Fear Not: How Georgia Attorneys Can Face The Child Support

On Jan. 1, what could be considered perhaps thelargest legislative overhaul in Georgia in manyyears took effect. Georgia’s superior courts no

longer apply a simple flat-percentage to the obligor’sincome to determine a support award, but have nowbegun working with the far more formulaic income-shares model.2 Under this model—the majority view—a table of guidelines is established based on an eco-nomic analysis of both the individual state and the var-ious possible income levels of families.3 A combinedparental child support obligation is established basedon the combined total income of both parents and thenumber of children being supported.4 The noncustodi-al parent then pays his pro rata share of that supportamount in proportion to his contribution to the totalparental income.5 These obligations tables take intoconsideration a belief that obligors, even had theirhousehold remained intact, generally save more astheir income levels increase (spending less of theirincome overall each month) and as a result they spenda lower percentage of that overall income on their chil-dren.6 Thus, as the combined parental income rises, thepercentage the table applies in order to calculate childsupport slowly, but steadily, decreases.

Thanks to this recent conversion to the income-shares model, Georgia falls more into line with themandates of Federal Support Act of 1988.7 In the Act,Congress mandated that states set up mathematical-based support guidelines and avoid systems giving toomuch discretion to the courts. Congress further

instructed that, in addition to the obvious goal ofensuring adequate support for the child before thecourt, states should also aim for consistency and pre-dictability in child support cases. Under Georgia’s newsystem, the basic child support obligation listed in thetable (based on combined parental income and numberof children to be supported) is considered a rebuttablepresumption that may only be deviated from if eitherparent provides sufficient evidence that he warrants achange in his support obligation. Ideally, in striving forthe congressional goals, the superior courts wouldlimit departures from the presumptive amount (to sus-tain predictability in the system), and would also striveto apply specific and straightforward methods whendeviations are warranted (to maintain consistency.)

As with the implementation of any new policy,uncertainties abound concerning the application of thenew guidelines. Nonetheless, skeptical practitionerswho feel Georgia’s new statute is too complicated mayeventually change their tune. What many now consid-er unnecessary complexities may prove to be wiselydrafted provisions that in fact allow for fewer hurdlesin applying the guidelines. Where other states havestruggled with provisions giving too much discretionand too little guidance to trial courts, leaving appel-late-level courts to later place the limits that the legisla-ture failed to include, Georgia’s statute quite consis-tently provides a considerable level of direction forcourts and practitioners.

Nonetheless, grey areas exist, especially in the realmof deviations, not only because they require the pres-entation of sufficient evidence, but also because they

See Child Support on page 20

Fear Not: How Georgia AttorneysCan Face The Child Support ChangeWithout AnxietyBy Megan UsherUniversity of Georgia Law School

“[J]ustice can be better achieved bysimple math than by simple guesswork.”1

The Family Law Review 2 February 2007

It’s Spring 2007 already. Wow, how time flies. Our annualFamily Law Institute, to be held this year in Ameila Island,Fla., over Memorial Day Weekend is already shaping up

to be a great program. The rumor is that this may be our lasttime at the Ritz, given the rising costs. So get your reserva-tions soon.

We are again pleased to have so many great contributors tothe FLR, but we need more. Please consider writing an articleor interviewing a judge or respected colleague for our nextissue, which is due out in late May or early June. Any goodstories or information about how the new child supportguidelines are working (or not) would be a good subject.

On a national note, the American Bar Association is hostinga summit on unified family courts in Baltimore, Md., in early

May. Our own Chief Justice Leah Ward Sears and Fulton Superior Court Judge Gail Tusanwill be presenting. If you are interested, please contact me for more information.

And on a personal note, I now know what family law is really about. My wife gavebirth to our daughter, Jolie Miriam, on Jan. 19 and life will never be the same. Perhapsnow my client’s concerns for their children will ring just a bit truer? Enjoy this issue andplease send me your comments, criticisms and general feedback. FLR

Inside This Issue1. Fear Not: How Georgia Attorneys Can Face The Child SupportChange Without Anxiety

2. Editor’s Corner

3. Note From the Chair

4. Obtaining Discovery From the Guardian Ad Litem

8. Pre-Engagement and Retention of Expert

13. Case Law Update: Recent Georgia Decisions

27. HB 369 Introduced to Rewrite Child Custody Statutes, Providefor Direct Appeal

29. 2007 Family Law Institute

30. Confessions of a Guardian ad Litem

31. Family Law Section Meets in Savannah

32. Family Law Section Executive Committee

Editor’s CornerBy Randall M. [email protected]

Jolie Miriam Kessler

Note from the ChairBy Shiel [email protected]


Dear Georgia General Assembly: Wehave now completed two monthsof the “Great Child Support

Experiment.” From all reports, yourexperiment has caused complete chaosout here in the field. Divorce cases arestalled and, in some cases, stopped.Lawyers are not able to give clear adviceto their clients regarding predictability.Even judges are intimidated. While theanticipated rush to the courthouse formodification of child support cases hasnot occurred, because of the complexityand uncertainty of the new guidelines,the divorcing public is now caught up inthe uncomfortable position of being the“guinea pigs” of these new guidelines.

It has been reported that some clerks ofcourt are not accepting new filings ofdivorce cases in the absence of the newchild support worksheets. Could youplease clarify this immediately byamending the statute and providing thatthe absence of the child support work-sheets is an amenable defect, which canbe subsequently cured? It is totally unfairthat the door to the courthouse is closedto those who fail to file these worksheetsat the time of filing the complaint fordivorce.

While I want to thank you for preserv-ing jury trials in child support cases, Imust inform you that the implementationof the new child support guidelines hasmade it nearly impossible to try childsupport cases before a jury. At this time,Superior Court judges do not have stan-dardized jury charges for child support

cases. It is not clear how to present evi-dence effectively with regard to the childsupport guidelines. Does the court allowfor evidence on gross income followedby closing argument and jury verdict;then a second phase of trial with evi-dence on deviations, closing argumentand jury verdict? Are courts required toprovide computers and printers in thejury room with the Excel version of thechild support worksheets? Must jurorsnow be qualified to use a computer to sitin a jury case? Are jury cases with childsupport issues now going to take a mini-mum of a week from start to finish?

It has also been reported that somefamily law attorneys are now increasingtheir initial retainers when children areinvolved in divorce cases because of theextra time required to prepare cases forfiling. Was it your intention that thedivorcing public have additional costsassociated with their divorce cast uponthem?

These are difficult times for attorneys.You have left us in a quagmire that willtake much time to recover. You now havethe opportunity, while the session ispending, to make substantive and proce-dural changes to alleviate the stresscaused by the new child support guide-lines. As chairperson of the Family LawSection of the State Bar of Georgia, I urgeyou to work with us and the courts tomake this transition into this brave, newworld. FLR

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.


The guardian ad litem (GAL) in a cus-tody case is in a position to make orbreak the case for either party, second

only to the trial judge and the parties them-selves. For that reason, attorneys and liti-gants alike are well advised to work coop-eratively with the GAL during litigation. Inthe ideal world, the GAL is able to performa quick yet thorough investigation and giveinsightful advice to both counsel that willallow their parties to reach an amicable res-olution of custody and/or visitation issuesthat is in the best interests of the childreninvolved. Unfortunately, we do not practicein a perfect world. One party’s perceptionof what is best for the children frequentlyvaries significantly from the other party’sperception. When the parties simply can-not agree on a way to handle custody andvisitation, the GAL’s investigation and rec-ommendations become central to the trialof a custody case. The GAL’s recommenda-tion is likely to be received poorly by atleast one of the parties.

Courts place a great deal of importanceon a GAL’s findings and recommendations.To do otherwise would make appointmentof a GAL a needless expense to the liti-gants. When the parties are polarized onthe issue of custody or time-sharing, theGAL will invariably take a position adverseto one party or the other. When a GALtakes a position adverse to a party, at theleast it is a major setback for that party’scase—in some cases it is the “death knell”.

Every attorney who litigates custodymatters has been confronted with a GALwho takes a position contrary to the attor-ney’s client. So, what then? When confront-ed with the GAL, whom the court appoint-ed, who recommends adversely to hisclient, what does the attorney do? Thereare only two reasonable alternatives –negotiate a settlement with the opposingside or litigate the case in spite of theGAL’s position. To take either route effec-

tively, one must know the full extent of theGAL’s work and recommendation and onemust know the facts upon which the GALbases his position.

Frequently, a party is so convinced thathis/her position is best for the children thatthe party cannot settle. The party’s positionmay be fueled by true love and concern forthe children; or it may be fueled by a self-serving motive. Either way, the party willfrequently not consider settling the case.Thus, the only alternative is to litigate.

When the decision to litigate is made, thenext question invariably will be, “What doI do about the GAL’s position?” There aretwo choices there as well: refute the GAL’sposition with evidence or, “the unthink-able,” impeach the GAL.

Traditionally, a GAL’s role in a case couldvary greatly from court to court. Almostuniversally, the GAL would attend deposi-tions, mediation, settlement conferencesand hearings. The GAL usually is empow-ered to conduct discovery. The GAL wouldtry to assist counsel for the parties in nego-tiating a settlement that is best for the chil-dren. If a case went to trial, in most cases,the GAL who was usually an attorney,would function at trial like another attor-ney. The GAL, armed with the knowledgehe had gained through his investigationand from the evidence presented at trial,could examine witnesses and present anargument, which amounted to the basis forhis recommendation to the court.

Uniform Superior Court Rule 24.9changed that to a great extent on May 19,2005.1 This rule addresses the appointment,qualifications and the role of the GAL.Under USCR 24.9, the GAL continues tohave the right to attend hearings, deposi-tions and the like. The GAL can conductdiscovery and can file motions on behalf ofthe children’s best interests. None of that ismaterially different.

Obtaining Discovery Fromthe Guardian ad LitemBy Vic Brown [email protected]


For purposes of this discussion, paragraph seven ofUSCR 24.9 makes life a bit more interesting for every-one involved in custody litigation. According to thatparagraph, “[i]t is expected that the GAL shall becalled as the Court’s witness at trial unless otherwisedirected by the Court. The GAL shall be subject toexamination by the parties and the court. The GAL isqualified as an expert witness on the best interest ofthe child(ren) in question.” Under the new rule theGAL is a witness. Like any other witness, the GALmay be cross-examined and his/her credibility may beimpeached.

Obtaining Discovery From the GALSince the GAL now functions as an expert witness,

the basis for the GAL’s findings and recommendationsis vital knowledge that the parties need. In order tocross examine a GAL and, if necessary, impeach theGAL, the parties need to know what the GAL did ordid not do, what conclusions he made, and to whatextent he based his position on those conclusions.Traditionally, the GAL has not been subject to discov-ery. Now that the GAL is an “expert witness”, shouldthe GAL be subject to discovery? Absolutely—otherexpert witnesses certainly are.

With the advent of the Civil Practice Act, discoverybecame an important process that is integral to oursystem. Trial by ambush was abolished. Wide latitudeis given so that complete discovery is possible. “Thebroad purpose of the discovery rule, under the CivilPractice Act, is to enable the parties to prepare for trialso that each party will know the issues and be fullyprepared on the facts. Discovery is specificallydesigned to fulfill a two-fold purpose: issue formula-tion and factual revelation. The use of the discoveryprocess has been held to be broadly construed.”2

To embrace the intent of the discovery rules as articu-lated by the Court and cited above, it would beabsolutely necessary to allow broad discovery from theGAL prior to trial. Though the GAL ordinarily com-municates his/her findings to the parties through coun-sel prior to trial, the GAL does not always communi-cate the factual basis for reaching those findings.During an investigation, the GAL typically talks to wit-nesses and considers various pieces of evidence thatmay not be admissible evidence at trial. Thus, theCourt receives a recommendation that is based uponevidence that the Court could not otherwise consider.The GAL’s recommendation can be an indirect way ofinfluencing the Court with hearsay.

Further, there is always the possibility that asidefrom the evidence the GAL has considered, that theGAL has been influenced in his/her recommendationby outside factors that may include biases or preju-dices held by the GAL. One would hope that the GAL

would leave personal feelings aside when making aninvestigation and recommendation. However, GALsare human and if the GAL is influenced by peripheralfactors, discovery is the tool that would elucidate thataspect of the case. The parties could then try their casefully armed with knowledge of all the facts that influ-enced the GAL.

The scope of discovery is within the sound discre-tion of the trial court. The Georgia Court of Appealsinstructed us in Deloitte Haskins & Sells v. Green3 that “. . . the discovery procedure is to be construed liberal-ly in favor of supplying a party with the facts.” If thetrial court’s decision is to be influenced by thereport/recommendation of the GAL, and if the GAL isto consider facts and circumstances in preparing thatreport / recommendation, it stands to reason that theparties have full discovery from the GAL – and the lawsupports it.

Impeaching and Rehabilitating the GALNow that the GAL is an expert witness, does that

mean that “the gloves are off” with regard to theGAL? In the past, the conventional wisdom held thatattacking the GAL risked alienating the Court. Will thecourts now accept a GAL being handled as any otherexpert witness? If the GAL is subject to examinationand cross-examination, why not?

It seems reasonable that any party should be con-cerned about obtaining discovery from the GAL,impeaching the GAL’s testimony and rehabilitating theGAL. The GAL should be concerned with these mat-ters as well. While the attorneys may seek to impeachor rehabilitate the GAL, the GAL should be concernedwith protecting himself from impeachment.

Before the new rule, some would have considered itunthinkable to impeach a GAL. Why? First, the GAL isan officer of the Court. USCR 24.9. Second, most courtsdo not appoint GALs in a vacuum—judges appointGALs in whom they have confidence.

