The Court of Appeals reversed the denial of Sherry N. Sumner’s motion to dismiss Marcus C. Batchelor’s petition for change of child custody based on lack of jurisdiction, holding that the trial court erred in finding that venue was proper in Effingham county, since the original divorce order awarded custody of the children to Sumner, Sumner challenged the trial court’s jurisdiction in her responsive pleading, and she presented ample evidence that her residence was in Chatham county.

Sumner v. Batchelor, A11A1522, (02/03/12)

Fulton County Daily Report, February 17, 2012

In this divorce action, the Supreme Court affirmed the judgment awarding Gay H. Hammond alimony in the amount of $1,250 per month, once her husband’s pension matures, holding that she could not complain of any error in the trial court’s failure to utilize the time rule formula in determining the parties’ interest in the pension, after she induced the alleged error in urging the trial court to evaluate and distribute the pension as alimony. The Court also held that the trial court did not err in evaluating the alimony payment based on the assumption that the husband ceased participation in the pension plan beginning on August 31, 2009, since the parties introduced evidence evaluating the pension as of that date and neither party took steps to obtain and present updated pension values as of the hearing date. Next, some evidence supported the trial court’s valuation of the amount of alimony stemming from the husband’s pension; the trial court did not abuse its discretion in dividing the parties’ marital assets; and the trial court did not err in ruling that Hammond would be entitled to claim at least one-half of the mortgage interest deduction in any calendar year, after awarding her the marital residence. Finally, the trial court did not abuse its discretion in requiring Hammond to indemnify her husband and hold him harmless for the debts, which the trial court ordered her to pay, and the trial court did not abuse its discretion in awarding Hammond $4,074 in attorneys’ fees. Hunstein, C.J., concurred in Divisions 1, 2, 4 and 5 and in the judgment only.

Hammond v. Hammond, S11F1978, (02/06/12)

Fulton County Daily Report, February 10, 2012

The Court of Appeals affirmed the denial of Robert W. Leavenworth’s motion for an award of attorneys’ fees and costs against his daughter’s maternal grandparents after the juvenile court dismissed the grandparents’ deprivation action against him, holding that the juvenile court properly concluded that it was not authorized to impose attorneys’ fees under O.C.G.A. § 9-15-14. The juvenile courts have not adopted O.C.G.A. § 9-15-14, there is no implicit attorneys’ fee award for frivolous litigation in the Juvenile Court Code, and English v. Milby, 233 Ga. 7 (1974), holds that the Civil Practice Act does not apply to juvenile courts.

In the Interest of T. M. M. L., A11A 1589 (01/24/12)

Fulton County Daily Report, February 3, 2012

The Court of Appeals reversed the juvenile court’s termination of reunification services based on a finding that the mother did not have sufficient housing for herself and her child, holding that clear and convincing evidence did not establish that the mother unjustifiably failed to comply with the housing requirements of the reunification plan or that continued reunification efforts would be detrimental to the child. The mother lost her own housing due to mold and mildew issues; while she was on a waiting list for government-assisted housing, the mother secured housing with relatives; the maternal grandmother, where the child was placed, offered adequate housing to the mother and the child; and the child was bonded with the mother, who visited with and provided care for the child on a daily basis. Given this holding, the Court also reversed the juvenile court’s award of custody of the child to the maternal grandmother until the child’s 18th birthday and remanded the case for further consideration in light of events occurring since the last permanency hearing. Finally, the Court rejected the mother’s contention that she did not receive proper notice that the issues of termination of reunification services and custody would be considered at the permanency hearing.

