wife. As a result, Husband promptly stopped making payments to Wife provided under the “military retirement” provision of the settlement agreement. Six years later, Wife filed a motion to reform the divorce decree to provide for the original 60% to 40% division of the payments from the Navy that the parties originally thought were for Husband’s retirement. The trial court determined, among other things, in an order entered in 2016, that, because Husband’s disability benefits could not be divided as marital property, it would enforce the parties’ original intent to divide those payments by reforming the decree to award alimony to Wife. The Georgia Supreme Court reversed the trial court’s grant of the motion to reform, finding the trial court was not authorized to modify the divorce decree pursuant to Wife’s motion, as the motion to reform the decree was untimely. Wife was not authorized to file an actual petition for a revision of “alimony” here, as it was undisputed that she was not awarded alimony in the original divorce decree. View "Lockamy v. Lockamy" on Justia Law