WHEN IS FINAL REALLY "FINAL"??

      An issue that keeps cropping up in family law cases involves whether an order issued by the court is ripe for an appeal.   Inexperienced lawyers are sometimes tripped up here, and file appeals at the wrong time, or use the wrong procedure.  At best this can add a layer of unnecessary cost and delay on a case, and at worst it can cost a client their right to appeal an unfavorable ruling.   

    This happens, because only "final" orders are subject to "direct appeal", while other cases must be taken by first filing a discretionary "application for appeal".  See O.C.G.A. §§ 5-6-34, 5-6-35  It is said that direct appeals are "as of right" while discretionary appeals require the approval of the court beforehand.   The failure to pick the right procedure can be fatal to the attempted appeal.  

    This gets complicated because merely titling an order as "final" does not mean its final if there are issues still open and unaddressed.  In the family law context this often involves the issue of whether the court will award attorney fees.   Attorney fees consideration is often "reserved" by the court until after the "final" order is issued.   Even where it is not explicitly reserved, a party has the right to file a motion for fees under O.C.G.A. § 9-15-14 up to 45 days after the otherwise "final" order, keeping the case alive in the trial court.   This has led to some conflicting results at the trial and appellate level, as some judges will treat a decision as "final" even where the issue of attorney fees is unresolved.   

    A recent Georgia Court of Appeals decision in Miller et al v. Miller,  Case Number A20A0377 (August 13, 2020) sheds some light in this confusing corner and helps clarify when pending attorney fees render a decision non-final.   In Miller, a party challenged the opposing party's notice of appeal, contending that the underlying judgment was not "final" because the issue of attorney fees was reserved by the court.   The Court of Appeals clarified that reserved attorney fees will only make a judgment non-final, if they arose "from the transaction underlying the cause of action in litigation", that is, pre-lawsuit activity.   By comparison, if the attorney fees claim were based on conduct in the lawsuit itself or afterwards (such as a claim under O.C.G.A. § 9-15-14) then the judgment was considered "final".   In Miller, the only attorney fee claim arose under O.C.G.A. § 9-15-14, which could have been filed up to 45 day after the final judgment, thus the judgment was "final" for purposes of appeal.  

    So when dealing with a family law case, the takeaway appears to be that "reserved" or pending attorney fees claims will only render a judgment "non-final" if they involve claims under statutes other than O.C.G.A. § 9-15-14.  Alert practitioners will pay attention, because of the numerous statutory provisions for attorney fees in family law cases and the frequency with which judges fail to identify the specific statutory authority underpinning an attorney fee award.  Typically judges won't consider specific statutory sources of attorney fees at the time they reserve the issue, and often fail to identify the authority when making an award.  It may be wise now to ask the judge, when reserving attorney fees, to clarify the statutory basis beforehand to avoid uncertainty over "finality".   

Videotaping a Cheating Spouse in Georgia

Can I use videotape in my home to catch my spouse "in the act"? Video cameras and video surveillance are easily available these days, from high-priced HD security systems, to thumb -sized wireless cameras that can fit in a clock, teddy bear or other hiding place. It is tempting to use these devices to catch a cheating spouse "in the act" as evidence in a divorce or custody case. But is it legal to do that? And more importantly, can it be used as evidence? Most Georgians are familiar with the concept that recording people in private places is illegal, but until recently, the Georgia code protected so-called private "nanny cams". A Georgia House bill passed in 2000 included an exception for security cameras in the home. Security video shot in the home was legal, and could be used as admissible evidence in a civil custody or divorce trial if it met the requirements of the Georgia exception. This has now changed. In a decision last week, the Georgia Supreme Court announced that the exception passed in 2000 does not exist. How, you ask, could a law be "wiped off the books" like that? The trouble, as is often the case, arose in the legislature. Back in 2000, the House passed one version of the bill, and the Senate another. The House version included the "home security" exception, but the Senate bill did not. Oddly, both of them were allowed to become law, and published in the official code - thus we have had dueling versions for the last 13 years. The Supreme Court, in the case of Rutter v. Rutter, has now directly addressed this conflict, and held that the Senate version, adopted after the House version, fatally conflicts with the House version thus overriding and eliminating the home security exception. Alert lawyers will no doubt immediately let their clients know about this development, because taping in the home could result in criminal charges, and any video will likely be inadmissible in a civil divorce or custody proceeding. Hopefully we may expect the legislature to take up this issue soon. But if you have video shot in the home, or anticipate using such video you will need to talk to your attorney about whether it can still be used at all, or whether it must be destroyed.

