Atlanta Divorce Lawyers, Family Law Attorneys - Specific Issues in Muslim Divorce · 2010-11-08 ·...

There are are an estimated four to six millionMuslims in the U.S. and approximately 50 thou-sand reside in the state of Georgia. With the

American Muslim population growing, U.S. courtshave begun to rule on cases in which parties invokeIslamic law, and Muslim divorce laws in particular.Some courts have supported the use of traditional lawor dispute resolution of the involved parties to settletheir affairs using their own traditions, if they sodesire.1 Increasingly, judges have made decisions onissues related to religious divorce.These decisions have been, at best,inconsistent from case to case and,at worst, unjust, unduly favoringone party because the informationon Muslim divorce law presentedby expert witnesses or by one orboth parties is incomplete, conflict-ing or inaccurate.2 Muslim divorcecases are similar to other Americancases in that parties put forwardany argument that will further theirdesired outcome and the usage ofIslamic law is one way of doingthat.

The most common issues relatedto Islamic law that emerge in Muslim civil divorcecases are: securing an Islamic divorce for the wife;mahr (dower paid directly to the wife or deferred); anddivision of marital assets and custody according toIslamic law. Often Muslim couples consider civil mar-riage a separate entity from the nikah (Muslim mar-riage contract) or religious marriage in the “eyes ofGod.” Divorce too can have similar dual, civil and reli-gious, nature for Muslims who do not want civil lawto exclusively determine their divorce terms.

Before discussing divorce, I will briefly describe howthe Sharià (Islamic law), which is made up of injunc-tions derived from the Qur’an (revelation) and hadith(reports of the Prophet Mohammed’s words and

actions), can be used to represent different bodies oflaw. Today many scholars and lay Muslims include intheir use of the term “Islamic Law” not just the Sharià,but also fiqh (classical jurisprudence derived fromSharià and local customs). Medieval jurists engaged inestablishing the laws of fiqh expanded upon the Qur’anand hadith via four main schools of Sunni thought andtwo major schools of Shi’i thought. Although there arevariations among these schools, contentions that arisein interpreting Islamic law are generally based on

questioning the applicability of theclassical fiqh in modern timesbecause of its diverging doctrines,potentially sexist interpretations ofQur’an and hadith and outdatedassumptions. It is important to notethat Muslims in divorce courts mayuse the term “Islamic law” to implyverses of the Qur’an, hadith, fiqh,legislation from their countries oforigin, or any combination of these.Although Islamic law is defined bythe fiqh for many Muslim men andwomen, some American Muslimwomen who are concerned withadherence to religion, turn to gen-der egalitarian interpretations of

the Qur’an and hadith to establish divorce terms intheir favor that are also rooted in religion. However,women who do not have access to egalitarian litera-ture, but insist on settling the divorce using Islamiclaws over civil laws, are in danger of acquiescing tosexist interpretations of classical fiqh, which men orother women may put forward. It is because of theseunresolved differences in interpretation of Islamic lawand differences in adherence to Islamic law within theAmerican Muslim community that proposals for estab-lishing Islamic tribunals similar to the Beit Dins forOrthodox Jewish communities have become controver-

Specific Issues in Muslim DivorceBy Zahra [email protected]

See Muslim Divorce on page 4

It is important to notethat Muslims in divorcecases may use the term“Islamic law” to implyverses of the Qur’an,

hadith, fiqh, legislationfrom their countries of

origin or any combination of these.

The Family Law Review 2 August 2006

As the year comes to a close, we look back at the year that was in Family Law andwe look forward to the year that will be. The debate and fight about the new ChildSupport Guidelines is over and the new law is about to be played out in court-

rooms across the state. (Please submit letters or articles to us about experiences you havewith the new law.) Our long-awaited joint seminar with the Georgia PsychologicalAssociation was a success and the emergence of a vibrant Young Lawyers DivisionFamily Law Committee all led to a successful year for our section, capped by receipt ofSection of the Year honors from the State Bar. (Congratulations again to our ImmediatePast Chair Steve Steele.)

2007 is upon us and we are off to a great year with hugely successful seminars alreadyunder the belt of this year’s board. The Nuts & Bolts program in Savannah got greatreviews and the child support seminars proved (and continue to prove) to be a vitalresource to all practitioners across the state as we struggle with a different set of childsupport rules than those that have been in place for almost 20 years.

I hope you enjoy this issue of The Family Law Review and issues to come. We continue tobe fortunate enough to receive submissions from experts across the country and manyhere in Georgia. Please feel free to submit an article or to recommend a contributor. I alsoinvite you to send me your comments, suggestions, criticisms and ideas for improving theFLR. Have a wonderful, happy, healthy and safe New Year. FLR

Inside This Issue1. Specific Issues in Muslim Divorce

2. Editor’s Corner

3. Note From the Chair

5. Don’t Alter TPO Registry Forms

6. Nuts & Bolts in Savannah Features Large Attendance

7. Tribute to Stephen C. Steele

8. Confessions of a Guardian ad Litem

9. Using the New Child Support Guidelines

14. Leadership and Rainmaking Go Hand in Hand

14. Past Chairs of the Family Law Section

15. E-Discovery: Are You Finding the Documents You Need?

18. Case Law Update: Recent Georgia Decisions

26. Best Interests of the Child: New Child Support Guidelines Standard

28. Family Law Section Executive Committee

Editor’s CornerBy Randall M. [email protected]

Note from the ChairBy Shiel [email protected]

The Family Law Review 3 December 2006

The Guidelines are Coming!

We are on the dawn of a new erain Georgia. This is both an excit-ing and anxious time for Georgia

lawyers and judges. We are in the midstof making the most radical change in thefield of family law since Stokes v. Stokeshosted the development of equitabledivision more than 25 years ago. TheFamily Law Section has taken the lead intraining lawyers on the use of the newguidelines. More than 20 of our membershave been trained by staff members ofthe Child Support Commission and havebeen busy going out to various local barsand seminars training lawyers first handin the use of the new guidelines. By thetime you receive this newsletter the web-based calculator should be in place.While tedious, all of us can quickly learnand adapt to the new Child SupportGuideline environment. We all need tobecome experts in using the web-basedcalculator and in speaking the jargon ofthe new guidelines. Come Jan. 1, thebench will be relying upon family lawattorneys to help teach them how to usethe new guidelines. We need to take thenext several weeks and become familiarwith and master the new Child SupportGuidelines.

If any of you wish to have additionaltraining on the Child SupportGuidelines, please have your local barassociation contact me and we willarrange a training session. All it takes is abank of computers and a PowerPointpresentation. As chair of the Family LawSection, I challenge each of you to takethe lead in your community so that you,the expert, will be relied upon as the “goto” source for the Child SupportGuidelines.

The section has been busy in otherareas of family law in the past several

months. I have spoken with a study com-mittee of the Georgia House ofRepresentatives regarding the state offamily law in general and specificallyregarding the issues of custody and childsupport. I am pleased to report that thelegislature relies upon the expertise ofmembers of the section in studying fami-ly law issues. A taskforce composed ofDebbie Ebel, Dan Bloom, RebeccaHoelting and Catherine Knight quicklymet and drafted proposed changes to thechild support statute regarding factorsfor the Court to consider in determiningthe best interest of the child. This com-mittee is a great example of what we cando to help our state make changes in thelaw. Members of the media concerningthe new Child Support Guidelines havecontacted me and I have given input intothe proposed Uniform Superior CourtRules regarding the new guidelines.

On a personal note I want to thank allof you who have encouraged me in myrole this year as chairman of the section.We are a vast and diverse group buttogether we are meeting the challenges ofour profession. As I said in my last col-umn, I am so proud to be a family lawattorney and to associate with true pro-fessionals. We need to continue to worktogether in helping families resolve themost difficult time of their lives withminimal conflict and acrimony.

Finally, I want to be among the first towish you all a healthy and happy NewYear. FLR


sial and are seen as potentially unfair to women, eventhough making Islamic legal claims may be moreunderstood in such a venue.

A common primary Islamic legal concern that arisesin civil courts directly from the nature of Islamicdivorce law, is securing religious divorce for the wife.Talaq is unilateral divorce in which a husband verbally,or in writing, repudiates his wife. Pronouncement oftalaq is followed by a waiting period for the wife, dur-ing which the couple can reconcile and remain mar-ried. However once the waiting period expires, a cou-ple is irrevocably divorced. If a husband divorces hiswife, then takes her back during the waiting period,only to divorce her again, he may only take her backonce more; a third repudiation is irrevocable.American Muslim men seeking divorce are usuallyable to pronounce talaq either before or after the civildivorce process.

By contrast, women have limited access to Islamicdivorce. Traditionally, they may declare a khula (irrevo-cable female initiated divorce), but they must elicitconsent from their husbands to end the marriage.Alternately they may seek judicial divorce in which aqadi (Islamic court judge) can dissolve the marriage ongrounds proven by the wife that may include abuse,impotence, insanity or incarceration of the husband.

In the absence of an Islamic court system in the U.S.,some women equate a civil divorce decree as anIslamic judicial divorce; others who seek religiousdivorce, in addition to civil divorce, are able to substi-tute an imam for a qadi by either asking an imam for areligious divorce decree or religious permission todivorce in civil court. But some who believe thatIslamic courts and qadis cannot be replaced by civilcourts or imams, must either convince their husbandsto pronounce talaq or give consent for khula in order tobe religiously divorced. Therefore, for some AmericanMuslim women, obtaining a religious divorce becomesa challenge in which divorce attorneys may involvethemselves; like in some orthodox Jewish circles whereestablished religious law is followed in addition tocivil law, husbands can be reluctant to consent to reli-gious divorce if civil divorce procedures have been ini-tiated by wives—perhaps to keep them in limbo. (InJewish law this is known as the Agunah problem).Some divorce attorneys have begun to include a stipu-lation of religious divorce in settlement offers as apotential remedy, but these measures are not alwayssuccessful.

A second issue of contention is finances. In tradition-al fiqh, there is no concept of marital wealth. Husbands

and wives do not share wealth, earnings or inheri-tance; however, wives are entitled to maintenance fromtheir husbands for their living expenses. Both partiescan use this fact of Islamic law during divorce to makevery different arguments. Many American Muslimwomen do financially contribute to the householddespite the separation of wealth in Islamic law andview their claims on martial assets as legitimate, butstill hold that men’s claims on their earnings in theevent of divorce unislamic. By the same token, womenfeel it is unislamic when men ignore laws of fiqh andverses from the Qur’an, which indicate that women areentitled to an equitable divorce and compensation.3Men’s counter argument generally involves the separa-tion of wealth in Islamic law as a reason to ignore anydue compensation. Many American Muslim womenwho claim a right on marital assets either do sobecause of their own contribution to martial wealth orby citing religious injunctions that entitle them to com-pensation in return for taking care of the householdand child rearing.

The mahr can be an extension of disputes overfinances. For many women, especially those not earn-ing, the mahr signifies security money, which wiveskeep for themselves even in the event of talaq (awoman usually has to return the mahr in the event of akhula). However, in common practice in the U.S., themahr has not been high enough to function as securitymoney or has been promised, but not paid. Therefore,many women are only able to claim their mahr in theevent of divorce and have attempted to do so throughthe civil divorce process. Some men (and women) havemisunderstood this common practice to mean thatmahr is a sum to be paid only in the event of divorce,rather than as a marriage dower to be paid at the wed-ding. Capitalizing on this misunderstanding of mahr,some men have made claims in civil court that themahr is the only sum they are responsible to pay thewife according to Islam, especially if the mahr theyagreed upon at the time of the wedding was symbolic(such as a gold necklace) or some other low amount.The inaccurate understanding of mahr is another exam-ple of how misinformation of religious law may beused to dismiss women’s legitimate civil and religiousclaims on marital assets.

Finally, another, but less common, allusion to Islamiclaw in civil divorce cases involves child custody.Because differences in legal opinion among the schoolsof fiqh are most apparent in this matter and since cus-tody can be contested in a traditional Islamic system,custody battles over children in Muslim divorce casesusually resemble those in other American divorcecases. Litigants using Islamic law for determining cus-tody may dispute over different rulings for male andfemale children, depending on their respective ages

Muslim DivorceContinued from page 1


and when custody transfers from one par-ent to the other. Regardless of the school ofthought, the assumption behind these par-ticular laws is that staying with a particularparent at a particular age is presumed to bein the best interests of the child.

