Doubtful Family Violence? TEST!
The Family Law Review
A publication of the Family Law Section of the State Bar of Georgia – Summer 2012
The Family Law Review 2
O
ur Family Law Review is
only as good as the articles
we publish. As such, we take
this opportunity to thank all of the
aorneys and other professionals who
have submied articles over the years.
During this past Family Law Institute,
it was great not only to receive so many
compliments about the Family Law
Review, but also to be approached by so
many of you who expressed an interest
in submiing articles.
Please know that no article is too
small, or too big. If you are interested in
submiing an article, simply contact one
of us and let us know the topic you wish to write about. As
we have witnessed in the past, publication in the Family
Law Review can serve as a start to subsequently presenting
about your article in one of the seminars sponsored by the
Family Law Section.
In our continuing eort to improve our publication,
we are introducing in this edition a new section called
“Commiee Updates.” The purpose of this new section
is to inform our entire Section of the work and events of
our recently created sub-commiees. We hope you enjoy
this edition and encourage you to submit articles for
publication. FLR
Editors’ Corner
by Marvin Solomiany and Randall M. Kessler
msolomiany@ksfamilylaw.com
rkessler@ksfamilylaw.com
www.ksfamilylaw.com
Inside This Issue
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The opinions expressed within The Family Law
Review are those of the authors and do not
necessarily reect the opinions of the State
Bar of Georgia, the Family Law Section, the
Section’s executive commiee or the editor of
The Family Law Review.
Summer 20123
T
HANKS to all of you for choosing
the area of family law in which to
practice. What you do will have
touched the lives of your clients and
their families forever.
I am proud to say that the Family
Law Section is the third largest Section
of the State Bar. Our membership is right at 1800! As such, I
believe that we have an obligation to help other sections of
the Bar in any way that we can. Consequently, our Section
is currently working closely with the newly formed Child
Protection and Advocacy Section (and with the Military-
Veterans Law Section. Did you know that Georgia has over
700,000 Service Members and 10 military bases? I hope
you will seriously consider agreeing to serve on the list
of lawyers maintained by the State Bar’s Military Legal
Assistance Program. This is a great service provided to our
military service members who call the State Bar seeking an
aorney to help them. The Program has assisted hundreds
of those who serve us and our Country and is a great way
for us to give back to them. So, please contact Norman
Zoller, the Coordinating Aorney for the Military Legal
Assistance Program at the State Bar, normanz@gabar.org or
404-527-8765, for more information.
I am grateful for all of the emails and calls I have goen
from many of you giving me great feedback and ideas. I
am excited about the many Commiees that are up and
running and I hope you will contact the Liaisons listed
beside each commiee to become more involved (the
email address of the Liaisons are on the back cover of this
newsleer):
• Diversity (Marvin Solomiany and Ivory Brown)
• Sponsorship (Gary Graham and Ivory Brown)
• Military and Federal Employees (John Collar)
• Technology/Social Media (Sean Ditzel)
• Community Service (Jonathan Tuggle and Rebecca
Crumrine)
• POP--Practicing Outside the Perimeter (Kelley
O’Neill Boswell and Regina Quick)
We had good aendance at the rst meeting of these
commiees at the Institute in May and follow up meetings
are currently being scheduled.
John Collar heads up our Legislative Commiee which
is currently considering proposals for new legislation.
Any new legislation or changes to existing legislation
recommended by our Section must be approved by
the State Bar’s Advisory Commiee on Legislation and
the Board of Governors. So, if any of you have input,
suggestions, or ideas, please contact John Collar.
The Family Law Section will begin to oer free webinars
to our Section members in the early Fall. These will be
during the lunch hour and will be focused on current topics
in family law as well as on how to make your practice
beer. While these will not provide CLE credit, they will be
a great way to learn while munching on your sandwich at
your oce. So, stay tuned for more details via email blast!
Thanks for all of the hard work that Rebecca Crumrine
has put into this year’s Nuts and Bolts of Family Law. The
agenda, and diverse group of speakers, looks awesome.
This seminar will be held in Savannah on Aug. 17 and in
Atlanta on Sept. 14. You won’t want to miss it!
Coming up on Oct. 18 at 6 p.m. is the “Supreme Cork”,
sponsored by the Young Lawyers Division of our Section.
This event will be at 5 Seasons Brewery and will raise
money for a selected charity. Please come support this
event! For more info, contact Sean Ditzel.
Finally, thank you all for your kind remarks to me
regarding the Family Law Institute. I had a blast chairing it
and I am looking forward to serving as your Section Chair
for this upcoming year!
Thanks for being a Family Lawyer! FLR
Chair’s Comments
by Kelly Anne Miles
Upcoming ICLE
Section Events
Seminar Number - 8025
Seminar Number - 8030
Register online at www.iclega.org
The Family Law Review 4
Doubtful Family Violence? TEST!
Objective psychological testing of the propensity for
family violence is underutilized by the bench and bar.
Move for these inexpensive objective psychological tests
(not a psychologist’s opinion even if based on tests).
W
e have all heard it hundreds of times: “I want
custody because my ex-spouse is on drugs.”
Like family violence, claims of drug use can
be real or not, dicult to prove or disprove, without
testing. What testing? Shall you move for a psychologist’s
expensive interview and opinion on the parties’ drug
use? No, because the best science is an objective, quick
hair follicle drug test. The drug test is an objective test,
not just an opinion. Disputed paternity is resolved
by objective scientic DNA testing. So, you already
use objective scientic testing in your family practice.
Likewise, objective psychological testing is available, but
underutilized in family violence cases.
Like allegations of drug use, allegations of family
violence can be faked, and its denial can be faked. The
bench and bar abhor the prospect of false allegations to
obtain quick, dramatic, inexpensive remedies, and false
denials to avoid consequences. What can we do when
family violence is a “she said/he said” credibility contest
with no persuasive witness, no medical evidence, and
no other persuasive corroboration? What about the case
of seeming mutual family violence but no clear proof
of who is the primary aggressor? The risk of misplaced
judicial reliance on mere allegation and denial is
tremendous.
1
Psychologists have long acknowledged that
“robust specialized family violence instruments,
tests, and questionnaires” are “underutilized” by
the profession and there is a “need for developing
practice standards in this domain.”
2
The court may
order objective psychological testing of both parties
as expressly authorized by law
3
to identify the
psychological propensity for family violence, to aid in
the determination of whether family violence occurred,
and if so, to identify the primary aggressor.
4
The judicial
use of reliable objective social science to determine facts
is gaining acceptance.
5
“Considerable research … shows
that [psychological] clinicians’ judgmental accuracy does
not surpass that of laypersons.”
6
Objective scientic
testing, not a psychologist’s opinion, provides a faster
proven more reliable, cheaper method to discover truth.
The tests mentioned below each have a test printout
that shows a propensity for family violence, or for
violence generally. Each test’s own conclusion is easy to
read and understand. For reasons explained below, it
may be best to move for objective scientic testing without
opinion and interpretation by a psychologist. Of course,
the psychologist may be necessary to lay the foundation
for admissibility of the test result in proving the testing
protocol and the peer reviewed validity of the tests,
unless admissibility is stipulated in advance.
Why order only objective testing instead of a
psychologists’ subjective opinion?
Psychologists study psychologists, and psychologists
conclude the opinions of psychologists oered in court
are not as reliable as we think. Actuarial, or objective,
testing is proven generally more reliable than a
psychologist’s opinion, even when the opinion is ostensibly
based on some testing. “When actuarial procedures are
applicable and intelligible to laypersons, the expert’s
involvement in the interpretive process is unnecessary.
In fact, the expert will most likely move the jury further
from the truth, not closer to it, given the common
tendency to countervail actuarial conclusions and thereby
decrease overall judgmental accuracy.”
7
“Forensic experts
frequently appraise the potential for violent behavior...
Studies on the prediction of violence are consistent:
clinicians are wrong at least twice as oen as they are
correct.”
8
“. . .[A]ctuarial methods, which eliminate the
human judge [psychologist] and base conclusions solely
on empirically established frequencies, consistently
equal or outperform professionals and laypersons.”
9
“In
psychology, the selective pursuit of supportive evidence
is especially pernicious … clinicians typically expect to
nd abnormality, and a search for supportive evidence
will almost always ‘succeed’ regardless of the examinee’s
mental health. In one study that enhanced the expectancy
to nd abnormality, every psychiatrist who heard a
script portraying a well-adjusted individual nevertheless
diagnosed mental disorder. This tendency to assume
the presence of abnormality and then seek supportive
evidence fosters ‘overpathologizing’, that is, the frequent
misidentication of individuals as abnormal.”
10
In other words, the therapeutic and forensic uses
of psychology must be distinguished. The forensic
reliability of a psychologists’ opinion is not proven by
the psychologist’s training, experience, or therapeutic
eectiveness. If properly challenged, it is doubtful that
much of the psychological testimony commonly admied
in Georgia civil cases without much objection would be
admissible under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993), and O.C.G.A. § 24-
9-67.1 (Eective Jan. 1, 2013), O.C.G.A. § 24-7-702 (Effective
Jan. 1, 2013). Much psychological opinion testimony, such
as “syndrome” opinion testimony, fails to meet the key
Daubert criteria of falsiability and reliable error rates.
11
The bench and bar should be aware of “expert evidence
industries” with “‘product champions’ … who promote
the use of a scientic idea as evidence”, and the “social
and political factors that shape the ongoing production of
evidence for the court.”
12
Objective psychological testing
is proven generally more reliable than a psychologists
opinion and it is certainly faster and cheaper.
Summer 20125
Two objective psychological tests with internal
truthfulness validity scales are particularly useful
scientic measures of the propensity for family violence:
rst, the family violence inventory (FVI); and second,
the Substance Abuse Questionnaire III (SAQIII). The
MCMI is also useful to identify personality traits
correlated to family violence.
13
Typically, a psychologist
can administer these tests for a few hundred dollars
and, without further interpretation, simply print out
the objective test result (not raw data, and not the
psychologist’s interpretation, but the easy to read test
results). The internal validity scale means that if a test
taker lies, or is very inconsistent for some reason, he or
she gets caught “faking good” by inconsistent answers.
Since faking good is common, the fee arrangement
with the psychologist should include an agreement that
each test will be re-administered once if the internal
validity scale for truthfulness is compromised. Of course,
invalid test results must also be printed and provided to
show the test taker did not meet the test standards for
consistency or truthfulness in administration on the rst
test. When ling a motion for these psychological tests,
make sure you have a leer or email from a local neutral
psychologist stating the total fee and willingness to
administer the tests, and the fee to testify about the test
administration and results if not stipulated in evidence
in advance. You should also make sure your psychologist
has purchased the tests and is ready to administer them.
The judge is not going to do your calling around for you,
and is not going to want a second hearing to decide who
administers the test.
Any judge can read these objective psychological
test results and be the judge, instead of deferring to
the conclusions of experts “interpreting” a dierent
result by oering opinions on what typically needs
no interpretation. Of course, any party can oer any
other admissible evidence on the tests or results. The
gatekeeper may need to know what specic peer
reviewed studies support the reliability of “interpreting”
peer reviewed tests to vary the test result.
“As the courts and the public come to realize the
immense gap between experts’ claims about their
judgmental powers and the scientic ndings, the
credibility of psychology and psychologists will suer
accordingly. Psychological research should eventually
yield certain knowledge and methods that provide
meaningful assistance to the trier of fact.”
14
In this
simple inexpensive testing protocol, law and science
meet, enhancing reliable judicial decision making. In
this judge’s experience, when two or more independent
highly reliable objective scientic tests prove or disprove
a propensity for violence, it is usual for the issue to
be conceded one way or the other. Including objective
scientic testing in the search for truth serves our duty to
obtain just, speedy and inexpensive adjudication.
15
FLR
Judge Christopher Edwards received his
B.A. from Vanderbilt and his J.D. from
Nova Southeastern Law School. He began
in the Brunswick Judicial Circuit. He
then served as a county public defender and also on an indigent
(Endnotes)
1 Twenty-two percent of murders are family violence murders.
Matthew R. Durose et. al., Family Violence Statistics, U.S.
Dept. of Justice, Bureau of Justice Statistics (2002), http://
www.ojp.usdoj.gov/bjs/abstract/tvs.htm.
2 James N. Bow & Paul Boxer, Assessing Allegations of
Domestic Violence in Child Custody Allegations, Journal of
Interpersonal Violence, Vol. 18 No. 12, December 2003, at
1394.
3 OCGA §9-11-35; OCGA §19-13-4(a)(11). Everette v.
Goodlove, 268 Ga. App. 536, 602 S.E.2d 284 (2004); Rose v.
Figgie International, Inc., 229 Ga. App. 848, 495 S.E.2d 77
(1977); Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489
S.E.2d 540 (1997).
4 Obviously no test can conclusively prove or disprove the
actual occurrence of domestic violence. Psychological testing
is a tool not a talisman, and undue reliance is no substitute for
judicial decision making. Joan S. Meier, Domestic Violence,
Child Custody and Child Protection: Understanding Judicial
Resistance and Imagining the Solutions, 11 Am. U.J. Gender,
Soc. Policy, and the Law, Vol. 11 No. 2 2002 at 657.
5 Monaghan and Walker, Social Science and Law (Foundation
Press, 2011).
6 Faust and Ziskin, The Expert Witness in Psychology and
Psychiatry, Science, vol. 241. p. 31, 1 July, 1988 at p. 34.
