Category Archives: Evidence

GA No admissible evidence supported trial court’s findings.

Order returning temporary custody of children to DFACS for additional 12 months and authorizing DFACS to discontinue providing reunification services, vacated, and case remanded; evidence that child was abused was based on child’s out-of-court statements, which were inadmissible hearsay because government did not show that child available to testify as required by child-hearsay statute; although trial courts presumably do not consider inadmissible evidence, order extensively discussed and relied upon hearsay, and no admissible evidence supported trial court’s findings; any error in trial court’s dismissal of new deprivation charges not addressed because mother could not show any harm from dismissal.

In the Interest of A.T., A11A0495 (06/07/11)

Fulton County Daily Report, June 24, 2011

 

Wife in Contempt of Temporary Order

Trial court’s final judgment of divorce and order holding wife in contempt of temporary order, AFFIRMED;  evidence of parties’ assets as well trial court’s statement that it did not find wife’s testimony credible showed that trial court did not abuse its discretion in dividing marital property; trial court did not err in failing to award wife attorneys’ fees because record showed that trial court properly considered relative financial positions of parties; wife’s argument that trial court erred at conclusion of trial in ordering her to pay $76K balance on line of credit she took out on parties’ marital residence because she had no notice that such order would be issued, REJECTED, as trial court informed parties that it was considering such order, and line of credit was significant part of trial; wife’s argument that trial court could not issue such order because order prohibiting-her from taking out line of credit in first place was part of former divorce action which was subsequently dismissed, also rejected; even if trial court erred by referring to prior order, trial court had discretion to issue current order because it heard evidence that wife had been dissipating significant marital asset without notice to husband; trial court did not abuse its discretion in finding, despite her testimony to contrary, that wife had ability to pay remaining $8K of the 76K ordered by trial court and holding her in contempt for failure to do so; trial court did not err in denying wife’s motion for findings of fact and conclusion of law because wife moved for findings of fact after entry of judgment, and case was not so complex as to make appellate review impossible without specific findings.

Hunter v. Hunter, S10F1792 (03/25/11).

Fulton County Daily Report (April 8, 2011)

Attorney statements, in lieu of live testimony and other evidence, if not objected to, serve same function as evidence.

Judgment in parties’ divorce action, AFFIRMED; trial court did not err in entering final divorce decree, after listening to attorneys state, without contradiction from other side, what their evidence would show, if formally presented; husband’s contention that no evidence supported trial court’s judgment, rejected, since attorneys are officers of court, and their statements, in lieu of live testimony and other evidence, if not objected to,  serve same function as evidence.

Rank v. Rank, S10F0032 (05/03/2010), 10 FCDR 1527

From:  Fulton County Daily Report (05/14/2010)

GA trial court DID NOT abuse its discretion in awarding wife $50K in lump sum alimony, since evidence supported trial court’s findings regarding husband’s income level.

Judgment AFFIRMED in parties’ divorce action; trial court DID NOT abuse its discretion in awarding wife $50K in lump sum alimony, since evidence supported trial court’s findings regarding husband’s income level; trial court DID NOT abuse its discretion in determining that home in Tattnall county was wife’s separate property, since husband quitclaimed any interest he had in property to wife prior to their second marriage; trial court DID NOT abuse its discretion in awarding wife her retirement account, given trial court’s diligent separation of parties’ assets and overall asset distribution; trial court DID NOT err in calculating child support; evidence of husband’s adulterous acts during parties’ second marriage revived his prior acts during their first marriage as admissible evidence; trial court DID NOT abuse its discretion in awarding wife attorneys’ fees; husband had reasonable notice that trial court would consider wife’s contempt claims based on unpaid child support at divorce trial.

Wood v. Wood, S07F1474 (01/08/08), 08 FCDR 66

From:  Fulton County Daily Report (01/25/08)

GA trial court ERRED in refusing to consider additional evidence from witness discovered after hearing, but before final ruling.