Even though Muslims have their owntraditions in divorce, Islamic law is cited tovarious degrees in Muslim divorce casesdepending on the religious orientation ofthe parties involved, or sometimes thenumber of generations their families havelived in the U.S.; still, many Muslim cou-ples do not discuss Islamic law at all asthey feel state laws prevails over religiouslaw. Because pressing Islamic legal claimsin civil divorce may work to women’s dis-advantage, knowing the basic issues in

Islamic divorce law and how biased inter-pretations against women could be easilypassed off as a couple’s traditional methodof settling divorce is important, especiallywhen there are disputes over which set oflaws, Islamic or civil, should be applied. FLR

Endnotes1. Asifa Quraishi and Najeeba Syeed-Miller. No

Altars: A Survey of Islamic Family Law in theUnited States. Islamic Family Law US CaseStudy. (2002)http://www.law.emory.edu/ifl/cases/USA.htm

2. Qaisi, Ghada G. “A Student Note: Religiousmarriage Contracts: Judicial Enforcement of‘Mahr’ Agreements in American Courts”Journal of Law and Religion. Vol. 15, No. 1/2(2000-2001), 67-81.

3. Verses 2:231, 2:241, 65:2 from the Qur’an

Did you know that customizing temporary protective orders rather than using thestandardized order forms can be detrimental to your family violence clients? Whenyou rearrange or delete paragraphs from the standardized forms, it has the unin-

tended consequence of making the order harder to enter accurately into the Georgia TPORegistry. The TPO Registry is the database that allows law enforcement officers andjudges to ascertain whether there are active TPOs between parties. Here are ways you canhelp make the registry more effective in protecting domestic violence survivors:

1. Do not modify the standardized TPO orders to delete or rearrange paragraphs. Whilethis makes the document more readable and clean, it can result in information beingincorrectly input into the registry.

When clerks input the orders into the registry, they are asked to answer questionsprompted only by the paragraph number, with no reference to the contents of the para-graph. If you change the contents associated with that number, the clerk may be answer-ing the question incorrectly. This could have serious consequences for the person seekingprotection and law enforcement assistance.

NOTE: It is fine to add requests for relief in the petition and order. Just be sure that anyadditions to the orders be put in the last paragraph of the order (“It is further ordered…”)rather than inserted as a new paragraph in the body of the order.

2. Please do not delete those “tacky little pco numbers” under the paragraph numbersin the standardized orders. These numbers are important because they identify the infor-mation that must go into the National Crime Information Center (NCIC) system that lawenforcement checks for criminal background information when responding to crisis calls.Without these pco numbers, it is possible that the TPO won’t be entered into the NCICproperly and that law enforcement won’t know about your TPO.

If you have questions about the Georgia TPO registry, please contact Daryl Beggs withthe Georgia Bureau of Investigation at 404-270-8464 or [email protected]. FLR

Karen Geiger is the coordinating attorney for Georgia Legal Service Program’s FamilyViolence Project which represents survivors of family violence throughout the state.

Don’t Alter TPO Registry FormsBy Karen Henize [email protected]


The Family Law Section once againsponsored its annual Nuts & Bolts ofFamily Law at the Marriott in

Savannah on Aug. 25. This seminar is nor-mally held twice each year, typically inAugust in Savannah and again inSeptember or October in Atlanta. This yearthe scheduled Atlanta date was pre-emptedby the need to schedule a statewide semi-nar on the Child Support Guidelines (Oct.13). Edward J. Coleman III of Augusta, sec-retary of the section, chaired this year’sevent, which was attended by more than100 attorneys. The seminar featured the fol-lowing presentations: 1. Pre-nuptialAgreements–Jonathan Tuggle of Atlanta; 2.Joint custody and relocation–K. PaulJohnson of Savannah; 3. Ethics andProfessionalism–Andrew Tisdale ofAugusta; 4. Guardians ad Litem, The Court’sPerspective–Hon. Penny Haas Freesemann,Superior Court of Chatham County; 5.Case Law Update–Marvin Solomiany ofAtlanta; and 6. Child SupportGuidelines–John Lyndon of Athens.

Tuggle’s presentation on PrenuptialAgreements included a survey of the caselaw since the three-prong test of Scherer v.Scherer, 249 Ga. 635 (1982), with a particu-lar emphasis on Mallen v. Mallen, 280 Ga. 43(2005) which he viewed as establishing anew, and lower, threshold for the enforce-ability of prenuptial agreements. JudgeFreesemann’s discussion covered both thenew Superior Court Rule 24.9 on guardiansad litem, the Chatham County guardianprogram, as well as her personal experi-ences with guardians; several of her anec-dotes highlighted the notion that a guardianad litem cannot effectively do his or her jobfrom a desk, but must hit the pavement,and make personal visits to learn what isgoing on in a family.

Paul Johnson’s remarks on the issue ofrelocation issues in custody cases, whichelicited many questions from the audience,addressed the new rules on the right of a

custodial parent to move, how to notify theother party and how to get ready for theinevitable fight in court. Andrew Tisdalegave a thought provoking speech on theethical issues confronting attorneys andsome helpful reminders about how tostand above situational ethics and how tolive outside of “competitive consumerism”.

Solomiany gave a fast-paced, high-ener-gy and very entertaining talk on the manyrecent domestic relations cases decided inthe last 18 months by our Appellate Courts.

There was much speculation as to thereason for the large attendance, and whileall of the speakers made excellent presenta-tions, it was the opinion of some that thepresentation on child support guidelinesgiven by Lyndon at least accounted for thefact that the meeting room was still full at4:30 p.m. on a Friday afternoon. Lyndon’spresentation and program materialsincluded, among other things, a two-pagesummary of the guidelines titled: “Step byStep Process of Calculating Child Support”,a laminated copy [signifying its intendedfrequency of use] of which was also pro-vided to the Superior Court Judges at theirseminar in July 2006. Lyndon also provideda draft copy of the child support worksheetand schedules, and overall did an excellentjob of simplifying an otherwise cumber-some statute.

As always, the Family Law Sectionextends its greatest thanks and apprecia-tion to the work of the Institute ofContinuing Legal Education, and especiallythe work of Steve Harper, director of pro-grams, and Brain Davis, director of infor-mation and technology. FLR

Nuts & Bolts in SavannahFeatures Large AttendanceBy Edward J. Coleman [email protected]


The person who said, “If it is a jobworth doing, it is worth doing well,”was someone better than most of us

mere mortals. We often simply get by, put-ting out fires in our divorce cases, jugglingdemanding clients and trying opposingcounsel. We are too often simply relievedthat the job is done, and can only hope itwas done well.

Then, there is the Man of Steele. As youknow, Steve Steele is the immediate pastchair of the Family Law Section. Under hisleadership, we won Section of the Year.And this was no ordinary year.

The Georgia State Legislature gave theChild Support Commission the charge ofrevising and making Senate Bill 382 a moreuser-friendly statute, among other daunt-ing tasks. To my knowledge, Steve himselfattended virtually every meeting of thesubcommittees charged with aiding thecommission. He did not just delegate ,although he did that well too, rather hepersonally oversaw the entire process.Steve ensured that section members had avoice, and in certain key ways was instru-mental in improving the statute.

Steve also worked with ICLE to success-fully coordinate the largest seminar inICLE history: the child support training onOct. 13. It was televised live and transmit-ted to an audience of well more than 1,000.

At that event, Steve made a slight gaffe: anoff-handed comment (about me not beinghis secretary), which was a private jokebetween Steve and me gone awry. (It wasactually my fault: Just before going onstage I had again referred to this joke andworried that one of us would surely getsudden Tourette’s Syndrome and say some-thing off-color before such a huge liveaudience.) Perhaps it was the hot, brightlights or the long time in the televisionmake-up chair (where no man feels com-fortable), but Steve made this comment asif it could translate to a public joke, whichit could not, as soon as he stood up at thepodium. In some circles Steve has beenharshly criticized for it. I am here tosay—forget about it. Anyone who knowsSteve well knows that Steve promotes andrespects women. He just should not quithis day job and become a stand-up comic.

I have had the privilege of working withSteve this year. It has been inspiring for meto work with someone who truly lives bythe adage of a job well done. Each of us inthis section owes Steve Steele a huge debtof gratitude for his exemplary service asour chairman. He has been our Man ofSteele. Steve, from me personally, and onbehalf of all of us in the section: thank youand well done. FLR

Tribute to Stephen C. Steele:A Job Well DoneBy Catherine KnightBoyd Collar Knight, LLC

If you would like to contribute to The Family Law Review,please contact the editor, Randall M. Kessler at 404-688-8810 or [email protected].

The opinions expressed within The Family Law Review are those of theauthors and do not necessarily reflect the opinions of the State Bar ofGeorgia, the Family Law Section of the State Bar of Georgia, the sec-tion’s executive committee or The Family Law Review editor.


In the last issue of The Family Law ReviewI confessed that I love my job as aguardian ad litem (GAL) because it has

rewards that make a difficult job worthdoing. In this issue, my confession is that Ihate my job as a GAL almost as much as Ilove it. What an interesting struggle thislove/hate relationship makes my job. Butsomebody’s gotta do the dirty work!

I hate seeing what parents (and some-times their attorneys) do to children innasty, protracted custody battles, all in thename of “the best interests” of the child. It’shorrible to hear a child say that she hatesher father because he doesn’t love hermother, who cries all the time. It’s worse tosee a 7-year-old be a caretaker for a motherwith a drinking problem. It’s heartbreakingto hear a 6-year-old say he has secrets hewants me to tell me about his parents, butonly if I promise not to tell them. Childrenget caught in the middle of adults’ prob-lems that may wreak havoc on their lives.

As attorneys, it is our duty to counselclients that their custody battle can leavelasting scars on their children. I believe thatmost parents think they are doing the rightthing. However, in the middle of a custodydispute, it is as if some parents are wearingblinders and their perspective goes south.Some have no clue what it takes to raisechildren in a household without the otherparent, and others fear having to do so.They lose sight of the forest for the treesand winning the battle becomes moreimportant than anything else.

Custody battles are often waged for rea-sons that boil down to what is in the bestinterests of the parents rather than what isin the best interests of the children.Whether consciously or unconsciously, par-ents often react knee-jerk to divorce andfight for custody for wrong reasons. We areall familiar with the parent whose mainmotive in seeking custody is to hurt theother parent. Hopefully, we steer clear ofthese clients. I have found that a significant

number of custody battles are fueled by theparents’ genuine and valid fears of beingalone and away from their children. Someclients are ruled by their own controlissues, which block their ability to recog-nize alternatives to their rigid ideas. Othersare so bitter, angry and full of hatred thatthey are driven to win at all costs.

In their emotional upheaval, these par-ents do not have the ability to step backand take a complete and realistic look atwhat is best for their children; their ownissues cloud their judgment. We, as attor-neys, should encourage realistic custodygoals, which consider the individual factsand circumstances of each case. Our clientsneed to be steered to focus clearly on whatis best for their children, rather than theirown needs. They often have to be remind-ed of this repeatedly. They need to under-stand that what is best for their children isnot necessarily what is best for them.

Helping our clients develop an aware-ness of the impact their own issues have onthe children is something that we cannotdo alone. We cannot fill all of the roles ofattorney, therapist and friend to our clients.A mental health professional is an invalu-able tool to help clients to understand whatis truly best for their children. We shouldall keep a list of trusted mental health pro-fessionals to whom we can refer ourclients. We should also keep a list of goodbooks for our clients to read regardingtheir custody situation. Further, we shouldbe aware of single parent support groups,seminars, workshops and retreats that maybenefit our clients. Every little bit helps.

Time is usually the magic elixir. However,the sooner our clients are able to see theimpact of their conduct on the children, thesooner they will act to curb such conduct,thereby reducing the negative impact onthe children. The lesser the negative impacton the children, the less heartache foreverybody involved. And the less heartache,the more I love my job as a GAL. FLR

Confessions of a Guardianad LitemBy M. Debra [email protected]


If you are like me, you have waited tillthe end of the year to seriously look atthe new child support guidelines. After

all, we don’t need to use them until nextyear. I began to look at them last Augustbecause a good client of mine asked if theywould help him. He’s currently paying$1,500 monthly for two children. He makes$8,265 per month and his ex-wife makes$5,091 per month for a combined total of$13,356 per month. His gross income is 62percent of the total, but I felt that it wassubject to some adjustments.

