Category Archives: Appeal

GA Child Cusotdy, Child Support, Modificaiton, and Visitation Appeal

Trial court’s orders entered in post-divorce litigation, AFFIRMED; trial court did not abuse its discretion in finding mother in contempt for taking parties’ 11 year old son to counseling because trial court’s previous order gave father final decision-making authority for child’s health and medical issues, and father disapproved of therapist to whom mother took child; trial court DID NOT ERROR when, after finding that mother withheld visitation from father, it dismssed contempt, visitation, and custotdy portions of mother’s petition and did not permit mother to present evidence on merits of dismssed claims, pursuant to O.C.G.A. 19-9-24 (b); because Mother filed current petition for modification of child support 11 moths after trial court dismissed her earlier petition for modification of child support, trial court DID NOT ERROR in dismissing portion of mother’s petition seeking modification of child support, pursuant to O.C.G.A. 19-6-15 (K)(2); trial court DID NOT ERROR as matter of law when it refused to allow guardian ad litem to interview chid’s thereapist without father’s consent because mother previously consented to entry of modified consent order appointing guardian ad litem and providing that guardian was not authorized to speak with child’s thereapist without permission of both parents; trial court did not abuse its discretion when it ordered mother to pay remainder of fees owned guardian ad litem because mother was not prevailing party, and no statue required that trial court consider parties’ relative financial circumstances when apportioning share of guardian’s fees pursuant to consent order; trial court DID NOT ABUSE its discreton in declining to apply rule of sequestration to unidentifed woman in courtroom because woman did not testify; trial court did not lack jurisdiciton to deny mother’s motiuon to set asside ward of attorney’ fees, despite fact that mother previously filed notice of appeal from underlying judgment, because underlying judgment was final, and trial court’s award of attorneys’ fees did not supplement, amend, lter, or modify that judgment; mother’s application for discretionary review of denial of her motion to set aside award of attorney’s fees, proper, because where both OCGA 5-6-34 (a) are involved, application for appeal is requiered when uderlying subject matter of appeal is listed in 5-6-35(a).

Avren v. GArten, S11A0064

From:  Fulton County Daily Report, May 27, 2011

Jury Verdict Affimed for Wife against Husband and Several Third-party Plaintiffs.

Final judgment and decree of divorce, incorporating jury verdict for wife against husband and several third-party plaintiffs, jointly and severally AFFIRMED; because husband and third-party plaintiffs induced and expressly acquiesced in verdict being against them all jointly and severally at jury charge conference, Court refused to entertain their allegation of such error on appeal.

Huling v. Huling, S10F1591 (03/07/11).

From:  Fulton County Daily Report, March 18, 2011.

For equitable division of property titled must be in one of the spouses, even by determination that fraudulent conveyance has occurred.

$41,500 jury award to wife from proceeds of real property to which appellant held title in case involving wife’s divorce from appellant’s son, REVERSED; trial court ERRED in ruling that property in question was marital asset and denying appellant’s motion for directed verdict, j.n.o.v. and new trial, and in instructing jury regarding equitable division of property, since evidence showed that appellant’s son transferred property to appellant before wife filed for divorce; wife cited no case law in which Court has recognized right to pursue equitable division of property titled in person other than one of spouses, without title to that property first being brought into estate of one of divorcing parties by determination that fraudulent conveyance has occurred; though divorcing spouse, who believes that property transferred away from other spouse is still subject to equitable division, can seek recourse, it is incumbent upon such spouse to pursue those avenues which wife here did not; all of appellant’s remainng enumerations of error were moot.

Armour v. Holcombe, S10F0946 (10/18/2010), 10 FCDR 3333.

From:  Fulton County Daily Report (10/29/2010)

DFACS improperly placed him on child abuse registry, after entering into safety plan with his wife, following allegations of child abuse.

Grant of summary judgment to appellee AFFIRMED in appellant’s action for declaratory judgment and mandamus, alleging that DFACS improperly placed him on child abuse registry, after entering into safety plan with his wife, following allegations of child abuse; trial court did not err in ruling that appellant could not attempt to use mandamus and declaratory judgment to essentially relitigate and overturn custody decisions, which divorce court entered; proper means to address custody would be to file appropriate appeal or motions for modification of custody in divorce court; in any event appellant’s claims were based on provisions of O.C G. A. § 49-5-180 et. seq., which Court in State v. Jackson, 269 Ga. 308 (1998), struck down in its entirety, including child abuse registry.  Jenkins v. Walker, S10A0907 (09/20/10), 10 FCDR 3009.

