Category Archives: Trial Counsel

Marital or Separate Property?

Marital or Separate PropertyMarital or Separate Property? The case of Shaw v Shaw gives us an indication of how a court would rule in some common scenarios.

Marital or Separate Property? The Bank Accounts: There were two bank accounts established by Husband with inherited funds. The Husband titled the account in both his name and Wife’s name. The Supreme Court affirmed the trial court finding that the two accounts, established with inherited funds, were marital property, since the accounts were transformed from separate property to marital property when the husband gave the wife an ownership interest in the property by establishing the accounts in both spouses’ names.

Marital or Separate Property? The Real Property: The Husband inherited some real property. The property was separate property but became marital property when he directed that the property be deeded to himself and his wife as tenants in common upon inheriting the property. The Supreme Court of Georgia affirmed the trial court’s finding the inherited real property was marital property and subject to the equitable division of marital assets.

Is it Marital or Separate Property? The Apartment Complex. This property was purchased during the marriage with marital funds, therefore the Wife acquired a separate and district interest in the property. Therefore the trial court did not abuse its discretion in refusing to give the husband all of the couple’s interest in an apartment complex. Even though the husband initiation of a separate legal action to enforce his interest in the property and his payment of legal fees arising therefrom.

Trial Note: The trial judge, as the trier of fact, stated after Wife’s case in chief but before the husband’s presentation of evidence, that he didn’t see why it shouldn’t be decided 50-50 . . . I’ve not heard all the evidence . . . I know you haven’t had [Husband] on direct examination. But I’ve got a very good feel from this case”. The record established that the judge made these statements only after the husband testified extensively as an adverse witness and the husband’s counsel thoroughly questioned the wife on cross-examination; the trial judge was only indicating the conclusion he believed the evidence supported thus far; and the prohibition against judicial comment was meant to apply to comments made in front of a jury, not comments made during a bench trial.

For more information about this case see Shaw v. Shaw, S11F1586 (01/09/2012).

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Attorney Lien by Contract

Attorney Lien by Contract.  Can an  Attorney By Contract, Create a Lienable Interest in a Property that is Not Dtherwise Lienable Under O.C.G.A. § ‘ 5-‘9-‘4?  Where an attorney represented a client in a post-divorce custody modification action, and did not help that client to secure an interest in a particular parcel of real property, she did nat have proper a lien against her client’s former house under O.C.G.A. § ‘5-‘9-‘ 4 as a result of her custody case work simply because of the following language included in her retainer agreement: “You agree that, for the purposes of this Representation Agreement, any real or personal property you have will be deemed to have been recovered as contemplated by O .C.G.A. § ‘ 5-‘9-‘4 in proceedings undertaken by the Firm on your behalf.” Because this statute is in derogation of common law, it must be strictly construed. Since no portion of a .c.G.A. § ‘5-‘9-‘ 5 contemplates creation of a lienable interest in real or personal property through simple contract alone on the contrary, the lien may only “attach[] to the fruits of the labor and skill of the attorney’ – then this lien was invalid and foreclosure of the lien was properly denied by the trial court.  The appellate court seemingly left it an open question as to whether or not the attorney could have properly placed a lien under O.C.G.A. § ‘ 5-‘9-‘4 on the $50,000.00 that the ex-husband received as part of the settlement of the custody case, and it also hinted that, at times, it might be proper for a trial court to impose an “equitable lien”against certain property.

Attorney Lien by Contract:  Outlaw v. Rye, 312 Ga . App, 5i9 (2011)

Trial court’s attempt to change order on legitimation petition not authorized under Georgia Law.

Trial court’s attempt to change order on legitimation petition from dismissal with prejudice to dismissal without prejudice, REVERSED; changing order in subsequent term of court from dismissal with prejudice to dismissal without prejudice was not clerical error but substantive change not authorized under Georgia law.

Ivery v. Brown, A10A2298 (02/07/2011)

From:  Fulton County Daily Report, February 25, 2011.

GA Trial Court Impermissibly Modified Divorce Decree

Ruling on contempt sanction partially reversed; trial court impermissiby modified divorce decree when it ordered ex-husband to pay his ex-wife $1875 in lieu of transferring one-half of his 401(K) account to her;  contempt order did not merely clarify 401(K) provision in divorce decree, but transmuted award into presently-due-cash obligation; ample evidence supported trial court’s finding that ex-wife did not willfully disobey divorce decree provision requiring her to leave marital residence – run-down mobile home – in same condition; trial court did not fail to consider parties’ financial circumstances in awarding ex-wife $1,200 in attorney’s fees for contempt proceeding but trial court should reconsider fees on remand and consider revising it in its discretion to extent it was based on 401(k) issue; ex-husband waived right to closing argument at contempt hearing when he failed to request it.

Killingsworth v. Killingsworth, S09A1137 (11/23/09)

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

GA Attorney Disbarred for Altering Divorce Clients Discovery

Attorney disbarred for violating Rules of Professional Conduct; attorney failed to act with reasonable diligence and promptness in representing personal injury client, made false statement to Officer of General Counsel (OGC) after client filed grievance and did not take steps to protect client’s interests after terminating representation; in another case, attorney altered his divorce client’s discovery responses without consulting client, signed client’s name to misleading and inaccurate financial affidavit without authorization, did not refund client’s unearned fees and made false statements to OGC.

In re Eaton, S09Y0704 (10/19/09)

GA – Admitting Child Forensic Interview Affirmed

Trial court does not abuse its discretion in admitting videotape of child’s (victim’s) forensic interview, when interviewer develops rapport with child, does not attempt to influence child, asks open-ended questions and followed most widely-used forensic technique in country.

Brown v. State, A09A0894 (10/07/09)

Attorneys:  Anne L. Watson, Travis Anton Williams, Lee Darragh, Wanda Lynn Vance

Judges:  David Burroughs, Hall Superior Court; Phipps, Bernes, Adams, Georgia Court of Appeals

GA Mother Adverse To Medication Deprives Child

A GA mother who suffers from a mood and personality disorders but is adverse to medication, does not comply with the goals of a reunification plan, fails to stabilize her volatility, and fails to maintain steady employment and stable housing, is evidence of a lack of parental care or control causing a child’s deprivation, the deprivation is likely to continue, and the deprivation is likely to cause the child serious harm.

Termination of parental rights is in the best interest of the child when she has been in DFACS custody for all but eight of her 27 months.

Judicial notice of evidence, exhibits, testimony and unappealed court orders in an underlying deprivation proceedings in the same court is not an abuse of discretion when the parent was allowed to confront the witnesses.

Trail counsel is not deficient for stipulating to evidence admitted in prior deprivation proceedings.

In the Interest of S.N.H.   A09A0159 (08/18/09)

Judges:  Phyllis Miller, Gwinnett Juvenile Court;  Mikell, Johnson, Ellington.

For more information contact:  CJ Remboldt