First of all, my client has remarried andhas a child in his second marriage, so Ineeded to calculate a “theoretical” childsupport amount for my client’s child athome. Since his second wife does not workoutside the home, when I looked at thechart for his income for one child, I found atheoretical child support amount of $1,131a month. But upon closer examination ofthe theoretical child support adjustment Ifound that my client first must prove itwould be a hardship for him if it were notallowed. Then he would have to show thatthe adjustment was somehow in the bestinterest of the child for whom child sup-port was being calculated. It is therefore a“theoretical child support” provisionbecause it in theory provides some relieffor other “qualified” children in the home,but as a practical matter, no one can qualifyfor its benefits as it is presently worded. Itis therefore now only “window dressing”for the guidelines and has no current appli-cation. This defect should be addressedand corrected by the legislature.

When I looked at the chart for my clientand his ex-wife, I found that a typical intactfamily with a total monthly income of$13,356 spends $2,114 a month on two chil-dren. My client therefore has a basic childsupport obligation (BSO) of 62 percent or$1,311.

Next, when I looked to see if any specialcircumstances or factors for deviation exist-ed. I found that my client has his olderchildren for 34 percent of the time—a devi-ation factor which is an adjustment to theBSO.

Shared ParentingIn the final hours before S.B. 382 was

passed, the opposition managed to deletethe automatic parenting time adjustmentfrom the bill and convert it into a deviationfactor. Their hope, no doubt, was that thetrial courts might ignore parenting timecompletely as they frequently did underthe old guidelines. However, trial courtsand attorneys do have an objective way toaddress parenting time in an equitablemanner.

Since the guideline charts are based uponintact, typical family expenses, and sincemy client and his ex-wife have an equalduty of support1, in my client’s case, dadshould pay mom support for her 66 per-cent of the time with the children and momshould pay dad for his 34 percent of par-enting time.

Mom’s support for dad’s 34 percent ofparenting time is:.38 (Mom’s % of income) x $2114 (totalchild cost) x .34 (Dad’s % of time) =$273.Dad’s support for Mom’s 66 percent ofparenting time is:.62 (Dad’s % of income) x $2114 (totalchild cost) x .66 (Mom’s % of time) =$865.

You might observe that these two figuresdo not add up to $2,114. This is becauseeach parent spends money directly on thechildren. The difference between these twosupport amounts is $592 per month, whichdad owes mom. When this $592 is subtract-

Using the New ChildSupport GuidelinesBy Daryl G. [email protected]

See Guidelines on page 10

ed from dad’s BSO of $1,311, the difference is $719,which is dad’s parenting time adjustment, or parentingtime deviation.

Other credits to which Dad is entitled include 62percent of mom’s tax benefits or 62 percent of $254which is $157; 62 percent of the $87 dad spends eachmonth on health insurance for his two older childrenor $54; and 62 percent of the $60 a month he spends onlife insurance for the benefit of the two children, or $37leaving a balance due mom from dad of $344. Whilesuch may seem low, dad has significant parentingtime; he has another child and wife that he supports;and his ex-wife has significant income plus $254 amonth in tax benefits related to the children. Thisresult is in accordance with the new child supportguidelines.

All of the above figures are relatively easy to deter-mine, with the possible exception of mom’s tax benefit.An accountant or economist might tell you an exactfigure, however for a broad range of incomes fromabout $3,000 to $7,000 gross per month, the child-relat-ed tax benefits (extra after-tax income) are between$100 to $130 per month, per child – just based uponthe dependency exemptions and child tax credits.When head of household status and earned income taxcredits are added, the benefits are even higher. That is,at very modest incomes, the child-related tax benefitscan be over 40 percent of gross earned income of a cus-todial parent. But to keep it simple, an easy way toapproach the tax benefit issue is to alternate the obvi-ous exemptions and related child tax credit, allowingthe parents to have the deduction for the children inalternate years or allowing them to have a rotationschedule which would reflect each parent’s share ofcombined gross income.

The Most Significant Deviation Factor Under the old guidelines, no guidance was given to

the bench or bar as to how to calculate real numbersfrom the deviation factors or “special circumstances,”therefore the special circumstances were generallyignored. However, now that the new guidelines arecoming into effect, advocates for higher child supportawards will be far more likely to pay attention to“deviation factors” in their efforts to arrive at higherchild support numbers. Lawyers and judges shouldtherefore pay particular attention to parenting time,which is in most cases the most significant deviationfactor.

Many attorneys and judges believed or assumed thatour old guidelines included consideration of “stan-dard” visitation. They did not. But to prove they didn’t

required the use of an expert who was familiar withthe origins of our old guidelines.

Our new guidelines are different. There is no issueas to whether the guideline chart numbers take in con-sideration “standard” visitation or any other kind ofvisitation. They do not. Policy Studies, Inc., the eco-nomic consultant used by the Child SupportCommission was completely clear that the presump-tive cost schedule (the charts) are based on typicalcosts of intact families and therefore assume no parent-ing time by an absent parent.

Most custody orders allow dads to have at least 25percent of the parenting time and to ignore parentingtime is to assume the non-custodial parent (read dad)spends no money on the children directly. It is a sillyassumption that a parent can care for a child 25 per-cent of the time and spend no money on the child. Noeconomic study validates any such assumption. A par-enting time adjustment such as presented here isappropriate for every case in which the non-custodialparent has parenting time.

Those that have followed the litigation understandthat the original drafters of the bill were attempting tobuild into the formula as many factors as possible sothat the outcome might be used directly with a mini-mum amount of litigation, as specified by the federalmandate. Opponents of the new guidelines were insis-tent upon deleting significant factors such as parentingtime from the formula, in the hopes that the trialcourts would ignore such important adjustments asmany courts have done with our old guidelines.Shared parenting is NOT a special circumstance norshould it be considered a deviation factor. In fact it isthe “policy of the state.”2 Hopefully with the establish-ment of a Child Support Commission which can rec-ommend needed changes, the important issue of par-enting time will be restored to the formula by the leg-islature for the benefit of all concerned.

Right to ModifySenate Bill 382 originally provided that a 15 percent

or greater reduction was automatically modifiable.Such provision was removed by the opposition, requir-ing a substantial change in financial circumstances of aparent or in the needs of a child. As a practical matter,since the statute allows a “phase-in” of up to a yearwhen the new child support amount is 15 percentlower, it is clear that the legislature considered a 15percent change to be a “substantial change in circum-stances”. In a more perfect world, the opposing factorsmight have compromised on a 20 percent reduction oreven higher. The objective was to create a “bright line”as to a person’s right to a modification. The adoptionof a necessity to prove a sufficient change opens up anarea of litigation, which is not necessary. It’s probably


GuidelinesContinued from page 9


not helpful to our public image either. Can you imag-ine ten years of appellate decisions about whether aparty had a sufficient change to warrant a modifica-tion? No wonder the appellate courts are cautiousabout giving us the right to direct appeal.

In accordance with the federal mandate, which hasbeen ignored by Georgia, child support awards shallbe presumptively modifiable after three years and maybe modified within three years if a change in circum-stances is shown.

The Commission should recommend a change in thispart of the law at the first appropriate opportunity.

Needs and Ability to Pay vs. Best Interest ofthe Child

In their final effort to eliminate any downward devi-ations of child support, opponents of the new guide-lines have inserted the provision that deviations fromthe presumed support amount must be in the “bestinterest of the child.” The “best interests of the child”standard is appropriate in custody determinations, butis wholly inappropriate in child support calculations.The standard that has been established over decades ofcase law in most states, including Georgia, is “needand ability to pay.”3 The U.S. Congress and the federalmandate also require this standard. The “needs andability to pay” standard is in conflict with “best inter-ests of the child.”

Federal regulations have always referenced the “bestinterest of the child” as an appropriate “consideration”in deviations, however, were the parenting time for-mula included in the guidelines as it should be, itwould not be a deviation issue. The current use of thestandard in the statute is merely a “spin” to avoidappropriate downward deviations that should havebeen incorporated into the guideline calculations. TheChild Support Commission would be wise to state thatany award based on the evidentiary needs of the childand allocated between the parents according to relativeability to pay shall always be deemed to be in the bestinterest of the child. Such recommendation should bemade to the legislature to include such clarification ofthe best interest standard in the statue during the nextlegislative session. Any fact-based award that is basedupon needs (costs) of the child and equal duty of sup-port (based on proportional resources/income) shouldalways be found to be in the child’s best interest.Otherwise, the “best interest of the child” is not a validlegal consideration. If the actual costs of the child asallocated between the parents proportionately is lessthan the presumptive award, then the “needs and abil-ity to pay” award MUST be found to be in the bestinterest of the child. Otherwise, the best interest of thechild standard is invalid and inappropriate.

The apparent purpose of such insertion was to allowmom’s attorney to argue, “How can a downward devi-ation of child support be in the child’s “best interest?No child ever suffered from having more money.” Theobvious problem with such logic is that child supporthas a direct impact on second families and laws shouldnot be drafted which favor one group of children overanother and create what the Tennessee courts havereferred to as “children of a lesser God.” This thenbecomes an Equal Protection issue. The Child SupportCommission should make their strongest recommen-dation that the legislature correct this defect at theirearliest opportunity.

Duty of Child Support CommissionThe Child Support Commission was directed “[t]o

collaborate with the Institute for Continuing JudicialEducation, the Institute of Continuing LegalEducation, and other agencies for the purpose of train-ing persons who will be utilizing the child supportobligation table and child support guidelines.” SB 382§ 6(a)(9).

The Child Support Commission has done a remark-able job with the computer application of the newguidelines, but thus far neither the Courts nor the Barhave been given any guidance as to how to deal withthe important issue of parenting time. It has in factbeen implied that the guideline numbers alreadyinclude consideration of “standard visitation.” They donot.

The Commission should recommend through theICJE and ICLE that the suggestions contained hereinbe followed as of Jan. 1, 2007.

The legislature charged the Commission “[t]o makerecommendations for proposed legislation.” SB 382 § 6(a)(10).

The Commission should adopt the example outlinedin this article that is fair, reasonable, and understand-able:

Mom owes Dad:(her % of total income) x (total child cost) x (dad’s% of parenting time) = ADad owes Mom:(his % of total income) x (total child cost) x (mom’s% of parenting time) = BB-A= C, which is dad’s net obligation to mom.When C is deducted from dad’s BSO, the differenceis BSO-C= (PTA) dad’s Parenting Time Adjustment(or deviation).Enter this number on Schedule E, Line 13, of theworksheet4.

The Commission should recommend that these pro-posals be codified in 2008 to achieve consistency andeconomically appropriate awards across the state.

The Child Support Commission was given specificdirection by the legislature regarding parenting time:

The Commission shall have the following duties:“To study the impact of having parenting timeserve as a deviation to the presumptive amount ofchild support and make recommendations concern-ing the utilization of the parenting time adjust-ment.” SB 382 § 6(a)(13).

With no contrary direction from the Commission,under the new guidelines, judges who ignore the par-enting time deviation will order support which is sig-nificantly higher than those who follow the recommen-dations contained herein. The uniformity of orders isone of the paramount objectives of the guidelines.

You can assist the Commission in doing its job byadvising them of every case you become aware of inwhich a parent was not allowed a reasonable parentingtime deviation or adjustment. What was the countyand case number? Who was the judge? Was it askedfor? Was it granted? In what amount was it granted?

What if I just ignore parenting time?If you are an attorney representing a parent who has

visitation or parenting time and you fail to ask for areasonable parenting time deviation, you could beaccused of malpractice.

If you are a judge who ignores or fails to allow a rea-sonable parenting time deviation, you may be found tohave abused your discretion in your clear failure toprovide for the child in both households.