In the Interest of  D. H., A11A1628 (01/25/12)

Fulton County Daily Report, February 3, 2012

A divided whole Court of Appeals reversed the superior court’s grant of permanent custody of A. L., whose parents are deceased, to Shannon and Michael Ertters, A.L.’s aunt and uncle, holding that the court erred in giving custody to the Ertterses when a juvenile court’s prior order granting long-term custody to Denise Dunbar, A. L.’s grandmother, was unchallenged and still in effect. The juvenile court had exclusive original jurisdiction over the matter under OCGA § 15-11-28 (a) (1) (C), its long-term custody order remained in effect, and thus the superior court lacked jurisdiction over the matter. McFadden, J., joined by Barnes, P.J, and Mikell, J., dissented, noting that the majority correctly stated that a superior court has jurisdiction over a petition for permanent child custody, and a juvenile court cannot grant permanent custody absent a transfer order from the superior court. Because no transfer was involved here, the juvenile court could not grant permanent custody, but under the majority’s holding the superior court could not exercise authority over the matter either. No relevant authority supported the result that no court may exercise jurisdiction to consider a petition for permanent custody, which would result in a final adjudication of rights, while the long-term custody order, which was not set to expire until A. L. turned 18, was in effect.

Dunbar V. Ertter, A11A0933 (11/8/11)

Fulton County Daily Report, December 2, 2011

The Court of Appeals affirmed the grant of primary physical custody of the parties’ daughter to the mother, holding that the trial court did not abuse its discretion. Absent a request to do so, the trial court was not required to set forth in its order factual findings upon which to base a determination as to either parent’s fitness, and neither party made such a request here. Moreover, a fitness determination was implicit in the trial court’s award of joint legal custody to both parents, primary physical custody to the mother, and secondary physical custody to the father. The Court also held that evidence supported the trial court’s conclusion that awarding primary physical custody to the mother would result in the least amount of disruption in the child’s life and would be in her best interest.

Curtice v. Harwell, A11A2393 (12/08/11)

Fulton County Daily Report, December 29, 2011

Court of Appeals affirmed the juvenile court’s order finding that the minor child was deprived and awarding his custody to DFCS, holding that clear and convincing evidence established that the child was without the care necessary for his mental or emotional health because he and his father had not completed family counseling. The Court also held that the trial court did not abuse its discretion in delaying family therapy until the child was ready.

In the Interest of H. J., A11A1756 (12/08/12)

Fulton County Daily Report, December 29, 1012

The Court of Appeals affirmed the order legitimating William Hendrix as the father of J. M., holding that the trial court did not clearly err in concluding that Hendrix did not abandon his opportunity interest in developing a relationship with his biological son. Hendrix was involved and interested in his child during the pregnancy, initiated a child support proceeding and began paying child support upon the mother’s filing of an abandonment petition, and initiated the legitimation proceeding as soon as he was financially able upon receipt of DNA test results.

The Court of Appeals reversed the denial of Bessie Hudgins’ petition for grandparents’ visitation rights as to her youngest grandchild, and remanded the case, holding that the trial court erred in finding that Echols v. Smith, 207 Ga. App. 317 (1993), and Campbell v. Holcomb, 193 Ga. App. 474 (1989), controlled this case, since the Georgia Assembly amended O.C.G.A. § 19-7-3 (b) several months after Echols to provide that a grandparent may intervene and petition for visitation following a minor grandchild’s adoption by either a blood relative or a step-parent, as occurred in this case. The Court also held that the stepfather’s adoption of the minor child, which made him the legal parent under O.C.G.A. § 19-8-19 (a) (2), did not automatically preclude Hudgins’ from seeking visitation rights, even though § 19-7-3 (b) provides that a grandparent’s original action for visitation is not authorized where the minor child’s parents are not separated and the child is living with both parents. The Court cited the recent case of Kunz v. Bailey, S11G0867 (01/09/12), 12 FCDR 79 (01/13/12), and held that the trial court erred in dismissing Hudgins’ petition, without making additional findings concerning whether the minor child’s mother and the adoptive step-father were separated and whether the child was living with both of them.

Hudgins v. Harding, A11A2247 (01/18/12)

Fulton County Daily Report, January 27, 2012