Should I get help from Mom and Dad?

Divorce unsettles finances in the best-prepared households. In many cases, the cost of a protracted battle can exhaust the finances of one or the other parties. Well-meaning family members sometimes step in and provide support for their cherished loved one. It had generally been the case that such financial contributions, without more, were in the nature of gifts and could not be used in the calculation of post-divorce support or consideration of attorney fees to be awarded. Along comes the Georgia Supreme Court in Jarvis v. Jarvis (219 GA 818), and stunned the legal community by holding, in a case of apparent first impression, that funds provided by a party's parents could be included in the consideration of a party's "financial circumstances" when deciding the correct amount of attorney fees. The court noted that there was no "statutory limitation on the type of evidence of 'financial circumstances' a trial court may consider when a trial court makes a fee award" and ruled that the judge did not abuse his discretion taking this source of funds into account. Thoughtful attorneys will no doubt now inquire into whether their clients received help from family members either prior to or during the divorce. Such arrangements should be disclosed to counsel at the outset, and careful thought should be given to whether it is wise to continue. Early disclosure can allow your attorney to give you advice on better ways to finance the significant cost of litigation, and reduce the chance of a result like the one in Jarvis. Thoughts? Twitter me @deoles Find me on the web at www.deoleslaw.com

How do I deal with the Guardian Ad Litem?

Ok, the Court has appointed a Guardian Ad Litem in your case. Now what?

A lot depends on why the guardian was appointed. Courts can appoint guardians on their own initiative, or in response to a request by either party. Some courts have an established practice of appointing a guardian if the judge believes that custody is going to be seriously contested.

Whatever the reason, the appointment of a guardian is a significant development in your case. A guardian is automatically treated as a party, and must get copies of everything, and has the right to appear at all proceedings in the case.

It is important to get off on the right foot with the guardian. Too many litigants view the guardian with suspicion or hostility, and treat them as an extension of the other side. That can be a serious mistake. Guardians are officers of the court, and deserve the same courtesy given to the judge.

Guardians are charged with investigating the facts of the case, and making a recommendation to the judge on the issues of custody. It is important that you make a favorable impression. You can't control how a guardian will think or act, but having a good rapport with the guardian will help avoid misunderstandings.

It is also important to remember that the guardian is not the judge, and cannot control the situation. Do not fall into the trap of assuming the guardian is biased merely because he or she cannot help get you what you want. The guardian cannot discipline either side, or make an angry or bitter person act better.

Keep communications open and effective with the guardian. Give him or her all the information you think is helpful to an understanding of your case. Be fair - don't just load up on all the negative information against your spouse. Guardians form impressions of parents' motives, and are not hesitant to tell the judge when the time comes.

But sometimes it happens that despite your best efforts, the guardian seems to be against you, and the outcome you are seeking. In our next installment we will review some methods for overcoming apparent bias.

Do it yourself Divorce?

Many, if not all, counties in Georgia have responded to the increase in unrpresented parties in their family courts, by creating and handing out forms, templates, and packets for individuals to complete themselves. Almost always these forms come with disclaimers, advising the user that they should seek legal help from a lawyer, and that they use the forms at their own risk.

Unfortunately, the warnings do little, if anything, to cause litigants to slow down and really consider the effects of what they are doing. Too many parties view the paperwork simply as a hoop they must jump though to get that divorce.

Certainly all individuals have the right to represent themselves. But preprinted forms won't help a pro se litigant against an experienced divorce lawyer. Lawyers know not only the published rules, but the informal practices at each court. They know the judges, usually, and their likes and dislikes. Lawyers are practiced at assembling the evidence into a presentable and understandable fashion. Too many litgants, show up before the judge with a naive outlook that they will somehow get justice if they speak earnestly.