If you have an opinion regarding these recommen-dations, you should let your commission membersknow. Your commission members are:

Rep. Earl Ehrhart, commission chair and staterepresentative from Cobb [email protected]

Ms. Joy Hawkins, private citizen, formerly withthe governor’s [email protected]

Judge Quillian Baldwin, superior court judge,Troup [email protected]

Judge Michael Key, judge, juvenile court, [email protected]

Judge Louisa Abbot, superior court judge,Chatham [email protected]

Mr. Chuck Clay, former state senator, attorney,[email protected]

Judge Tom Campbell, superior court judge, CobbCounty.Fax: 404-730-8380

Dr. John C. Thomas, professor. [email protected]

Judge Debra Bernes, judge, Georgia Court [email protected]

Dr. Roger Tutterow, [email protected]

Rep. Stan Watson, state representative, [email protected]

Ms. Sadie Fields, state chairman of the ChristianCoalition of [email protected]

Sen. Seth Harp, state senator, [email protected]

Ms. Annetta Panatera, private citizen, [email protected]

Sen. Joe Carter, state senator, [email protected]

While our new guidelines are not perfect, they are animmense improvement over what we have been usingfor almost 19 years, and with a balanced Child SupportCommission, and a legislature that will listen, we havethe framework within which our guidelines may beimproved over time. FLR

Endnotes1. O.C.G.A. § 19-7-2. It is the joint and several duty of each

parent to provide for the maintenance, protection, andeducation of his or her child until the child reaches the ageof majority, dies, marries, or becomes emancipated,whichever first occurs, except as otherwise authorized andordered pursuant to subsection (e) of Code Section 19-6-15and except to the extent that the duty of the parents is oth-erwise or further defined by court order.

2. O.C.G.A. § 19-9-3(d) It is the express policy of this state toencourage that a minor child has continuing contact withparents and grandparents who have shown the ability toact in the best interest of the child and to encourage par-ents to share in the rights and responsibilities of raisingtheir children after such parents have separated or dis-solved their marriage.

3. O.C.G.A. § 19-6-1(c) (child support “is authorized, but isnot required, to be awarded to either party in accordancewith the needs of the party and the ability of the otherparty to pay”); O.C.G.A. § 19-6-15(a) (“the trier of factshall specify in what amount and from which party theminor children are entitled to permanent support”);O.C.G.A. § 19-6-15(c)(10) (“a party’s own extraordinary



needs” may be a special circumstance); O.C.G.A. § 19-6-15(c)(15) (“income of the custodial parent” may be a spe-cial circumstance); CSCJ Pattern Jury Instruction nos. II-L(7/91 version) (“Your duty is to allocate resources basedupon need and ability to pay”) & II-K (3/95 version)(“Child support is a matter for you to fix and determinefrom the evidence taking into consideration the needs ofthe children and the parents’ ability to pay”); Esser v.Esser, 277 Ga. 97 (2003) (“the trial court [must] . . . deter-mine whether [an agreed child support award] is suffi-cient based on the child’s needs and the parent’s ability topay”); Georgia Department of Human Resources v. Sweat,276 Ga. 627, 631 (2003) (“‘The trial court is obligated toconsider . . . the children’s needs and the parent’s ability topay’”); Swanson v. Swanson, 276 Ga. 566, 567 (2003) (when“parties enter into a settlement agreement . . . whichincludes an award of child support, courts remain obligat-ed to consider whether the child support award is suffi-cient based on the needs of the child and the non-custodi-al parent’s ability to pay”); Betty v. Betty, 274 Ga. 194

(2001); Hoodenpyl v. Reason, 268 Ga. 10, 11 (1997) (“thetrial court will be able to make a determination of supportthat best balances the children’s needs and the parent’sability to pay”); Arrington v. Arrington, 261 Ga. 547 (1991)(“The trial court is obligated to consider . . . the children’sneeds, and the parent’s ability to pay”); Walker v. Walker,260 Ga. 442, 443 (1990) (“The trial court’s duty is to allo-cate resources based upon need and ability to pay”);James v. James, 246 Ga. 233 (1980) (the trial court mayorder the custodial parent to pay child support to the non-custodial parent to provide for the children’s needs on vis-itation with the non-custodial parent); McClain v.McClain, 237 Ga. 80, 83 (1976) (child support is subject tothe court’s “wide discretion . . . taking into considerationthe needs of the child and the station in life of the par-ties”).

4. There should be a Parenting Time Deviation orAdjustment in every case unless the non-custodial parenthas no visitation or parenting time with the minor chil-dren.

refusing to allow the victim of violence to work or toattend school. See Georgia Superior Court, DomesticViolence Benchbook: A Guide to Civil and CriminalProceedings, 2nd Edition (2006) at C-1 (identifying domes-tic violence in domestic relations cases).

14. O.C.G.A. § 19-6-15(f)(4)(D) (Gross Income- ReliableEvidence of Income - Willful or Voluntary Unemploymentor Underemployment). See also O.C.G.A. § 19-6-15(j)(Involuntary Loss of Income) (considering deviationsbased upon the involuntary loss of wages).

15. See also O.C.G.A. § 19-13-4(a)(6) (discussing the award ofchild support in protective orders).

16. Nearly one-third of American women (31 percent) reportbeing physically or sexually abused by a husband orboyfriend at some point in their lives. The CommonwealthFund, Health Concerns Across a Woman’s Lifespan: 1998Survey of Women’s Health, May 1999.

17. O.C.G.A. § 19-13-4(a)(6); Baca v. Baca, 256 Ga. App 514.519 (2002) (“O.C.G.A. § 19-13-4(a)(6) specifically allows thecourt to award support “as required by law.”); Davis-Redding v. Redding, 246 Ga. App. 792, 794 (2000)( “Inorder to achieve this purpose the act gives the trial courtthe authority to order temporary relief as it deems neces-sary to protect a person from violence.”)

18. O.C.G.A. § 19-6-15(i)(2)(J) (Extraordinary Expenses).

19. O.C.G.A. § 19-6-15(i)(2)(K) (Parenting Time).

20. O.C.G.A. § 19-6-15(i)(3) (Nonspecific Deviations).

21. O.C.G.A. § 19-9-1(a)(2) and O.C.G.A. § 19-9-3(a)(3).O.C.G.A. § 19-9-7 (Visitation).

22. O.C.G.A. § 19-9-1(a)(2)(A) and (B).

23. O.C.G.A. § 19-9-7.

24. Lundy Bancroft and Jay Silvermen, The Batterer asParent, Assessing the Impact of Domestic Violence (2002).

Support GuidelinesContinued from page 27 Join the

Family Law Section andthe State Bar of Georgia at the Midyear Meeting

at the Hyatt RegencySavannah!

Jan. 18-20, 2007

The section is hosting a meetingand reception on Jan. 19, where

we will vote on the proposedbylaw amendments as well as

vote on a slate of officers.

Early-bird registrationdeadline: Dec. 15

Hotel cut-off date: Dec. 15Registration deadline: Jan. 5

www.gabar.org

As a younger lawyer, I read everythingI can find about rainmaking and howto build a law practice. True, most

partners (mine included), will tell you thatyounger lawyers should devote most oftheir time to sharpening their legal skills.Yet the reality is that while the route tobecoming a better lawyer is fairly straight-forward (learn the law, hone your skills,practice, practice, practice), the road to cre-ating your own practice is infinitely lessclear. It seems that some people have aknack for rainmaking while others spendtheir entire practice “working” the businessof others. I know which category I’d ratherbe in; the question is how.

Since I began practicing, I’ve becameinvolved in several local organizations –the Georgia Association for WomenLawyers, our recently formed Family LawCommittee of the Young Lawyers Division,the Inn of Court, and Lawyers Club. Butthe best rainmaking advice I’ve received isthis: You have to do more than just join anorganization; you have to become a leader.Joining is easy – in most cases you just signup and pay a fee. But leadership requireseffort, be it planning, managing a team orbalancing a budget. Most people will

assume (hopefully correctly) that if you area competent leader of their organization,you are also competent in your law prac-tice. If you do a good job at something thatyou do voluntarily on your own time, itstands to reason you’ll also do a good jobin your profession. When I look at my ownpractice, a theme is already emerging. Thesources from which I have received themost business have been those organiza-tions that I’ve not only joined, but alsobecome a leader.

If you look around at the “superstars” ofour profession, I bet you’ll find one ele-ment in common: they are leaders. Amongthe top lawyers in our Family Law Sectionare presidents of clubs, current and formerchairpersons of various bars and commit-tees, and members of the boards of localcharities. It might be a chicken or the eggquestion, but one thing is certain – leader-ship and rainmaking go hand in hand.

As the year is winding down and youbegin to think ahead to next year, I hopeyou will resolve to become a leader in anarea that you enjoy. Not only will you getpersonal satisfaction from meeting newpeople and contributing your time, butyour business will be better for it. FLR


Leadership and RainmakingGo Hand in HandBy Pilar Jolie [email protected]

Stephen C. Steele . . . . . . . . . . . . . . .2005-06Richard M. Nolen . . . . . . . . . . . . . .2004-05Thomas F. Allgood Jr. . . . . . . . . . . .2003-04Emily S. Bair . . . . . . . . . . . . . . . . . .2002-03Elizabeth Green Lindsey . . . . . . . .2001-02Robert D. Boyd . . . . . . . . . . . . . . . .2000-01H. William Sams . . . . . . . . . . . . . . .1999-00Anne Jarrett . . . . . . . . . . . . . . . . . . . 1998-99Carl S. Pedigo . . . . . . . . . . . . . . . . . 1997-98Joseph T. Tuggle . . . . . . . . . . . . . . .1996-97Nancy F. Lawler . . . . . . . . . . . . . . .1995-96Richard W. Schiffman Jr. . . . . . . . .1994-95Hon. Martha C. Christian . . . . . . .1993-94John C. Mayoue . . . . . . . . . . . . . . . .1992-93H. Martin Huddleston . . . . . . . . . . 1991-92

Christopher D. Olmstead . . . . . . . .1990-91Hon. Elizabeth Glazebrook . . . . . 1989-90Barry B. McGough . . . . . . . . . . . . . 1988-89Edward E. Bates Jr. . . . . . . . . . . . . . 1987-88Carl Westmoreland . . . . . . . . . . . . 1986-87Lawrence B. Custer . . . . . . . . . . . . 1985-86Hon. John E. Girardeau . . . . . . . . . 1984-85C. Wilbur Warner Jr. . . . . . . . . . . . 1983-84M.T. Simmons Jr. . . . . . . . . . . . . . . 1982-83Kice H. Stone . . . . . . . . . . . . . . . . . 1981-82Paul V. Kilpatrick Jr. . . . . . . . . . . . .1980-81Hon. G. Conley Ingram . . . . . . . . . 1979-80Bob Reinhardt . . . . . . . . . . . . . . . . . 1978-79Jack P. Turner . . . . . . . . . . . . . . . . . 1977-78

Past Chairs of the Family Law Section


Life was simpler years ago. When par-ties were divorcing, they exchangedpaper: bank statements, cancelled

checks, credit card statements, photo-graphs, calendars, diary journals, etc.Their lawyers examined how the moneywas deposited and spent, what their dailyactivities were, etc. Now, a partyresponds to discovery requests by statingthat they bank online, have no bank state-ments or cancelled checks, and that theydon’t keep calendars or journals. Whatdoes a family lawyer do to unravel thevirtual paper trail?

This article will provide some basic infor-mation about collecting the computerizeddata, analyzing the information obtained,making the data collected authentic andadmissible for trial and lastly, providingsolutions for parties who fail to reasonablypreserve the records. It also describes thepitfalls that lawyers may get themselvesinto if they just accept the data the clientgives them, without asking questions.

Collecting the Computerized DataAt the initial conference with the client,

one should discern the technologicaladvancement of each party. Your ability toobtain what you need in this high techworld depends upon your knowledge of acomputer’s many varied uses and whatyou ask for.

Does your client and/or spouse bankon-line or make payments to their credi-tors via a computer?

Does your client and/or spouse textmessage others?

Does your client and/or spouse usecellular phones? Take pictures withtheir phones?

Does your client and/or spouse havepalm-held device/ notebook computers?

Does your client and/or spouse com-municate via e-mail? Chat programs?

What are the usages of the computerby the spouse, ie. Online banking, cal-endars, addresses, pictures, research,purchases, etc.?

Does your client and/or spouse havea car computer/navigation system?

Does your client and/or spouse haveaccess to the other spouse’s computer,cellular phone, palm-held device? If so,how?

Do the parties use TIVO/DVR?While your client is in your office, you

might consider doing a little discovery ofyour own. Access the Internet and deter-mine what if anything is on MySpace.com,Facebook.com, Friendster.com or any otherpersonal Internet sites that so manyGeneration Xers and Yers are using. Youmay learn much more about your clientand/or their spouse by using these sites.However, if the client and/or their spouseare not so public with their affairs, thenyou might Google the parties and/or theirbusinesses. Surprisingly, there are evensites for confessions: such as “MySecrets,”“Post Secrets” or “Grouphug.” You maynot need a private investigator; the spousemay have already provided what you needfor an admission of adultery or an admis-sion against party interest.