7 Faust and Ziskin, Id., p. 33.
8 Id., p. 32.
9 Id., p. 32-33.
10 Id., p. 33.
11 Gerald Ginsburg and James Richardson, ‘Brainwashing’
Evidence in Light of Daubert, Law and Science, Current
Legal Issues 1998, Vol. 1 (Oxford University Press, 1998), p.
268.
12 Shirley A. Dobbin and Sophia I. Gatowski, The Social
Production of Rape Trauma Syndrome as Science and as
Evidence, in Science in Court, Chapter 7 (Dartmouth: Ashgate
Press, 1998).
13 The personality disorders of antisocial, aggressive-sadistic,
passive-aggressive, and narcissistic can also be identied by a
third test, the Millon Clinical Multiaxial Inventory (MCMI).
Robert J. Craig, Use of the Millon Clinical Multiaxial
Inventory in the Psychological Assessment of Domestic
Violence: A Review. Aggression and Violent Behavior, Vol. 8
No.3, May 2003, at 235.
14 Faust and Ziskin, p. 35.
15 O.C.G.A. § 9-11-1.
The Family Law Review 6
A
er a very dicult day at work, a mom came home
to nd her two children in the kitchen arguing
over an orange. There was only one le and each
child was trying to wrestle it out of the others hands. In
frustration the mom grabbed the fruit and quickly sliced it
down the middle, handing each of the children their half.
Both children walked away crying.
One of them actually needed the rind of the orange for
an art project and the other wanted to eat the orange. What
we all think are logical and obvious answers are not always
as they appear. I consistently remember this story when I
dra mediated agreements at the conclusion of a session.
If we’ve been at it for 8 or more hours and are at the point
where all of us are completely exhausted I still have to be
ready to write an agreement that works for everyone. It
is crucial at this moment that all of the issues that were
resolved during the day are memorialized accurately and
that every point is understood and clear to the parties.
In mediations that are complicated and last many hours
the concept of capturing all of the points can be daunting.
For example, we have a solid parenting time arrangement
but what if we omit who will provide transportation at the
inception and conclusion of the visits? Perhaps the parents
could work this out in their future but why leave it to
chance? Small points that get overlooked today can become
enormous problems tomorrow. You cannot assume to know
what everyone is thinking.
Here are six ways to assure that any draed agreement
is solid, to the point and leaves no room for interpretation,
no maer how long the session lasts.
1. During the session, in order
to remember what is truly important to each
of the parties the mediator has to be a focused
listener. It also helps to be tedious and WRITE
DOWN every point. Sounds elementary, but
if this is not done there’s a chance something
very important to one or both sides can be
overlooked.
2. Repeat it back. Every position you take must
be stated back to you in an eort to be sure that
it was heard correctly. Perhaps something was
assumed that should not have been or maybe
it was unclear. Reiterating each point as it was
heard will eliminate confusion, especially in
cases where the majority of the time is spent in
caucus. Mediators that create this atmosphere of
clarity will also build trust with each client and
their counsel.
3. Match up the agreed to points. No maer when
parties agree to a specic issue during a session
it must be acknowledged and memorialized
accordingly. Since sessions can take on many
tangential directions, doing this reassures
everyone that maers which have been seled
aren’t raised later as contentious, thereby
turning selement into impasse.
4. Templates. Good mediators bring laptops
with eective agreements they have draed
in previous sessions that are solid in covering
every point imaginable. Equipped with this
arsenal of information one can edit and correct
an existing document and use a list to make
certain nothing is missed.
5. Knowing what the judge requires. Ultimately
this paperwork may be used in the formation
of a nal selement agreement (if the mediated
agreement isn’t used) and therefore must
comply with the requirements of each court.
While it is obvious that the dra has to make it
past the approval of client and counsel, the nal
approval is from the judge, and any agreement
that is not clear and straightforward will be
questioned.
6. Once the agreement is
draed I hand the documents over to the parties
and their counsel. Perhaps I did overlook an
item or maybe there is a misunderstanding.
It happens. However, if I get 98 percent of
the points correct, xing a small one at the
conclusion is part of the process. It’s the
agreements where half the issues aren’t clear
that have a tendency to fall apart.
While the best wrien agreements cannot possibly cover
every point imaginable, utilizing these strategies will help
minimize mistakes and errors. The sessions that go long
into the night, when everyone is ready to be anywhere else,
is prime time for problems and assumptions. Don’t let this
happen, whether you are simply hungry or have that art
project due. FLR
Andy Flink is a contributing author on
post divorce and trained mediator and
arbitrator. He is familiar with the aspects
of divorce from both a personal and
professional perspective. He is experienced
in both business and divorce cases, and
has an understanding of cases with and
Consulting, LLC, a full service organization specializing in
business and domestic mediation, arbitration and consulting.
At One Mediation, he serves as a mediator and arbitrator who
registered arbitrator.
Drafting a Solid Mediated Agreement
Summer 20127
Thanks to the support of the leadership, as well as
many members, of the Family Law Section, the Child
Protection and Advocacy Section has been established.
With nearly 200 members, the Child Protection and
Advocacy Section membership represents a broad
spectrum of the Bar that practices in Juvenile Court.
The membership includes SAAGs who represent DFCS,
Child Welfare Specialists who represent parents, GALs
who represent children, juvenile prosecutors and
defenders, adoption lawyers, lawyers who represent
children in education-oriented scenarios, such as IEP
meetings, 540 hearings, and school tribunals, as well as
lawyers who represent school Boards, lawyers involved
in quasi-judicial maers advocating for children in
Social Security disability, Medicaid eligibility maers,
and other miscellaneous venues. A number of Juvenile
and appellate judges and mediators are also members. It
is an interesting, varied group of lawyers with one thing
in common: we have concentrated our legal practices
on working with children and families, focusing on the
needs of the children.
The Section will be co-sponsoring upcoming CLEs
with the Supreme Court of Georgia Commiee on
Justice for Children and the Georgia Association of
Counsel for Children in October, and in December,
will host its own CLE entitled, “Where’s the Money?”
focusing on discovering and utilizing resources
available for children in need of services regarding
education, medical needs, disabilities and other areas.
The rst edition of a newsleer will be published in
September and work has begun to expand the Bar’s on-
line Section website. (If you had trouble with some of
the acronyms, our Newsleer and Web Page will have a
section identifying acronyms, much like a glossary).
The leadership of the Child Protection and Advocacy
Section appreciates the help and encouragement the
Family Law Section continues to provide, and we
look forward to continuing to work closely with you
through the years. We hope that our members can serve
as resources to you for information regarding more
esoteric areas of children’s needs that you encounter in
your family law work, just as we rely on you for your
expertise when we and our clients’ families need it. FLR
Nicki Vaughan
Chair, Child Protection and Advocacy Section
To the Family Law Section
M
ost of you are already aware that Federal Oce of
Child Support Enforcement (OCSE) and the Oce
of Management and Budget (OMB) issued a
revised Income Withholding Order (IWO) on May 31, 2011
that is required to be sent to employers with ALL income
deduction orders issued on or aer May 31, 2012. The
consequence of not using the required IWO form is that
the employer must reject the income deduction order and
return it to the sender, potentially causing an unnecessary
delay in the custodial parent receiving the child support.
Income deduction is and continues to be a complicated,
burdensome procedure. This additional requirement does
nothing to alleviate that. However, inspired by the release
of the revised IWO and the potential consequences of not
following the procedure correctly, we collaborated with the
Georgia Division of Child Support Service (DCSS) to create
a guideline to help streamline this process. We are hopeful
that you will use this guide in your practice and will nd it
helpful. The guide, along with frequently asked questions,
forms and other resource materials are available at the
following website: www.georgiacourts.gov/csc/iwo.
Special thanks to DCSS Legal Policy Specialist Stephen
Harris, Child Support Guidelines Coordinator Elaine
Johnson with my oce, and the rest of our workgroup for
their contributions to this project. As always, we welcome
your comments and feedback. FLR
Income Withholding Procedure for Child
Support
The Family Law Review 8
W
hen it comes to client satisfaction, an aorney
cannot totally control the outcome of a case.
However, an aorney has absolute dominion
over the expectations that they create in their clients.
Family law aorneys oen make the same mistakes when
it comes to managing the retirement account division
process (i.e. the QDRO process). These mistakes oen
lead otherwise satised clients to being dissatised—
sometimes long aer the case is thought to be over. With a
proper explanation to a client, combined with the eective
execution and completion of the QDRO process, client
dissatisfaction at the end of a case is substantially less
likely. This article addresses some of the common mistakes
made by family law aorneys when it comes to seing
client expectations related to the QDRO process, and oers
recommendations for how to avoid those mistakes.
By far the most common mistake that family law
aorneys make when it comes to seing client expectations
related to the QDRO process is in assuming that the QDRO
process comes with some kind of guarantee as to timing.
This is to say, when your client asks you long it will take to
get their money from the other party’s account, you should
know that 29 U.S.C. § 1056(d)(3)(G)(i)(II) provides:
within a reasonable period aer receipt of such
order, the plan administrator shall determine
whether such order is a qualied domestic
relations order and notify the participant and each
alternate payee of such determination.
As a practical maer, this means that the plan
administrator has no precise time limit as to how long they
can take to review and administer an order. While certain
timetables may be safely assumed, generally, promising
a client that the QDRO process will be quick can lead to
unrealistic expectations. If an aorney is not familiar with a
particular plan (keep in mind there are over 100,000 plans
nationwide and growing) and its qualication process, it
is best to avoid estimating anything shorter than several
months from the time that the QDRO is prepared.
The appropriate time in a case to have a QDRO entered
is--at the absolute latest--simultaneously with a nal divorce
decree. Ideally however, it will be entered even sooner. In
the event that a nal decree is entered and a QDRO has not
yet been completed, a participant could die, retire, and/or
engage in wrongdoing that may cause irreparable harm to
the payee spouse (who may be your client).
For example, imagine that an alternate payee has been
granted 50 percent of a participant’s Bank of America
dened benet pension plan, plus survivor benets. A nal
decree is entered, but no QDRO. The participant spouse
leaves the courthouse, and makes an irrevocable election
to receive his or her benets immediately as a single life
annuity, thereby foreclosing the possibility of the alternate
payee spouse from ever geing their survivor benets.
Now imagine that instead of retiring, the participant
spouse dies while walking out of the courthouse. Their
retirement plan then goes to their estate, to which the payee
spouse no longer has an entitlement. Whose fault is this?
Who will the Alternate Payee blame?
Not all retirement plans require “QDROs.” This you
may already know. For example, Individual Retirement
Accounts (IRAs) do not necessitate the use of a QDRO to
eectuate division of such accounts. I.R.C. § 414(p)(1)(B)
(along with ERISA 29 U.S.C. § 1056 (d)(3)) denes what
a QDRO is, and QDROs only apply to plans subject to
the anti-alienation rules of IRC § 401(a)(13). Only plans
subject to the anti-alienation rules of I.R.C. § 401(a)(13)
are governed by I.R.C. § 414(p). I.R.C. 401(a)(13) lays
out a series of anti-alienation rules that do not apply to
IRAs because IRAs are set up for individuals, and not
Avoiding Client Dissatisfaction Related to
the QDRO Process
Summer 20129
by employers, which is the common thread of the anti-
alienation provisions).
But is there a law that prevents IRAs from requiring
that a QDRO or QDRO-like order be prepared that directs
the IRA custodian to eectuate a transfer? The answer is
no. In fact, many IRA and annuity custodians demand that
they be directed by QDRO (although that term is sort of a
misnomer in this context) to eectuate any transfers to a
former spouse as a part of a domestic relations case. Thus,
unless you know with absolutely certainty that a particular
IRA does not require a QDRO, it is best to make sure that
you reserve jurisdiction for the entry of a such orders, and
to look into the maer as early as possible.
Note that government retirement plans are exempt
from ERISA, but many around the country have QDRO-
like orders that go by dierent names (Such as COAP or
DRO or PADRO). Each of these plans, like IRAs, and most
ERISA-based accounts, have unique rules that one must
be acquainted with to properly divide them. Thus, if an
aorney is not acquainted with the processes established
by a particular plan, it is best to avoid making assumptions
that one plan is similar to another.
Tax Consequences
Generally, the distributee of a payment from a
retirement plan is going to be taxed on said distribution.
Thus, when a QDRO or similar order is
administered, and direct payment is made from a retirement
plan to an alternate payee, the participant will not experience
any tax consequences, but an alternate payee will.
1
When dealing with a dened contribution plan, there are
generally two tax consequences and one exception to each
that you need to know about. First, any distribution made to
a party from a dened contribution will be subject to regular
income tax, unless said payment is made from a Roth IRA
and/or 401(k). . Second, any distribution
made from a dened contribution plan prior to age 59 ½
will be subject to a 10 percent penalty. A limited exception
to the 10 percent penalty exists when
a distribution is made pursuant to a
QDRO. To be clear, when an ERISA-
based qualied dened contribution
plan
2
is divided pursuant to a QDRO,
the payee spouse have the option
of taking a distribution (versus
a rollover) that will be subject to
regular income tax, but not subject
to the 10 percent penalty, even if the
payee is younger than 59 ½. See I.R.C.
.
This becomes a useful rule to
know about if you are trying to use
a QDRO during a case to pay fees
or temporary support, since both
parties can potentially benet from
this 10 percent penalty exemption.
Neither a valuation date, nor passive gains and/or losses
should be presumed, and especially if you are trying to set
appropriate client expectations. When parties execute a
selement agreement, they oen fail to specify a valuation
date. Under Georgia law, the cut-o date for marital assets
is the date of marriage. See generally Crowder v. Crowder,
. However, parties may agree
to use virtually any date of their choosing, as long as it is
allowable under a particular retirement plan. When parties’
use ambiguous selement agreement language, such as
stating a dollar amount or percentage without specifying
a valuation date, the potential for unnecessary litigation
is created. This is particularly true when the market is
volatile, or there has been a long divorce case and a pension
has changed in value through the case.