Commonly, when a judge appoints a person to serveas GAL, it is because the court has confidence in thatperson’s ability and integrity—impeaching that personcould be viewed dimly by the court. Yet, when theclient demands his/her day in court and wants to over-come a GAL’s position, if there is not sufficient evi-dence alone to overcome the GAL’s recommendation,impeachment may be the only choice.

A GAL may be impeached like any other witness by:

1) attacking the GAL’s veracity;

2) attacking the GAL’s fitness;

3) showing that the GAL is improperly prejudicedor biased with regard to the parties;


4) attacking the GAL’s performance of his/herduties; or

5) showing that the GAL has misconstrued or mis-interpreted the evidence he/she has received.

Attacking the GAL’s VeracityThis is a bad idea. Unless there is undisputable evi-

dence that a GAL has been in some way untruthful inthe performance of his/ her duties, this approach islikely to lead to disaster. As stated above, the GAL is anofficer of the court who was “hand picked” by thejudge. An unprovable accusation that the GAL has mis-represented the truth will not be received favorably bythe court. In fact, it may seem to be an act of despera-tion by a litigant who has nothing else upon which torest a claim. In the face of undisputable evidence how-ever, candor with the tribunal may require it.

Attacking the GAL’s FitnessThere may be several approaches to attacking a

GAL’s fitness, but they should be used with great care.They are closely akin to attacking the GAL’s veracity.First, it may be possible to show that the GAL does notmeet the qualifications for a GAL as set forth in USCR24.9. For example, perhaps the GAL has not obtainedthe necessary training for the circuit in question. Itwould be more effective to use this approach to havethe court change the GAL before the GAL’s work isdone. Deferring an objection to the GAL’s qualifica-tions until the work is done, seems like too little toolate. It leaves the impression that the GAL only becameunacceptable after his/her position became known.

Second, a GAL may be impeached by showing thathe/she has a conflict of interest that calls the GAL’sjudgment into question. Once again, this would best beused to have a GAL removed early in the case. Oncethe case is on trial, this approach would seem reac-tionary unless the conflict was discovered very late inthe case – so late that a motion to remove the GALwould not have been practical. In fact, a motion toremove the GAL should be filed anyway. This willshow that the party brought the matter before theCourt as soon as the conflict was discovered.

The third is the most disastrous approach to attack-ing a GAL’s fitness—to attack his fitness on a personallevel. The occasional attorney cannot resist the temp-tation to attack a GAL on the basis of an act or omis-sion the GAL has committed in his/her personal life.The GAL’s personal life is a stone best left undisturbedunless the evidence of unfitness is incontrovertible andso outrageous that no defense exists for it. Like attack-ing the GAL’s veracity, this approach is likely to bereceived dimly by the court. It is likely to be perceivedas an unprofessional, last resort when there is notanother argument on the merits of the case. Such astrategy is not likely to be persuasive to the court.

Showing that the GAL is Predudiced orBiased

GALs are human and are subject to becoming preju-diced or biased toward a party. Impeaching a GAL byshowing prejudice or bias is similar to showing a con-flict, except that the prejudice or bias may be basedupon some preconceived notion about a party that hasnothing to do with a previous relationship. A prejudiceor bias may even arise during the litigation. If it is notbased entirely upon facts that are relevant to the caseand related to the best interests of the children, it prob-ably has no place in the litigation. If such a prejudiceor bias can be shown to influence the GAL’s position, itmay be a sufficient showing to impeach the GAL’s rec-ommendation.

While this approach may be effective, it will be hardto prove the prejudice or bias. First, one must provethat the prejudice/bias exists. Once that is proven, onemust prove that the prejudice/bias has affected theposition the GAL takes in the litigation. How to provethese things will depend upon the specific facts andcircumstances of the case. The actual proof may not beshown until examination of the GAL at trial. Onceshown however, such a prejudice or bias is likely to bepersuasive to the court. It may not prove a party’s case,but it could neutralize the GAL.

Attacking the GAL’s Performance of DutiesThe GAL’s position in a case should be based upon

what he has learned in the performance of his duties.If it can be shown that the GAL did not properly per-form those duties, his position in the case may beimpeached. The GAL may unwittingly provide theattorney with what he needs in order to impeach hisperformance.

Most GALs send a questionnaire to the parties. Thatquestionnaire requests sundry information about thecase and the party. Usually, the GAL requests that theparties advise them of any facts or issues they believeare pertinent to the question of custody/visitation. If aparty provides information to the GAL and it can beshown that the GAL completely disregarded that infor-mation or failed to follow through with the informa-tion, the GAL’s position may be impeached.

This approach is especially effective when the GALrequests a list of witnesses from the parties – and mostGALs make such a request. If the GAL fails to inter-view the witnesses submitted by a party and thentakes a position adverse to that party, the GAL’s posi-tion may be effectively impeached. Such a lack of dili-gence on the part of the GAL may also be used toshow bias or prejudice. The GAL is well advised tomake sure that he at least attempts contact with everywitness submitted by the parties.


Showing the GAL has MisconstruedEvidence

Under certain circumstances, it may be possible toshow that the GAL, with all good intentions, has mis-understood or misconstrued evidence. This may bedone through examination of the GAL or through theuse of a third party witness.

Careful examination of a GAL on the subject of aconclusion he has reached may reveal that he hasbased that conclusion on an assumption that is flawedin some way. Confronting the GAL on the witnessstand with alternative interpretations of the evidencemay lead the GAL to question his own conclusion. Ifthe GAL can be made to question his own conclusion,that will weaken the persuasiveness of his recommen-dation.

At times, a GAL may receive evidence and misinter-pret that evidence. For example, a GAL may reviewschool records for a child and draw a conclusion fromsome notation made in the file. If the GAL bases hisposition in part on that conclusion, showing that thenotation in the file was misinterpreted may impeachthe position. This may be done by having a teacher oradministrator testify as to the true meaning of thenotation that is different from the GAL’s interpretation.

All of these approaches to impeaching a GALdepend in large part upon having knowledge of whatthe GAL did, what conclusions he made, and to whatextent he based his position on those conclusions.Discovery is the appropriate way to learn those facts.

ConclusionOur system is based upon litigating cases with full

knowledge of the facts and circumstances that are rele-vant to the issues pending before the Court. The pur-pose of litigation is not for one party to defeat theother—ideally it is for justice to be done. Justice isdone by applying the law to the actual facts of thecase. Our system becomes adversarial when we dis-agree over which law applies in a given circumstanceand what the relevant facts are.

Research and legal arguments educate us as to theapplicable law. Discovery educates us as to the facts.The discovery procedures are designed to allow liti-gants to ferret out all of the facts, even those that arenot necessarily admissible.

Attorneys should be allowed to obtain discovery

from GALs like any other expert witness. That infor-mation should be used like any other expert witnesstestimony – to evaluate the quality of the expert opin-ion; to refute the expert opinion; or to impeach theexpert.

Once a decision to treat the GAL as an expert hasbeen made, the attorney should plan how to proceedvery carefully indeed. If there is a possibility that anadverse recommendation from the GAL may be over-come using information gathered through discovery,the attorney may plan to attempt that. The attorneyshould carefully consider what negative impact thatmay have on the court’s perception of him and hisclient however. While impeaching the GAL as anexpert witness may seem reasonable in the course ofzealous representation, it must also be considered fromthe perspective of the court. The decision will requirecareful consideration of what may be gained and whatmay be lost in the process. FLR

Vic Brown Hill is a family law attorney in Marietta.Hill serves as a guardian ad litem for the CobbCounty Superior Court.

Endnotes

1. U.S.C.R 24.9 (7) Role at Hearing and Trial. It is expectedthat the GAL shall be called as the Court’s witness at trialunless otherwise directed by the Court. The GAL shall besubject to examination by the parties and the court. TheGAL is qualified as an expert witness on the best interestof the child(ren) in question. The GAL may testify as tothe foundation provided by witnesses and sources, andthe results of the GAL’s investigation, including a recom-mendation as to what is in a child’s best interest. The GALshall not be allowed to question witnesses or presentargument, absent exceptional circumstances and uponexpress approval of the Court.

2.Travis Meat & Seafood Company Inc., et al v. Walter W.Ashworth, 127 Ga. App. 284, 193 S.E. 2d 166, 1972, citingHickman v. Taylor, 329 U.S. 495, 500, 67 S. Ct. 385;Reynolds v. Reynolds, 217 Ga. 234, 123 S.E. 2d 115.

3. Deloitte Haskins & Sells v. Green, 187 Ga. App. 376(2), 370S.E. 2d 194 (1988)

If you would like to contribute to The Family Law Review, or have any ideas or suggestionsfor future issues, please contact Editor Randall M. Kessler at 404-688-8810 or [email protected].

In the divorce context, the selection androle of the business valuation expert willvary substantially from case to case.

There are many factors, which must beconsidered by the attorney and the valua-tion expert before retention is achieved andthe valuation process begins. Carefulanalysis and planning at the beginning willallow the entire process to move forwardsmoothly and efficiently, resulting in a sat-isfied client, successful engagement and asupportable valuation that can be defendedand believed. This paper will cover thoseall important preparatory steps: prepara-tion and the interview process; credentials;vitaes; prior reports; document collection;sourcing; timetables; facts; interviews andaccess to information; law of the case; clientmanagement and working on the assign-ment—from the perspectives of both theattorney and the valuation expert.

What Makes One An Expert?An expert is someone who has special-

ized knowledge, which an ordinary indi-vidual would not have in a particular field.In the arena of business valuation, mostvaluation experts will have credentials sup-porting their valuation expertise, such as acertified public accountant further creden-tialed with a certified valuation appraiserdesignation from the National Associationof Certified Valuation Analysts or the ABVcertification awarded by the AmericanInstitute of Certified Public Accountants;degrees and experience in the field offinance, business consulting and econom-ics; accreditation through the AmericanSociety of Appraisers; Certification as aBusiness Appraiser by the Institute ofBusiness Appraisers, and other organiza-tions conferring certification. The attorneywill want to know your training and expe-rience in the field; your involvement with aspecific industry; your track record regard-ing valuation for companies, which actual-

ly sold, based upon your work and moreabout your history. Additionally, yourforensic abilities are of equal importance.Can you sell your valuation? Can you ana-lyze the opposing valuation and assistcounsel with litigation support? Can youwithstand a vigorous cross-examination?All of these factors will be examined.

In the divorce context, which usuallyinvolves the valuation of a closely heldbusiness or a professional practice, the val-uation expert will encounter two differenttypes of attorneys:

A. Those who are extremely knowl-edgeable about business and finance,with a clear understanding of financialstatements and accounting principles.

B. Those who have very little knowl-edge of accounting or finance princi-ples.

Thus, the valuation expert will have to beflexible in preparing for and handlingassignments. How much litigation supportwill be required of the valuation expert ishighly dependent upon the attorney’s busi-ness acumen. Since this will also effectcosts, the valuation expert must addressthis matter early with the attorney, whilenot undermining the attorney’s relationshipwith the client. Many assignments will havefinancial limitations. Choosing assignmentswisely is an important consideration forexperts. Ultimately, it is your reputationthat is on the line and you do not want tolook foolish or unprepared when examined.Your reputation will spread very quicklyand you want that to be untarnished.

Preparation And the InterviewProcess

Naturally, different approaches arerequired for situations where you havenever before worked with the attorney whois allowing you to participate in the beautycontest at the initial meeting phase of the


Pre-Engagement andRetention of ExpertBy Joy M. Feinberg, J.D. and Sharyn Maggio, [email protected] and [email protected]


process than those cases where you has a history withthe attorney. Ask to meet with the attorney and client.However, before setting any meeting, you must firstdetermine if any conflict exists which would or shouldprevent you from taking the case. Do your conflictscheck before proceeding further. If you are theaccountant for the business and intend to remain inplace after the divorce, pass on the valuation assign-ment. You are far too vulnerable to claims of bias andmanipulation to truly help your client. It is even moredifficult ethically if you have prepared joint returns forthe husband and wife in the past.

You want to assess the type of people with whomyou will be working. Is this client honest and willingto provide the information and access you will need tocomplete your report in a timely manner? Does thisspouse of the business owner know much about thebusiness’ industry, key customers and key employees?These are just a few of the important questions towhich you want answers. Bring copies of your currentCurriculum Vitae for everyone at the meeting andextras for various files. Firm brochures are also helpfuland allow you to cross-sell available services not beingconsidered in this particular assignment. This alsoadds an aura of professionalism to your presentationfor future considerations. Also bring a list of referencesso that you make it easy for new prospects to obtaininformation on your past performances. Having a listof publications to which you have contributed, andcopies of shorter articles, written by you, on what youanticipate to be topics related to the instant matter isvery helpful. If you do not have such writings underyour belt, provide a list of source materials to whichyou and other experts in your field refer. Make certainthat your report is not at variance with the principlesset forth in your writings or those of the highlyrespected national authors on the subject of valuation.

If you know nothing about the business, research itBEFORE you come to the interview and bring thatinformation to the meeting with the client and attor-ney. Use the interview to broaden your knowledge ofthe particular business at issue and describe whatexperience you have related to this industry. If this is aspecialized business with which you have little famil-iarity and for which there are very specialized apprais-ers and methods of valuation, tell this up front to thelawyer and provide names and contact information.You are preparing for a lengthy working relationshipand demonstrating your cooperation, honesty andhelpfulness, and this will enhance your long-termprospects with the referral course.