If you find out that the spouse is commu-nicating electronically, then you need totake three very important steps to protectthe evidence. 1. Protect your client. You should advise

the client to take reasonable steps topreserve records that are subject to dis-covery throughout the divorce proceed-ing. TCA 36-4-106 (d)(1-6) requires theparties going through a divorce tomaintain their records. A temporarymutual injunction automatically goesinto effect upon the filing and serving ofa complaint for divorce on all grounds

By Amy J. [email protected]

E-Discovery: Are You FindingDocuments You Need?

See E-Discovery on page 16


other than irreconcilable differences. This statutewould probably include computerized data,although there has been no reported case on thisissue since the statute went into effect in May 2002.

2. Seize the data. You may want to obtain a courtorder requiring the immediate seizure of the otherspouse’s computer for the purpose of a forensicanalysis of the computer and to review all filesstored on the computer, and an injunction prevent-ing the spouse from altering the computer in anyform or fashion once served with notice. You mightwant to file a request for injunctive relief with yourcomplaint, pursuant to TRCP 65.07, that the spousebe enjoined from “deleting, wiping out, destroying,or in any way altering the data in the computer,pending further orders of the court.” The compliantshould set out that the opposing party typicallyuses computers, palm-held devices or other elec-tronic systems to communicate with third partiesand to transact business and that there is a stronglikelihood that the retrievable information would bepurged or destroyed once the spouse is served witha complaint and it may not be retrievable.

3. Perform e-relevant discovery. You should also filediscovery requests on behalf of your client. Youmay want to ask the other spouse the followingquestions:a. What operating system do you have?b. Have you deleted or wiped out anything in the

last 12 months? If so, how did you delete it?What was the information deleted?

c. What are the passcodes, keys and codes toobtain the data information?

d. Provide all of your e-mail addresses.e. Provide all of your network service providers for

the Internet, telephone, banking facilities andthe location of e-mail files.

f. Provide all diskettes, e-mails and back-up tapes.g. Describe what computer you use and the fre-

quency of use. For what purpose do you use thecomputer?

If you have not initially obtained a court order toretrieve and inspect the computer, you may want tofile a motion to require the production of each spouse’scomputer for the purpose of a forensic analysis. Insome jurisdictions, the court, when confronted withsuch a request to conduct a forensic evaluation, mightappoint a special master, a person having expertise inthe area of computers, to implement a particular proto-

col on how the computer is inspected, forensicallycopied and the data reviewed. The special mastercould assist the court in monitoring the volumes ofelectronic data collected and in protecting the authen-ticity, integrity and confidentiality of any privilegeddata. The court should initially allocate the costs ofobtaining the electronic data and using the specialmaster. If the motion is granted, the attorneys shouldseek a protective order to prevent disclosure of anyproprietary information and/or personal data from anythird parties as disclosure of that data might be privi-leged communications between attorney and client.

Analyzing the DataMany of our clients are more sophisticated than we

are about the computer and know how to place soft-ware on their computers to assist with collecting data.Can the computerized data obtained by your clientfrom their home computer be admissible in court? Itdepends.

Just like lawyers are careful when a client comes inwith a tape recording of the spouse, so should alawyer be careful of obtaining or using informationobtained from a computer disc without first askingquestions. Federal and state wiretapping and storedcommunication laws are being used more frequentlyto obtain civil judgments and criminal indictments.

In the case of United States v. Jones, 542 F.2d 661 (6thCir. 1976), the Court ruled that a spouse cannot installan electronic listening device to monitor incoming andoutgoing telephone calls, without the other party’s con-sent. Jones was indicted for intercepting telephoneconversations with his estranged wife and using thecontents of the intercepted communications in viola-tion of Title III to the Omnibus Crime Control and SafeStreets Act of 1986 (“Title III”), 18 U.S.C. Sec. 2511 (1)(a) and (d) (1970). The Court ruled, “For purposes offederal wiretap law, it makes no difference whether awiretap is placed on a telephone by a spouse or by aprivate detective in the spouse’s employ. The endresult is the same- the privacy of the unconsenting par-ties to the intercepted conversation has been invaded.It is important to recognize that it is not just the priva-cy of the targeted spouse which is being violated, butthat of the other party to the conversation as well.” Id.at 670.

In 1994, the Tennessee legislature passed theWiretapping and Electronic Surveillance Act. TCA 39-13-601 through 39-13-607 and TCA 40-6-301 through40-6-311. It specifically provides for monetary dam-ages:

(a) ...[a]ny aggrieved person whose wire, oral orelectronic communication is intentionally intercept-ed, disclosed or used in violation of TCA 39-13-601

E-DiscoveryContinued from page 15


or title 40, chapter 6, part 3 may in a civil actionrecover from the person or entity which engaged inthat violation the following relief: (1) The greater of:(A) The sum of the actual damages, including anydamage to personal or business reputation or rela-tionships, suffered by the plaintiff and any profitsmade by the violator as a result of the violation; or(B) Statutory damages of one hundred dollars($100) a day for each day of violation or ten thou-sand dollars ($10,000) whichever is greater; and (2) punitive damages; and (3) a reasonable attorney’s fee and other litigationcosts reasonably incurred. TCA 39-13-603.

In the case of Robinson v. Fulliton, 140 S.W. 3d 312(Tenn. Ct. App. 2003), app. denied, the Court ofAppeals found that the trial court lacked statutory dis-cretion to award ‘nominal’ damages for violation ofwiretapping law, and remanded the case. Robinson,the brother of Mrs. Fulliton sued his brother-in-law,Mr. Fulliton, seeking civil damages under theTennessee wiretapping statute. Mr. Fulliton had beenrecording telephone conversations of his wife and herbrother without their knowledge. Fulliton disclosedthe content of the conversations to his attorney whothen used the contents of the tapes in the divorce pro-ceeding. The trial court found Mr. Fulliton liableagainst the brother and awarded Robinson the sum of$500, plus attorney fees and costs. The Court ofAppeals reversed and remanded the case, and statedthat the legislative’s intent was to have $10,000 as afloor, plus punitive damages, plus attorney fees andlitigation costs against those violators.

Can a lawyer be civilly and criminally liable forusing illegally obtained information? In United States v.Wuliger, 981 F. 2d 1497 (6th Cir. 1992), the defendant, adivorce attorney, was convicted of multiple violationsof 18 U.S.C. 2510-2520, specifically, under section 2511(1)(d) for intentionally using the contents of telephoneconversations recorded in violation of section 2511 (1)(a) and 2511 (c ) for intentional disclosure of contentsof wrongfully recorded telephone conversations. InWuliger, the defendant, an Ohio attorney was repre-senting the husband who intercepted and recorded allof the telephone calls at the parties’ residence withouthis wife’s prior knowledge or consent. Husband gavethe tapes to the defendant and he used the tapes in thedivorce proceeding. Later, when the defendant learnedthat the tapes were not made with wife’s knowledge,the defendant instructed his secretary to transcribe thetapes. The district court fined the defendant $5,000,placed him on probation for two years, surrenderedhis license and placed him on house arrest. The Court

of Appeals reversed and remanded since the courtfound that it was plain error to instruct the jury thatthe defendant could be convicted without a findingthat he knew or should have known that the record-ings of conversations violated the Act.

Is there any situation when a tape recording can beused? Yes, when the tape recording and/or transcript isdone by only recording one side of the conversation.In the case of Mimms v. Mimms,780 S.W. 2d 739 (Tenn.App. 1989), app. denied, the Court found that husbandcould record what wife was saying on the telephonebecause he did not record what the third party wassaying. When husband turned on his recording device,wife was inside the garage at the family home and thehusband was standing outside of an open windowwhere he could clearly hear by natural means thatwhich wife was stating. At trial, husband testified thatthe tape recordings was merely memorializing what hehad heard. The Court agreed.

One should also be mindful that it is a crime toacquire other person’s phone records through falsepretenses. This act is called “pretexting” and is illegal,as a violation of the federal wiretapping statute.Therefore, you should be careful if your client pro-duces the spouse’s cellular phone bills.

Is there a violation of any law for retrieving Internetrecords and chat room information? Is there a violationof any law for placing spyware on the home comput-er? Is there a violation for a spouse to place keystrokesoftware on the home computer that monitors whatany user to the computer writes? Congress passedTitle III to protect a person’s privacy. The ElectronicCommunications Privacy Act was passed for the pri-mary reason for bringing e-mail, voicemail, and otherforms of communications under the umbrella of TitleIII. Therefore, the Electronic Communications PrivacyAct forbids the unauthorized access, on a computerstorage device, of anyone’s e-mails or other electroniccommunication without his or her express permission.18 U.S.C. 2701 through 2711. The criminal punishmentfor violation of this Act is up to two years in prisonand according to Sec. 2707, the relief allowed in a civilaction is no less than the sum of $1,000, costs of theaction and reasonable attorney fees, and if the viola-tion is willful or intentional, the court may assess puni-tive damages.

Important questions to ask your client when dis-cussing how the computerized data was obtained:

Where was the computer when you obtained theinformation?

How did you retrieve the information from thecomputer?

See e-Discovery on page 24


Arbitration/IncorporationPage v. Page, S06F1404 (Oct. 2, 2006)

The parties filed for divorce and thetrial court made a determination ofcustody and the parties stipulated to

binding arbitration of all final issuesincluding child support. Both partiesappeared for the arbitration hearing onOct. 10, 2005, but prior to the hearing,they decided to reach their own agree-ment. The parties did reach an agreementand signed a memorandum of settlementcovering all financial issues that day.Shortly after, the wife retained new coun-sel on Nov. 1, 2005 and filed a motion toset aside settlement agreement. The trialcourt denied the motion stating that it hadno jurisdiction to consider the settlementagreement because the case had beenreferred to arbitration, and only the arbi-trator could consider whether the settle-ment agreement was valid.

On Dec. 14, 2005, the arbitrator enteredan award adopting the terms of the settle-ment agreement, and on Jan. 6, 2006, thetrial court received a letter from the hus-band requesting the settlement agreementbe incorporated into the final decree ofdivorce. Four days later the trial courtsigned an order submitted by the husbandgranting the divorce and incorporating thesettlement agreement. There is no indica-tion in the order that the trial court con-ducted an independent review of either thewife’s motion to set aside the settlementagreement or the agreement itself. TheSupreme Court reversed and remandedwith direction.

It is well established that when incorpo-rating a settlement agreement into a finaljudgment of divorce, thereby making thesettlement agreement the judgment of theCourt, the trial court has discretion toapprove or reject the settlement in whole orin part. Therefore, it is the ultimate duty of

the trial court, not an arbitrator, to deter-mine the propriety of a settlement agree-ment. In this case, the record failed toproperly reflect the trial court’s independ-ent review of the settlement agreement ordetermine whether the contents are withinthe bounds of the law prior to its incorpo-ration in the final decree of divorce. Thetrial court erroneously found that it had nopower to review the settlement agreement.Also, the record failed to indicate if thetrial court conducted an independentreview of the issues raised and the wife’smotion to set aside the settlement agree-ment or the settlement agreement itselfprior to incorporation of the agreementinto the final decree of divorce. Therefore,this Court must reverse the trial court’sorder and remand the case with instruc-tions that the trial court conducts a reviewof the terms of the settlement agreementincluding the amount of child support andthe issues raised by the parties.

ContemptSmith v. Smith, S06A0897(Oct. 16, 2006)

The parties’ divorce action was triedbefore a jury, and a final judgment anddecree on the jury’s verdict was entered onJune 9, 2003. The final judgment anddecree provided a very detailed division ofthe marital assets. The husband filed amotion for new trial, which was denied onSept. 25, 2003. The trial court determinedthe alleged grounds for a new trial to bemeritless and the husband’s acceptance andbenefits under the decree was inconsistentwith asking for a new trial. The husbandthen filed for application for discretionaryappeal, which was automatically granted.However, on June 16, 2004, the SuperiorCourt dismissed the husband’s appeal forhis failure to pay costs. This court deniedthe husband’s application for discretionaryappeal from the dismissal.