Jenkins v. Walker, S10A0907 (09/20/10), FCDR 3009

From:  Fulton County Daily Report, 10/1/2010

In GA, absent transcript, evidence presumably supported award to wife of eight parcels of property, which were owned and titled exclusively in her name.

Judgment AFFIRMED in parties’ divorce action; absent transcript, evidence presumably supported award to wife of eight parcels of property, which were owned and titled exclusively in her name, and order requiring each party to bear responsibility for his or her own attorneys’ fees.

Dasher v. Dasher, S08F0386 (03/10/08), 08 FCDR 761

Fulton County Daily Report, 03/21/2008

GA appellant failed to support his first claim with citation to authority or argument.

Order awarding mother child support and providing father with certain visitation rights, AFFIRMED; absent transcript, trial court’s judgment was presumably correct; appellant failed to support his first claim with citation to authority or argument.

Sebby v. Costo, A07A2138 (03/05/08), 08 FCDR 795

Fulton County Daily Report, 03/21/2008

GA Trial court lacked authority to credit appellant for his pre-trial payments of temporary alimony against final award.

Judgment and final divorce decree arising from parties’ common law marriage, AFFIRMED; Georgia recognizes valid common law marriages from other states, Alabama law applied with respect to common law marriage in this case and evidence, though conflicting, satisfied Alabama criteria for common law marriage; trial court did not err in admitting evidence of parties; conduct after they moved to Gerogia, since their cohabitation and public recognition of their marriage could corroborate other evidence of prior agreement to marry in Alabama; trial court lacked authority to credit appellant for his pre-trial payments of temporary alimony against final award; trial court had authority to enter October 22, 2009 judgment nunc pro tunc to April 7, 2009 and to order appellant’s monthly lump-sum alimony installments to begin on June 1, 2009 and, in any event, appellant benefitted from that order, since his monthly lump-sum payments were $500 less than his monthly temporary alimony payments; Courts had no jurisdiction to consider trial court’s December 1, 2009 contempt order, even if nunc pro tunc to November 19, 2009 provision of that order was proper, since trial court entered that order subsequent to final divorce decree and appellant’s enumeration regaruding contempt order was not redicated on proper and timely appeal.

Norman v. Ault, S10F0874 (06/07/2010), 10 FCDR 1821

From:  Fulton County Daily Report (06/18/2010)

trial court lacked authority to set aside its original custody determination without determining child’s best interests, regardless of whether mother was living with another man.

Revision; judgment revered and case remanded;  Court had jurisdiction over mother’s appeal, even though appeal involved final divorce decree, which included child custody determination, rather than separate child custody order, since mother followed required application procedures for discretionary appeal; trial court had authority to revise custody award in this case beyond term in which trial court entered original custody decree, because father filed his motion for reconsideration within the term of court; however, trial court lacked authority to set aside its original custody determination without determining child’s best interests, regardless of whether mother was living with another man – mother contended that she and man in question did not live together prior to divorce and, since divorce, they had married and, at motion for reconsideration hearing, trial court simply followed its own policy of never awarding custody to parent living with non-relative.

Todd v. Todd, S10A0471 (06/01/2010), 10 FCDR 1754

From:  Fulton County Daily Report (06/11/2010)

Order granting maternal grandmother visitation rights with her daughter’s two children, pursuant to Georgia’s Grandparent Visitation Statute, AFFIRMED;

Order granting maternal grandmother visitation rights with her daughter’s two children, pursuant to Georgia’s Grandparent Visitation Statute, AFFIRMED; daughter could not challenge visitation order, since she aided in causing order by moving trial court to enforce earlier visitation agreement and there was no evidence of fraud or mistake; daughter was authorized to file instant appeal, pursuant to OCGA 5-6-34(a)(11); Court declined to dismiss daughter’s appeal and denied grandmother’s motion to sanction daughter for filing frivolous appeal.

Hargett v. Dickey, A10A0762 (05/20/2010), 10 FCDR 1702

From:  Fulton County Daily Report (06/04/2010).

Husband could not show harm from lack of service of wife’s amended complaint, adding allegations of cruelty and adultery, only two days before trial.

Denial of husband’s motion to set aside judgment in parties’ divorce case and his motion for new trial, AFFIRMED 5-2; evidence presumably supported trial court’s ruling in absence of transcription, and in any event, wife, in her pro se response, directly challenged husband’s factual assertion that providential cause prevented him from attending divorce trial; absent transcription and in light of trial court’s order granting divorce based on ground that marriage was irretrievably broken, husband could not show harm from service of wife’s amended complaint, adding allegations of crueltry and audltery, only two days before trial.

Holmes v. Roberson-Holmes, S10F0130 (05/17/2010), 10 FCDR 1607

From:  Fulton County Daily Report (05/28/2010)