The same issue arises when parties and their aorneys
fail to specify whether or not passive gains/losses apply
to an award from a dened contribution plan. Parties
oen wait months or years to have their QDROs or similar
orders draed and administered, and accounts will likely
wildly uctuate in value during that time. So, if you simply
specify a dollar amount in a selement agreement, and
that dollar amount represents a certain percentage of an
account as of an intended date, that amount when actually
distributed may represent signicantly more or less of the
account, which may in turn lead to a dissatised client.
There is no more important, nor more misunderstood
ancillary economic benet related to retirement accounts
than survivor benets. Again, it is critical that the family
law practitioner specify whether or not the payee spouse
will receive all or a portion of any pre- or post-retirement
survivor benets, or they may be lost completely. See
(holding that retirement benets must be specically
allocated to enforceable). Otherwise, there may be grounds
The Family Law Review 10
for litigation, or worse yet, a payee spouse may complete
lose the benet of being awarded a portion of the pension.
Note that most survivor benets come at a cost in the form
of a reduction to the monthly pension annuity, and that
although they are generally only associated with dened
benet plans, they can also come into play with annuitized
dened contribution plans.
If you represent the payee spouse of a member of the
military or a federal civilian employee who is entitled to a
pension, it is critical that you advise your client that if they
remarry prior to age 55, then they are not entitled to survivor
benets. .
Advising your client of this is not only important for the
purpose of seing client expectations, but also in order to
give your client the opportunity to make informed decisions
about what assets they actually want as part of their divorce,
and to properly plan for their future. FLR
in Georgia and Florida that focuses on the
preparation of QDROs and similar orders.
parties on how to properly address issues
related to QDROs. He can be reached via
(Endnotes)
1 Under existing law, this tax liability cannot be shifted as far
as I am aware, although parties can gross up the amount to an
alternate payee to account for taxes and penalties.
2 This does not include government plans or IRAs.
The Diversity Commiee of the Family Law Section
started with its rst meeting at this past Family Law
Institute of Amelia Island. We are proud to announce
that over 35 aorneys aended this initial meeting and
participated in a comprehensive discussion as to the
goals of this Commiee.
One of the main purposes of our commiee will be
to increase awareness as to the many dierent types of
members we have in our section and to address specic
issues which these members deal with in our daily
practices. Irrespective of our gender, race, or sexual
orientation, our commiee will work to ensure that our
Section is as diverse as the many dierent types of clients
we represent.
It is our goal to have at least quarterly meetings
and social activities. If you are interested in joining our
commiee, please contact Marvin Solomiany (msolomiany@
ksfamilylaw.com) or Ivory Brown ([email protected]).
We look forward to working with you.
The commiee met on May 24 at the Family Law
Institute. The purpose of the commiee is to involve
members outside of Atlanta in the section and to provide
more local education opportunities. We agreed to divide
the state into regions and host seminars for each region
The local seminars would have local speakers and judges
in a lunch and learn format. The state will be divided
into 5 regions with a representative for each region,
Northwest (vacant), Northeast (Coleman), Southwest
(Boswell), Southeast (Grill) and Middle (Kaplan).
Thank you to those who have volunteered to join and
assist with the Sponsorship Commiee, and to those
who were sponsors of the Family Law Institute. The
Sponsorship Commiee will meet in the upcoming weeks
to discuss sponsorship for the 2013 Family Law Institute,
as well as other possible sponsorship opportunities. If
anyone is interested in becoming a sponsor for the 2013
Family Law Institute, please contact Eileen Thomas
(eileen@ethomaslaw.com) or Gary Graham (gary@stern-
edlin.com). If anyone is interested assisting with the
Sponsorship Commiee, please contact Gary Graham or
Ivory Brown (iv[email protected]).
Technology and Social Media Sub-Commiee:
This commiee had our inaugural meeting at the
2012 Family Law Institute in Amelia Island, where
we had a wonderful showing of approximately 15
aorneys (including a Superior Court Judge and a
former chairperson of the Family Law Section). We are
commied to the discussion of and education about
recent developments in the areas of technology and social
media, and the eect thereof on the practice of family
law. We have discussed using the commiee to put on a
semi-annual webinar about such topics, and we are open
to suggestions on other ways our commiee can benet
the section. For more information and to be added to the
sub-commiee Google Group, please email Sean Ditzel
(sditzel@ksfamilylaw.com).
Committee Updates
Summer 201211
E
very family law aorney is faced eventually with
the client who explains about the great electronic
gadget that s/he has found to “get the goods” on an
oending spouse. Time aer time we explain about privacy
laws and the potential consequences of violating those
laws. The door for electronic surveillance of a spouse has
been opened just a crack more. The “reasonable expectation
of privacy” may mean something a lile dierent aer a
recent case from the Court of Appeals of Georgia.
In , 2012 WL 2866416, the Court of
Appeals created a new rule (or perhaps conrmed
the existence of a previous rule) that gives guidance
to practitioners faced with the need to advise a client
regarding secret surveillance under limited circumstances.
Under those certain circumstances, those rights to privacy
are not what we once thought they were.
On July 13, 2012, the Court of Appeals published its
opinion in , 2012 WL 2866416. In that opinion,
the Court armed the trial court’s decision to admit video
recordings made by cameras hidden in a marital residence
by one spouse – without the other spouse’s knowledge or
consent – of the other spouse’s activities.
In , the parents were “nesting” – rotating turns
in and out of the house on a daily basis while the children
remained consistently in the home. The mother was fearful
that the father was abusive to the minor children in her
absence. To protect the children, the mother installed
hidden cameras in the common areas of the home. The
cameras provided both live feed video of activities within
the common areas, and recorded the activities. The mother
could access the live feed or the recordings via the internet
from any computer.
Aer learning of the surveillance, the father brought a
motion to exclude the recordings from evidence. The father
claimed that the recordings were unlawful pursuant to
O.C.G.A. 16-11-62(2) – a penal statute. That statute makes
it unlawful to conduct secret surveillance of another in a
private place, out of public view and without that person’s
consent. The father maintained that he had a reasonable
expectation of privacy in the common areas of the marital
residence and that the mother had violated that privacy.
The trial court relied on an exception contained in
O.C.G.A. 16-11-62(2)(c) to admit the recordings. Pursuant
to subsection 2(c), one may use electronic equipment to
record activities within the curtilage of one’s residence for
“security purposes, crime prevention, or crime detection”.
The mother testied that her purpose was to guard against
crimes being commied against the children by the father,
thus the trial court applied subsection 2(c) and ruled that
the recordings were admissible at trial. The father led an
interlocutory appeal of the trial court’s ruling.
The Court of Appeals armed the trial court and ruled
that the mother’s surveillance was permissible pursuant
to O.C.G.A. 16-11-62(2)(c) – the curtilage exception. The
Court reasoned that the mother met the elements of the
exception contained in subsection 2(c), and that the interior
of the home was within the curtilage. It was important that
the mother remained a resident of the home, and that she
conducted the surveillance for security purposes, crime
prevention or crime detection.
Prior to this holding, an aorney may have been
reluctant to advise a client to install equipment for
clandestine surveillance of the other party. The lines
between permissible and illegal use of such surveillance
were blurred at best. Thus, the safe course of action was
advise against any kind of secret surveillance.
While DOES NOT issue a license for non-
consensual surveillance in every case, it does provide
guidance as to when such surveillance may be lawful. Prior
to , there was lile case law addressing this issue
between spouses. Now the lines are not quite as blurred.
The law is now that secret surveillance is permissible under
certain circumstances. How far those certain circumstances
extend remains to be tested in the future. FLR
Macdonald, LLC. His practice is limited to
is a member of the Family Law Section, the
Charles Longstreet Weltner Family Law Inn
of Court, the Cobb County Bar Association,
Phi Delta Phi and other professional and
family are residents of Cobb County.
Be Careful: Someone May Be Watching
The Family Law Review 12
Getting Government Records into Evidence
Q. How do you get government records into evidence
if you have to go to trial and the other side won’t
stipulate to their admissibility?
A. You’ll need to check your state’s rules of evidence to
nd out the requirements for admission of business
records. Each state is dierent. Some have adopted
the Federal Rules of Evidence (FRE), and some have
their own evidence codes. The business records rule
is contained at FRE 902 (11), but your rule might be
slightly or entirely dierent. Make sure you know
what is needed as essential statements in the adavit.
Q. Don’t these agencies have a template they can use for
the adavit? I’m being told that I have to submit to
the agency a sample of what the wording should be.
A. “One size ts all” is not the rule in this area. There
are no standard adavits which are universally
used among the agencies. It is a common practice to
require the applicant’s aorney to dra the
adavit, which is they reviewed and revised by
the legal oce in the agency. You must submit the
wording to the federal oce which has the records,
which can adopt or adapt the language as needed.
Q. So do they just say that they’ve provided the records
and they’re accurate?
A. In terms of trial practice, that would be a major
mistake. How will the court know what records
were provided? How will the judge know that the
documents which you have are the ones that the
agency sent to you? The records must be aached to
the adavit, not merely referred to.
Q. But the agency sends the adavit to me, right? Or is
it sent to the court?
A. That’s your decision. If the records and adavit – the
“packet” – is sent to the court under seal, then
there can be no legitimate question as to whether
you have substituted documents or altered them.
The judge is the one who will open the packet and
determine what records have been provided. On the
other hand, unless you get an extra copy of what’s
in the packet, you won’t know what is in the
records until the court opens them. This leads to
three alternatives:
1. Get a copy from the agency (by consent of the
individual concerned or by court order or judge-
signed subpoena). Then request the documents
again, along with a business records adavit
that accompanies your request.
2. Get the documents (as above) from the agency,
and then send them back to the agency with
your business records adavit, so they can
certify that these are indeed the records
provided, and then can aach them to the
adavit.
3. Have the agency send the packet to the court but
also send copies to the aorneys.
Q. This is all so complicated. Do you have an example
that I can use for these adavits?
A. Of course. It’s on the next page… FLR
Mark E. Sullivan is a retired Army Reserve
JAG colonel. He practices family law in
Raleigh, N.C. and is the author of
(Am. Bar
Assn., 2
nd
resources on military family law issues.
A Fellow of the American Academy of
Matrimonial Lawyers, Sullivan has been a
.
Summer 201213
DEPARTMENT OF VETERANS AFFAIRS
Regional Office
123 Green Street
Blacksboro, North Carolina
Phone: 919-832-6677
BUSINESS RECORDS DECLARATION
Pursuant to 28 U.S.C. § 1746
This is a certification of authenticity of domestic business
records pursuant to Federal Rules of Evidence 902 (11).
I, Larry G. West, attest under the penalties of perjury (or criminal punishment for false statement or false
attestation) that:
1) I am employed by the United States Department of Veterans Affairs (DVA).
2) My official title is Paralegal.
3) I am a custodian of records for the DVA.
4) Each of the records attached hereto is the original record or a true and accurate duplicate of the
original record in the custody of the DVA, and I am a custodian of the attached records.
5) The records attached to this certificate were made at or near the time of the occurrence of the
matters set forth.
6) The records attached were made by (or from information transmitted by) a person with
knowledge of those matters.
7) Such records were kept in the course of a regularly conducted business activity of the DVA.
8) Such records were made by the DVA as a regular business practice.
The enclosed records are:
Letter to Jacob Harris Stein, XXX-XX-5566, dated April 12, 2010, titled “Your Original VA
Disability Rating and Reasons for the Rating” and
Letter to Jacob Harris Stein, XXX-XX-5566, dated June 15, 2012, titled “Your Revised VA
Disability Rating and Reasons for the Rating.”
Dated: July 13, 2012
L
arry G. West
Larry G. West, Paralegal
Subscribed and sworn to before me this ____ day of ______________, 2012.
________________________________
Notary signature My commission expires: ________________________
The Family Law Review 14
J
udge Green enjoyed aending the FLI. As he is new to
family law cases, the FLI gave him the opportunity to
learn and meet the family lawyers. He found that the
materials provided were the most benecial aspect of the
FLI, and he also enjoyed geing to know people through
the social activities. Green thought the Judges’ discussions
were good; however, the only improvement he would
recommend is that each session with the Judges is broken
down into a separate subject, i.e. an opening statement,
direct examination, cross examination, argument on a
motion and closing argument.
Green likes aorneys who are organized, who explain
the problem/issue, have a solution to the problem/issue,
provide statutory/case law to support the solution, and
provide a proposed order for the Judge’s signature. He
prefers to rule from the bench, rather than taking issues
under advisement.
Green believes that family law aorneys are in a unique
position to sele the cases between themselves and their
clients. He is open to pre-trial conferences when both
aorneys agree it may be of assistance to resolving the case
or pending issues. With regard to selement agreements,
his sta reviews them rst and then he reviews them. If
both parties are represented by counsel, then he does not
focus too much on the details of the agreement. If a party
is pro se, he will pay more aention to the details of the
Agreement and will sometimes scrutinize the agreement
more for fairness.
Green encourages aorneys to move the cases along.
When he came on the bench, he recognized a need to
increase the number of domestic court days on the court’s
calendar. He prefers smaller calendars so that he can give
the appropriate amount of time per case, without making
aorneys and parties wait around for their turn. Green has
at least 1 domestic day for cases with aorneys, 1 domestic
pro se day and 2 - 4 days per month for specially set cases.