Case Law Update:Recent Georgia DecisionsBy Victor P. [email protected]


On Oct. 14, 2004, the wife filed an application forcontempt alleging the husband’s failure to make cer-tain payments and transfers of property required bythe decree. A hearing was held for which the SuperiorCourt acknowledged the husband’s failure to complywith the provisions of the decree but found him not incontempt because his non-compliance was excused byreasons of impossibility and/or illegality and a reason-able desire for clarification. The court expressly found,inter alia, that the 50 percent award of the husband’sIRA to the wife ($5,976.27) had been depleted makingstrict compliance impossible and causing an award tobe made in an alternative form; that the husband didnot then, or since the decree, make the awarded$291,000 division of the lump sum marital assets to thewife within the 60 days. Strict compliance with thisprovision was also impossible, and instead, the hus-band was required to pay this amount from his inter-est in monthly payments as directed in the contemptorder. The VHX stock awarded to the wife did notexist or have any value as of the date of the trial, there-fore, transfer of stock was impossible; that the partiesdid not own any shares of PSSI stock as of the date oftrial and therefore, transfer of that stock was alsoimpossible; that 32.5 percent of the husband’sBiomedical Disposal, Inc. stock was awarded to theparties’ son was void and unenforceable; that the$2,000 per month award as supplemental alimony tothe wife constitutes support for an adult child wastherefore void and unenforceable.

The court also found the husband was in arrears inalimony payments, but because of the confusion asso-ciated with the decree and because of the husband’sfinancial circumstances, he was not in contempt onthat issue. The husband also was initially ordered topay $7,500 in attorney’s fees and a subsequent orderwas directed for him to pay $53,000 in attorney’s fees.The husband was allowed to deduct the $7,500 fromthe $53,000 attorney’s fees for a principal balance inattorney’s fees remaining of $45,500. The SupremeCourt reversed and remanded.

The Supreme Court stated that the trial court lacksthe authority to modify the terms of a divorce decreein a contempt proceeding, and it appears that theSuperior Court did far more than refuse to find thehusband in contempt because of purported difficultiesin compliance with the decree and it substantiallymodified the decree. The Superior Court, inter alia, nul-lified the award of stocks to the wife and son as well asthe monthly supplemental alimony to the wife. It sig-nificantly reduced attorney’s fees awarded to the wife.It altered payments of the wife’s share in the husband’sIRA and the wife’s lump sum award on the stated basisthat the husband’s strict compliance with the mandates

of the decree was impossible. It appears that strictcompliance by the husband was apparently renderedimpractical largely by the husband’s own hand. Hislifestyle choices depleted the funds that constituted theawards and thus the husband plainly benefited fromhis violations of the decree.

The hus-band arguesthat theSuperiorCourt waswithin itsauthority tonullify cer-tain provi-sions of adecree, suchas the awardof supple-mental alimo-ny and ofstock to thechildren,because theyare voidagainstGeorgia law.Even assum-ing argunedothat the citedprovisionswere erro-neously made, that does not render the provisions ofthe judgment void and the judgment is not void solong as a court of competent jurisdiction entered it.The Supreme Court went on to state that a judgment,which is erroneous, but not void, might be attackedonly by a direct appeal or by motion to set aside thejudgment. Here, the husband forfeited his automaticgranted appeal of the decree by failure to pay costs,and he never moved to set aside the decree. The con-tempt proceeding was not the vehicle to alter thedecree.

Custody ModificationMoses v. King, A06A1249 (Sept. 27, 2006)

The mother filed an action for contempt in 2004 forthe father’s failure to pay child support. In December2004, the court found the father to be $16,500 in arrearsin child support payments. The court ordered himincarcerated pending the payment of $5,000 and set upa payment schedule to pay off the amount of arrear-age. The following day, the father filed a pro se com-plaint for modification of child support and change of


custody. Among other things, the father claimed thatcertain circumstances had changed in that the motherhad become irresponsible and failed to provide ade-quate care for the child; had several (four same sex)domestic partners of which the most recent one wasresiding in the household with the child; DFCS hadbeen contacted by the Gwinnett County School Systemregarding marks on the child; the child was in continu-ous company of gay and lesbian adults and the child’sgrades had dropped since the mother was awarded

primary physi-cal custodyrequiring thechild tochangeschools.

After a hear-ing, the trialcourt awardedprimary physi-cal custody ofthe child to thefather andordered themother to paychild support.The trialcourt’s orderstated that thechange of cus-tody was notbased on sexu-al preference,but the trialcourt did find

there was a change of circumstance in the number ofthe relationships the mother was engaged in and thefact that the mother was now living with a partner out-side of marriage. It was the trial court’s position thatthere should be no cohabitation or meretricious rela-tionships outside the presence of marriage. The trialjudge indicated that women and men that are not mar-ried are not to live together in the presence of a child.The judge found that living in a meretricious relation-ship in front of the child was a significant change ofcircumstance. The mother filed a motion for new trial,which the trial court granted in part and denied inpart. It was granted in part to allow the minor child tospeak in open court or in judge’s chambers with acourt reporter present. The Appeals Court reverses andremands with direction.

The trial court has authorized and modified custodyawards upon a showing of new and material changesin the conditions and circumstances subsequently

affecting the interest and welfare of the child. Proofmust show both a change in conditions and an adverseeffect on the child or children. If the trial court findsthere has been a material change in condition, then it isauthorized to modify the custody if it is in the bestinterests of the child or children. Here, the trial courtconcluded there had been a substantial change in con-ditions and circumstances since the mother had at leasttwo partners within the last several years one of whichcurrently resided in the home and that the father wasmarried and lives in a four-bedroom home that pro-vides a more stable environment of the child.However, there is no evidence in the record that thefacts are new or that they demonstrated a materialchange in circumstances.

Here, the father was already married when the wifewas granted primary physical custody in 2002 at amodification hearing. There was also evidence that themother’s relationship with other women was a pri-mary issue at the original custody hearing and itappears that the mother is in a more stable relationshipnow than she was at the time of the original custodyaward. With respect to the mother’s cohabitation,Georgia Appellate Courts have held that a parent’scohabitation with someone, regardless of that person’sgender, is not a basis for denying custody or visitationabsent evidence that a child was harmed or exposed toinappropriate conduct. There was no finding that thechange circumstances in any way adversely affectedthe child.

Default Hammack v. Hammack, S06A0762 (Oct. 2, 2006)

The husband filed a complaint for divorce on Jan. 14,2005. The wife executed an acknowledgment of serviceon March 17, 2005, but did not return it to the hus-band’s attorney until late April. The husband’s attorneyfiled it with the clerk of the court on April 29, 2005. OnJune 13, 2005, the wife served the husband with ananswer and counterclaim for divorce. The followingday, the husband notified the wife that a final judg-ment and decree of divorce had been entered on June6, 2005 following a final hearing on an uncontesteddomestic relations calendar. Wife moved to set asidethe final judgment based upon Uniform SuperiorCourt Rule 24.6. The trial court concluded that thefinal judgment was authorized under UniformSuperior Court Rule 24.6(b) because it was enteredmore than 46 days after service of the complaint.Therefore, the trial court denied the wife’s motion toset aside. The Supreme Court affirms.

The Uniform Superior Court Rules are to be read inconjunction with substantive law, and in case of a con-flict, the Superior Court Rules must yield to the sub-


stantive law. The rules of pleadings under the CivilPractice Act apply to actions for divorce, alimony andchild custody except that no judgment by default willbe taken in such cases. While there is no judgment bydefault in divorce cases, this rule means that in divorcecases where no defensive pleadings are filed, it isincumbent upon the trial court to hear evidence insupport of the plaintiff’s grounds for divorce and makean affirmative finding that the grounds are legal andare sustained by proof.

Uniform Superior Court Rule 24.6 provides in perti-nent part that uncontested divorce actions may beheard at any time agreeable to counsel and the courtand is subject to the following rules: (a) by writtenconsent of the parties to a hearing a divorce may begranted at any time 31 days after service of filing ofthe acknowledgment of service; and (b) an unan-swered action, a divorce may be granted at any time 46days after service unless time for a response has beenextended by a court order. O.C.G.A. §9-11-40(a) pro-vides “all civil cases including divorce and all otherdomestic relations cases shall be triable any time afterthe last day upon which defensive pleadings wererequired to be filed. Therefore, the Supreme Courtheld the trial court was authorized to grant a divorceon June 6, 2005, which was 30 days from the time ananswer would have been due. Although the trial courtappears to have based its result on interpretation of theUniform Superior Court Rules, rather than on statuto-ry law, this court will confirm a judgment so long as is“right for any reason.”

Joinder and Fraudulent ConveyanceMoore v. Moore, et al. , Minshew v. Moore, et al.,Moore v. Crisp Farms, Inc. et al and Crisp Farms,Inc. v. Moore, et al., NOS. S06F0927, S06F0928,S06F0929, S06F0930 (Sept. 18, 2006)

In 2003, the husband brought a divorce actionagainst the wife and filed an answer and counterclaimfor divorce. The wife later moved to add Crisp Farms,Inc. and Amy K. Minshew as third party defendants.The wife filed an amended answer and counterclaimedsetting forth claims of fraudulent conveyance and con-version against the third parties. The trial court grant-ed the motion and subsequently realigned the partiesmaking the wife the plaintiff and the remaining threethe defendants and declining to award any additionaljury strike to the husband. The Trial Court also deniedthird party defendant’s motion for summary judgmentand Ms. Minshew’s motion for separate trial. At trial,the court directed a verdict for Crisp Farms. The jurymade a finding with regards to alimony, equitabledivision of property and found that the husband madefraudulent conveyances to Minshew and awarded the

wife $28,733.50 against her. The trial court entered afinal judgment of divorce on the jury’s verdict. TheSupreme Court affirmed.

O.C.G.A. §9-11-21 states that “at any stage of theaction and on such terms as are just, the trial court hasdiscretion to realign the parties as by changing the sta-tus of a party from the defendant to the plaintiff.” Thetrial court stated that both parties sought a divorce andequitable division of marital assets, but the wife madeadditional claims and had the burden of proof regard-ing alimony, adultery, attorney’s fees and fraudulenttransfers. Therefore, the wife had a significantly heav-ier burden of proof than did the husband.

The husband argues that the trial court erred bygranting the wife’s motion to add Crisp Farms as thirdparty defendant because there were not any maritalassets to be ferreted out of the corporation. However, ifone party to a divorce alleges fraudulent conveyanceof property were used to defeat that party’s rights,joinder of additional parties involved in the allegedfraud is proper in order to facilitate a complete resolu-tion of the issues. The husband also argues that thetrial court erred by not allowing him additional pre-emptory strikes. However, the husband has not identi-fied any portion of the record showing that he everobjected specifically to the number of strikes.

The husband also contends that the trial court erredin denying his motion to strike a prospective juror whowas a client of the wife’s attorney in an ongoing litigat-ed matter. However, this court has been reluctant toextend the automatic disqualification rules for jurorsbeyond the statutory prohibited relationship and, incriminal cases, full- time law enforcement officers andemployees of the prosecutor’s office. This court hasconfidence that the trial court can ascertain whether ajuror is partial because of any type of relationship ofthe parties and the concern that an automatic disquali-fication will open the door to the expansion of the perse rule of other numerous categories.

Case Number S06F0928 - Ms. Minshew argues thatthe trial court abused discretion in denying her motionfor a separate trial for the purpose of avoiding prejudicefrom the appearance of alleged adulterer and his para-mour at the divorce trial together. Severance of issuesfor trial pursuant to O.C.G.A. §9-11-42(b) is generallywithin the discretion of the Trial Judge and will not bereversed on appeal absent and clear manifest abuse ofdiscretion. Here, evidence of close relationship is rele-vant in determining the level of scrutiny to which analleged fraudulent conveyance must be subjected and,because the adulterous relationship between the hus-band and Ms. Minshew would be admissible at a sepa-rate trial, she has not shown any prejudice to herself.


