Family Law – Appellate Cases:
Child Support Guidelines: Successfully upheld the trial court’s decision refusing to award a reduction in child support based on parent’s request for parenting time deviation. This was one of the first cases decided under Georgia’s child support guidelines effective in 2007. Hamlin v. Ramey, 291 Ga. App. 222, 661 S.E.2d 593 (2008).
Property Division/Alimony: Successfully upheld the trial court’s decision in this divorce case concerning whether the other spouse had carried his burden of proving that certain properties were marital, as opposed to separate, properties. Further, there is no statutory requirement that the alimony recipient’s income be included in the final divorce decree, as is required for the child support recipient. Southerland v. Southerland, 278 Ga. 188, 598 S.E.2d 442 (2004).
Release: The Court of Appeals upheld the trial court’s grant of summary judgment to the client and against the client’s mother. After the client’s parents had remarried, they divorced. In the second divorce agreement, the client’s mother had released any claim that she had in the first divorce agreement against client’s father. Therefore, the mother was not entitled to any portion of the equity in the former marital home. Barnett v. Platz, 261 Ga. App. 51, 581 S.E.2d 682 (2003).
Alimony: Alimony could not be awarded in a modification action beyond the original divorce decree. Further, the trial court was unauthorized in modifying alimony based merely upon the passage of time. Howard v. Howard, 262 Ga. 144, 414 S.E.2d 203 (1992).
Visitation: Obtained reversal of the trial court for failing to specify visitation to a fit parent except as the custodial parent may agree in writing. This provision had the effect of denying any visitation except as the custodial parent may allow. Noteworthy is that the Supreme Court granted the non-custodial client permission to review the appeal after the Court of Appeals had denied the request to review. Chandler v. Chandler, 261 Ga. 598, 409 S.E.2d 203 (1991).
Contempt: In a child support contempt case for failure to pay educational expenses, the obligor spouse was entitled to a credit for child support paid, because the divorce decree did not specify that the obligor was to pay these expenses in addition to child support. Other issue was whether the obligor was entitled to a credit from a scholarship toward these expenses. Kehayes v. Petch, 197 Ga. App. 45, 397 S.E.2d 458 (1990).
Attorney’s Fees: Attorney’s fees can be awarded to the prevailing party in a modification of support case, even though the statute providing for such an award was not in effect at the time of the divorce. Crecelius v. Brooks, 258 Ga. 372, 369 S.E.2d 743 (1988).
Custody Standard: In a child custody contest between a parent and a third party, the trial court must find parental unfitness to authorize removing custody. The ability of a parent to raise his or her child may not be compared to the superior fitness of a third person (i.e., the “best interest of the child” test). Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981).
Alimony/Property Division/Modification of Support: Whether a periodic payment is alimony and subject to modification, or is a property division and not subject to modification, can depend on whether the gross amount is specified in the decree. As a result of this case, courts can modify a group award of support into an individual award if there is a change in financial condition. Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64 (1979) (wrote brief while in law school).
DFCS: Joseph represented the Gwinnett County Department of Family and Children Services as Special Assistant Attorney General from 1982 to 2000 in the following appeals of termination of parental rights and deprivation cases: In the Interest of B. G., 242 Ga. App. 546, 530 S.E.2d 473 (2000). In the Interest of B. G., 238 Ga. App. 227, 518 S.E.2d 451 (1999). In the Interest of S. S., 232 Ga. App. 287, 501 S.E.2d 618 (1998). In the Interest of B. G., 225 Ga. App. 492, 484 S.E.2d 293 (1997). In the Interest of M. R., 213 Ga. App. 460, 444 S.E.2d 866 (1994). In the Interest of M.C.A.B., 207 Ga. App. 325, 427 S.E.2d 824 (1993). In the Interest of D. R. C., 198 Ga. App. 348, 401 S.E.2d 754 (1991). In Interest of E. R. D., 172 Ga. App. 590, 323 S.E.2d 723 (1984).
Affirmed without opinion: Wages v. Wages, 246 Ga. 317, 271 S.E.2d 635 (1980). Brown v. Higgins, 247 Ga. 64, 274 S.E.2d 324 (1981).
Litigation – Appellate Cases:
Frivolous Litigation: Successfully obtained dismissal of frivolous case in trial court, which was upheld by the Court of Appeals. Crane v. Cheeley, 270 Ga. App. 126, 605 S.E.2d 824 (2004).
Employment/Group Insurance: The trial judge’s grant of summary judgment to the employer was successfully reversed on behalf of the employee client. The employee could recover against her employer for breach of contract and for breach of duty for the employer’s failure to inform her that her group health insurance policy had terminated and that her pre-existing condition would not be covered under the replacement policy. Brandon v. Mayfield, 215 Ga. App. 735, 452 S.E.2d 181 (1994).