He usually reads the le and motions before any hearing
or trial, especially if the case is specially set. Forty percent
of his current workload is domestic cases. He started out
with 3,000 pending cases, but has reduced his case load to
approximately 1,200 pending cases. Through aggressive
case management he has reduced his case load by more
than one-half. Green believes that most cases should not
take as long as they do, and that most divorce cases should
be resolved in less than one year.
With regard to continuances, he will usually grant the
rst or second continuance, but will not automatically
grant any continuances aer that. Unless there is a good
reason or a conict, aorneys should not continue family
law cases given the emotional nature of these disputes.
He prefers the parties aend mediation, although he
does not require it prior to a temporary or nal hearing.
He also feels that the judicially hosted mediation with
the senior judges is not used oen enough. Senior Judges
are able to accurately value the case, and their result is
usually the right result and on the mark. In order to aend
a judicially hosted mediation, you need to obtain an order
from the judge assigned to the case.
Custody is the toughest issue in family law cases,
especially when both parents are either good or bad parents.
In addition to custody, one of the most dicult
family law decisions is how to force someone to pay in
contempt cases. This is particularly true when the person is
unemployed and has no income. One solution when they
are employed is to incarcerate them and recommend them
to the Sheri’s Work-Release program. This allows them
to continue to work and pay their obligations while also
punishing their contemptuous conduct.
Green has observed the family violence statutes
being used as leverage in divorce cases. He recommends
obtaining a temporary hearing as soon as possible aer the
ex-parte hearing because of the severity of the remedies
in a family violence action. Regarding family violence
cases, Green, if he hears them, is not as likely to enter a
temporary protective order without independent evidence,
such as bruises, photos, police reports, etc.
Interview with Hon. Reuben Green
by Gary Graham
Summer 201215
Divorce Case
If custody is truly an issue, Green appoints a guardian ad
litem (GAL). He sees some parties using custody as leverage
even though they are the breadwinners in the family and
the other spouse has been a stay-at-home spouse. If he feels
that the custody dispute is for leverage in the divorce case,
he will make that party pay for the GAL, or depending on
the outcome of the custody evaluation, he may make an
adjustment for the cost at the end of the case based on the
parties’ incomes. Oen times when he tells a party they
will be responsible for paying the GAL fees for the custody
dispute, they will back down from their request for custody
when it is a leverage based custody situation.
Having been a trial lawyer, Green believes that he can
frequently tell when the witnesses are exaggerating their
position or outright lying. So be careful how you and your
clients conduct yourselves while in the courtroom.
Green will rely on adavits produced at a temporary
hearing depending on the relationship of the aant, such
as a non-biased witness like a teacher, family psychologist,
etc. It is the quality, not the quantity, of the evidence in the
adavit. He can usually tell by listening to the parties’
testimony as to the truth of the allegations without the
need for much in the way of adavits.
In short, yes, but it depends on the circumstances,
such as whether a child will be harmed, and the physical
evidence supporting the conduct. As to adultery, he will
not focus so much on that, but it will be in the back of his
mind. He feels that dealing with the children is the most
important aspect in dealing with the conduct of the parties.
Green received his J.D. with Honors from Emory
University School of Law and a Bachelor of Arts Degree in
Political Science from Lewis & Clark College in Portland,
Ore. At Lewis & Clark, he was one of approximately 10
members of the Young Conservatives. He and his other
members were obviously in the minority.
Before aending college, he served on active duty in the
United States Marine Corps. While serving as a Marine, he
received the Good Conduct and National Defense Medals,
was meritoriously promoted twice and was Honorably
Discharged aer four years of active duty. Green stated that
he would have dropped out of high school if the Marines
had not required a high school diploma to enlist.
Green began his law career at King & Spalding, where
his practice focused on employment discrimination,
product liability and general civil litigation. He was
working at the Washington, D.C. oce of King & Spalding
on Sept. 11, 2001. Aer witnessing the events of 9/11,
he decided to become a prosecutor. Immediately prior
to coming onto the bench, Green was a special assistant
United States aorney in the Northern District of Georgia,
where he prosecuted drug tracking organizations and
violent career criminals. He also served as an assistant
district aorney for Cobb County, where he handled the
prosecution of over a thousand felony criminal cases.
Green and his wife have two children and are Cobb
County Foster Parents.
Green feels that his criminal prosecution background
shapes him as a judge because he tried many cases as a
litigator. Because of his criminal prosecution background,
he understands litigation, trial work, having witnesses
lined up and objections to evidence. He feels that generally
in domestic cases it is beer to have a bench trial than a
jury trial. However, if the facts are right, then a jury trial
may be benecial but you should be able to justify the
additional time and cost to your client. FLR
and Edlin, P.C., where he has exclusively practiced divorce
and family law since February 2000. He received his Bachelor
of Science Degree in Justice Studies from Georgia Southern
Honor Society. He received his Juris Doctor, Cum Laude, from
The Family Law Review 16
E
ven with the Supreme Court of Georgia’s “Pilot
Project” for Discretionary Appeals in domestic
relations cases, most family law cases are not
appealed. With “abuse of discretion” as the most common
standard of review for a contested custody or support
case, most clients do not wish to pay for an appeal aer
their counsel has explained the uphill bale that they will
surely face. With the Supreme Court extending its Pilot
Project, however, more and more family law practitioners
are learning the complicated rules surrounding appellate
advocacy, as well as the narrow exceptions applied in
family law cases.
During the pendency of the appeal (or a Motion for
New Trial in some cases), common questions asked by
clients include “Which order am I supposed to follow?”
and “How do I handle custody and visitation during the
appeal?” Under O.C.G.A. § 5-6-46, a notice of appeal to
a nal order serves as supersedeas, depriving the trial
court of jurisdiction to take further action towards the
enforcement of the judgment superseded. The parties must
then look to the provisions of the temporary order as it
relates to support. Sounds simple enough on the surface,
but a host of questions can arise during the pendency of the
appeal that may put your client in a very dicult position.
For example, how do you advise your client if the
support payments under the nal order are signicantly
less than the support payments under a temporary order?
Your client wants to pay under the nal order but, while
the case is pending appeal, only the provisions of the
temporary order are in eect. What happens if your client
cannot manage to make the higher payments throughout
the duration of the appeal? If the nal order is armed,
does your client get a credit for the higher support
payments he made during the pendency of the appeal?
If so, going back to what date? In the alternative, if the
support payments under the temporary order are less
than the support payments ordered under the nal order,
can the opposing party seek to be paid the higher support
payment from the date the nal order was entered?
The same question applies to custody provisions when
a case is under appeal. Suppose that the custody and
visitation provisions in the nal order are in your client’s
favor. The opposing party has led for an appeal. Your
client is strongly against going back to operating under the
provisions in the temporary order because they severely
limited his ability to see his children. Or, for whatever
reason, a temporary order was never entered in the case.
What are your client’s options? What advice do you give
your client?
We address the answers to these questions in this article
and address the eect of supersedeas in a hotly litigated
divorce or modication case. We have divided the analysis
between support and custody because the answers can
dier depending on the issue your client is facing.
When it comes to support payments, the case law had
been nothing short of confusing until recently. One line of
Supreme Court decisions supported the proposition that,
while a case is under appeal, a temporary order governing
temporary support continued in full force and eect until
a nal order was conrmed in the case. In these cases,
such as McDonald v. McDonald or Bickford v. Bickford, it
did not maer that a party could have paid hundreds
or thousands more under the provisions of a temporary
order than under the nal order.
1
The new support
payment amount was not considered in eect until the
nal order was armed and remied back to the trial
court.
2
The obligor received no credit for his or her excess
payments between the time the nal order was entered by
the trial court and armed on appeal.
On the other hand, there is another line of Supreme
Court decisions which stood for the opposite proposition.
If a nal order was armed on appeal, these cases held
that the provisions of a nal order were considered to be
in eect as of the date the nal order was initially entered.
These cases, such as Nicol v. Nicol or DuBois v. DuBois,
discussed below, suggest that there should be adjustments
made for any payments made while the case was on
appeal.
3
A party who was ordered under the temporary
order to pay higher support payments received a credit
towards future payments aer the nal order was armed.
Addressing rst the line of case law that supports the
most literal reading of the Georgia Code, McDonald v.
McDonald was a case where a Husband sought credit for
alimony payments he made under a temporary order in
a subsequent Contempt hearing.
4
Under the temporary
order, the Husband was ordered to pay periodic alimony
to the Wife.
5
Under the nal order, however, he was not.
6
The nal order was armed on appeal.
7
The Wife brought a
Contempt action against the Husband for his failure to make
certain payments under the nal order, and the Husband
argued that he should receive a credit for the alimony he
had paid to his Wife during the pendency of the appeal.
8
The Supreme Court disagreed with the Husband and held
that a judgment for temporary payments continues in full
force and eect until a nal order in a case.
9
In this case,
the appealed nal order was not a “nal” order until it was
armed on appeal and remied to the trial court.
Effect of Supersedeas in a Hotly Contested
Divorce Case
Summer 201217
Almost 30 years later, the same reasoning was applied
to a slightly dierent situation. In Langley v. Langley,
periodic support payments were ordered under the
temporary order and a lump sum payment was ordered
under the nal order.
10
The facts were slightly dierent
in this case and involved the application of temporary
alimony payments to a permanent award of lump
sum alimony pursuant to the terms of an ante-nuptial
agreement.
11
At the trial court and on appeal, the Husband
argued that the payments of temporary alimony during the
course of the case should oset his obligation to pay the
lump sum payment under the nal order.
12
The Supreme
Court rejected this argument.
The Supreme Court again held rmly to the idea that
“Until the permanent award of alimony becomes nal, the
parties are bound by the interlocutory order of the trial
court.”
13
In addressing the argument, the Court noted that
“the very nature of temporary alimony militates against the
oset of such amounts” because of the dierent character
and purposes of temporary alimony as compared to
permanent alimony.”
14
The Court stated that the purpose of
temporary alimony was to “take into account the peculiar
necessities of the spouse at the time and provides the
means by which that spouse may contest the issues in the
divorce action” and “to meet the exigencies arising out of
the domestic crisis.”
15
Contrary results, however, were reached in another
line of cases such as Nicol v. Nicol, and DuBois v. DuBois.
16
In Nicol v. Nicol, the Supreme Court indicated that the “the
eect of the supersedeas of the nal order was to suspend
all proceedings for the enforcement of the judgment, and
when the judgment was armed, it had full force and
eect as of the date it was entered.”
17
In Nicol, the permanent
awards of alimony and child support were greater than
under the temporary order.
18
Because the nal order was
armed on appeal, the Supreme Court stated that the
greater sums of alimony and child support came due on
the date the nal order was entered during the appeal and
that those greater sums still had to be paid.
19
The amount
owed was merely subject to a set-o from the temporary
alimony and child support amounts that had already been
paid for the period of the appeal.
20
Essentially, the new,
higher support payment became due retroactively.
The same line of reasoning was followed in DuBois v.
DuBois.
21
In DuBois, however, the scenario was reversed
such that the payments under the temporary order (when
you include all the bills the Husband was paying) were
higher than the payments under the nal order.
22
The
Husband in this case had been paying higher temporary
support (in total) to the Wife under the provisions of
a temporary order during the appeal.
23
The Supreme
Court relied on its reasoning in cases like Nicol v. Nicol
and stated that “Under the same reasoning, it is only
equitable that a credit should be allowed in the converse
situation where,…, the nal decree awards overall
lower alimony and child-support payments than did the
temporary order …”
24
The conicting case law nally came to a head in the
2010 case of Robinson v. Robinson, which forced the Supreme
Court to make a ruling in one direction or another.
25
In
Robinson, the parties had a temporary order in place before
the trial court entered a nal order in November 2008.
26
The
Husband led an application for discretionary appeal that
was denied.
27
The remiitur was entered in the trial court
on July 28, 2009.
28
Prior to the entry of the remiitur, the Wife led a
Motion for Contempt based on provisions of the temporary
order. She later amended her Motion to reect the
payments as indicated in the provisions of the nal order.
29
She initially sought to hold the Husband in contempt for
failing to pay alimony, child support, and medical expenses
under the temporary order for June, July, and August
2009, months aer the nal order had been entered.
30
The
Wife’s amended Motion for Contempt sought unpaid child
support under the provisions of the nal order, which
ordered higher child support payments, and included an
additional claim for unpaid alimony payments under the
provisions of the temporary order.
31
In what appeared to be an eort to reconcile the
conicting case law, the trial court aempted to apply both
lines of precedent when making a ruling on the Wife’s
Motion for Contempt by distinguishing the cases factually.
With respect to the child support payments, the trial court
followed the McDonald line of reasoning and found that the
Husband was not in contempt.
32
The trial court reasoned
that the payments in question were controlled by the
temporary order only until the entry of the remiitur and
the payments under the nal order did not take eect until
the entry of the remiitur.
33
On the other hand, the trial court used the Nicol line
of reasoning when it came to the alimony payments.
34
The Family Law Review 18
Even though the Wife was entitled to alimony under the
temporary order, she was not so entitled under the nal
order. Because the remier essentially armed the nal
order, the trial court held that no alimony was due as of the
date of the nal order and therefore the Husband was not
under an obligation to pay.
35
The Wife appealed the trial court’s decision forcing the
Supreme Court to resolve the diering Nicol and McDonald
precedents. The question on appeal was, upon return of the
remier, do permanent awards in a nal order take eect as
of the date of the entry of the remiitur or do they “relate
back” to the date of the nal order, with adjustments made
to reect payments made under temporary orders during
the pendency of an appeal.