LegitimationVeal v. Veal, S06F1460 (Oct. 16, 2006)

The child at issue, “H,” was born April 10, 1997. Thehusband was present at H’s birth and the husband’sname was on the birth certificate, but both partiesknew that he was not the biological father of the child.The parties were married on May 31, 1997, and hadthree other children during the marriage. The partiesreached a divorce settlement, which was incorporatedinto the final decree of divorce on Oct. 30, 2003, andmade custody and visitation arrangements for thethree children of the marriage but made no mention of“H”. In 2004, the husband filed a motion to set asidethe final decree of divorce on the grounds that it wasvoid for failing to address custody and visitation withrespect to “H”. The trial court reopened the case andon Oct. 31, 2005, the court found there had been achange of circumstances affecting the welfare of “H”and awarded full custody to the husband. TheSupreme Court reverses.

The husband contends that he never initiated anylegitimating procedures in the case such that “H” waslegitimated under O.C.G.A. §19-7-20(c) that states “themarriage of the mother and the reputed father of thechild born out of wedlock and the recognition by thefather of the child as his shall render the child legiti-mate.” However, this code section does not provide ameans for a stepparent to legitimate a child. Therefore,we find the husband does not qualify as a reputedfather under the statute.

The husband continues to argue citing Baker v. Bakerthat the presumption of legitimation arose due to hisactions, namely his presence at the child’s birth, theplacement of his name on the child’s birth certificate,the parties’ subsequent marriage and his treatment of“H”. However, the Baker case is distinguishable in thatthe biological mother and her husband were marriedat the time of the child’s birth thus creating a legal pre-sumption of legitimacy in making the husband thelegal father of the child. In the present case, however,the husband and wife were not married at the time ofH’s birth, thus the husband never became H’s legalfather. The Supreme Court went on to state that thiswas an unfortunate outcome of the case and the hus-band should have established legal ties with “H”through the formal adoption process, which isdesigned to protect the interest of all parties involved.

Prenuptial AgreementChubbuck v. Lake, S06F0676, (Oct. 2 2006)

The parties executed a premarital agreement on July9, 2001 and married five days later, separated threemonths thereafter and obtained a judgment and decree

of divorce in July 2003 following a jury trial. The judg-ment incorporating the jury verdict awarded the mari-tal house and its contents to the wife and required herto pay the husband $41,000. Prior to trial, the trialcourt ruled that the parties’ premarital agreement wasunenforceable because it did not meet the statutoryrequirement that it be witnessed by two persons withthe agreement having been signed only by the partiesand a notary public for whom executed the document.The trial court ruled that the unenforceable agreementcould not be introduced into evidence and the jurywould be instructed there was no enforceable agree-ment. During the trial, over the wife’s objection, thetrial court permitted testimony concerning the exis-tence and content of the premarital agreement with theunderstanding that it would not be referred to as apremarital agreement but as a document the partieshad executed prior to their marriage. Both parties testi-fied that the premarital document provided for thehusband to receive a minimum of $41,000 should theparties divorce. The Supreme Court reverses andremands.

The Supreme Court was unable to find any cases inwhich an ante nuptial agreement made in contempla-tion of divorce had been ruled void and unenforceablefor a reason other than a failure to live up to the crite-ria set out by this court in Scherer v. Scherer. O.C.G.A§19-3-63 states, “every marriage contract in writingmade in contemplation of marriage must be attestedby at least two witnesses.” The trial court’s ruling thatthis statute applied to the ante nuptial agreementmade in contemplation of divorce has not been made asubject of this appeal. Under the unusual circum-stances of this case, which limits the court to reviewthe affect of the legal ruling but not the merits of thelegal ruling, the court concluded that once the trialcourt determined the ante nuptial agreement was voidand unenforceable, the existence of the agreement andthe contents were not to be considered by the fact find-er. Therefore, the trial court erred in permitting testi-mony of the contents of the prenuptial agreement theparties had executed.

Special Set HearingColeman v. Coleman, S06A0954 (Oct. 16, 2006)

Wife filed a petition for divorce in 2000 seeking anequitable division of property, custody of the child,child support, alimony and attorney’s fees. The hus-band answered the petition and filed a counterclaim.Neither party appeared for the special set final hear-ing. The trial court conducted a pretrial conferencewith counsel and entered an order setting the caseagain for a final hearing providing specifically that“each party seeking redress from this court must be


present at said time in order to be granted any redressfrom this court.” Husband obtained a certificate ofimmediate review and filed an interlocutory appeal ofthat order. The Supreme Court reverses and remands.

The husband asserts that the trial court erred byissuing an order in which it stated that it would notgrant any redress of the parties if they chose not to bepresent at the final divorce hearing. Trial courts arevested with broad discretion in conducting trials, butneither the order under review here nor the record inthe case demonstrates an exercise of such discretion byarticulating a basis for the decision. In the instant case,this court cannot determine whether the trial court hasexercised discretion and the proper remedy is toremand the case to the trial court to enter an order thatarticulates the basis for decision in such manner as topermit appellate review.

UCCJEA/ModificationUpchurch v. Smith,S06A1099 (Oct. 2, 2006)

The parties were divorcedin Fulton County in 1999. Thefinal divorce decree awardedthe parties joint legal andphysical custody of the twominor children and namedthe father as primary custodi-al parent. Shortly after, themother received primaryphysical custody of the chil-dren by consent agreementthat was not incorporatedinto the Fulton County Court Order until 2002. By thattime, the mother and the children had been residing inCobb County for more than six months. The fatherpetitioned for change of custody in July 2002 and filedhis modification action in Cobb County. The petitionfor modification was denied in February 2004. Themother, with the children, moved to California inAugust 2004 and a month later, the father filed thisaction in Fulton County to modify custody and childsupport. The mother answered challenging improperjurisdiction and venue and her case was moved toCobb County because it was her county of residenceprior to her move to California. Fulton County grantedthe motion to transfer and denied the request for cer-tificate of immediate review. After a hearing in CobbCounty, the father’s petition to modify custody andsupport was denied. The Supreme Court affirmed.

Under the UCCJEA at O.C.G.A. §19-9-62(a), theCourt recognizes that its continuing jurisdiction lies inthe court of this state which has made a child custody

determination consistent with O.C.G.A. §19-6-61 untila court of this state determines that no pertinent partyhas a significant relationship with the state, that sub-stantial evidence concerning the child’s welfare is nolonger available in the state or there is a judicial deter-mination that no pertinent party presently presides inthis state. The Supreme Court determined that theCobb County Court’s Feb. 4, 2004 order qualified as achild custody determination under O.C.G.A. §19-9-62(a). It is undisputed that the mother and the childrenhad resided in Cobb County for more than six monthsprior to father’s filing of the 2002 modification actionand therefore Cobb County was the proper venue forthat action. Therefore, under the UCCJEA CobbCounty had exclusive continuing jurisdiction overchild custody determination and the proper venue forthe modification of that determination was Cobb

County.

Wrongful DeathBaker v. Sweat, et al.A06A0892 (Oct. 13, 2006)

The parties were married onFeb. 10, 1971. Shortly there-after, they separated and wereinvolved in an on and off rela-tionship for the next fewyears. In the spring of 1975,the wife left and moved inwith her mother and the hus-band did not know where shelived. The husband did notattempt to find out nor did he

know that she was three or four months pregnant at thetime. The minor child, Bobbie Jo, was born Sept. 24,1975. When Bobbie Jo was two months old she had astroke and was hospitalized for more than a year. Thewife called the husband to tell him about their daughterand that she was sick and in the hospital. According tothe father, this was the first time he learned that he hada child. The father never paid any hospital expenses,birthing expenses or extended hospitalization expensesand rarely visited the child. The parties were divorcedin the spring of 1977, and in the final decree of divorce,the mother received full custody of Bobbie Jo. Theagreement was silent regarding child support and visi-tation. The father never attempted to modify the divorcedecree to allow visitation with Bobbie Jo, he never paidany child support, never sent any cards or gifts, neverpaid for additional medical care even though the fatherwas employed during most of the period and he couldhave paid child support and medical expenses.

On Aug. 23, 2002, Bobbie Jo was a passenger in themother’s car when she lost control, hit a tree and

Bobbie Jo later died as a result of the injuries. Thefather first learned of Bobbie Jo’s death from a relativeabout a week or two after the accident, but did notattempt to find out how Bobbie Jo died, where she wasburied, nor did he visit her grave, pay for any of themedical expenses resulting from the accident or payany of the funeral or burial costs. A few months later,the father learned that the administrator of Bobbie Jo’sestate had settled the claim from the accident from themother’s insurance and he also learned as Bobbie Jo’sfather, he might be entitled to some of the proceeds.The record shows that the settlement with the insur-ance company was for $25,000. The father filed anaction for wrongful death against the mother and themother’s insurance company as defendants.Defendants moved for summary judgment. TheSuperior Court found as a matter of law that there wasclear and convincing evidence that the father hadrelinquished his parental rights by failing to support,visit or establish a relationship with Bobbie Jo duringher lifetime and therefore lacked standard to maintainan action for her wrongful death and dismissed the

father’s complaint. Appeals Court affirms.Under O.C.G.A. §19-7-1(c) and 51-4-4, “when a child

(either a minor or sui juris) dies as a result of a homi-cide or negligence, and the child did not leave aspouse or children, the child’s parents have the right torecover for the full value of the child’s life.” UnderO.C.G.A. §19-7-1(b)(3), a parent may lose his or herparental power by failing to provide necessities for thechild or by abandoning the child. In order for the trialcourt to find abandonment, there must be clear andconvincing evidence of an actual desertion, accompa-nied by an intention to sever entirely the parental rela-tionship. The Appeals Court found that all of the hus-band’s claims or excuses lack merit and the husbandlacks standing to prove his wrongful death claim. FLR

Victor P. Valmus is an associate atMoore Ingram Johnson & Steele, LLP,in Marietta, Ga., and he can bereached at [email protected].


Did you know the password? How did youknow it?

Whose computer is it? Who bought it? Who usesit?

Does your client and his/her spouse share a sin-gle account?

Was the e-mail obtained opened or unopenedwhen it was retrieved?

If your client obtained the computerized data byplacing spyware or keystroking recording software ona computer that is not used by the family (only by onespouse in a private office), an attorney should not viewor use any of its contents. If you do, you may be sub-ject to criminal and civil liability. 18 U.S.C. Sec. 2511,2520, 2701 and 2707. Unlawful Interception of Wire,Oral or Electronic Communications and StoredCommunications Act.

There must be a determination that the party had an“expectation of privacy” with his/her computer beforeliability attaches for a violation of Title III. Unopenede-mail, while it is on the Internet service provider(ISP)’s mail server, may be viewed as a violation of theAct, because the intended recipient has not read it.However, in some jurisdictions, after the targetedrecipient opens the e-mail, and the e-mail is stored on

the hard drive or another area, it may not be a viola-tion of the Act. Given that Tennessee is in the 6thCircuit and has one of the most restrictive interpreta-tions of the Wiretapping Statute, it would appear thatthe Court would not distinguish between stored com-munications from those in transit. The more appropri-ate course of action is to either obtain consent from theparties, court order, or subpoena (which requiresnotice) the computerized data.

How do you know whether such spyware or key-stroke recording software is on your client’s computer?Ask an expert. A Certified Computer Examiner (CCE)is a person who is well trained in the area of forensiccomputers and can capture what is on the computerand is also trained to analyze the data. The CCE col-lects data and maintains the integrity and authenticityof the information retrieved.

It is important to have your client meet with the CCEso the client can inform the CCE what software hasbeen placed on the computer. In addition to learnabout your client’s computer, the CCE can also deter-mine whether the data collected from the other party’scomputer has been tampered with, deleted or wipedclean by a software system, such as R Write. The CCEmay be able to retrieve hidden data through the meta-data, or retrieve the ghost or residual data that mightnot necessarily get saved, but can remain on the com-puter for years. The CCE might find photographs,

E-DiscoveryContinued from page 17

address books, calendars and other information storedin the computer; all of which you were unaware.

Making the Data Reliable and Authentic tobe Admissible

Pursuant to TRE 401 and 901, all evidence must bereliable and authentic. To ensure the integrity of theevidence, one must be able to show the Court that thedata retrieved from the computer was obtained in alawful manner, i.e., the data was gained through con-sent of the parties, through discovery, subpoena orcourt order.

If the data was received through discovery, it needsto be produced in a useable readable format to theextent that the data was created or received by theother party. The e-mails and any attachments shouldbe provided in that same sequential format.

The CCE must maintain a well-documented chain ofcustody and follow industry-established proceduresfor collection, preservation and documentation of thedata obtained from the computer. Abrams, Steven M.and Philip C. Weis, “Knowledge of ComputerForensics is Becoming Essential for Attorneys in theInformation Age”, Journal, February 2003.