Find out who is on the other side. Over time, youwill gather information about a particular attorney’s orexpert’s views on issues in dispute. Armed with thisinformation, you can assist the attorney and bolster

your report to account for what you expect to receivefrom the other side. You may have reports that theother expert has prepared on this subject, which ishelpful as a reference and source of cross-examination.1

A good presentation will include an itemization ofdocuments you will want to view and have copied foryour files. Most such lists are fairly standard; however,given the advance ability to ascertain informationabout the company, you can easily tailor this list withspecifics. This is a very impressive addition to yourpresentation. A standardized list is attached as anexhibit to this paper.

The ability to articulate technical terms is a musthave ability for valuation experts. Can you simplifycomplex concepts so that they are understandable bythe layperson? Few judges have accounting back-grounds or valuation training. The expert will repeatthe education process with the less financially sophisti-cated attorney again, at deposition and then again atthe deposition, followed, if required, by a new educa-tional process with the judge at trial. This time, howev-er, the judge is not likely to ask questions or seekrepeat explanations until such time as everything isunderstood. The expert’s job is to accomplish thisthrough the use of simple, declarative sentences; rea-soned and understandable explanations; use ofdemonstrative evidence that is in large enough print tobe read by everyone and the use of analogies thatrelate to everyday life to clarify the most difficultpoints. However, one must be very wary about suchcomparisons as some are easily twisted in ways thatcan be more harmful than helpful. If you are able todemonstrate your abilities to do all of this at the initialinterview, you are likely to be able to do this for thejudge.

Ministerial BeginningsThe expert must have a clear contract with the client

(or the attorney, if the attorney is hiring you directly).Minimally, the contract should specify the following:

retainer amount;

hourly charges for each layer of individual work-ing on the file;

the entity (entities) to be valued;

other experts required (i.e.: real estate appraiser;equipment appraiser; compensation expert, etc.);

what specific services are to be performed (i.e.:normalization of earnings; drafting a report; litiga-tion support services, etc.);

deposition fees, when they must be paid andpreparation time charges;

trial time fees, when they must be paid, andpreparation time charges;

expense reimbursement for travel, copies, bind-ing, research and the like;

who the “client” is;

time frame for report due date and expected trialdates;

when and how documents will be supplied;

how access to key management and employeeswill be obtained;

whether or not a meeting prior to writing up thereport is desired;

what the law of the case is as it has beendescribed to you;

what the valuation date is in the case at hand;

what the standard of value is in the case at hand;

anything else deemed relevant.Remember that your time sheets can be examined in

those states where discovery procedures will allowsubpoenas for such items. These can provide a greatdeal of fodder for cross-examination. Your file will alsobe subject to inspection. Maintaining notes on conver-sations can also provide the opposing side with toomuch information. Separate strategic commentaryfrom a lawyer’s musings from the facts of the casewhen note taking. Keep notes on facts only. Rememberthat if it is important enough to go in your report, itwas important enough to make a note. Be especiallycareful to include in the report those items in yournotes, which may be damaging. If you fail to do so,you can be charged with advocacy and may face cen-sure from your credentialing body.

Consider what sourcing information will best servethe valuation of this particular business. Mergerstathas a fine reputation; however, the validity of its ratiosis unlikely to be considered valid in a small, closelyheld entity with an annual EBITDA of $5,000,000 asopposed to the business with $50,000,000 to$100,000,000. See if Pratt’s Stats or other indices are abetter fit for this company.

Some people want to review your report. This canjeopardize your aura of credibility substantially.Discuss how this issue is to be pursued at the initialmeeting so you know what is expected from you. If theattorney does not bring up the subject of a meeting forpreliminary indications prior to writing the report, youshould do so. If your report will not be helpful to theside that has selected you, they may ask you not toprepare the report in order to cut their financial losses.Another issue about report writing that should be

addressed is whether or not your client wants to youretain draft reports. Given the use of computers,papers, reports, letters etc. are drafted and rewrittenuntil finalized. This is a double edged sword: will yoube believed if you say that your drafts were not savedbut merely showed changes to complete thoughts, cor-rect typos and clear up grammatical errors? If so, per-haps it would be better to save all drafts to demon-strate the truth of your statement. However, unsaveddrafts, along with meetings with the client during thepreparation of the report can be devastating to yourcredibility. Lawyers are getting more and more com-puter sophisticated and when the stakes are worth it,can require mirroring of your hard drives to retrievevarious drafts of the report. Ask how your client wantsyou to handle this issue. If you are in larger firm, yourfirm may have a policy on document retention, whichyou do not want to violate.

Role In The ProcessWhat will be your role in this engagement?

Certainly, the presentation and appearance must bethat of independence and even-handedness; however,the mere fact of being hired and paid by one side in acase already undermines that air of fairness. While thevarious credentialing bodies mandate that the apprais-er not become an advocate, as a forensic expert, youmust still tread that very thin line between supportingyour valuation report and crossing over into full-blown advocacy. The Uniform Standard ofProfessional Appraisal Practice Ethics Provisions man-date you “. . . perform assignments with impartiality,objectivity and independence and without accommo-dation of personal interests.” The American Society ofAppraisers defines “advocacy” as an act of:

Suppression or Minimization of facts, data or opin-ions which “. . . might militate against the accom-plishment of his client’s objective” or, the Additionof irrelevant data; unwarranted favorable opinionsor places an improper emphasis on any relevantfacts to aid the client in accomplishing his objective.

Thus, it is very important to report both the favor-able and unfavorable factors you considered in reach-ing your conclusion. There is no “perfect” case withoutany “bad” facts. It is the act of hiding or dismissingfacts, which leads to trouble, or, conversely, placingundue emphasis on facts for the sole purpose ofaccomplishing the client’s goals is also unwarranted.

Today, litigation support efforts are often demandedand/or required by the hiring attorney or client inaddition to the work provided in preparing the valua-tion report. Experts are called upon to assist in theanalysis of the opposing expert’s report; clarifying thefactors that cause the disputes between the opinions;helping prepare the attorney’s questions for both depo-


sition and trial and continuing assistance during trial.Lines can easily become blurred between litigationsupport and “advocacy”. Clarity in addressing allissues, both positive and negative in a balanced fash-ion will assist in credibility. Some experts and somelawyers believe that someone other than the report-providing expert should provide the litigation support.This is possible only in cases where money is availablefor an additional lawyer. Even with this addition, thetestifying expert needs to understand how the oppo-nent is positioning that view of the value and be ableto explain what is appropriate or inappropriate in thatposited position.

From the start of your engagement, you must be ableto assess the strengths and weaknesses of the businessto assist the attorney in preparing the overall strategyof the case. Is this a one-man show with little manage-rial support such that this investment risk factor mustbe emphasized? Is the industry past its apex and onthe decline? Is the industry highly volatile? Is this busi-ness traditionally valued under a specialized formulaor methodology when sold? The ability to recognizeand direct attention early on to key issues in this busi-ness is a key to your future success as a valuator.

Seeing strengths and weaknesses is the first step.How the attorney and client react to your insight willhelp you determine if you want the assignment. If thereaction is to provide you with other reasoned andwell-founded factors countering your intuitions, thenthese are people for whom you want to work. If youare met with derision or strong opposition founded inemotion rather than reason, consider whether or not itis possible to work successfully with these clients. Ifyou are being pushed for a figure from the beginning,it is unlikely that you can ever satisfy these people.There is nothing wrong with walking away politelyfrom an engagement. When you look back on your his-torical involvement with various engagements, youwill admit to yourself that you could see the seeds ofdiscontent planted right back at the initial phase ofyour involvement.

Client ManagementClient management will be substantially different

when representing the spouse rather than the businessowner. The valuation expert walks a delicate line: howmuch information should be shared; how much directcontact is warranted with the working owner; howmuch does or should the spouse be kept in the loopand by whom, which will vary with the spouse’s infor-mation and many other items are all matters you mustknow from the beginning. Get your marching orders atthe start and stay true to your own ethics and princi-pals as well as the procedures and methodology devel-oped at the earliest meetings.

Documents and Information NeededFinancial Statements

1. Annual financial statements (balance sheets,income statements of changes in financial position,and statements of stockholders’ equity or partners’capital accounts) for the last five fiscal years.

2. Latest available interim statements and interimstatements for the comparable period for the prioryear.

Federal income tax returns for the last five years;state income tax returns, if applicable.

List of subsidiaries and/or financial interests inotheir companies in which the subject company has anownership interest, and financial statements forthese entities

Copies of any available forecasts or projections

Other financial data

1. General ledger

2. Journal entries

3. Aged accounts receivable

4. Aged accounts payable list

5. Check register

6. List of cash accounts and any significant cashinvestments.

7. Equipment list and depreciation schedule

8. List of prepaid expenses

9. List of items comprising inventory (description ofquantity and cost), and information on inventoryaccounting policies.

10. List of any items comprising significant otherasset balances.

11. List of notes payable and other interest-bearingdebt.

12. List of any items comprising significant otherliability balances.

13. Compensation schedule for owners, includingall benefits and personal expenses.

14. Schedule of insurance in force (key-person life,property and casualty, liability).

Other Operating Data

1. List of stockholders, or partners, with number ofshares owned by each or percentage or each part-ner’s interest in earnings and capital.

2. Detail of any transactions with related parties

3. Organization chart


Legal Documents

1. Copies of any significant leases and loans,including notes receivable and notes payable.

2. Copies of any other existing contacts (employ-ment agreements, covenants not to compete, sup-plier and franchise agreements, customer agree-ments, royalty agreements, equipment lease orrental contracts, loan agreements, labor contracts,employee benefit plans, etc.).

3. If a corporation, articles of incorporation, by-lawsand any amendments to either.

4. If a partnership, articles or partnership, with anyamendments.

5. Copies of stockholder or partnership agreements,including any stock option agreements.

6. Minutes of board of directors meetings.

7. Copies of buy-sell agreements and/or writtenoffers to purchase or sell company stock.

8. Details of any litigation, including pending law-suits.

9. Details of any employee benefit plans.

10. Copies of any reports issued by governmentagencies such as EPA, OSHA, IRS and EEOC.

Other Information

1. Brief history, including years in business anddetails or any changes in ownership and/or bonafide offers received.

2. Brief description of business, including positionrelative to competition and any factors that makethe business unique.

3. Marketing literature (including, for example, cat-alogs, brochures and advertisements).

4. List of locations where company operates, withsize and whether owned or leased.

5. List of states in which licensed to do business.

6. If customer or supplier base concentrated, list ofmajor accounts, with annual dollar volume foreach.

7. Completed contract summaries for 10 largest cus-tomers.

8. List of competetors, with location, relative sizeand any other relevant factors.

9. Resumes of key personnel, with age, position,compensation, length of service, education andprior experience.

10. Personnel profile - Number of employees by

functional groupings (e.g., production, sales, engi-neering, R&D, personnel and accounting, customerservice, field support, etc.).

11. Trade association to which company belongs orwould be eligible for membership.

12. Relevant trade or government publications.

13. Any existing indicators of asset values, includ-ing latest property tax assessments and anyappraisals that have been completed.

14. List of patents, copyrights, trademarks, andother intangible assets.

15. Any contingent or off-balance-sheet asset or lia-bilities (pending lawsuits, compliance require-ments, warranty or other product liability, etc.).

16. Details of transactions in the company’s stockduring the last five years.

Endnotes

1. It behooves the expert to retain copies of reports made bythe expert and the opposing expert, organized by topicand the attorneys involved. In litigation, you may becalled upon to identify the occasions you have worked forand against the attorneys in the case. Being able to accesspast reports allows your side to demonstrate your consis-tency on an issue or allows you to prepare for a very cred-ible cross examination in the event you are not consistent.However, you can prepare in advance and explain whydifferent results occurred.


Amended PleadingsEdenfield and Cox, P.C. v. Mack,A07A0146 (Dec. 8, 2006)

In May 2001, the Edenfield law firmbegan assisting Victor McLemore, Esq. inrepresenting Mack, who was also an attor-ney, in Mack’s divorce action. Severalmonths afterward, a dispute arose regard-ing the amount of legal fees Mack owed tothe Edenfield firm as well tardiness of thepayment. At Mack’s request, the Edenfieldfirm withdrew from representing him andMcLemore finalized Mack’s divorce settle-ment agreement. In July 2004, the partieswere unable to resolve the legal disputeand the Edenfield firm filed a complaint onopen account against Mack. Mack, actingpro se, prepared an Answer and aCounterclaim. Because of his traveling,Mack requested McLemore to sign hisname on the pleadings and handle thedetails of the filings.

Shortly after, Edenfield filed a motion tostrike Mack’s answer on the grounds that ithad not been verified and had not plead aspecific amount. Soon after, Mack filed anamended Answer and Counterclaim restat-ing the allegations and denials in the initialAnswer and Counterclaim. The AmendedAnswer was signed by him and included averification as well as the denial of anymoney due. Edenfield filed a secondmotion to strike because the amendedanswer failed to plea a specific amount.Mack then filed a second amended answerand counterclaim, which specificallyaddressed the claim that there was noamount due. Several months later, theEdenfield firm learned that McLemore hadsigned Mack’s name on the originalanswer, which resulted in a third motion tostrike his answer and therefore entry of adefault judgment. The Edenfield firmargued that because Mack did not purpose-ly sign his original answer, the pleadingsviolated O.C.G.A. §9-11-11(a) which states,

in pertinent part, “that a party who is notrepresented by an attorney, shall sign hispleadings and state his address.”Therefore, Mack’s amended answers werenull and he was in irretrievable default.The trial court denies all of Edenfield’smotions. The Court of Appeals affirms.

O.C.G.A. §9-11-15(a) provides, inpertinent part, “thata party may amendhis pleadings as amatter of course orwithout leave ofcourt at any timebefore the entry of apretrial order.” Thecourt is to liberallyconstrue in favor ofan allowance ofamendments, partic-ularly when theparty opposing theamendment is notprejudiced thereby.Here, Mack’s amend-ed answers werefiled prior to theentry of any pretrialorder, and the Edenfield firm has notshown that the timing of such answersprejudiced this case. Therefore, Mack’samended answers personally signed byhim cure all alleged defects arising from afailure to personally sign the originalanswer and counterclaim.