In making its decision, the Supreme Court noted
that the nature of temporary alimony militates against
oseing the payments from a permanent alimony
order.
36
The Court stated that temporary alimony has a
very specic character and purpose “intended to meet the
exigencies arising out of the domestic crisis of a pending
proceeding for divorce; it takes into account the peculiar
necessities of the spouse at that time and provides the
means by which that spouse may contest the issues in the
divorce action.”
37
Ultimately, the Supreme Court relied on its holding in
McDonald discussed above that a spouse is not entitled to
credit against permanent alimony payments for payments
made by that spouse pursuant to a temporary order while
the nal order was pending appeal.
38
The Supreme Court
stated that
…McDonald and similar cases represent the proper
rule; if not otherwise altered by the trial court, a
temporary award continues in eect until the entry
of the remiitur in the trial court, and it is from
that date forward that any permanent award in a
nal judgment and decree of divorce as eect. Nicol
and cases following its reasoning on this issue are
hereby overruled.
39
The Supreme Court held that the trial court erred in its
ruling that the Husband was not obligated for temporary
alimony amounts that had come due before the entry of
the remiitur in the trial court but had correctly ruled as to
child support.
40
Recent Case Law and Legislative Changes to Avoid the
Supersedeas Dilemma
Luckily, dealing with custody and visitation provisions
while a case is on appeal is far easier to handle than
support payments. Previously, trial courts were given
broad discretion and authority under O. C. G. A. § 9-11-
62 to condition supersedeas upon the giving of a bond
as a method of controlling an automatic supersedeas or
to deny supersedeas completely. Subsection (b) of this
statute provides that “The ling of a motion for a new
trial or motion for judgment notwithstanding the verdict
shall act as supersedeas unless otherwise ordered by the
court; but the court may condition supersedeas upon the
giving of bond with good security in such amounts as the
court may order.”
A trial court’s discretion and authority in this respect
was examined by the Supreme Court of Georgia in cases
such as Frazier v. Frazier and Walker v. Walker.
41
In Frazier,
the Supreme Court armed the trial court’s granting of
a party’s motion to exempt the custody provisions of the
nal order from automatic supersedeas.
42
In its decision,
the Supreme Court partly relied on an earlier decision
in Walker v. Walker, and expanded the time frame during
which the trial court can exempt a provision of a nal
order from supersedeas .
The Frazier and Walker rulings
were armed again in the recently decided case of
Blackmore v. Blackmore.
44
In Blackmore, the trial court entered an order on an
emergency petition until a nal order could be entered
modifying the parties’ custody and visitation arrangements.
45
Aer entry of the nal order granting the Wife greater and
more liberal visitation with the minor children, the Husband
led for an appeal and a motion to enforce supersedeas.
46
The trial court denied his motion and, in its order, expressly
exempted the custody and visitation provisions of its order
from any supersedeas eect.
47
On appeal, the Husband
argued that since his notice of appeal of the nal order and
payment of appeal costs triggered automatic supersedeas of
the nal order, the trial court could not exempt the custody
and visitation provisions once he led his appeal. He also
argued that the provisions of the emergency order should
have remained in eect and governed custody and visitation
pending the appeal of the nal order.
48
The Court of Appeals
disagreed and ruled that the trial court did not err by
resolving the issue of supersedeas aer the Husband had
led his appeal.
49
Relying on the Supreme Court’s decision in Walker,
the Court stated that “Nothing in Walker indicates that
the court must include the language at the time the order
is entered in order to eectively modify the automatic
supersedeas. Indeed, the Supreme Court referred to the
party [in Walker] as “appellee,” indicating that the party
could seek such remedy aer a notice of appeal had been
led.”
50
Looking to the Supreme Court’s decision in Frazier
as well, the Court of Appeals stated “As it concerned the
supersedeas eect of a motion for new trial, Frazier clearly
contemplated a post-nal-order adjustment to exempt
the custody provisions of a nal order from automatic
supersedeas.”
51
In addition to the recent case law, the legislature has
addressed this issue this year with O.C.G.A. § 5-6-34 and
O.C.G.A. § 5-6-35. By adding subsection (e) to O.C.G.A.
§ 5-6-34 and subsection (k) to O.C.G.A. §5-6-35, the
legislature has resolved all questions regarding provisions
of custody and visitation during an appeal. O.C.G.A. §
5-6-34(e) and §5-6-35(k) provide that “Where an appeal
is taken pursuant to this Code section for a judgment
or order granting nonmonetary relief in a child custody
case, such judgment or order shall stand until reversed or
modied by the reviewing court unless the trial court states
otherwise in its judgment or order.” The only limitation on
this new subsection is that it only applies to all notices or
applications of appeal led on or aer July 1, 2011.
Conclusion
With the continuation of the Pilot Project, family
law aorneys will continue to be faced with dicult
questions to answer and problems to address when
considering an appeal. At least as to questions of
support custody and visitation, the Supreme Court and
legislature have provided some denitive direction to
navigate these waters.
So, with the recent legislative changes and case law,
you can condently tell your client that the nal order will
control as it relates to the custody or visitation aspect of
your case. When it comes to support, however, Robinson
clearly establishes that the temporary order will control.
If you represent the support obligor whose temporary
obligation was reduced in a nal order, you will have to
perform a cost/benet analysis that includes the extra
support payments for which he or she will not receive a
credit when considering whether to appeal. If the support
obligator is not the one appealing, then at least you can
save him or her the cost of researching this issue.
Of course, not every article can address every issue.
If you have reached the end of this article and nd
yourself asking, “So what do I Tell the client who just won
custody in a modication action and the other parent has
appealed?” New statutory law clearly shows that your
client would maintain custody pending the appeal, but
does Robinson require him or her to pay child support,
under an old order when he or she has custody of the kids?
That question will be addressed in our next article. FLR
Patrick “Leh” Meriwether is a founding
member of Meriwether & Tharp, LLC and
and family law. He now concentrates his
practice solely on domestic relations cases,
particularly those involving business
interests. He received his Juris Doctorate
and his full biography can be read at
www.divorcelawyeratlanta.com.
Emily Yu received Juris Doctorate from
lectured for the Atlanta Volunteer Lawyers
Foundation, Atlanta Bar Association,
and the Institute for Continuing Judicial
Education. She specializes in family law
and is currently an associate at Meriwether and Tharp, LLC in
and her
full biography can be read at www.divorcelawyeratlanta.com.
(Endnotes)
1 McDonald v. McDonald, 234 Ga. 37 (214 S.E. 2d 493) (1975; Bickford v.
Bickford, 228 GA. 353, 355 (185 S.E.2d 756) (1971)
2 Id.
3 Nicol v. Nicol, 240 Ga. 673 (242 S.E. 2d 129)(1978). DuBois v. DuBois, 250
Ga. 271 (297 S.E. 2d 277) (1982).
4 McDonald v. McDonald , 234 Ga. 37 (214 S.E. 2d 493) (1975)
5 Id.
6 Id.
7 Id.
8 Id. at 39
9 Id. citing Bickford v. Bickford, 228 Ga. 353, 355 (185 S.E. 2d 756) (1971).
10 Langley v. Langley, 279 Ga. 374, 375 (613 S.E. 2d 614) (2005).
11 Id.
12 Id.
13 Id. at
14 Id. at 375 citing Coleman v. Coleman, 240 Ga. 417, 420 (240 S.E. 2d 870)
(1977)
15 Id.
16 Nicol v. Nicol, 240 Ga. 673 (242 S.E. 2d 129) (1978), DuBois v. DuBois, 250
Ga. 271 (297 S.E. 2d 277) (1982).
17 Id. (Emphasis added)
18 Id. at 551.
19 Id. at 673-674.
20 Id.
21 DuBois v. DuBois, 250 Ga. 271 (297 S.E. 2d 277) (1982).
22 Id.
23 Id.
24 Id. at 272.
25 287 Ga. 842 (700 S.E. 2d 548) (2010).
26 Id.
27 Id.
28 Id.
29 Id. at 843.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.
35 Id.
36 Robinson v. Robinson, 287 Ga. 842 (700 S.E. 2d 548) (2010) (citing
Coleman v. Coleman, 240 Ga. 417, 410, 240 S.E.2d 870 (1977))
37 Id.
38 Id. at 846.
39 Robinson v. Robinson, 287 Ga. 842, 847 (700 S.E. 2d 548) (2010).
40 Id.
41 Frazier v. Frazier, 280 Ga. 687 (631 S.E.2d 666) (2006), Walker v. Walker,
239 Ga. 175 (236 S.E.2d 263) (1977).
42 Id.
43 Walker v. Walker, 239 Ga. 175 (236 S.E.2d 263) (1977).
44 Blackmore v. Blackmore, 2011 Ga. App. LEXIS 873; 2011 Fulton County
D. Rep. 3111
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Id.
51 Id.
The Family Law Review 20
Y
ou have all had cases wherein a child of divorce
refuses to visit or have meaningful contact with one
parent. Sometimes the reasons are obvious. (Perhaps
the child is the victim of abuse.) Other times there doesn’t
appear to be a logical reason for refusing visitation. Too
oen, the parents provide conicting explanations for the
child’s refusal to see one parent. The parent whom the child
refuses to see oen accuses the aligned parent of poisoning
the mind of the child. The aligned parent asserts that there
are valid reasons for the child to refuse to visitation and
defends the child’s behavior as healthy, given the alleged
inappropriate behavior of the other parent. As in all child
custody conicts, dichotomous thinking does not provide
an accurate understanding of a particular set of behaviors.
Rather, looking at a continuum from a healthy relationship
between child and parent all the way to a completely cut
o relationship will yield the complexity of factors that
lead to the child refusing visitation.
In 1987, Richard Gardner wrote a book aempting
to explain one possible dynamic that may lead to a
child refusing visitation. His theory, Parental Alienation
Syndrome, was initially dened as “… a disturbance in
which children are preoccupied with depreciation and
criticism of a parent-denigration that is unjustied and/or
exaggerated (p. 67-68).” Dr. Gardner went on to say that:
The concept of parental alienation syndrome includes
the brainwashing component, but it is much more
inclusive. It includes not only conscious but subconscious
and unconscious factors within the programming parent
that contribute to the child’s alienation from the other.
Furthermore (and this is extremely important), it includes
factors that arise within the child-independent of the parental
contributions- that play a role in the development of the
syndrome. In addition, situational factors may contribute, i.e.,
factors that exist in the family and the environment that may
play a role in bringing about the disorder (p. 68).
Richard Gardner’s theories focused on a suspected
parent who engaged in a campaign to denigrate the
other parent in the eyes of the child as well as on specic
psychological vulnerabilities in the child, making them
susceptible to the denigrating messages. Although he
acknowledged other external inuences, he remained
focused on a joining together of a vulnerable child and an
alienating parent.
In 2001, Joan Kelly and Janet Johnston wrote an article
for the Family Court Review that reformulated the theories
of John Gardner and others, and aempted to view child
refusal in a way that was subject to scientic inquiry. The
new theory would direct future research to clarify the
underlying dynamics involved in situations where children
refuse visitation. The authors wrote:
This formulation proposes to focus on the alienated
child rather than on parental alienation. An alienated
child
persistently, unreasonable negative feelings and beliefs
(such as anger, hatred, rejection, and/or fear) toward
child’s actual experience with that parent. From this
viewpoint, the pernicious behaviors of a “programming”
parent are no longer the starting point. Rather, the
problem of the alienated child begins with a primary
focus on the child, his or her observable behaviors, and
focus enables the professionals involved in the custody
of an alienated child and, if so, to use a more inclusive
framework for assessing why the child is now rejecting a
Kelly and Johnston (2001) looked at many factors why
children refuse visitation. They categorized those factors
as follows:
Visitation Refusal: Realistic Response,
Allied or Alienation
Atlanta Behavioral Consultants
Summer 201221
Resistance rooted in normal developmental processes
(e.g., normal separation anxieties in the very young
marriage and divorce (e.g., fear or inability to cope with
to a parent’s parenting style (e.g., rigidity, anger, or
insensitivity to the child), resistance arising from the
child’s concern about an emotionally fragile custodial
parent (e.g., fear of leaving the parent alone), and
resistance arising from the remarriage of a parent
(e.g., behaviors of the parent or stepparent that alter
Kelly and Johnston (2001) described a relationship
continuum between children and their parents that occurs
post-separation or divorce. Although their focus was on
children of separation and divorce, the continuum they
describe also exists in the relationship between children
and their parents in intact families.
On one end of the spectrum, described by Kelly and
Johnston (2001), is a Positive Relationship with both
parents. These children enjoy spending time and look
forward to seeing each of their parents. The next step
on the continuum is the child who has an Anity with
one parent. This child wants a relationship with both
parents. Kelly and Johnston wrote about this type of
parent child relationship: “By reason of temperament,
gender, age, shared interests, sibling preferences of parents
and parenting practices, these children feel much closer
to one parent than the other (p. 252).” This anity can
change from parent to parent over time. The third step
on the continuum is the Allied children. Children that are
allied have a consistent preference for one parent over
the other. Although these children prefer time with one
parent, they rarely cut o contact with the other parent.
Kelly and Johnston described the children at this step as
expressing ambivalence about the parent they are not allied
with. The child in this type of parent-child relationship
oen expresses, “… anger, sadness, and love, as well as
resistance to contact (p. 252).”
Kelly and Johnston’s (2001) last
two steps on the continuum describe
relationships between a child and a
parent that are severely disrupted.