You will want to know whether the CCE made anexact copy of the data in the computer or other elec-tronic device. Step one is that the CCE used a write-blocking device to image the drive. If the investigatorsimply copies from a Microsoft Windows environ-ment, it may not be acceptable because Windows auto-matically writes and updates the time and date stampson each file. Id. at p. 12. Step two is that the CCE madethe copy in a forensically sterile environment, i.e., thatall data was transferred and copied from the computerwith a software wiping program to ensure that all datafrom the drive was transferred and copied. It is possi-ble that if the wrong software is used, not all data willbe transferred and copied. The last step is for timesav-ing measures. The CCE utilizes forensic tools to identi-fy a particular file. You may want to ask the CCE toidentify and flag certain types of files such as ‘e-mail’,‘encrypted files’, ‘deleted files’, ‘spreadsheets’, or askfor specific keywords such as ‘pornography’, ‘sex’,‘money laundering’. Id at p. 13 and 14.

In analyzing and verifying e-mails, the CCE shouldtrace and track the e-mails. It is important to havemore than a copy of the e-mail, because the headercould be forged by changing the ‘from’ and ‘reply to’fields or the e-mail may have been sent to other indi-viduals through a BCC (blind carbon copy) feature.Thus, the CCE may need to investigate further to get

the ‘complete’ picture of that e-mail, i.e., the point oforigin, the sending computer’s internet address, eachrecipient’s internet address, etc. Id at p. 14.

Providing Solutions When the Data isDestroyed

You should act quickly to preserve computer data.Your prompt actions may be helpful to your client’scase. If the other spouse destroys computerized data,despite a court order, you can seek a ruling from thecourt that there be a negative inference that the evi-dence destroyed would have been favorable to yourclient. The innocent party should also seek attorneyfees, costs to litigate the motion and recover the dataand the cost of the certified computer examiner used.Pursuant to TRCP 37, you may file a motion for sanc-tions and a motion in limine that seeks an order fromthe Court to dismiss the claim or defense of the oppos-ing party who destroyed the evidence and prohibit thetestimony of that party on those issues. Lastly, if thedata destroyed was financial documents, you shouldfile a Petition to hold the other party in contempt ofcourt for the destruction of these financial records. Thetemporary mutual injunction, provided for in TCA 36-4-106 (d)(1-6) requires the parties to maintain thefinancial records throughout the divorce proceeding.

Just because we live in a world of immediate accessi-bility does not make it easier to obtain documentsfrom your client and/or your client’s spouse. Be mind-ful of the pitfalls of getting data off of a computerwhen a client finds ‘data’ on a computer.

As attorneys, we are required under Rule 1.1 of theRules of Professional Conduct to deliver competentrepresentation to our client. “Competent representa-tion requires legal knowledge, skill, thoroughness, andpreparation reasonably necessary for the representa-tion.” Rule 1.1. We have a duty to advise clients of theappropriate protocol to preserve documents, a duty touse more cost efficient means to review the documentsand a duty to understand how to ask for and uncoverpowerful pieces of electronic evidence. FLR

The author would like to thank Ted Scott, CCE, whoreviewed and provided assistance with this article.You may reach him at [email protected].

Amy J. Amundsen is a partner with the Memphis lawfirm of Rice, Amundsen & Rogers, PLLC. She has beenboard certified as a Family Law Specialist by boththe National Board of Trial Advocacy and theTennessee Commission on Continuing Legal Educationand Specialization. She was president of theTennessee Bar Association Family Law Section; presi-dent of the Memphis Bar Association Family LawSection; and serves as chair of the Tennessee BarAssociation Publication Alimony Bench book.


Discretion, guided by the best interestof the child standard, permeates thenew child support guidelines that

become effective in Georgia on Jan. 1,2007. Thus, the complicated mathematicalworksheets and electronic calculatorsbeing developed and distributed to deter-mine child support will result in a pre-sumptive amount of support. Thatamount is then subject to increase accord-ing to the best interest of the child andthe circumstances of the parties.1

Routinely, children are the economic los-ers after divorce. The stated underlyingpublic policy of the new statute is to assurethat, to the extent possible, children arefinancially protected after the parentsdivorce.2 As Justice Leah Ward Sears com-mented, after divorce the children oftenbear the brunt of the economic insecuritythat threatens their well being. “Childrenin single-parent families, children born tounmarried mothers, and children in step-families or cohabiting relationships facehigher risks of poor outcomes.”3

In all, three new standards emerge towarrant an award of child support differ-ent than the amount determined under themathematical worksheets to be used underthe guidelines. The three standards set outin the statute are:

1. Best Interest of the Child4

2. Unjust or Inappropriate5

3. Minimally Adequate6

Standards Controlling the ChildSupport Guidelines

Two of the standards set forth above areabsent in the previous guidelines, namely:“best interest of the child” and “minimallyadequate.” The new guidelines repeat the“best interest of the child” standardthroughout the statute.7 The old statute

appeals directly to equitable principlesonly once when it refers to the guidelinesresulting in an “unjust or inappropriate”8

award of child support. The new statutespecifically sets out the fact-finder’sresponsibility to go outside of the guide-lines where the “[a]pplication of thePresumptive Amount of Child Supportwould be unjust or inappropriate.”9 Anydeviations must be expressly set forth bythe fact finder in written findings of facts.10

Finally, the new guidelines establish aminimum floor for child support. “NoDeviation in the Presumptive Amount ofChild Support shall be made which seri-ously impairs the ability of the CustodialParent to maintain minimally adequatehousing, food, and clothing for the Childbeing supported by the order and to pro-vide other basic necessities, as determinedby the Court of the jury.”11

Low Income Parents For the non-custodial parent who seeks a

“low income” deviation, the new statuterequires the fact-finder to “determine if theNon-custodial Parent will be financiallyable to pay child support and maintain atleast a minimum standard of living.”However, these considerations do not over-ride the fact finder’s responsibility toassure the “minimally adequate” floor thatmay require an upward deviation or ignor-ing the parent’s request for a “low income”deviation.12

Similarly, the fact-finder must examine theemployment (or underemployment) statusof the custodial and non-custodial parent.The statute requires the fact-finder to ascer-tain the reasons and the reasonableness ofthe parent’s occupation and the benefit ofthose choices to the child.13 The inquiryregarding the parent’s current occupationalstatus includes the employment, the educa-


Best Interest of the Child:The New Child Support GuidelinesStandardBy Wendy J. Jerkins and Vicky O. KimbrellGeorgia Legal Services Program

tional, and the training history of the parent; the par-ent’s assets (including personal and real property); theparent’s health; and the parent’s role as caretaker.14

Domestic Violence as a Factor inDetermining Child Support Award

Concerns regarding domestic violence must neces-sarily be a part of the calculations when determiningchild support and custody.15 Nearly one third ofwomen report being abused by a husband orboyfriend during their lives.16 The family violence actspecifically authorizes a trial court to award temporarychild support “as required by law.”17 Issues regardingchild support deviations based on domesticviolence–although not specifically addressed in thenew child support statute– fall within one of the mis-cellaneous catchall criteria for deviations, to wit:“Extraordinary expenses,”18 “Parenting Time,”19 and“Nonspecific Deviations.”20

The court must consider family violence in deter-mining child custody.21 Where the court has made afinding of family violence, the statute requires that thecourt “shall consider as primary the safety and well-being of the child and of the parent who is the victimof family violence” and “shall consider the perpetra-tor’s history of causing physical harm, bodily injury,assault, or causing reasonable fear of physical harm,bodily injury, or assault to another person.”22 As thenon-custodial parent, the perpetrator of violence maybe subject to more restrictions on visitation.23 Similarly,the batterer may bear the brunt of the visitation costsand additional expenses because of the abuse. The cus-todial parent may require more financial support fromthe non-custodial parent to cope with the conse-quences of the abuse.24

Each lawyer will be required to understand and beable to work through the mechanical mathematical for-mulas by using either the paper worksheets or theelectronic calculators. More importantly, however,effective advocacy under the new guidelines willrequire a good grasp of the law, persuasive presenta-tion of the evidence, and a clear understanding of thenew equitable standards that guide this law.Endnotes1. O.C.G.A. § 19-6-15(c)(1) (“The rebuttable Presumptive

Amount of Child Support provided by this Code sectionmay be increased according to the best interest of theChild for whom support is being considered. . . .”)

2. O.C.G.A § 19-6-15(c)(1) (The rebuttable PresumptiveAmount of Child Support provided by this Code Sectionmay be increased. . . to achieve the state policy of afford-ing to children of unmarried parents, to the extent possi-ble, the same economic standard of living enjoyed by chil-dren living in intact families consisting of Parents withsimilar financial means.)

3. Leah Ward Sears, A Case for Strengthening Marriage, TheWashington Post, October 30, 2007, at A17.

4. O.C.G.A. § 19-6-15(c)(1) (Applicability and required find-ings); O.C.G.A. § 19-6-15(c)(2)(E)(iii) Applicability andrequired findings; O.C.G.A. § 19-6-15(i)(1)(A) (Groundsfor Deviation - General Principles); O.C.G.A. § 19-6-15(i)(1)(B)(iii)(II) (Grounds for Deviation - GeneralPrinciples); O.C.G.A. § 19-6-15(i)(2)(A) (SpecificDeviations - High Income); O.C.G.A. § 19-6-15(i)(2)(H)(Specific Deviations - Mortgage); O.C.G.A. § 19-6-15(f)(5)(C) (Adjustments to Gross Income - TheoreticalChild Support Orders); O.C.G.A. § 19-6-15(i)(3)(Nonspecific Deviations).

5. O.C.G.A. § 19-6-15(c)(2)(E)(iii) (Applicability and RequiredFindings); O.C.G.A. § 19-6-15(i)(1)(B)(iii)(I) (Grounds forDeviation - General Principles).

6. O.C.G.A. § 19-6-15(i)(1)(C) (Deviation Floor); O.C.G.A. §19-6-15(i)(2)(B)(I) (Specific Deviations - Low Income).

7. O.C.G.A. § 19-6-15(c)(1) (Applicability and RequiredFindings); O.C.G.A. § 19-6-15(c)(2)(E)(iii) (Applicabilityand Required Findings); O.C.G.A. § 19-6-15(i)(1)(A)(Grounds for Deviation - General Principles); O.C.G.A. §19-6-15(i)(1)(B)(iii)(II) (Grounds for Deviation - GeneralPrinciples); O.C.G.A. § 19-6-15(i)(2)(A) (SpecificDeviations - High Income); O.C.G.A. § 19-6-15(f)(5)(C)(Adjustments to Gross Income - TheoreticalChild Support Orders).

8. “A written finding or specific finding on the record for theaward of child support that the application of the guide-lines would be unjust or inappropriate in a particular caseshall be sufficient to rebut the presumption in that case.”O.C.G.A. § 19-6-15(b) (2005).

9. O.C.G.A. § 19-6-15(i)(1)(B)(iii)(I) (Grounds for Deviation -General Principles). See O.C.G.A. § 19-6-15(c)(2)(E)(iii)(Applicability and Required Findings) (requiring the fact-finder to make specific findings detailing how the child sup-port guidelines would be unjust or inappropriate consider-ing the relative ability of each parent to provide support).

10. O.C.G.A. § 19-6-15(c)(2)(E) (Applicability and requiredfindings).

11. O.C.G.A. § 19-6-15(i)(1)(C) (Deviation Floor). See alsoO.C.G.A. § 19-6-15(i)(2)(B)(i) (Specific Deviations - LowIncome) (“Under no circumstances shall the amount ofchild support awarded to the Custodial Parent impair theability of the Custodial Parent to maintain minimally ade-quate housing, food, and clothing and provide for otherbasic necessities for the child being supported by the courtorder ”).

12. O.C.G.A. § 19-6-15(i)(2)(B)(i) (Specific Deviations - LowIncome).

13. O.C.G.A. § 19-6-15(f)(4)(D)(i-vi) (Gross Income- ReliableEvidence of Income - Willful or Voluntary Unemploymentor Underemployment). This inquiry may benefit the par-ent whose income and earning capacity may be sup-pressed as a direct result of the intentional acts of theother parent. For example, the perpetrator of violence


See Support Guidelines on page 13

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