Contempt/CounterclaimSeeley v. Seeley, A06A0843 (Nov. 15, 2006)

In October 2003, a consent final judgmentand decree of divorce was entered. Thedecree states that the parties shall sharejoint legal and physical custody of theminor child. The decree did not provide forchild support or for primary physical cus-todian, but set forth co-parenting.


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

However, the decree does allow the mother to havefinal decision-making authority. Since the divorce, themother had moved to Gwinnett County, and the fatherremained a resident of DeKalb County. In May 2004,the father filed the instant action for modification forphysical custody and visitation in the Superior Courtof Gwinnett County. The mother had moved toGwinnett County, and the father remained a residentof DeKalb County since the divorce. In June 2004, themother filed an answer and counterclaim that she con-tended that physical custody was not equal in that thechild spent most of the time with her and the mothersought primary physical custody.

Trial was set for Feb. 23, 2005, and on the morning oftrial, the father made an oral motion to dismiss themother’s counterclaim. The father argued that themother’s claim for custody and support had to bebrought in a separate action and not as a counterclaimand was required to be brought in the father’s countyof residence pursuant to O.C.G.A. §19-9-23. The courtheard argument, reserved ruling and proceeded withthe case. The court revisited the father’s motion duringtrial and denied it. The court concluded that O.C.G.A.§19-9-23 did not bar the mother’s counterclaim and itshould be allowed when in cases like this, the partiesare essentially seeking the same relief. The trial courtruled and placed the primary custody with the mother.The father appealed and the Supreme Court reversesand remands the case to the trial court for a hearing onthe father’s complaint only.

O.C.G.A. §19-9-23, provides in pertinent part, that “acomplaint by a legal custodian seeking a change oflegal custody or visitation rights shall be brought as aseparate action in compliance with Article IV, Section2, Paragraph 6 of the Constitution of this state; (c) nocomplaint specified in subsection ...(b) of this Codesection shall be made: (1) as a counterclaim or in anyother manner to response to a petition for writ ofhabeas corpus seeking to enforce a child custody orderor (2) in response to any other action or motion seek-ing to enforce a child custody order.” The Courts haverepeatedly held that this statute precludes a counter-claim seeking a change of custody. Every complaintseeking to obtain a change of custody of a child shallbe brought as a separate action. The mother arguesthat the Court should not apply O.C.G.A. §19-9-23because she only sought the change of physical cus-tody and not legal custody, but Section 19-9-23(b) spe-cially provides that “a complaint seeking a change oflegal custody, or visitation rights shall be brought as aseparate action.” It is clear that those counterclaims forprimary physical custody sought to change the father’sability to visit with his child.

The mother also argues, on appeal, that the fatherwaived his rights under O.C.G.A. §19-9-23 by moving

to dismiss her counterclaim orally instead of in writ-ing, but mother’s argument is barred because shefailed to raise it at trial

Contempt/ModificationCason v. Cason, S06A1442 (Nov. 20, 2006)

A final judgment and decree of divorce was grantedto the parties in 1995. Through 2004, the husband wasa chicken farmer and shareholder member in the GoldKist Cooperative. As part of his membership in thecooperative, the husband was allocated a portion ofthe profits earned for each year of his membership.The final decree incorporated the settlement agreementand provided, in pertinent part, that the equity in themarital home amounted to $125,000 and that the wife’sshare was $62,500, but the wife would relinquish herequity share and allow the husband to continue toreside there. In consideration thereof, the wife wouldreceive the entire Gold Kist patron dividends paymentfrom 1987 through 1993. Historically, patronage equitycredits listed in a member’s patronage account hadbeen redeemed by Gold Kist and paid in cash, butsuch payments were made approximately 15 to 20years in the future. Thus, the parties contemplated that1987 patronage equity in the account held in the hus-band’s name to be paid by Gold Kist in 2007. The hus-band expected distribution for those years amount to$150,027.52. The husband was to receive any Gold Kistequity distributions made beyond 1993.

In 2004, Gold Kist converted from a cooperative to a“for profit” corporation and the husband’s equity posi-tion was converted to cash and common stock. Thewife requested the husband deliver to her cash andcommon stock for the years 1987 to 1993 in lieu of herinterest in the patronage equity account for thoseyears. The husband refused and the wife filed con-tempt. The trial court did not find the husband in will-ful contempt but ordered the husband to deliver thecash in the Gold Kist stock in lieu of her interest in thepatron equity account for the years in question. TheSupreme Court affirms the ruling but remands theaward of attorney’s fees for an explanation of the statu-tory basis.

The husband argues on appeal that the trial courtimproperly modified the final decree by awarding thewife stock and cash where the decree provides for apayment of Gold Kist patron dividends. The court maynot modify the previous decree in a contempt order,however a court may always interpret and clarify itsown orders. The determination of whether an order isclarified or modified is based on whether the clarifica-tion is reasonable or whether it is so contrary to theapparent intention of the original order as to amountto a modification. Here, the trial court is authorized to


trade the value of the wife’s interest in equity accountsfor the years 1987 through 1993 to the stock and cash,which the husband received in lieu when Gold Kistconverted to a publicly held corporation in 2004. Thetrial court’s determination was a reasonable clarifica-tion because it was consistent with the intent and thespirit of the final decree. Otherwise, it would leave thewife with an illusory or meaningless asset.

Contempt/Statute of Limitation/DormancyCorvin v Debter, S06A2039 (Jan. 8, 2007)

The parties were divorced in 1994. In relevant part ofthe final decree, the wife retained possession of themarital residence, but upon her remarriage, or enteringinto a meretricious relationship or the youngest childattaining the age of 18 years of age, whichever occursfirst, she is to redeem the husband’s equity in saidhouse which is set by the court at $22,000. Until suchtime as the wife redeems saidequity, as set forth herein, thehusband shall retain his own-ership interest in said proper-ty. The wife remarried in1996, but did not pay the hus-band the $22,000. In 2004, thetwo parties filed crossmotions for contempt. Thehusband alleged the wife wasin contempt because sherefused to pay the $22,000even though she had beenremarried for several yearsand the youngest child wasnow 19 years of age. The wifefiled a response in which sheplead estoppel, illegality andwaiver as affirmative defenses to her failure to complywith the provisions of the divorce decree. After a hear-ing on the motions, the court ordered the wife to sellthe house and pay the husband $22,000 from the pro-ceeds. The wife filed a motion for new trial and motionto set aside asserting the husband could not recoverbecause the judgment became dormant pursuant toO.C.G.A. §9-12-60, and the husband had not attemptedto revive it. The wife appeals on the sole contentionthat the trial court erred because her obligation to paythe husband $22,000 was dormant and unenforceablepursuant to O.C.G.A. §9-12-60. The Supreme Courtaffirms.

In pertinent part, O.C.G.A. §9-12-60 states “a judg-ment shall become dormant and shall not be enforce-able within seven years shall lapse after the renditionof the judgment before execution is issued thereon andis entered on the general execution docket of the coun-ty in which the judgment was rendered.” The statute

of limitations begins to run from the time when thejudgment could be first enforced. Because dormancyunder O.C.G.A. §9-12-60 constitutes a statute of limita-tions, the wife has a burden to raise that as an affirma-tive defense in a timely manner. In the wife’s answer tothe husband’s motion for contempt, the wife did notraise dormancy as a defense. The wife only pleadsdormancy after the trial court found she was in con-tempt, and then she included it when she filed a post-judgment motion for new trial to set aside. Therefore,she raised no affirmative defense based upon thestatute of limitations/dormancy and that defense istherefore waived.

Equitable Division of Property/Closely HeldCorporationBarton v. Barton, S06F2159, S0X2160 (Jan. 8, 2007)

The parties were marriedfor 29 years when the wifesued the husband for divorceand the matter was referredto an arbitrator who dividedthe marital assets, but did notaward alimony. The husbandowned one-half of a closelyheld corporation, and thestock was subject to a buy sellprovision in the stockholderagreement which provides, inpertinent part, that “in theevent of the husband’s death,disability, bankruptcy orother specific triggeringevent, the other stockholderhas a right to purchase the

husband’s stock at a price to be determined by a for-mula.” Using the formula, the stock would have beenfixed at $342,200. However, the arbitrator placed a fairmarket value of the stock at $508,000 and the divisionof the marital property was based on that evaluation.The arbitration award was adopted by the SuperiorCourt. The husband appealed sighting error to divi-sion of marital property and the wife cross-appealsasserting the court erred in failing to award her alimo-ny. The Supreme Court affirms.

This is a case of first impression. The Supreme Courtrecognizes that in a minority of jurisdictions in divorcecases, the non-shareholding spouse should be boundby the shareholder spouse’s evaluation agreement.However, the majority of courts hold that the evalua-tion established a buy sell agreement of a closely heldcorporation, not signed by the non-shareholderspouse, is not binding on the non-shareholder spouse,but is considered along with other factors of value and


interest of the shareholder’s spouse. The reason beingis that in a closely held corporation, the buy sell evalu-ation can be manipulated and may not reflect the truemarket value. In view of the ruling above, upholdingthe division of marital property, the wife expresslywithdrew her cross-appeal.

Modification/Child Support ArrearageFacey v. Facey, S06A0693, S0X0694 (Nov. 27, 2006)

The parties were divorced in 2000, and there werethree minor children born of issue of the marriage. Afinal judgment and Decree of Divorce awarded theparties joint legal custody of three children with theprimary physical custody going to the mother. Thefather was to pay child support set at $1,197.92 permonth for three children based on 25 percent of hisannual income of $57,500. Future payments were to bemade by calculating 25 percent of his gross income.The father was a self-employed photographer. In April2001, the mother filed a petition to hold the father incontempt for failing to provide required income docu-mentation and for unilaterally reducing his child sup-port payments without seeking a modification of thedecree. In September 2002, the father filed a petitionfor a change of primary physical custody from themother to him and also sought that she be ordered topay child support asserting a change of circumstancethat materially affected the welfare of the children.Both actions were consolidated in December 2002, anda final hearing was held in March 2003, and a singleorder was issued. The trial court modified the divorcedecree where the new child support was $612.50 as afixed amount and the yearly adjustment was no longerapplicable, and calculated the child support arrearageon 25 percent of husband’s monthly gross income eachmonth. Both parties appealed the ruling. The SupremeCourt affirms.

On appeal, both parties objected to the taking of thefinal hearing by taking most testimony only by deposi-tion and restricting the amount of time that each partycould testify. However, neither party objected to theprocedure at trial and therefore any errors werewaived in this regard. The father also contends that thetrial court erred by modifying child support in the con-tempt action without either party filing a separate peti-tion for modification of child support. However, thefather plead for a primary change of physical custodywith corresponding change of child support.Therefore, the father’s petition prayed for a modifica-tion of the decree as to child support and also prayedfor a change of custody, which would meet therequirements of a modification pursuant to O.C.G.A.§19-6-19.

The mother contends the divorce decree’s languageproviding for an automatic annual recalculation of thefather’s child support obligation either was invalid orshould be considered a mere surplusage and shouldnot have been used to compute the father’s arrearages.The mother contends that the Court should have com-puted the arrearages based upon the monthly amountof $1,197.92 set forth in the decree without any recalcu-lation for income changes in later years. The Motherdid not attempt to appeal from the decree or set asidethe language from the 2000 divorce decree. Therefore,the trial court was correct in recalculating the amountof child support to determine the arrearage for eachmonth since the issuance of the decree.

Modification/JurisdictionBailey v. Bailey, A07A0610 (Jan. 31, 2007)

In February 2004, the father and mother weredivorced in Fulton County and custody of their onlychild was awarded to the father. The mother latermoved her residence to Douglas County. In March2005, the father filed a complaint in Douglas County tomodify the mother’s visitation rights. Before answeringthe complaint, the mother filed a petition in FultonCounty, where the father and child still resided, alleg-ing a material change in circumstances and seeking achange of custody to her. The Fulton County Court,sua sponte, dismissed the action stating that the moth-er’s request could be better heard in Douglas Countywhere the custody arrangements were already beinglitigated by the father. The mother did not appeal theorder. The mother then filed an answer and counter-claim in the father’s Douglas County action. In hercounterclaim, she sought to have custody of the childchanged to her. After the trial commenced, the fathermoved the Douglas Court to dismiss or in the alterna-tive, transfer the mother’s counterclaim to FultonCounty. The Douglas Court did not grant this motionto dismiss or transfer the counterclaim under O.C.G.A.§19-9-23, but instead transferred the entire case includ-ing the father’s claim, to Fulton County under the rea-soning that Fulton County had exclusive continuingjurisdiction over the question of custody. The FultonCounty Court assigned the transfer case a new civilaction file number.

After the case was transferred to Fulton County, thefather moved the Fulton County Court to dismiss themother’s counterclaim on the grounds that underO.C.G.A. §19-9-23, she could not assert this as a coun-terclaim but had to file a separate action in FultonCounty. Fulton County Court denied the motion citingthe father had waived the issue by moving to dismissin the Douglas Court and in the alternative, to transferthe counterclaim to Fulton County. Following the trial,


the Fulton County Court granted the mother’s counter-claim and awarded custody of the child to the mother.The Court of Appeals reverses.