The rst type of relationship in this
category is labeled the Estranged
children. These children are estranged
from one of their parents due to
inappropriate behavior from their
parent. The behaviors can include
verbal or physical abuse or neglect.
Kelly and Johnston wrote regarding the
estranged children, “Among this group
of children who are estranged as a
cumulative result of observing repeated
violence or explosive outbursts of a
parent during the marriage or aer
separation, or who were themselves
the target of violence and abusive
behavior from this parent (p. 253).” They added: “Oen,
they can only feel safe enough to reject the violent or
abusive parent aer the separation (p. 253).” The last step,
described as the describes the child who
rejects a parent, “…stridently and without apparent guilt
or ambivalence (p. 254).” Kelly and Johnston wrote:
For the most part, these rejected parents fall within
the broad range of “marginal” to “good enough,”
and sometimes “beer” parents, who have no
history of physical or emotional abuse of the
child. Although there may be some kernel of truth
to the child’s complaints and allegations about
the rejected parent, the child’s grossly negative
views and feelings are signicantly distorted and
exaggerated reactions (p. 254).
Oen children who are alienated from a parent are
unable to describe even one good quality in that parent.
Many complaints center on normal parental behaviors
that most children will nd annoying. This child might
complain that the parent limits their video game playing
or makes them do their homework. A child may complain
that the parent they refuse to see makes them practice
their musical instrument before they go out to play. The
child’s complaints are disproportionate to the parental
demand. The child may act as if the parent is torturing
them when in fact the parent had not let the child play an
inappropriate video game or see a movie that was not age
appropriate. Some of these children will have complaints
that include allegations of emotional and physical abuse
and possibly sexual molestation. The alienated child oen
cuts o communication and refuses to visit with family
members on the rejected parent’s side of the family. This
includes grandparents, aunts, uncles, and cousins, that
the child enjoyed spending time with prior to the cut
o from the parent. Commonly these children complain
about things that children usually do not complain about.
In more than one case the authors have been involved
in, a child complained that they did not want to see their
grandparents because, “All my grandparents ever want to
do is go to places like Disneyworld, Universal Studios, or
The Family Law Review 22
take us to the beach.” Typically, children do not complain
about going to such places with their grandparents.
Leslie Drozd (2009) wrote:
Many divorce cases that include allegations of domestic
violence now come with counterallegations of parental
alienation. When assessing for one, it is necessary to
assess for the other, just as assessment for substance
abuse must be assessed concurrently with allegations of
Drozd continued:
Similarly, when evaluating alleged abuse one should
screen for alienating behaviors, and when the presenting
problem or allegation is alienation, one should
investigate whether there has been abuse. The presence
of abuse does not rule out alienating behaviors by the
parent, nor does the presence of alienating behavior
rule out the occurrence of abuse. It is possible to assess
the extent to which alienation, alienating behavior,
and abuse impact a child only through a systematic
When children refuse visitation, a child custody
evaluation is one option to assess both parents, the
children, and examine many factors that have led to this
situation. A Guardian ad Litem evaluation is another
method oen used to assess these situations. One of the
limits of the GAL evaluation is that it does not examine
the depth of any psychopathology in the parents or
the children that may be contributing to the child’s
behavior. Any professional conducting an investigation
must not assume that the child refuses visitation due
to inappropriate behavior or abuse from the parent the
child will not see, or assume that any type of alienation
exists. Both positions can lead the examiner to approach
the evaluation with conrmatory bias or other types of
cognitive distortions that could lead to a biased evaluation
or biased assessment of the data. David Martindale
(2005) dened conrmatory bias as, “The inclination to
seek information that will conrm an initially-generated
hypothesis and the disinclination to seek information that
will disconrm that hypothesis.
The child custody evaluator must thoroughly assess the
characteristics and behavior of the parents and the children.
There must be a detailed history of the parent-child
relationship prior to the visitation refusal. Interviews with
collateral contacts are extremely important in obtaining a
sense of the quality of the parent-child relationship before
the refusal, aer the refusal, and the events leading up
to the refusal to visit. The conclusions of the evaluator
must oer explanations about the process that has led the
specic child to reject or refuse to visit a specic parent.
The evaluator should also discuss alternative theories that
might explain the child’s refusal.
As in most complex family law cases, there is danger
in overly simple explanations for complex behaviors
and relationships. Prior to the start of any child custody
evaluation there needs to be a clear question of what
behaviors are under examination. Having a court order
requesting a child custody evaluation to explore why a
child is refusing visitation with a parent is a much beer
question than an order to assess if a parent has alienated a
child against the other parent. The rst approach opens the
investigation to assessing the many reasons why a particular
child refuses to see a parent. The laer approach aempts to
t a specic theory to a set of behaviors. That approach also
sets up the evaluation for possible conrmatory and other
types of bias. A child custody evaluation that conforms to the
AFCC Model Standards of Practice for Child Custody Evaluation
(2009) is the most likely procedure to answer the question of
why a child refuses visitation. FLR
We welcome your comments, questions, and would
appreciate your feedback.
Visit the Blog of the Atlanta Behavioral Consultants:
www.TheAtlantaBC.com.
Howard Drutman, Ph.D. is a psychologist
in Roswell who specializes in forensic
psychological services in family law cases.
He provides Child Custody Evaluations,
Parent Fitness Evaluations, Drug/Alcohol
Psychotherapy, Parent Coordination,
Coparenting Counseling, Parenting
on Issues Related to Divorce and the Best Interest of the
Child, Reviews of Mental Health Professional Reports, and
Collaborative Divorce Coaching.
Marsha Schechtman, LCSW is a Licensed
Clinical Social Worker who also specializes
in divorce related psychological services
such as Child Custody Evaluations,
Parent Coordination, Coparenting
Counseling, Psychotherapy, Parenting Plan
Development, Mediation, and Collaborative
Divorce Coaching.
References:
Drozd, Leslie D. (2009) Rejection in Cases of Abuse or
Alienation in Divorcing Families. In Galatzer-Levy, Robert
M., Kraus, Louis, & Galatzer-Levy, Jeanne (Eds.) The
Scientic Basis of Child Custody Decisions (pp. 403-416)
John Wiley & Sons, Inc.
Gardner, Richard A. (1987) The Parental Alienation
Syndrome and the Differentiation Between Fabrication
and Genuine Child Sex Abuse. Cresskill, NJ: Creative
Therapeutics
Gould, Jonathan W., & Martindale, David A. The Art and
Science of Child Custody Evaluations. New York, NY: The
Guilford Press
Kelly, Joan B., & Johnston, Janet. The Alienated Child: A
Reformulation of Parental Alienation Syndrome (2001).
Family Court Review, 39(3), 249-266
Model Standards of Practice for Child Custody Evaluations
(2009). Family Court Review, (45) 1 70-91.
The authors want to thank Judy Neukrug, for her assistance in
the editing of this article.
Summer 201223
Direct Appeal
A12A0294 (April 27, 2012)
The parties were divorced in 1997 in Muscogee County.
The husband was named primary custodian of the couple’s
children. In 2010, the husband sent the child Allison, then
19, and her brother to visit the mother in Spokane, Wash.
where she resided. Allison is mentally challenged and
will require care and supervision her entire life. However,
the mother did not return Allison to Georgia and instead
led a Petition for Limited Guardianship of Allison in the
Superior Court of Spokane, Wash. and that Allison made an
independent determination to remain in Washington.
The father led a Petition for Declaratory Judgment
and Petition for Citation of Contempt in the Superior
Court of Macintosh County where he and Allison resided
prior to her visit to Washington to see her mother. The
petition declared that Paon was the lawful custodial
parent of Allison and that the mother is required to pay
child support until Allison reaches the age of 20 years. The
mother led an Answer and Counterclaim and a Motion to
Dismiss the husband’s petition.
The court determined that the Macintosh Superior Court
had jurisdiction to determine the guardianship of Allison
and the father was the primary custodial parent and the
natural guardian of Allison and ordered the mother to return
Allison within 15 days. The trial court also determined
the Superior Court of Muscogee County had jurisdiction
to consider the Citation for Contempt and the trial court
transferred the Petition to Muscogee County. The mother
timely appealed this order but the father moved to dismiss
the appeal on the grounds that all appeals in domestic
relations cases are discretionary pursuant to O.C.G.A. §
5-6-35. The father also argued that because the Order was
interlocutory the mother was required to obtain a certicate
of immediate review before she led an appeal pursuant to
O.C.G.A. § 5-6-34(b). The trial court granted the Motion and
dismissed the mother’s appeal. The mother appeals and the
Court of Appeals reversed.
Under O.C.G.A. § 5-6-34(a)(11) direct appeals may be
taken from all judgments or orders in child custody cases
including, but not limited to, awarding or refusing to
change custody or holding or declining to hold persons in
contempt of such child custody judgments or orders. The
Georgia courts have interpreted this section as permiing a
direct appeal of an order in a child custody case regarding
which parent has custody regardless of the nality and
thus such orders are not subject to the interlocutory or
discretionary appeal procedures. The trial court’s order had
the father retain primary custody of Allison even though
she had reached the age of majority and in spite of the
mother’s petition for guardianship in Washington was a
refusal to change custody and thus was directly appealable.
Appleton vs. Alcorn, et al. S11G1145 (May 29, 2012)
Alcorn was the executrix of the estate of her father
Richard Alcorn, and brought a breach of contract action
in which they asserted that their father’s second wife,
Appleton, contractually waived her right to retain the
proceeds of their deceased father’s employer provided
401(k) plan and life insurance policy by entering a
selement agreement incorporated into an order of
separate maintenance executed 1 year prior to his death.
The parties do not dispute the terms of the employment
benets plan paying benets to the second wife.
Alcorn asserts that she waived the right to keep funds
under the selement agreement which provided, that each
party waive any interest they had in the other party’s life
insurance proceeds, cash value and otherwise; release
any claims in any retirement account payment benets
privilege earned by the other; and waived all rights and
claims in any interest or shares.
The second wife moved to dismiss the action pursuant
to O.C.G.A. § 9-11-12(b)(6) arguing that the employee’s
retirement income secured the ERISA which barred
Alcorn’s state law claim. The trial court agreed with
Appleton and ruled that the breach of contract claim was
precluded because the waiver in the selement agreement
was not ERISA compliant. Alcorn appealed to the Court
of Appeals which reversed the trial court. Certiorari was
granted and the Supreme Court which upholds the Court
of Appeals ruling.
Caselaw Update
The Family Law Review 24
The purpose of ERISA is two-fold, rst to protect plan
participants and their beneciaries and to defray the
reasonable expenses of administering employer provided
benet plans. Once the plan administrator has paid out
the benets to the rightful participant or beneciary,
there is no longer a need for such protection because the
participant or beneciary has received the funds and the
plan administrator is no longer obligated to oversee that
participant’s or beneciary’s interest in the benet plan.
This court has previously held that ERISA covered benets
that have been paid to the participant or beneciaries are
not subject to the ERISA anti-alienation provisions. In
fact, once funds from an ERISA covered plan are received
by the proper participant and beneciary, the participant
or beneciary is not judgment proof and the funds are
not sheltered from state law causes of action. Since the
proceeds of the ERISA covered plans were paid out to the
Appleton and were no longer in the control of the plan
administrator, the trial court erred when it dismissed the
breach of contract claim.
Ennis v. Ennis, S12A0277 (April 24, 2012)
The husband led an action for divorce on June 28,
2010, seeking a divorce, alimony, division of marital
property and aorney’s fees. The husband relied solely on
the Georgia Long Arm Statute under O.C.G.A. § 9-10-91(5)
for personal jurisdiction over the wife. Wife answered on
Aug. 20, 2010, raising a lack of personal jurisdiction as her
rst armative defense and also led a motion to dismiss
for lack of personal jurisdiction. The trial court denied her
motion to dismiss for lack of personal jurisdiction. The
Wife appeals and the Supreme Court arms in part and
reverses in part.
The husband’s only bases for arguing the court has
personal jurisdiction over the wife is the Georgia Long Arm
Statute. The Statute states that a court may have personal
jurisdiction over a non-resident with respect to proceedings
for divorce if the non-resident maintains a marital domicile
in the state at the time of the commencement of the action
or if the defendant resides in the state preceding the
commencement of the action, whether cohabitating during
that time or not. The court has set forth a three part test to
determine if there are the minimum contacts need to confer
personal jurisdiction over a non-resident: (1) the non-
resident must purposely avail herself of the privileges of
doing some act or consummating some transaction with or
in the forum (2) plainti must have a legal cause of action
against the non-resident that arises out of activities of the
defendant within the forum, and (3) if the rst two prongs
are met, a minimum contact between the non-resident and
the forum exists and then the assumption of jurisdiction
must be found to be consistent with due process of fair play
and substantial justice.
The facts here were not sucient minimum contacts
for the wife to reasonably anticipate being haled into court
in Georgia. Wife has not lived in Georgia since 2003, the
wife does not own any property in Georgia and has not
transacted any business in Georgia since 2003. The last
marital domicile of the wife was in Richmond, Va. and
the circumstances giving rise to the dissolution of the
marriage occurred in Virginia. The wife’s only connection
with Georgia has been a brief visit during which she had
no contact with the husband. Since the rst 2 prongs have
not been met, the court does not have personal jurisdiction
over the wife.
However, Georgia courts do not need personal
jurisdiction over the wife to grant a divorce. O.C.G.A. § 19-
5-2 entitles the husband to gain access to Georgia courts for
the purpose of dissolving the marriage so long as he has
lived in the State for at least six months. Therefore, the trial
court erred in denying the wife’s Motion to Dismiss divorce
proceedings but the Trial Court had jurisdiction to grant
the Husband a divorce.