Privity/Claim: Obtained dismissal of the contract claim against the client, because the claimant was not a party to the contract. The negligence claim was also dismissed because one cannot recover for loss of the economic value of a defective product under the circumstances. Sofet v. Roberts, 185 Ga. App. 451, 364 S.E.2d 595 (1988).
Warranty/Damage to Realty/Statute of Limitations: General contractor could recover against subcontractor for damage to realty in a negligence tort action in case arising out of a contract. Bowen & Bowen, Inc. v. McCoy-Gibbons, Inc., 185 Ga. App. 298, 363 S.E.2d 827 (1987).
Real Estate/Condemnation: In a government land condemnation case, the prejudgment interest rate compensates the property owner for the use of funds generated in a condemnation action, not for the use of the property condemned. A property owner seeking to set aside a plat filed by the state in a proceeding collateral to the condemnee’s case should file a separate action to quiet title. Property owner is not allowed to assert a counterclaim for tort damages in a condemnation action. Brooks v. Department of Transportation, 254 Ga. 60, 327 S.E.2d 175 (1985).
Agency: Assumption of debt incurred by agent in real estate transaction may be shown by written agency agreement executed after the transfer of the property. Braselton v. Robinson, 166 Ga. App. 889, 305 S.E.2d 591 (1983).
Limitation of Damages: There is no claim for consequential damages from defective machinery due to a contractual limitation of damages in commercial goods. Frick Forest Products v. International Hardwoods, 161 Ga. App. 359, 288 S.E.2d 625 (1982).
Material Lien: Agreement between contractor and materialman for payment of judgment did not bar enforcement of materialman’s lien against real property owner. Owner’s partial payment of the contract price, when not properly applied, did not relieve the owner for the lien remaining unpaid. Henderson v. Mitchell Engineering Co., 158 Ga. App. 306, 280 S.E.2d 438 (1981).
Procedure/Evidence: The time for filing an answer runs from the date of actual service, not from the date of filing the return of service. Stipulation to extend deadline must be made before deadline and must be filed with the court. As a result of this case, a plaintiff’s right to a default judgment may be waived. Party cannot submit to ruling and later complain. Lay witness was permitted to give opinion regarding speed, even though he did not see the vehicle before impact, because he gave the basis for his opinion. Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985).
Malicious Prosecution/Slander: Successfully obtained dismissal of claims against client. Although plaintiff’s conviction of bribery was reversed in a separate case, there was no claim against one who merely reported the facts he believed to be true to the prosecution, who made the ultimate decision to prosecute for bribery. Rice v. Mansour, 176 Ga. App. 617, 337 S.E.2d 25 (1985).
Wrongful Death/Capacity/Evidence: Surviving parents could bring an action over defense motion for summary judgment, despite evidence of their decedent child’s unresolved marriage to her estranged husband. Husband’s contradictory statement as to validity of his marriage to decedent rebutted defendant’s proof of marriage and discredited husband’s prior statement. Capps v. Mullen, 172 Ga. App. 297, 322 S.E.2d 297 (1984).
Evidence/Abusive Process: The statements of a co-conspirator are admissible if conspiracy has been proved. The mere issuance of a summons and complaint is not sufficient for a claim of malicious abuse of prosecution. Leiphart Chevrolet v. Ewing, 163 Ga. App. 416, 295 S.E.2d 128 (1982).
Wrongful Death/Default/Summons/Capacity: Defendant made a sufficient case of excusable neglect (defendant believed defense was being handled by insurance company) to authorize the opening of a default. Service of process is insufficient if it is left with a relative at defendant’s place of business. Wrongdoer’s relationship to her deceased mother did not bar wrongful death action against wrongdoer’s spouse. American Erectors v. Hanie, 157 Ga. App. 687, 278 S.E.2d 195 (1981).
Criminal/Evidence: Appeal of criminal conviction for attempting to elude police officer. Issues involved directed verdict of acquittal, identification of defendant, hearsay, alibi, jury instructions, and newly discovered evidence. Storey v. State, 205 Ga. App. 610, 422 S.E.2d 879 (1992).
Criminal/Statutory Construction: Accused’s behavior converted his marital bedroom from a constitutionally protected private place into a public place, even though it was not visible to members of the public who are outside of it. Greene v. State, 191 Ga. App. 149, 381 S.E.2d 310 (1989).
Affirmed without opinion: Emerson v. Fireman’s Fund, 691 F.2d 510 (11th Cir. 10/18/1982).
Estates – Appellate Cases:
Probate Notice: In this contest over 2 wills, the Supreme Court held that the propounder of a will must give notice to the propounders and beneficiaries of any other wills of the testator offered for probate in the same county. This duty of notice does not end on the date of the filing of the first will for probate but continues until a will is admitted to probate. Garner v. Harrison, 260 Ga. 866, 400 S.E.2d 925 (1991).