O.C.G.A. §19-9-23(a) provides that after a court hasdetermined who is to be the legal custodian of a child,any complaint brought by the non-custodial parent toobtain a change of legal custody of the child shall bebrought as a separate action in the county of residenceof the legal custodian and that no such complaint shallbe made as a counterclaim or any manner as aresponse to any writ, motion or action seeking toenforce a child custody order. Therefore, a counter-claim seeking a change of custody in an action broughtby the custodial parent in the county of the non-custo-dial parent’s residence is not proper because; (1) is nota separate action and (2) it is not brought in the countyof the custodial parent’s residence.

The mother also argued that the father waived theissue failing to raise the matter earlier and by movingthe Douglas Court in the alternative transferred themother’s Counterclaim to Fulton County. It is true thatthe parties may waive the provisions of O.C.G.A. §19-9-23 by its actions or words. However, the father didnot do so here. Although he did not raise the matter asa defense in his pleadings, such was not required sincehe filed no response to the mother’s counterclaim,which does not require an answer and automaticallystands denied. Therefore, the father was permitted toraise the matter, as he did, in a written motion justbefore trial.

Mother finally argued that since she had initiallytried to assert a change of custody claim as a separateaction in Fulton County but was unsuccessful whenthe Fulton County Court, sua sponte, dismissed theaction, she was properly allowed to pursue it as acounterclaim in the Douglas County action, especiallysince the entire action ended up in Fulton County any-way. However, the mother failed to appeal the FultonCounty order dismissing her action, and just becausethe Court was mistaken in dismissing the mother’soriginal Fulton County action, it did not excuse themother from appealing that ruling nor authorize themother to pursue the action as a counterclaim.

Modification/Military Service/UCCJEAJones v. Van Horn, A06A2467, A07A0057 (Dec. 29, 2006)

The parties were divorced in Texas in 2001. The hus-band was awarded physical custody of their daughterand the wife was awarded physical custody of the son.In June 2005, the mother filed a modification petitionin Dade County, Georgia alleging that she had residedthere with her daughter for more than six months andwas requesting an order changing physical custody of

the daughter from the father to the mother. The moth-er alleges the custody of the daughter should bechanged because the father is presently in the militaryservice and scheduled to be deployed away from hispresent home for at least the next several months. TheTexas divorce decree contained a provision that said ifJones was deployed over seas to a location where thedaughter was not allowed to accompany him, then thedaughter would reside with the mother until Jonesreturned to the United States.

It is undisputed that on June 22, 2005, Jones com-menced the one-year Army deployment to Korea,which his new wife and daughter could have accom-panied him, but the father elected for them to stay inthe United States. The father argues that the change ofcustody provision was only triggered if he was notallowed to bring his child to accompany him and notwhen he elected not to bring her. A final hearing washeld on Dec. 22, 2005, where no transcript was includ-ed on the appeal. The trial court awarded permanentcustody of the child to the mother. The Court ofAppeals reverses and remands.

The Court should only grant a change of custodyonly if it finds there has been a material change of con-ditions affecting the welfare of the child. At the time ofthe final order, the father was six months into a one-year deployment to Korea. The court order changedcustody based on a purported change of condition thathad not occurred, and the court made no findings thatany change occurred that substantially affected thewelfare and best interests of the child.

The father contends the Court also erred by notgranting him a stay of the final hearing under theService and Civil Relief Act. However, the father didnot move pursuant to the act for a continuance of thefinal hearing. An application for stay under the actmust include a letter or other communication settingforth facts stating the manner in which the current mili-tary duty requirements materially affect the service-man’s ability to appear, stating the date when the serv-iceman will be available to appear, a letter or othercommunications from the serviceman’s commandingofficer stating that the serviceman’s current militaryduty prevents appearance and that military leave is notauthorized for the serviceman at the time of the letter.Father also contends that the trial court should havestayed proceedings because the mother did not containall of the information required under the UniformChild Custody Jurisdiction Enforcement Act (UCCJEA).However, there was nothing in the record that showsthat the Father moved for a continuance because thePetition did not contain all of the information requiredby the UCCJEA. Therefore, the case was remanded tothe trial court for the application of the law to the factsand in a manner consistent with this opinion.


Pleadings/Laches/Implied ConsentHowington v. Howington, (S06F1408) (Nov. 6, 2006)

The parties were married in 1989, and they separatedsix years later. In May 1997, the wife filed an action fordivorce in DeKalb County where she lived. The wifeserved the complaint of divorce upon the husband’sson who lived in Fulton County, although at the timethe action was filed, the husband was living in NorthCarolina. The husband did not answer the complaintand did not appear at the scheduled November 1997hearing. The court issued the divorce and awardedwife one-half of the husband’s civilservice pension for life. An amendedqualified domestic relations order(QDRO) was issued on Feb. 17, 1998.The husband filed a motion to setside the divorce decree in June 2004,stating he was not properly served.In the wife’s response, she arguedthat the motion was barred by lach-es because the husband knew thewife filed the complaint, received acopy of the complaint, and dis-cussed the terms of the divorce withher. The trial court granted themotion to set aside on Dec. 15, 2004and found the husband was not for-mally served with the complaintand that he did not waive service ofprocess.

An amended order setting aside the final decree ofdivorce was entered in October 2005 and to further setaside any such order that distributed any assetsbetween the parties including the amended QDROdated Feb. 17, 1998. Despite the entry of the order, thewife continued to receive one-half of the husband’spension benefits. A second divorce proceeding washeld with both parties represented by counsel. Thehusband did not include in his counterclaim a prayerfor reimbursement of the pension benefits paid afterthe Dec. 15, 2004 order. A new divorce decree wasentered ordering the wife, inter alia, to reimburse thehusband in an amount equal to the pension benefitsshe received after Dec. 15, 2004 order setting aside thefirst decree. The wife appealed and the Supreme Courtaffirms.

The wife contends the husband was barred by lachesby asserting his claim to set aside the original divorcedecree. Laches can be a defense to an action attackingthe validity of a divorce decree. However, to prevail ona claim of laches, a party must prove some harm orprejudice caused by the delay. The passage of timecould not be enough. The trial court made no findingsregarding the defense of laches and assuming all the

facts alleged by the wife are true, there is no allegationor evidence in the record demonstrating that she washarmed by the delay. The wife also argues that the trialcourt erred by granting relief beyond that sought inthe Husband’s pleading. Even though the husband didnot include reimbursement as a counterclaim, the tran-script of the final hearing reveals that the wife permit-ted the issues to be litigated without objection.O.C.G.A. §9-11-15(b) allows amendments to conformto the evidence. Issues not raised by the pleadings thatare tried by express or implied consent of the parties,shall be treated in all respects as if they had beenraised in the pleadings. Therefore, the husband’s claim

for reimbursement of the pensionbenefits was litigated with theimplied consent of the parties andwas not foreclosed because of itsabsence from the pleadings.

Qualified DomesticRelations OrderSweat v. Sweat, S06F2079 (Jan.22, 2007)

After a jury trial, the wife wasawarded 43 percent of the hus-band’s retirement account. The hus-band’s attorney did not argue to thejury with regards to division of thepension plan by the form of a quali-fied domestic relations order(QDRO). The jury did not detailhow the division of the pension

plan was to be accomplished for the purpose of taxtreatment. It appears that simply dividing the pensionplan as outlined in the jury’s verdict, and not using aQDRO, would result in negative tax consequences forthe husband. Even though there were post verdict dis-cussions with regards to the possibility of a QDRO,there was no agreement or stipulation by the partiesafter the jury’s verdict. The husband filed a motion toset aside judgment, motion for new trial and a motionto partially amend or in the alternative, reconsiderdecree to correct omission of a QDRO and as to retire-ment plan and alimony issues in regard to the decree.The Supreme Court affirms.

Since the jury did not designate the use of a QDROand there were no stipulations between the partiesafter the jury’s verdict, the Superior Court was notobligated to provide for the use of a QDRO in the par-ties’ divorce decree.

RecusalEchols v. Echols, S06F2153 (Jan. 22, 2007)

The parties’ divorce action was assigned to JudgeMcGarity. On April 14, 2004, the wife filed a motion to


recuse Judge McGarity based upon allegations that thejudge had a long time business and personal relation-ship with the husband’s family and that the wife hadperceived bias in favor of the husband existing sincethe start of litigation. At the beginning of litigation, thehusband told the wife the husband’s family hadknown Judge McGarity forever, and that JudgeMcGarity had already decided to award custody of thechild to the husband. Wife also believes that JudgeMcGarity had received extra judicial information fromsome other source with regards to refinancing the mar-ital residence. Wife also alleges that on May 6, 2004,Judge McGarity specially set an action for trial withdiscovery not being completed, thus causing wife tofile her recusal motion. On May 20, Judge McGaritydenied the recusal motion on the ground that it wasuntimely filed and/or legally insufficient as a matter oflaw. The Supreme Court affirms.

Under Uniform Superior Court Rule 25.1, states that“a motion to recuse must be filed no later than fivedays after the affiant first learned of the allegedgrounds for disqualification. . .unless good cause canbe shown for failure to meet such a requirement.” Thewife’s motion was based upon Judge McGarity’salleged bias against the wife due to the judge’s closepersonal and business relationships with the husband’sfamily and that the husband told the wife that his fam-ily had known Judge McGarity forever and would rulein his favor on custody. Wife should have filed herrecusal motion within five days after her conversationwith the father in 2003 with regards to the award ofcustody. That statement should have alerted the wifeof Judge McGarity’s alleged bias and she should nothave waited more than a year to file the presentrecusal motion.

Separation Agreement/Summary JudgmentD’Errico v. D’Errico, S06F1588 (Jan. 8, 2007)

On June 22, 1996, the parties entered into a separa-tion agreement drafted by the wife’s counsel that recit-ed that the parties intended the agreement to settle allquestions regarding alimony, property and all otherissues of the marriage. Among other things, the agree-ment provided that the husband will pay $1,100 ofmonthly alimony and the husband shall have theexclusive use of the marital home titled in his name,and in case of divorce, the agreement would be incor-porated into the Final Decree. The agreement furtherprovided that the terms cannot be altered except withthe express written consent of the other party. On Feb.13, 2003, the husband filed a complaint for divorce andon March 26, 2003, the wife dismissed her attorney andfiled a pro se answer and counterclaim requesting aninterest in the marital home as well as a share of thehusband’s retirement pay as alimony.

On Sept. 6, 2005, the husband filed a motion forsummary judgment requesting the trial court enter afinal divorce decree incorporating the settlementagreement. The wife hired new counsel and arguedonly that the separation agreement failed to resolve theownership of the marital home and no argumentregarding the husband’s retirement benefits. The trialcourt granted the husband’s motion for summary judg-ment and found there existed no genuine issue to anymaterial fact since all the issues arising from the mari-tal unit of the parties were resolved in the separatemaintenance agreement entered into by the parties.The wife appealed and the Supreme Court affirms.

Here, the wife through her counsel, drafted a separa-tion agreement which she voluntarily entered into set-tling all questions concerning the alimony, propertyand all other issues of the marriage, including the mar-ital home and the husband’s military and civil serviceretirement pay. Therefore, the wife is bound by theseparation agreement.

Trust/Interested PartyRichards v. Richards, et al. S06A1269 (Nov. 20, 2006)

In 1994, the father established inter vivo trusts andnamed the three minor children as beneficiaries withhis current wife was the trustee. In 2000, the partiesdivorced and as a consequence, the mother was nolonger trustee. The settlement agreement provided thatthe father would pay $2,000 per month in child sup-port, in part, upon the existence of the trust and theparties’ anticipation that the assets maintained and theincome generated by the trust are sufficient to coverany expenses of the children incurred above andbeyond the child support. The trust agreement alsoprovided, in relevant part, that the children wouldreceive all income in annual or more frequent install-ments and the trustee was authorized to encroach onthe principle in such amounts as the trustee may deemnecessary to provide for the support and education ofthe children.

The father remarried and his new spouse became thetrustee. His ex-wife filed suit against him and his sec-ond wife and asserted on behalf of herself and the chil-dren various claims including a breach of the trustagreement, removal of the trustee and appointment of areceiver. The trial court appointed a guardian ad litemto represent the interests of the children. The fathermoved for summary judgment and the mother movedfor partial summary judgment. The trial court grantedthe father’s motion and denied the wife’s motion andstated that the mother was not an interested party andlacks the requisite standing to maintain an action in herindividual capacity. The Supreme Court affirms.


Pursuant to O.C.G.A. §53-12-176(a)(2), “the trusteemay be removed upon the application to the SuperiorCourt by any interested person showing good cause.”Pursuant to O.C.G.A. §53-12-2(4), defines interestedperson as “a trustee, beneficiary or any other personhaving interest in or claim against the trustee.”Therefore, the mother is not a trustee or beneficiary ofthe trust, but she argues that she is an interested per-son because of her routine provision of funds for thesupport of the children. However, the right to childsupport does not belong to the mother it belongs to thechildren, and the mother is the mere trustee chargedwith the duty of seeing that the funds are applied sole-ly for the benefit of the children. Here, the trust agree-ment neither guaranteed that the trust would con-tribute a specific amount toward the children’s supportnor provided the trust would assume the obligation toreimburse the mother or any other third party for such

sums that might be contributed to their welfare. Itappears that the trust has complied fully with its obli-gations to pay the children all income that it generatesand the trustee has on occasion, exercised discre-tionary authority and encroached on the principle.Because the mother lacks standing as an interestedperson, summary judgment was also proper on moth-er’s individual claim for appointment of a receiver. FLR

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


allow opportunities for reductions in the support givento a child.8 Other more particular provisions likewiseleave room for varying interpretation and thus warranta further inquiry into potential methods of application.An examination of case law from other income-sharesstates provides guidance for Georgia’s courts and prac-titioners in determining how to interpret our ownstate’s provisions.