Viskup v. Viskup, 12A0276 (April 24, 2012)
The parties were married in 1998 and were divorced
in 2006. They had a son that was born in 2000. The Final
Judgment and Decree of Divorce entered in Cobb County
gave the father the primary legal and physical custody of
the child. In October 2008, the mother led a Petition for
Modication of Custody and Child Support in the Superior
Court of Cherokee County. The father led a Motion
to Dismiss for lack of venue and the Trial Court denied
and granted primary physical custody of the child to the
mother. The father appeals and the Supreme Court arms.
The father claims the Trial Court erred because child
custody modication actions have to be led in the legal
custodian’s county of residence. The mother led her
petition in Cherokee County on Oct. 17, 2008, and service
was perfected on the father in Cherokee County on Oct.
24. The father sold his home in Cobb County in late May
or early June of 2008 and rented an apartment in Cherokee
County and enrolled the child in a Cherokee County school
and entered a contract on Aug. 29 to purchase a home in
Cobb County. The father spent the nights of October 14 - 15
in the new home and closed on the new home, registered
his vehicle in Cobb County and changed his driver’s license
to Cobb County on Oct. 21 . He removed the child from the
Cherokee County school on Nov. 7.
The trial court ruled that while the father had the intent
to return to Cobb County in September, the father was a
resident of Cherokee County until his physical presence
changed on Oct. 21, the day he closed the purchase on the
Cobb County home and changed his Cobb County vehicle
registration driver’s license address. For the purposes
of venue and other jurisdictional questions, a person’s
residence at the time of ling of the suit is the determining
factor followed by service within a reasonable time. A
change of residence by the defendant aer the ling of an
action but before trial does not change the proper venue.
Since the mother led her modication petition on Oct. 17
the father was not a resident of Cobb County until Oct. 21.
Summer 201225
Wallin et al. v. Wallin, A12A0772 (June 27, 2012)
The parties led for divorce and the wife then sued
her father-in-law, Gene Wallin, claiming that he breached
an oral agreement to deed a parcel of property to her and
her husband. The wife alleges that she and her husband
took over the property, made improvements and paid
mortgages and in return, the father-in-law promised that
the property would be theirs aer the mortgages were
paid. The wife led the suit against the father-in-law but
her husband refused to join and she added her husband as
a co-defendant with her father-in-law.
The evidence at trial was the father-in-law agreed to let
the husband and wife use the property, that they would
pay both mortgages which equaled $2700.00 a month
and the taxes. When the mortgage was paid he would
deed the property over to the parties. Wife testied that
before her or her husband could take possession of the
property they hauled o trash, used insurance money to
build new structures, paid the mortgage insurance and
taxes, cleaned up and painted the buildings. The parties
paid $80,000 toward one mortgage and $73,740 toward the
other mortgage, and at the time of trial, the building on
the property was insured for $262,000. The jury awarded
damages to the wife of $276,000 against the husband and
the father-in-law on the claim of quantum meruit. The
father-in-law and her husband appeal and the Court of
Appeals armed in part and reversed in part.
The father-in-law argues that the evidence is insucient
to support damages against him. In order to recover on a
claim of damages based upon quantum meruit, the wife
had to present evidence that (1) her services were valuable
to the father-in-law, (2) her services were either at the
request of the father-in-law or were knowingly accepted
by him, (3) the father-in-law’s receipt of services without
compensating the wife would be unjust and (4) the wife
expected compensation for her services at the time she
provided them. Here, the fact nder must determine
in what amount the party receiving was beneted and
enriched by materials and services and must determine the
reasonable value of the work to the recipient. There was
evidence that the parties paid taxes and insurance on the
property and over $153,000 toward the mortgage, cleaned
the property, renovated the property and rebuilt an existing
building. Therefore the evidence was sucient to support
the verdict.
However, the wife was not able to recover from the
husband. The evidence at trial was that the improvements
and payments were made jointly by the husband and wife
and therefore there was no evidence to support the wife’s
quantum meruit claim against her husband. As previously
stated, there was no evidence at trial to support any of the
required elements against the husband.
(June 18, 2012)
The parties were married in July, 2009 and in November,
2010 the wife led a Complaint for Separate Maintenance.
The husband counterclaimed for divorce and the suit
was later converted to a divorce action. The wife sought
equitable division of marital assets and aorney’s fees. The
primary asset the wife sought was division of a closely held
non-prot corporation known as Georgia Tar Heel Sports,
Inc. (GTS) which sponsored and held weekend sports
tournaments for children in the metropolitan Atlanta area.
The enterprise was started, but not incorporated, 9 years
prior to the marriage of the parties. Aer the nal hearing,
the trial court found that the wife failed to establish that
GTS was subject to equitable division of property or that
GTS’ appreciated during the approximately 16 months
period that the parties lived together as husband and wife.
The court denied any additional claims of the parties and
ordered each one to retain their own personal property and
each responsible for payment of his or her own personal
debts and made no award of aorney’s fees. The wife
appeals and the Supreme Court arms.
A closely held corporation may be a marital asset
subject to equitable division in a divorce. Even a business
which was started as a result of separate premarital
funds may be subject to equitable division if there is any
appreciation in value of the business during the years of
the marriage due to the spouse’s individual or joint eorts.
However, appreciation of value during the marriage does
not render the asset subject to equitable division if the
growth is solely a result of market forces. Therefore, the
threshold inquiry would focus on whether there is any
increase in value of GTS during the marriage and if so
what was the basis of the increase. In order for the trial
court to determine whether any assets appreciated in value
during the marriage there must be evidence of the value of
the asset at the time of the marriage and at the time of the
divorce. Here, there is no such evidence in the case. At trial,
there were no expert witnesses as to GTS’s value. The wife
The Family Law Review 26
testied in generalities about the source of revenue and
that each team was charged about $250 a game, GTS would
host about 26 dierent teams on a Saturday and made
about $26,000 for one weekend from entry fees. GTS also
received commissions from hotel chains for having teams
stay at the hotel and would have a percentage from the
concession stands on each day of the weekend. However,
there is no evidence from which to determine the nancial
condition of GTS at the time of the parties’ marriage.
Pennington v. Pennington,(May 29, 2012)
Aer 13 years of marriage, the wife led a petition for
divorce and the husband led an answer and counterclaim
for divorce. In November, during a status conference, the
court discussed with the parties it’s intent to schedule a
jury trial to begin on Monday in early December, 2010. The
court further informed the parties that consistent with its
usual practice the child custody issues would be decided
at a nal hearing to be held on the Friday preceding the
Monday of jury selection. The following day, notice of jury
trial was mailed to the parties notifying them of a trial on
Dec. 13 and on Nov. 30 notice of hearing was mailed to
the parties notifying them of the child custody hearing
to be held on Dec. 10
, 2010. The night before the custody
hearing, the husband and wife discussed selement but
she refused to sign a dra. The next morning the husband
found a note on his windshield purportedly signed by the
wife stating we can sele it without any dispute or delay
and just ll in what the selement is.
The wife did not communicate with either the court
or the husband the morning of the nal custody hearing
which she chose not to aend. The court declined to
accept unveried notice of proof of a selement agreement
between the parties and, based on the wife’s failure to
appear at the hearing, struck her pleadings from the
docket including her demand for a jury trial, entered into
evidence the Guardian Ad Litem’s supplemental report
and proceeded to enter a nal judgment on the husband’s
counterclaim for divorce awarding the husband sole
custody of the children and all marital property. Wife
appeals and the Supreme Court arms.
Wife contends the trial court abused its discretion by
striking her pleadings and proceeding to a bench trial as
a sanction for failure to appear. A trial court may strike a
party’s pleading as a proper sanction for willful refusal
to participate in the proceedings pursuant to the Court’s
inherent power to suciently administer the cases upon its
docket. Here, the court informed the parties at a November
status conference of the nal hearing to determine all issues
related to child custody would be held on Friday before
that trial. The trial court also specically warned the wife,
who that day agreed to her counsel’s withdrawal, that
she needed to check her mail in a timely manner because
notices of upcoming hearings and trial dates would be sent
to her at the post oce address she provided to the court.
Despite proper notice of the hearing, the wife voluntarily
did not participate in the proceedings and did not
inform the court, either personally or by any authorized
representative, of any reason for her failure to appear.
The wife also argued she was excused from appearing
because she believed the maer was seled because she
had aended all other hearings. However, her failure to
appear is not excused by the fact that the night before the
nal hearing she le a note telling the husband to ll in
what the selement was. The Wife’s claims regarding her
participation are belied by the record which shows the
wife previously failed to aend a scheduled selement
conference and failed to respond to the husband’s
discovery requests. The wife also contends the court erred
by denying her the right to a jury trial or to present or
object to the introduction of evidence. Because the trial
court was authorized to strike her pleadings, including her
jury trial demand, it was a proper sanction for her failure to
participate in the proceedings.
Surveillance
, A12A0661 (July 13, 2012)
In the course of a divorce, the wife surreptitiously
installed several video surveillance devices in the marital
residence. The husband moved the court to exclude any
evidence that his wife might have derived from the video
surveillance. The motion was heard, but the trial court
denied it and did not exclude the evidence gathered from
the video surveillance. The husband appeals and the Court
of Appeals arms.
The husband contends pursuant to O.C.G.A. § 16-11-
62(2)(c) the exception to the general prohibition of certain
video surveillance did not apply. The pertinent part of
subparagraph (2)(c) provides that it is lawful to use for
security purposes, crime prevention or crime detection
Summer 201227
any device to observe, photograph or record activities of
persons who are within the curtilage of the residence of the
person using such device. Husband argues that it does not
apply because surveillance of persons within the residence
itself is not surveillance or persons who within the curtilage
of the residence. With regard to within the curtilage of the
residence, Section 2(c) extends the surveillance within the
curtilage. Therefore the common expression “within the
curtilage” would mean within another and therefore inside
the residence was within the curtilage.
Second he argues that his wife was not a resident of
the marital residence at the time she installed and used
the video surveillance devices. The evidence shows that
she did not sleep at the marital residence and had another
residential address but continued to keep clothes and other
personal items at the marital residence. She also paid a
portion of the mortgage for the residence, received some
mail at the residence and spent some portion of every other
day at the residence doing things like cooking, eating,
bathing and washing clothes. The law recognizes that a
person can have more than one residence.
The husband also contends that the video surveillance
device was not for a permissible purpose, i.e. mainly
security, crime prevention and crime protection. Here, the
wife did not monitor live video feeds but instead viewed
recordings of the video surveillance well aer the events
depicted in the recordings were complete. The court did
nd that the wife installed the devices surreptitiously and
therefore did not deter criminal conduct. Instead, the court
found the wife primarily was motivated by a desire to
capture evidence of the husband doing things that would
help her obtain custody of the children in the divorce
proceedings and used video surveillance devices for the
purpose of crime detection in so far as it was intended to
provide video evidence of any crime commied by the
husband, especially if the crime was commied against or
in the presence of the children. In addition, the wife testied
that she installed and used the video surveillance device in
an eort to discover and to document any harm the husband
might visit upon the children. Therefore, the Court armed
the trial court’s denial of the motion to exclude.
Brine v. Shipp, , (July 13, 2012)
The parties were married in 1997. Shortly aerwards, the
Wife was pregnant and told Shipp (her previous boyfriend)
that he was not the father of the child. The Husband was
listed on the birth certicate as the Father. In 2010, the
Husband led for divorce and the Wife informed Shipp that
she thought that he was the biological father of the child
and a DNA test proved it. Shipp moved to intervene in the
divorce action and led a Petition for Legitimation. The
superior court found that Shipp did not waive or abandon
an opportunity interest in developing a relationship with
the child and that it was in the child’s best interests to grant
the legitimation petition as part of the divorce proceedings.
The superior court terminated the Husband’s rights as the
legal father and granted Shipp’s Petition to Legitimate and
awarded Shipp primary physical custody of the child. The
Husband appealed and Supreme Court reverses.
Although the parties have not raised any objection to
jurisdiction, subject maer jurisdiction cannot be waived
or conferred on a court by agreement. This court has
previously held that the superior court lacks jurisdiction
to terminate parental rights in a divorce and child custody
case. In some cases, the superior courts have terminated
parental rights outside the adoption context, but the
Appellate Court decisions in those cases do not address
the issue of subject maer jurisdiction. Therefore, the
superior court could have subject maer jurisdiction
to sever the legal father’s parental rights, but this case
depends on whether the issue is considered primarily as
one involving legitimation or one involving termination.
The juvenile courts have exclusive original jurisdiction over
proceedings involving termination except in connection
with adoption. Superior courts have jurisdiction over
legitimation petitions led by the father of a child born out
of wedlock. The biological father’s petition to legitimate
the child who was born in wedlock is in essence a petition
to terminate the parental rights of the legal father. The case
started as a divorce and child custody dispute between the
husband and wife since all children born in wedlock are
deemed legitimate by law. The superior court is faced with
a situation where the biological father of the child sought
to de-legitimate the child and sever the existing father and
child relationship. Therefore, to grant the legitimation
petition, the superior court had to rst terminate the
parental rights of the legal father. The superior court did
not have jurisdiction to terminate the legal father’s rights.