Denial of mother’s petition to modify custody based on allegations that father touched children inappropriately while they visited him, REVERSED, and case remanded;  trial court did not abuse its discretion in denying mother’s petition, because evidence showing sexual abuse was not conclusive; trial court erred in refusing to consider additional evidence from witness discovered after hearing, but before final ruling, because trial court in custody action must consider all facts and conditions, which present themselves up to time of rendering final judgment.

Hardin v. Hardin, A10A0572 (04/06/10), 10 FCDR 1347

From:  Fulton County Daily Report (04/23/2010)

GA courts must determine whether stock options vesting directly resulted from parties’ labors and investments during the marriage.

Judgment REVERSED in parties’ divorce case; trial court erred in relying on Virginia cases interpreting Virginia statue to determine that stock options awarded to wife prior to marriage, but which vested during marriage, were akin to deferred compensation and, thus, constituted marital property – Georgia law does not have similar statutory scheme and does not support such bright-line rule; based on overarching principle in Payson v. Payson, 274 Ga. 321 (2001), trial court was required to look at evidence and determine whether vesting of previously awarded stock options directly resulted from “parties’ labors and investments during the marriage” and trial court must inquire as to whether any “appreciation of value of a non-marital asset results from the joint efforts of the parties during the marriage or is the result of market forces;” trial court also ERRED in ruling that portion of wife’s deferred compensation plan account was marital property, since wife created account prior to marriage and made no contributions to it during marriage; that account is wife’s separate property and husband is only entitled to any appreciation in value of account that directly resulted from parties’ labor during marriage;p trial court CORRECTLY found that husband is entitled to portion of $500 contribution, which wife made to premarital IRA account during marriage.

Newman v. Patton, S09F1718 (03/22/2010), 10 FCDR 863

From:  Fulton County Daily Report (4/2/2010)

Deprivation Affirmed, Mother Subjected Children To Unwarranted Forensic Interviews And Exams

Deprivation order AFFIRMED as evidence supported it; mother repeatedly subjected children to unwarranted and unnecessary forensic interviews and medical exams in her unsuccessful attempts to substantiate sexual abuse by their father.

In the Interest of S.K. and A.K., A09A1357 (11/13/09)

From:  Fulton County Daily Report (12/4/2009)

GA Awards Primary Custody To Father

Judgment AFFIRMED in parties’ divorce case; trial court correctly avoided any assumption against mother’s relocation to Pennsylvania and did not abuse its discretion in awarding priomary physical custody of parties’ young child to father; trial court had authority to discount any evidence of grandparents’ previous voluntary support of their grandchild, given parties’ substantial incomes.

Haskell v. Haskell, S09F1100 (11/02/09).

From:  Fulton County Daily Report (11/11/2009)

GA Child Support Amount Reversed Due to Excluded Evidence

GA judgment requiring father to pay $1,639 per month in child support, REVERSED, as trial court erred in failing to hold hearing prior to imposing discovery sanctions and sanctions were unduly severe; trial court excluded critical evidence and/or precluded father from making arguments that were critical to his case; trial court also erred in calculating father’s self-employment gross income, because trial court ignored father’s business expenses and other deductions and fact that he only owned one percent of shares in small construction and remodeling company.

Harrell v. Georgia Dept. f Human Reources ex rel. Harrell, A09A1886 (10/15/09)

From:  Fulton County Daily Report  (11/06/2009)

GA DNA Testings AND Parentage-Determination Genetic Testing

Ruling that Petitioner is born-out-of-wedlock daughter of decedent and therefore his heir with right to inherit from his estate, AFFIRMED;  DNA testing, which established 99.65% probability that decedent’s biological son and petitioner were half-siblings constituted parentage-determination genetic testing under OCGA 53-2-3,  since test results, along with undisputed fact that petitioner and son did not have same biological mother and that decedent was son’s biological father, demand conclusion that same probability existed that decedent was petitioner’s father; contention that parentage-determination genetic testing under OCGA 53-2-3 is limited to direct comparison of DNA samples taken from born-out-of-wedlock child and deceased putative father rejected.

In re Estate of Warren, A09A1297 (10/08/09)

From:  Fulton County Daily Report (10/30/09)