Deviation DilemmasIn an effort to reduce the opportunity for unpre-

dictable awards and to ensure that courts only allowdeviation from the presumed amount for well-sup-ported reasons, Georgia’s statute, like many otherincome-shares states’ systems, requires a court permit-ting deviation to justify its decision by setting forth thefollowing findings:

1. The reason for deviation from the presumptiveamount;

2. The amount that would have been required if thepresumptive amount had not been rebutted;

3. Why the presumptive amount is unjust or inap-propriate; and

4. Whether the best interest of the child will beserved by deviation.9

In determining whether to apply a deviation, “primaryconsideration shall be given to the best interest of thechild.”10 Although there are many grounds for devia-tion provided by the statute, this note addresses two ofthe grounds that have caused substantial discussionother income-shares jurisdictions: high income andparenting time.

§ 19-6-15(i)(2)(A): High IncomeThe Georgia Schedule of Basic Child Support

Obligations provides obligation amounts to corre-spond with combined parental incomes ranging from$800 to $30,000 per month.11 The statute refers to par-ents with combined incomes higher than $30,000 as“high income parents” and mandates that a court setthe basic support obligation at the highest amount pro-vided in the obligation table.12 The court may thenconsider upward deviation “to attain an appropriateaward of child support for high-income parents whichis consistent with the best interest of the child.”13

As previously discussed, the premise of the income-shares model is the belief that, as parental incomerises, the percentage of income expended on the childdecreases.14 The fact that the legislature found $30,000to be the appropriate maximum income level for thetable suggests a presumption that beyond that level ofcombined income, the amount spent on a childremains rather static. Georgia’s statute, as in everycase, then allows the court to deviate from the pre-sumptive support amount as it finds necessary. Sincethe statute provides separate directions to allow fordeviations based on extraordinary or special expenses(the cost of extracurricular activities, for instance), theparticular “high income” deviation would assumedlyapply primarily when the court feels the basic financialrequirements for the child are in excess of $2,236 (thesupport amount corresponding with a $30,000 com-bined parental monthly income).15

In a similar situation, the Maryland Court ofAppeals, in Voishan v. Palma, discussed methods forgenerating a basic support amount where the parents’combined monthly income exceeded $10,000, the high-est amount provided in its guideline table. The court

Child SupportContinued from page 1

determined that the legislature intended for the maxi-mum support award under the table to be a minimumawarded in cases of incomes above $10,000 and thatbeyond that “the trial judge should examine the needsof the child in light of the parents’ resources . . . .”16

Thus, the Maryland court judicially created directionsfor incomes exceeding the table that almost exactlymirror those in Georgia’s statute.

The Maryland court then addressed and dismissedseveral proposed approaches for courts faced withcombined incomes above the table amount.Specifically, the court held that trial courts should notsimply extrapolate from the guidelines to determinewhat the support obligation would have been had theschedule extended up to the parties’ particular com-bined monthly income.17 The court refused to endorsesuch a method because of the significant restriction itwould place on a trial court’s discretion: “[W]e believethat the trial judge should consider the underlyingpolicies of the guidelines and strive toward congruousresults . . . .”18 The court supported its conclusion witha statement made by the state’s attorney general that:

“[i]mplicit in this . . . is the view that at very highincome levels, the percentage of income expendedon children may not necessarily continue to declineor even remain constant because of the multitude ofdifferent options for income expenditure availableto the affluent. The legislative judgment was that atsuch high income levels judicial discretion is bettersuited than a fixed formula to implement the guide-lines’ underlying principle that a child’s standard ofliving should be altered as little as possible by thedissolution of the family.”19

Other states’ courts, however, have accepted extrapo-lation-based awards, where they were justified for thesituation. In 2004, Division 1 of the Court of Appeals ofWashington, in Rusch v. Rusch, determined that, con-trary to prior holdings by the Division 2 appellatecourt, the statute did not expressly invite the court toextrapolate beyond the statutory amount:

“Extrapolation programs do not base calculationson economic data. . . . [T]he figures provided by theextrapolation program are not based on the child’sspecific, articulable needs.”20

The court explained that not only would this be con-trary to the legislature’s intent, because had the legisla-ture intended courts to just continue the table past themaximum income, it would not have capped the tableat $7,000.21 Additionally, extrapolating results in aninappropriate burden-shifting:

“Using an extrapolated amount also implies a pre-sumption that the extrapolated amount is the cor-rect amount. This forces the challenging party to

bring forth evidence challenging that number andplaces the burden on the obligor to show why theextrapolated amount is not appropriate.”

The court also discussed the amount of support acourt must provide to justify extrapolating from theguidelines in cases of high incomes: “[C]ursory find-ings are not sufficient.”22 When entering the findingsof fact required by the statute, a court “... must explainwhy additional support [above the guidelines maxi-mum] is necessary.”23 The court suggested factors suchas standard of living of each parent as well as specialmedical, educational, or financial needs of the chil-dren.24 “Using an extrapolated figure without morepresumes that the extrapolated amount is a right of therequesting party, regardless of need. But if the childrendo not have a need for child support exceeding thestatutory maximum, the court cannot award child sup-port exceeding the advisory number.”25

The court later elaborated, in In re Marriage ofDaubert, that specific findings must explain why theamount of support being set above the schedule maxi-mum is both necessary and reasonable.26 The courtsuggested that factors for determining reasonablenessincluding “parents’ income, resources, and standard ofliving.”27 The court warned that these two factorsshould be seriously considered, and that the mere factthat the children would benefit from the opportunitiesthat would be provided by additional funds is notenough.28

Because both Maryland and Georgia’s child supportguidelines are based on the income-shares model andbecause Maryland courts and Georgia courts face simi-lar directives when dealing with “high income par-ents,” Georgia’s courts should take into considerationthe policy reasons upon which Maryland courts basedtheir rejection of specific formulas. Georgia courtsshould consider using their discretion based on evi-dence presented by the parties regarding the basicmonthly expenses made on the child.29 Additionally,when considering specifically whether extrapolationshould be utilized in setting a “high income” supportamount, Georgia courts should bear in mind the gener-al disfavor of or, at the least, digression from themethod. Maryland courts have refused to endorse themethod; although Washington courts are permitted toextrapolate, they must jump through hoops to showthat the resulting support amount actually correlateswith what is necessary and reasonable in the particularcase. Georgia’s courts should follow suit and focus pri-marily on the needs of the children and the resourcesof the parents.

§ 19-6-15(i)(2)(K): Parenting TimeUnder Georgia’s statute, a court may allow applica-

tion of a deviation to a noncustodial parent’s basic sup-


port obligation30 when his presumptive amount ofsupport is found excessive or inadequate due toextended parenting time.31 The statute provides nofurther guidance as to a threshold level of increasedtime that must be shown before a deviation in the non-custodial parent’s share of the support obligation iswarranted, nor does it suggest what sort of evidence aparent seeking such deviation should present to thecourt.

“[T]he incentive of a reduction in child support mayhave the effect of promoting the involvement of bothparents in the upbringing of their children, a generallydesirable circumstance.”32 Although a very specificand formulaic parenting time adjustment scheme wasincluded in House Bill 221, when the Georgia legisla-ture passed Senate Bill 382 into law as the currentstatute, parenting time considerations were ultimatelyfound better suited as a basis for deviation, whichleaves it up to the courts to decide whether to strayfrom the presumptive support obligation in certaincases.33 Permitting alteration based on parenting timeallows a court to recognize the increased expense thatmay be incurred by a noncustodial parent who exercis-es a certain amount of extra visitation. The fact that thelegislature removed such an extensive provision,which featured explicit instructions for courts based onexact numbers of extra visitation days, and decidedthat parenting time considerations would work betteras a ceviation ground, implies that the legislaturefound such considerations better left to a judge’s dis-cretion based on the four-part required showing fordeviations.34 The text provides little more instructionthan the general requirement that a court may deviateif it finds a presumptive support amount “unjust orinappropriate” in light of the extra visitation.35

Louisiana’s case law provides perhaps the mostinsightful discussion and determinations regardingparenting time deviations. In Guillot v. Munn, theLouisiana Supreme Court found that the state supportstatute at that time did not provide guidelines fordetermining the amount of the deviation, but merelycalled for a balancing of the interests of the partiesinvolved.36 In holding that such a deviation is notautomatically allowed, the Guillot court set forth athree-part showing that the party urging a deviationmust make:

1. that he exercises shared custody or extraordinaryvisitation time;

2. that the extra time spent with the noncustodialparent results in a greater financial burden on thatparent and in a concomitant lesser financial burdenon the custodial parent, and;

3. that the simple application of the guidelineswould not be in the best interest of the child orwould be inequitable to the parties.37

Although it set no threshold amounts for finding“extraordinary” visitation exists, the Guillot courtmade it clear that such a deviation, like all deviations,should be allowed only in limited circumstances andonly with a showing of the requisite proof.38

In Lea v. Sanders, the appellate court in Louisianaapplied the Guillot factors and found that, although thefather exercised 43 percent of the custody, because hehad the children for very scattered periods of time, thecustodial parent did not experience a significant reduc-tion in her own expenses, and thus a deviation was notwarranted.39 The court emphasized the limited sce-nario that the deviation was created to remedy—a situ-ation where each parent is expending such increasedmeasures of time and resources that the noncustodialparent is making additional expenditures and the cus-todial parent, as a result of the visitation arrangement,has seen a reduction in necessary expenses on thechild.40 The Guillot court itself indicated that extraordi-nary visitation arrangements may result in greaterexpense on the custodial parent, whom the court mustensure will still be able to adequately provide for thechildren.41

Ohio’s guidelines allow courts to consider “extend-ing parenting time or extraordinary costs associatedwith parenting time” as a potential basis for a devia-tion from the calculated support amount.42 In Holt v.Holt, the court of appeals applied an analysis very sim-ilar to that of the Louisiana courts.43 The denial of adeviation in the noncustodial parent’s obligation wasupheld primarily because the increased parenting timewas not so great as to warrant a deviation.44

Additionally, however, the court found that the denialwas warranted based on the custodial parent’s finan-cial situation (the noncustodial parent’s income was“significantly greater” than the custodial parent’sincome) and also based on the age of the childrenbeing supported.45

In Linam v. Linam, the Court of Appeals of Ohioupheld a deviation in recognition of increased parent-ing time. The court also discussed and approved of themethod of calculating the reduced obligation.46 Eachparent had the children for 50 percent of the time.47 Asa result, the magistrate court had granted a 50 percentdeviation to the father’s support amount, which themother claimed was erroneous.48 The mother claimedthat the deviation should only be 22 percent, based onthe idea that a standard visitation order only gives theobligor 28 percent of the time with the children, andthe difference between 28 percent (the traditionalamount) and 50 percent (the amount exercised by thefather) is 22 percent.49 The appellate court disagreedwith the mother and approved of the lower court’s 50percent reduction, explaining that not only would thechildren be spending almost 25 percent more time


with the father, but they would also be spendingalmost 25 percent less time with her, for an approxi-mate total of 50 percent change in the support thatneeded to be paid to her.50 The court additionallywarned that courts should not attempt to equalize theshare of the total obligation where the parties’ incomesare different, but assured that the calculations thecourt had approved were “not equalization of obliga-tion” but were “merely a deviation in an amountapproximating the time spent with each parent.”51

Louisiana’s three-part inquiry, which is similar to theanalysis applied by many income shares states,ensures that the noncustodial parent actually deservesa reduction in the support he pays to the custodial par-ent, and protects against a noncustodial parentattempting to increase visitation time as a pretext for adesire to pay less money overall. As a result, a custodi-al parent should not be reluctant to grant increasedvisitation with the noncustodial parent (usually a ben-efit to the child) because the noncustodial parent willbear a heavy burden of showing a resulting increasedcost to himself as well as decreased cost to the custodi-al parent before the court will offer any downwarddeviation. Georgia courts should consider theserequirements when faced with parenting time devia-tion requests. Additionally, Georgia courts should con-sider making a clear refusal to ever set a bright-line orformulaic test for determining whether a parentingtime deviation is merited, especially since it minimizesparental quibbling over visitation for the purpose ofinfluencing the support amount. Georgia courts aregiven discretion in how they will apply a deviation ifthey find such is merited based on increased parentingtime by the noncustodial parent. The Ohio appellatecourt’s method in Linam, or some variation of it, shouldbe considered, but courts should always be able to usetheir own discretion in how much to deviate based onthe factors in the particular case at hand.

§ 19-6-15(c)(5): Settlement Agreements “Nothing contained within this Code section shall

prevent the parties from entering into an enforceableagreement contrary to the Presumptive Amount ofChild Support,” provided that the trial court reviewthe agreement to ensure “adequacy” in its supportamounts.52 The text, however, provides that the court“shall reject such agreement” if the agreement does notcomply with the provisions in the statute and also if itdoes not contain the findings of fact required by thestatute when a deviation basis is applied.53

This provision appears to contradict itself; it grantsparties the freedom to make agreements contrary tothe presumptive amount, but, according to the text,such agreements must be rejected if they do not com-ply with the statute’s provisions.