Phillips v. Phillips, A12A0609, (July 12, 2012)
The parties led for a divorce but at the time the couples
married, the wife had a young son, KB that was not the
biological child of the husband. The husband was not the
legal or the biological father of KB. During the marriage, the
couple had a daughter KP. At the rst temporary hearing,
the court awarded joint physical custody of the daughter
(KP) and granted the mother primarily physical custody of
KB and awarded the father visitation with KB. The court also
stated in the order the wife was not to be around Timothy
White, the mother’s boyfriend. The husband led for
contempt saying the mother was still living with White and
a hearing was held. The maternal grandmother and DFACS
become involved in the situation because KB had bruises on
his face. Aer the hearing, the trial court granted primary
physical custody of KP to the husband and continued joint
legal custody with KB. Another hearing was held in which
the Guardian Ad Litem testied that it was in the children’s
best interests for the husband to have primary custody and
that KB was terried to return home to his mother while
she was living with White. The trial court entered a third
temporary order awarding sole legal and physical custody
of KP and KB to the husband and provided visitation to the
maternal grandmother. The mother appealed and the Court
of Appeals reverses.
The Family Law Review 28
Only the mother of a child born out of wedlock is
entitled to custody unless the father legitimates the child
as provided pursuant to Code Section 19-7-22. Otherwise,
the mother may exercise all parental control over the child.
Although the trial court in this case went to great eorts
in making a factual determination that it was in the best
interests of KB for the husband to have custody, the former
step-father is not given the same status as a grandparent,
great-grandparent, uncle, aunt, great aunt, great uncle,
sibling or adoptive parent. The juvenile court is le with
no discretion between the parties to determine which
placement would be in the child’s best interests.
Curran v. Scharpf, (March 23, 2012)
The parties were divorced following a jury trial but the
wife contends, among other things, the trial court erred
in upholding the nal decree’s jury’s alleged erroneous
ndings that the Individual Retirement Account (IRA) in
the husband’s name was the husband’s separate property
and was not subject to equitable division. The husband
claims on appeal that the wife waived any alleged errors in
a jury verdict when her counsel stated armatively that the
wife had no objections to the form of the verdict returned
by the jury. The Supreme Court arms.
The wife’s failure to object to the form of the jury verdict
does not mean that the wife has somehow waived her right
to make a substantive challenge of the evidentiary basis
for the jury’s award on appeal. The wife’s argument has
nothing to do with the form of the verdict which may have
been just ne. There is a dierence between a problem as
to form and a substantive challenge to the suciency of the
evidence that goes to the heart of the jury’s ndings. This
court has previously recognized that a failure to object to the
form of a judgment, particularly in the domestic relations
context, does not result in waiver of a party’s right to make
substantive challenge to the lower court’s nal judgment
on appeal. Where a nal order is approved by counsel for
both parties in writing, it is not an approval of the substance
(results) of the order (if it were, the right of appeal would be
waived), but a showing that counsel has seen the proposed
order and agrees that it contains what the court orally
directed be included in it. Counsel’s approval of this is an
indication of the approval of the content of the form of
the order rather than its substance. Therefore, no waiver
occurred in this case. With regards to the IRA account,
because there was at least some evidence to support the
jury’s determination that the husband’s IRA was his separate
property we must arm the Trial Court’s decision. FLR
a partner with Moore Ingram Johnson &
Steele, LLP. His primary focus area is family
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Summer 201229
V
iolence against intimate partners is widespread in
Georgia. Law enforcement responded to more than
65,485 family violence incidents in 2010.
1
Georgia
is sixth in the nation at the rate of men killing women.
2
Georgia had 966 family violence deaths from 2003-2010,
with approximately y-six percent of those violent deaths
as the result of rearms.
3
Children were present at the
fatality in 41 percent of cases.
4
Research indicates that an
abuser’s ownership of a gun increases the victim’s risk of
being murdered by over ve times and that removing guns
from abusers lowers the fatality rates.
5
Therefore, to reduce
serious injury and death in Georgia, we must do a beer job
of enforcing laws that bar baerers from possessing rearms.
The federal Violence Against Women Act (VAWA)
restricts abusers’ access to rearms: (1) during the pendency
of a protective order, and (2) aer they are convicted
of domestic violence misdemeanors involving intimate
partners or other family members.
6
This law trumps contrary
case precedent, state laws, or judicial orders.
7
Restrictions
Respondents who are restrained from contact with
family members or intimate partners by a qualifying
protective order cannot possess a rearm or ammunition
for the term of the order. To qualify, the TPO, stalking
order, bond order, probation order, or other court order
must:
1. Explicitly restrain the abuser from harassing,
stalking or threatening an intimate partner.
• Georgia’s standardized statewide TPO form
language meets this criterion.
8
Bonds and other
interim orders in criminal cases that prohibit
harmful interactions between the Respondent
and the victim also invoke VAWA and restrict
rearms possession until a nal determination is
made in the case.
2. Contain specic ndings that the abuser represents
a credible threat or prohibit the use of physical force
• TPOs and divorce orders that nd a credible
threat and prohibit harassing, stalking,
threatening, or injuring the victim subject the
Respondent to rearm restrictions. Standing
No Contact or No Violent Contact Orders in
pending divorces are not likely to provide
sucient ndings for victims threatened by an
armed abuser to invoke the VAWA protections.
3. Be issued aer notice and opportunity for hearing
• In Family Violence Act TPO cases, the 12-month
order triggers the gun restrictions because the
Respondent has had notice and the opportunity
for a hearing. However, this requirement may
not be met by 30 day ex parte TPO proceeding. To
protect a survivor, Judges who believe an abuser
poses a threat to the victim’s safety can use their
equitable authority to order rearms removed at
the ex parte hearing. These gun restrictions should
be seriously considered by judges in the initial
TPO proceeding because survivors are in the
most danger from violence and death when they
begin to take steps to separate from abusers.
9
4. Be between persons with a relationship covered by
federal law
• Federal law denes an intimate partner as the
spouse, former spouse, parent of a child, or an
individual who cohabitates or has cohabited
with the victim.
10
While not required, Georgia
civil and criminal orders should specically
state the relationship between the parties to
make it easier for authorities to determine if the
Respondent is barred from possessing a weapon
during the term of the order.
Military or law enforcement personnel can be exempted
from the gun provisions of the federal law under the
ocial use exemption. Persons subject to a qualifying
protection order are prohibited from possessing rearms
and ammunition,
11
except that this prohibition does
not apply to ocial use of rearms by certain federal,
Federal Firearm Restrictions Under the
Violence Against Women Act (VAWA)
Tom had threatened to kill Janie and her
children if she ever tried to leave, but escape
was her only hope. He found her as she hid
under the bushes out in the back of the house.
Tom had a gun that he had pointed at her
often, now she knew he meant it. As he put the
gun in her mouth, daring her to say anything,
Janie knew that if she lived, she would leave.
And she did. Janie was one of the lucky ones
The Family Law Review 30
state, and local government employees while on duty.
12
There is no ocial use exemption for federal, state, and
local government employees, including military or law
enforcement personnel, who have been convicted of a
qualifying misdemeanor crime of domestic violence. The
18 U.S.C. § 925(a)(1) exemption explicitly excludes 922(d)
(9), which is the portion of the statute relating to persons
convicted of misdemeanor domestic violence crimes.
If a Respondent is convicted of a misdemeanor of
domestic violence, the baerer is restricted thereaer from
possessing or transporting a rearm or ammunition unless
the conviction is set aside, expunged, or pardoned.
13
To be
a “misdemeanor crime of domestic violence,” the oense
must be a misdemeanor under state or federal law; have,
as an element, the use or aempted use of physical force,
or the threatened use of a deadly weapon; be commied
by a current or former spouse, parent, or guardian of the
victim, by a person with whom the victim shares a child
in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian,
or by a person similarly situated to a spouse, parent, or
guardian of the victim; and incorporate certain procedural
safeguards.
14
18 U.S.C. § 921(a)(33)(A).
Baery misdemeanors in Georgia commied against an
intimate partner, are subject to the federal gun restrictions.
15
The Eleventh Circuit held that “under the plain meaning
rule, the ‘physical contact of an insulting or provoking
nature’ made illegal by Georgia’s baery statute satises the
‘physical force’ requirement of § 921(a)(33)(A)(ii), which is
dened in § 922(g)(9).”
16
Or more simply stated, the Georgia
simple baery statute meets the federal statute’s standard
of “physical force.”
17
The court also claried in this holding
that although “a domestic relationship must exist as part of
the facts giving rise to the prior oense. . .it need not be an
element of that oense.”
18
This holding broadened the range
of protected relationships in Georgia that fall under the
denition of misdemeanor domestic violence crimes.
Any case where the relationship falls into one of the
specied categories is a case involving a “misdemeanor of
domestic violence.” If the relationship is encompassed by the
statute, any baery, simple baery, domestic violence baery,
assault, simple assault, stalking, pointing a pistol at another,
or other related misdemeanor could fall within the rearms
restrictions. The crime qualies as long as one of the elements
is the use or aempted use of physical force or threatened use
of a deadly weapon, regardless of the title of the oense.
Ideally, to assure that the misdemeanor case qualies
for protection, the relationship between the Respondent
and the victim should be stated in all charges, pleadings,
orders, and waivers to assist reviewers in determining
whether the case triggers federal rearms restrictions. State
courts can revoke probation or charge the abuser with an
additional criminal violation if domestic violence continues
to occur. Although federal prosecution is easier when the
record indicates that the Respondent was on notice of the
restriction, the addition of this language does not create
a limitation on possession or ownership of rearms. Nor
does it violate any constitutional rights,
19
it simply puts
the abuser on notice that any violation will result in swi
consequences by Georgia courts
20
and law enforcement.
Conclusion
To eectively protect victims and remove guns from
baerers, family violence orders must comply with the
federal VAWA requirements. These orders should include
provisions identifying the relationship between the parties
and requiring surrender of guns and ammunition to
authorities by a specied time. Courts should routinely
require compliance hearings that order baerers to
return to court with proof of compliance and violators
should be punished by contempt or revoked probation.
Understanding and applying the federal law against
rearms possession against baerers will promote the
safety of victims, family members, and the community, and
will reduce family violence fatalities in Georgia. FLR
Georgia Legal Services
(Endnotes)
1 GBI Crime Statistics at: georgia.gov/gbi/crimestats/
viewFamilyViolenceStatReport.do.
2 Violence Policy Center, When Men Murder Women, p. 6,
September 2011.
3 Georgia Domestic Violence Fatality Review Project Report
(2011), Chart 4, at: http://www.gcfv.org/les/2011-ga-fatality-
review-web2.pdf.
4 Georgia Domestic Violence Fatality Review Project Report
(2011), Chart 4 at: http://www.gcfv.org/les/2011-ga-fatality-
review-web2.pdf.
5 93 Am.J. Public Heath 1089 (Jul. 2003); Bridges, Tatum, and
Kunselman, Domestic Violence Statues and Rates of Intimate
Partner and Family Homicide, Criminal Justice Policy
Review, Vol. 19, No.1 (March 2008).
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Past Family law section chairs
6 18 U.S.C. § 922(g)(8) and (9).
7 “An otherwise qualifying protection order will still trigger
the federal prohibition even if the issuing judge rules that
the Respondent is entitled to possess a rearm under state
law.” 39 Court Review 38 (2002) of the American Judges
Association.
8 Copies of Georgia’s Family Violence Act petition, ex parte and
12 month form orders are at: www.glsp.org or www.gscca.org.
9 A Department of Justice study showed that the instances of
women killed by their husbands was 25 times higher when
the women had separated than when they were still living
together. Bureau of Justice Statistics Special report Violence
Against Women: Estimates from the Redesigned Survey
(NCJ-154348)
10 18 U.S.C. § 921(a)(32).
11 18 U.S.C. § 922 (g)(8).
12
13 18 U.S.C. § 922(g)(9).
14 The following procedural safeguards much have been in
place concerning the offense:
1. The person was represented by counsel in the case or
knowingly and intelligently waived the right to counsel; and
2. If the person was entitled to a jury trial under the offense,
the case must have been tried by a jury or the Defendant
knowingly and intelligently waived the right to have the
case tried by a jury. 18 U.S.C. § 921(a)(33)(B)(i).
15 .U.S. v. Grifth, 455 F. 3d 1339 (11th Cir. 2006), cert. denied
549 U.S. 1343 (2007).
16 455 F.3d at 1340.
17 The Georgia battery statutes are codied at O.C.G.A. § 16-5-
23 and -23.1
18 455 F.3d at 1346.
19 The VAWA amendment has withstood a plethora of legal
challenges throughout the country, including the Eleventh
Circuit. The United States Court of Appeals held that 18 U.S.C.
§ 922(g)(8) was constitutional and upheld an abuser’s conviction
for illegal gun possession. United States v. Grifth, 455 F.2d
1339, 1342 (11th Cir. 2006), cert. denied 127 S.Ct. 2029 (2007).
20 An Intimate Partner Violence Full Faith and Credit Bench
Card Checklist for Judges is at: http://www.vaw.umn.edu/
documents/judgen/judgen.pdf
Family Law Section
State Bar of Georgia
Randall M. Kessler, co-editor
Marvin Solomiany, co-editor
104 Marietta St., NW, Suite 100
Atlanta, GA 30303
Presorted
Standard Mail
U.S. Postage Paid
Atlanta, GA
Permit No. 1447
2012-13 Family Law Section
Executive Committee
jtuggle@bcntlaw.com
rcrumrine@hhcmfamilylaw.com
rkessler@ksfamilylaw.com
msolomiany@ksfamilylaw.com
jcollar@bcntlaw.com
dan@prfamilylaw.com
tera@rbafamilylaw.com
lcummings@wbmfamilylaw.com
sditzel@ksfamilylaw.com