The Arizona child support guidelines explicitly statethat one of the purposes for the implementation of itsincome-shares-based statute is “to promote settle-ment.”54 The only guidance its statute provides is thatthe court shall deviate from the guidelines amount ifthat amount is found unjust or inappropriate, but thatthe court may allow a deviation from the guidelines“based upon an agreement of the parties” if the agree-ment is in writing, if the parties agree they are awareof what the support amount would have been underthe guidelines, and if the court shows that applicationof the guidelines would have been unjust or inappro-priate and that the best interests of the child have beenconsidered.55

The Tennessee Court of Appeals, in Lichtenwalter v.Lichtenwalter, addressed settlements between parties inchild support cases, and began its analysis by statingthat “[p]arents have deeply rooted moral responsibili-ties to support their minor children” which, underTennessee law, “imposes a legal obligation on parentsto support their minor children in a manner commen-surate with their own means and station in life.”56 Thecourt construed that the existence of child supportguidelines creates a rebuttable presumption that childsupport obligations will be set using the guidelines’procedures and formulas.57 As a result, “even whenparents undertake to make their own child supportarrangements, the courts have the power—and obliga-tion—to set child support consistent with the ChildSupport Guidelines unless they make the requiredfindings regarding their reasons for deviating from theguidelines.”58

The Maryland Supreme Court, faced with a settle-ment agreement in Walsh v. Walsh, declared that“[w]hen a judge approves and incorporates an agree-ment of the parents into an order of support, the judgemust do more than merely rubber stamp anything towhich the parents agree. Judges have an obligation toassure that children do not suffer because of any dis-parate bargaining power of their parents.”59 The courtelaborated that judges reviewing such agreementsshould refer to the guidelines.60 If the agreed-uponamount contains a downward deviation from theguidelines, the order must include justification for whysuch a low amount was approved.61

Thus, since allowing parties to reach their ownagreements regarding support amounts increases judi-cial efficiency and also since Georgia’s statute express-ly states that settlements are acceptable, Georgia’scourts should review such agreements in a mannersimilar to Tennessee and Maryland courts; settlementagreements should generally be approved as long asparents can justify any decrease in the overall supportamount. Although Georgia’s statute does not expresslystate that promoting settlements is a goal of the new


guidelines like Arizona’s statute does, the step-by-stepand formulaic nature of the new statute shouldencourage parties to plug in the applicable amounts ontheir own and present the agreed-upon outcome to thecourt. The trial judge does have an obligation to ensurethat the support amounts are in the best interests ofthe child. Ideally, these amounts would comportalmost perfectly with the guidelines. Nonetheless, ifthe parents have supplied sufficient explanations forany deviations and the resulting support amount is inthe best interests of the child, Georgia courts, likemany other income-shares states, should respect theparties’ freedom to contract and approve the agree-ment.

§19-6-15(f)(5)(C): Theoretical Support OrdersGeorgia’s trial courts may, pursuant to the statute’s

“Adjustments to Gross Income” provision, reduce aparent’s gross income for calculation purposes whenthat parent makes certain showings regarding the exis-tence of an “other Qualified Child living in [his] homefor whom [he] owes a legal duty to support.”62 First,the parent must present documentary evidence of theparent-child relationship he claims as a basis for reduc-tion.63 Upon such a showing, the court may adjust theparent’s income if it finds that failure to consider thisQualified Child would result in substantial hardship tothe parent and that such consideration of the QualifiedChild is in the best interest of the child for whom sup-port is being awarded.64 If the court decides to consid-er the Qualified Child, the Theoretical Child SupportObligation for that child (or children) is determinedbased on the number of Qualified Children and theParent’s monthly gross income65 plugged into the obli-gation table.66 The obligation amount then must bemultiplied by 75 percent and the resulting amount isthen subtracted from the parent’s monthly grossincome.67 This reduced income amount is now used forcalculating the support amount for the child actuallybefore the court. A skeptical view of this sectioninspires the question of when it would ever be in thebest interest of the particular child before the court toallow reduction of a parent’s income to provide foranother child (assumedly usually a half-sibling), or atleast what a court should take into consideration inmaking such a determination.

New Jersey allows an adjustment in the basic childsupport obligation (as opposed to a deduction fromthe parent’s income) due to the existence of an “otherdependent.”68 In Schwarz v. Schwarz, the AppellateDivision laid out the guidelines for a court consideringsuch a deduction.69 First, the adjustment should onlybe used if requested by a serial-family parent and theincome, if any, of the other parent of the secondaryfamily is provided to the court.70 If the other parent in

the secondary family is voluntarily unemployed orunderemployed, the court should impute income tothat person in order to help determine the serial familyparent’s obligation to the children in the secondaryfamily.71 Additionally, the court declared that in thesesituations, three separate calculations must be pre-pared:

1. a theoretical support obligation for the other-dependent in the secondary family;

2. a support obligation that includes the other-dependent deduction, and;

3. a support obligation that does not include theother dependent adjustment.72

The manner in which Maryland courts have handledclaims regarding qualified children living with a par-ent has evolved over the years.73 Originally, the childsupport statute allowed generally for downwarddeparture from the guideline amount of support74

where proof of a qualified child was sufficient.75 InDunlap, the court granted a noncustodial father areduction on the basis that he had in his householdtwo children from a subsequent relationship, explain-ing that the downward departure benefited the childreceiving the support payment because it ensured that“his half-siblings [would] not have to do without” anymore than necessary.76 Furthermore, the court justifiedsuch a reduction because “it must be remembered that[the guideline figures] are based on the assumptionthat a single child will enjoy the undiluted largess ofhis parents . . . . [But even in a unified family,] when-ever siblings or half-siblings enter the picture, theexpectation of the first child is inevitably dimin-ished.”77

A year later, in 2000, however, an amendment to thechild support statute expressly stated that “evidence ofthis support obligation [to a Qualified Child], by itself,cannot rebut the presumption that the award underthe guidelines is correct.”78 Four years later theMaryland Court of Appeals enforced this amendmentand held that “[t]he duty to support other children inthe household of either parent . . . cannot form the solebasis for rebutting the presumption that the Guidelinesestablish the correct amount of child support.”79

In 2005, the Maryland Court of Special Appeals inBeck applied this requirement and rejected a trialcourt’s alteration of a support award based solely onthe finding that it was in the best interests of the mari-tal children at issue that their half-sibling be supportedin a reasonable manner.80 The court cited the dissent-ing opinion in Dunlap, which explained that

“the guidelines refer to multiple children in thesame household, and obviously take into accountthe fact that there are certain economies of scale


inherent in having more than one child in thehome. For example, when a family has one child,they need a place to live, including a bedroom forthe child. If the number of children in the familyincreases, the family may still make do in the sameliving space by having the children share the bed-room and bathroom. Other costs, such as utilities,are largely fixed, regardless of whether there is onechild or more than one in the home. Therefore, adownward deviation might not be appropriate andshould not be automatic in every case in which sub-sequent children are born to one of the parties.”81

Thus, Maryland courts, and the Maryland legislaturein amending the statute, show a strict standard requir-ing more than the mere existence of a qualified child tobe shown to justify a decrease in the support given to achild. Parents with qualified children must presentmore than the basic claim that it is in the best interestof the children that their half-siblings be reasonablysupported as well.

Georgia needs a consistent means for ensuring thatthe best interests of the child requirement is fulfilled.Like Maryland and New Jersey, Georgia could requirestrict and particular showings before granting a partya deduction. This method would give a bit of defer-ence to the trial courts in determining if a sufficientshowing has been made in any particular case.

ConclusionThough Georgia’s income-shares-based statute

appears complex and impossible to parse out on thesurface, a thoughtful and careful examination of itproves that not only are its provisions workable, butthat Georgia’s statute in fact may require less judicialinterpretation than other states’ versions. ThatGeorgia joined the income-shares trend later in thegame has allowed the legislature to examine the evo-lution of other states’ statutes before enacting ourown statute. This holding out will also allowGeorgia’s judicial branch to consider a variety of sug-gested approaches to certain provisions. Georgia maybe able to accomplish the twin aims of predictabilityand consistency since it will not be forced to experi-ment with wholly untried approaches, but can exam-ine the approaches of other states that comport withGeorgia’s own policies and values. As a result, andmost importantly, courts will be able to make moreefficient and confident decisions in the best interestsof Georgia’s children.Endnotes

1. Franks, How to Calculate Child Support, 86 Case & Com.3, 3 (1981) (favoring use of mathematical formulas).

2. O.C.G.A. § 19-6-15 (2004)(amended 2007).

3. See Ira Mark Ellman et al., Family Law: Cases, Text,

Problems, 464-69 (4th ed. 2004).

4. Ira Mark Ellman, Fudging Failure: The Economic AnalysisUsed to Construct Child Support Guidelines, 2004 U. Chi.Legal F. 167, 180-81 (2004) [hereinafter Ellman, FudgingFailure].

5. Id.

6. Ellman et. al., supra note 7, at 463-64.

7. Family Support Act of 1988, Pub. L. No. 100-485, §103(b)(1988)(codified as amended in scattered sections of42 U.S.C. (2006)).

8. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(i) (Supp.2006).

9. Id. § 19-6-15(i)(1)(B). This requirement is also explicated in§ 19-6-15(c)(2)(E), which further elaborates that the courtshould explain how the presumptive award is unjust orappropriate “considering the relative ability of each Parentto provide support” and also how the best interest of thechild will be served. Id.

10. Id. § 19-6-15(i)(1)(A).

11. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(o) (Supp.2006).

12. According to the Table, at subsection (o), the minimumamount would be $2,236 per month for one child, which isthe support amount that corresponds with a combinedparental income of $30,000. Id. § 19-6-15(o).

13. Id. § 19-6-15(i)(2)(A).

14. See supra notes 47-48 and accompanying text.

15. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(i)(2)(J)(Supp. 2006).

16. Id. at 326.

17. Id. at 323.

18. Id. at 324.

19. Voishan, 609 A.2d at 323-26 (quoting Maryland AttorneyGeneral’s amicus curiae brief).

20. 98 P.3d 1216, 1219 (Wash. Ct. App. 2004)(discussing In reMarriage of Clarke, 48 P.3d 1032 (Was. Ct. App. 2002)).

21.-22. Id.

23. Rusch, 98 P.3d at 1219.

24. Id.

25. Id.

26. 99 P.3d 401, 406 (Wash. Ct. App. 2004).

27. Id.

28. Id at 407.

29. Id.

30. It is important to note that this deviation (whetherupward or downward) is applied to the noncustodial par-ent’s share of the Basic Support Obligation and not to thetotal support for which both parents are responsible.

31. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(i)(2)(K)(Supp. 2006).

32. In re Marriage of Jones, 653 N.W.2d 589, 593 (Iowa 2002).


33. Georgia House Bill 221, available at www.guidelineeco-nomics.com/files/GA_HB221.pdf

34. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(i)(1)(A)(Supp. 2006).

35. Id. § 19-6-15(i)(1)(A).

36. Guillot, 756 So.2d at 300.

37. Id. at 292. These guidelines were later codified inLouisiana’s child support statute at La. Rev. Stat. Ann. §9:315.8 (2006).

38. Lea v. Sanders, 890 So. 2d 764, 769 (La. Ct. App. 2004).

39. Id. at 770.

40. Id.

41. Guillot, 756 So. 2d at 300.

42. Ohio Rev. Code Ann. § 3119.23 (West 2007).

43. No. 2002-T-0147, 2004 WL 1921974, at *1 (Ohio Ct. App.2004).

44. Id.

45. Id. at *1-2.

46. No. 02 CO 60, 2003 WL 22997273, at *1 (Ohio Ct. App.2003).

47. Id. at *3.

48. Id. at *6.

49.Id.

50. Id.

51. No. 02 CO 60, 2003 WL 22997273, at *7.

52. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(c)(5) (Supp.2006) (further mandating that trial court review adequacyof medical expenses and health insurance provisions innegotiated support amounts).

53. Id. § 19-6-15(c)(5).

54. Ariz. Rev. Stat. Ann. § 25-320(1)(C) (2006).

55. Id. § 25-320(20)(B). This subsection states that “a deviationthat reduces the amount of child support paid is not, byitself, contrary to the best interests of the child.”

56. No. M2003-03115-COA-R3-CV, 2006 WL 236945, at *2(Tenn. Ct. App. Aug. 21, 2006).

57. Id. at *3.

58. Id. (emphasis added).

59. 635 A.2d 1340, 1346 (Md. 1994).

60.-61. Id.

62. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6-15(f)(5)(C)(Supp. 2006).

63. Id. § 19-6-15(f)(5)(C).

64. Id. § 19-6-15(f)(5)(C).

65. Id. § 19-6-15(f)(5)(C). The subsection text further man-dates that “no other amounts shall be subtracted from theparent’s gross monthly income when calculating aTheoretical Child Support Order...”

66. Id. § 19-6-15(f)(5)(C).

67. Law of Apr. 20, 2006, § 4, O.C.G.A. § 19-6015(f)(5)(C)(Supp. 2006).

68. Pressler, Current N.J. Court Rules, comment on AppendixIX-A (2000).

69. 745 A.2d 592, 597 (N.J. Super. Ct. App. Div 2000).

70. Id. at 596-97.

71. Id.

72. Id. at 597.

73. See Beck v. Beck, 885 A.2d 887, 891-92 (Md. Ct. Spec. App.2005).

74. Maryland’s statute is distinguishable from Georgia’sbecause it allows a deviation from the support amountbased on the existence a Qualified Child, while Georgia’sstatute allows for a reduction in the particular parent’sgross income. For the purposes of analyzing the inquirythat courts should make in determining whether to grantany sort of alteration on the basis of a qualified child,however, this difference in application is not crucial.

75. See generally, Dunlap v. Fiorenza, 738 A.2d 312 (Md. Ct.Spec. App. 1999).

76. Id. at 318.

77. Id. at 317-18.

78. Md. Code Ann. Fam. Law § 12-201(a)(2)(iv)(2006).

79. Gladis v. Gladisova, 856 A.2d 703, 709 (Md. 2004).

80. Beck, 885 A.2d at 888.

81. Id. at 893 (recounting Judge Hollander's dissenting opin-ion in Dunlap, 738 A.2d at 322).



Have you mastered child supportworksheets and the new affidavit?Great! In the words of Monty

Python’s Flying Circus, “And now forsomething completely different.”

On Feb. 12, Representatives Tom Rice, EdLindsey, Earl Ehrhart and others intro-duced HB 369, a bill that aspires to trans-form the practice of domestic relations lawin Georgia, particu-larly in custody pro-ceedings. The billdeveloped out ofhearings held in 2007by the House SharedParenting StudyCommittee. In addi-tion to rewriting thecustody statute, HB369 would also pro-vide for direct appealin all domestic rela-tions cases and forattorneys fee awardsand binding arbitration in custody pro-ceedings.

Prior to the introduction of HB 369, Rep.Lindsey indicated that the StudyCommittee planned to introduce legislationthat would not pass until 2008. The goal ofthe delay was to increase the opportunityfor quality feedback on the proposal fromthe family law bar and others. As intro-duced, HB 369 would apply to all casesfiled on or after July 1, 2007, (not 2008). Iwould urge all family law attorneys withopinions on HB 369 to contact their legisla-tors and Representative Lindsey, chair ofthe subcommittee conducting hearings onHB 369.

One of the primary goals of HB 369 is torewrite Georgia’s custody framework so asto move the focus away from custodyawards and towards the details of planning

for that child. While the statute wouldretain the definitions of traditional custodyterms such as “legal custody”, “joint cus-tody” and “primary custody”, under HB369, parents would be required to movebeyond those terms and focus instead onthe details required in the mandatory par-enting plans.

What is a parenting plan? HB 369 wouldrequire a parentingplan to cover ninetopics. While the billdescribes each ofthese factors in greatdetail, the primaryrequirements of aparenting plan arethat it provide:

Where the childwill be each day;

How holidays andother special occa-sions will be spent;

The process of transporting the chil-dren for visitation and allocation of thecost;

Whether supervision will be required;

An effort to take into account futurechanges in the needs of the child;

An allocation of decision making and,for joint decision making, how conflictswill be resolved;

A recognition that a parent with cus-tody may make day-to-day and emer-gency decisions;

A recognition that a close and contin-uing parent-child relationship and con-tinuity in the child’s life may be in thechild’s best interest; and

Any limitations when one parent has

HB 369 Introduced to RewriteChild Custody Statutes,Provide for Direct AppealBy Andrea [email protected]

One of the primary goals ofHB 369 is to rewriteGeorgia’s custody

framework so as to movethe focus away from cus-tody awards and towards

the details of planning for that child.

the child on the other parent’s right of access tocontact with the child and to access education,health, extracurricular activity and religious infor-mation about the child.

HB 369 proposes treating the failure to submit a par-enting plan similarly to the failure to file an answer: ajudge may simply enter the other parent’s plan intoeffect, provided there is a finding that the plan is in thechild’s best interest. The bill authors envision that theparenting plan would become a form in the UniformSuperior Court Rules, similar to the DomesticRelations Financial Affidavit.

HB 369 also proposes a list of statutory factors todetermine the best interest of the child. Under the pro-posed legislation, a judge “may consider any factor,including but not limited to” a list of sixteen factors. Itis no coincidence that the listed factors echo the argu-ments we make at trial already. At the request of ShielEdlin, section members Catherine Knight, Debbie Ebel,Rebecca Hoelting and Dan Bloom invested significanttime and effort in surveying statutes in various statesto develop a compelling list that has been incorporatedinto HB 369.

In addition to a rewrite of the framework of custodyproceedings, HB 369 also amends the election rights ofteenagers. Under the proposed legislation, the 14-year-old election would be eliminated. The current 11-year-old election would be retained in a modified form sothat children aged 11 and up can continue to express apreference, but the judge would have complete discre-tion. HB 369 also proposes that a child’s expression ofa preference “shall not, in and of itself, constitute amaterial change of condition or circumstance.”

The authors of HB 369 are also seeking to assist cus-

tody litigants who testified to the Study Committeethat they had difficulty reconciling to decisions fromthe absence of any rationale for the judge’s decision.HB 369 would require the judge to issue a writtenorder within 30 days of the final hearing that sets forthspecific findings of fact as to the basis of the judge’sdecision, including any of the statutory factors reliedon by the judge in making the decision.

This is not the only component of HB 369 likely toraise concern among our esteemed judges. Section 2 ofHB 369 would amend O.C.G.A. § 5-6-34 to provide forthe right of direct appeal of all domestic relationscases. The appellate courts have indicated that they donot have a sufficient number of judges on the bench tohandle domestic relations appeals. There has been talkof adding three additional judges to the Court ofAppeals in order to create a family law panel. Thedirect appeal provision of HB 369 may fall by the way-side as the bill travels through the General Assembly.Alternatively, it may signal that a family law panel isin the works.

Finally, HB 369 proposes that judges in custody pro-ceedings would have the discretion to award attorneyfees and costs of litigation and to allocate expert fees atboth temporary and final hearings. Even though it willnot affect any pending cases, I think this provision willcertainly bring a smile to those of us mired in modifi-cation actions that seem ridiculous but not quiteridiculous enough to be considered frivolous.

The full text of HB 369 can be accessed online at:http://www.legis.state.ga.us/legis/2007_08/fulltext/hb

369.htm. FLR


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


Once again, the time is here to plan forthe annual Family Law Institute!This year, we return to the Ritz-

Carlton in Amelia Island, Fla., andProgram Chair Kurt Kegel is very excitedabout the program. While the programalways includes many interesting topics,this year’s Institute stars the SupremeCourt of Georgia! The participation of theSupreme Court will feature live oral argu-ment of a mock appeal, presented by twoseasoned veteran attorneys, to ourSupreme Court, including: Chief JusticeLeah Ward Sears, Presiding Justice CarolW. Hunstein, Justice Robert Benham,Justice George H. Carley, Justice Hugh P.Thompson, Justice P. Harris Hines andJustice Harold Melton.

The fun and opportunities to learn donot stop there, so don’t delay, make yourreservations early and register for theAnnual Family Law Institute! As part ofyour registration, as always, you will havethe opportunity to mix and mingle withfellow attorneys, judges and justices duringthe conference and during cocktail hourssponsored by ICLE on Thursday eveningand the Family Law Section on Fridayevening.

Thank you to our sponsors. It is not toolate to join the list:

DiamondDavis, Matthews & Quigley, P.C.

Kidd & Vaughan, LLP

Stern & Edlin, P.C.

Aussenberg Waggoner LLP

Cohen Pollock Merlin & Small, P.C.

Levine & Smith, LLC

Hawk Private Investigations, Inc.

Warner, Mayoue, Bates & Nolen, P.C.

Double Platinum Thurman Financial Consulting, Inc.

Bennett Thrasher & Co.

FairShare Financial, Inc.

Baskin & Baskin, P.C.

Platinum McGough, Huddleston & Medori

Gold Robert G. Wellon

Lynch & Shuman, LLC

Kessler, Schwarz & Solomiany, P.C.

Bogart & Bogart, P.C.

Hedgepeth & Heredia, LLC

Habif, Arogeti & Wynne, LLP

Donovan Reporting, LLC

Pachman Richardson, LLC

Cordell & Cordell, P.C.

Boyd Collar Knight, LLC

Donald A. Weissman, P.C.

Glenda L. Sullivan

SilverBelli Weil Grozbean & Davis, LLP

Moore Ingram Johnson & Steele, LLP

Mary A. Stearns-Montgomery

Alan C. Mannheim, LLC

Russell & Herrera, LLC

Bronze Eileen Thomas, LLC

The Collaborative Law Office of LaurenG. Alexander

Janis Dickman, LLC

Evin L. Somerstein, P.C.

Ronne G. Kaplan LLC

Anita H. Lynn, P.C.

Daniel W. Mitnick & Associates, P.C.

Nora Kalb Bushfield, P.C.

Grier Law Office, PCCall or e-mail Eileen Thomas (770-818-

0301 or [email protected]) with anyquestions. FLR

2007 Family Law Institute

We’ve all heard the quote fromShakespeare’s Henry VI: “The firstthing we do, let’s kill all the

lawyers.” Many of us have been teased bythis quote. But surely most of us don’t havethe same sentiment. I know that I don’t. . .usually, that is.However, as my con-fession for this issue,I must say that some-times I can’t help butwonder ifShakespeare wasright on target.

However, I alsomust confess that Ifeel lucky, becausewhile there are someattorneys who stir upthis sentiment withinme, they are theexception rather thanthe rule. Most attor-neys know how towork with the GALtoward the commongoal of a resolutionthat is in the best interests of the children.Most have the ability to recognize theimpact of a custody dispute on the childrenand work toward averting those problemsthat affect the children as much as possible.The rest of you—learn from them!

Before I started limiting my practice toGAL work, I used to tell my clients that Icould not adequately represent themunless we had a common goal of promot-ing the best interests of the children. I toldthem that I would withdraw from the caseif I were asked to do anything that was ille-gal, unethical, immoral or that wentagainst my conscious. I confess that as aGAL, I enjoy working with attorneys whotake a similar approach with their clients. Istruggle and squirm when I becomeinvolved in cases with attorneys who makeit their mission to fuel the fires, as doing so

lessens the possibility that the children willcome out of their ordeal happy and asunaffected as possible. Not only does fuel-ing the fires not serve the client, but worse,it also serves as an absolute injustice to thechildren. We need to do our part in calm-

ing the waters. A good lawyer

should be able to rec-ognize when a cus-tody dispute is abouta sincere desire to bea part of the chil-dren’s lives, orwhether it is moreabout ego, winning,losing or revenge. Weall know that thereare no winners indivorce and the reallosers are usually thechildren. Everyonealso knows how dev-astating revenge canbe. The better lawyershelp their clientsexamine their own

motives and do not facilitate this mentalityor promote revenge, particularly since it isdetrimental to the children. It’s sometimesimportant for the lawyers to confront theirclients and tell them what they need tohear rather than what they want to hear sothat they can develop realistic expectations.Of course, with some clients this can bevery difficult. However, to validate andpromote a client’s negative and destructivewords and behaviors is a disservice to thatclient and will only create further havoc intheir children’s lives. The better alternativeis to promote a realistic resolution to theircustody dispute that works for everybody,working toward a positive end, rather thana negative one.

Sometimes it may become necessary totake a deep breath and step back to get agood look inside of a custody case before


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

To validate and promote aclient’s negative anddestructive words and

behaviors is a disservice tothat client and will onlycreate further havoc in

their children’s lives. Thebetter alternative is to pro-mote a realistic resolutionto their custody dispute

that works foreverybody. . . .

one can get a clear vision of what is really going on. Itmay sometimes be helpful to call upon colleagues andfriends to ask for a reality check with regard to howthe case is being handled. Family law can be a verydifficult area of law in which to practice, and we some-times have to be reminded not to get too personallyinvolved. Nothing is worse than when the fightbetween the two parties becomes a personal fight forthe lawyers.

In their attempt to find a positive end to what couldotherwise be a nasty custody dispute, lawyers need towork alongside the GAL. Their relationship with theGAL should not be an adversarial one, but rather oneof mutual respect and cooperation. The GAL is not theenemy just because he or she does not see eye to eyewith your client on every issue. We should rememberthat the GAL is looking at a puzzle that sometimes hasthousands of pieces. Some of those pieces may be more

favorable to the mother and some may favor the father.It is the GAL’s job to put those pieces together so that acomplete picture can be had of the case. It is the attor-ney’s and client’s jobs to hand the pieces to the GALand to help the GAL know where those pieces shouldbe placed in the puzzle. With the cooperation of theattorneys involved, putting the puzzle together doesnot have to be such a daunting task. It’s so amazinghow much can be accomplished when everybodyinvolved is focused on their genuine concern for thechildren, rather than on their desire to “win” or getrevenge.

So, we should all aspire not to give reason for othersto want to “kill all the lawyers.” Rather, we shouldaspire to live up to the standards Hamlet talked aboutin another one of Shakespeare’s works when he said,“What a piece of work is man! How noble in reason!How infinite in faculties!” FLR


Members of the Family Law Section met onJan. 19, at the Hyatt Regency Savannah.The well-attended meeting was held in con-

nection with the State Bar's Midyear Meeting. Thesection was honored by the attendance of severalSuperior Court judges from across the state andJustices Hunstein and Thompson. Section ChairShiel Edlin officiated over the meeting and moder-ated an impromptu and lively discussion on theeffect of the new child support guidelines in thecircuits around the state. The section also voted atthe meeting to pass new by-laws. The new by-laws can be viewed at the section’s web page onthe State Bar’s website at www.gabar.org. FLR

Family Law Section Meets in Savannah

Chair Shiel Edlin,Secretary/TreasurerEd Coleman andVice Chair KurtKegel

Karlise Grier, Regina Quick, Ellisa Garrett and Melinda Katz

By Paul [email protected]

Family Law SectionState Bar of GeorgiaRandall M. Kessler, Editor104 Marietta St, NWSuite 100Atlanta, GA 30303

NON-PROFIT ORGU.S. POSTAGE

PAIDATLANTA, GA

PERMIT NO. 1447

Executive Committee Officers

Shiel Edlin, [email protected]

Kurt A. Kegel, Vice [email protected]

Edward J. Coleman III, Secretary/[email protected]

Randall M. Kessler, [email protected]

Marvin L. Solomiany, Assistant [email protected]

Pilar J. Prinz, YLD Family Law Committee [email protected]

Stephen C. Steele, Immediate Past [email protected]

Members-at-Large

K. Paul [email protected]

John F. [email protected]

Andrew R. [email protected]

Carol Ann [email protected]

Karen Brown [email protected]

Family Law SectionExecutive Committee

Fear Not: How Georgia Attorneys Can Face The Child Support

Documents

Transcript of Fear Not: How Georgia Attorneys Can Face The Child Support