Divorce courts are no place to play amateur lawyer. The stakes, in terms of family relationships and finances, could not be higher. Too many clients come to me after the disaster has struck, wondering just what happened to them and where it went wrong.

If you find yourself in a likely divorce situation, don't trust your future to a blind faith in the court. It is likely to come out poorly. Save your pennies and go hire a good lawyer.

Court denies relief from abusive quasi-criminal proceedings

We were disappointed to see that the U.S. Supreme Court, after accepting certiorari in Robertson v. U.S. ex rel Watson, belatedly changed its mind and denied cert as "improvidently granted." Justice Roberts authored a stinging dissent, arguing that the court should have re-emphasized that the power to bring criminal proceedings belongs exclusively to the sovereign, and should not be wielded by private parties.

This cert denial allows the Court of Appeals and trial court rulings to stand. Those rulings had allowed the former girlfriend to sue her former boyfriend in criminal contempt, thereby adding three consecutive 180 day jail stays on top of an existing multi-year sentence - even though a duly-empowered prosecutor for the state agreed that no charges would be brought as part of a plea bargain in a subsequent case.

This dangerous ruling allows to continue the dangerous trend of mixing civil and criminal remedies together, under the umbrella justification of addressing "domestic violence". This author believes the laws empowering civil courts to impose criminal sanctions is not only dangerous, but a breach of our fundamental constitutional rights to confront our accusers and receive a fair and impartial trial, and the rights against double jeopardy.

Too many states now rely upon the federal dollars attached to so-called domestic violence cases. Too many prosecutors are being constrained from making common-sense decisions. The lure of federal funding for such cases, in a time of tight state budgets, creates near-irresistable pressure to take domestic violence cases to the mat, wastes important state resource, and causes defendants in domestic violence cases to be singled out for harsher treatment merely because the actions arose between individuals who had been living in the same house.

Most troubling is the Court's apparent sanction of legislative efforts to strike at some of the most fundamental rights we have to protection against abusive government action. We can only hope that the Court will readdress this issue in the near future, and provide a curb against the tide of abusive prosecutions that is occuring under the banner of "domestic violence".

Watch for Robertson v. U.S. ex rel. Watson

Proponents of domestic violence victimes are raising alarms over this case pending before the United States Supreme Court. At issue in Robertson is whether states are entitled to deputize "private attorneys general" to prosecute criminal cases on behalf of the state in domestic violence actions.

In Georgia, individuals are entitled to seek family violence and stalking protective orders under a Georgia law permitting issuance of such orders on the mere claims of the alleged victim, followed by a hearing. If the court finds that it more likely than not that some kind of domestic violence occurred, it can issue a variety of relief, including excluding the accused immediately from the home and cutting off all contact with the children. See O.C.G.A. § 19-13-3, et seq.

Violations of protective orders are crimes, and second violations of protective orders can be punishable as a felony, including substantial jail time. Unlike other criminal cases, which are brought by the government using government prosecutors, protective order cases are brought as civil cases by private litigants. The state in effect "deputizes" a private party (the accused) to prosecute the criminal action on its behalf. This is dangerous to the rights of the accused since the standard of proof is lower under this statute, a mere "preponderance of the evidence" rather the higher "guilt beyond a reasonable doubt" standard. Under our federal constitution, individuals charged with a crime cannot be convicted unless their guilt is proven beyond a reasonable doubt, and this lowering of the standard has been problematic across the board. Further danger for the alleged abuser exists since the private party accuser, who may be a party in a contested divorce proceeding, has different motives than a prosecutor representing the state. Litigants in divorce cases may be motivated to manufacture or embellish false claims of violence to obtain a better divorce decision.

In Robertson, the appellant argues that it is unconstitutional for a state to deputize a private attorney general in this way, and that the actions should be brought by government prosecutors who may be expected to screen such actions for legitimacy and sufficiency. If the court finds such action unconstitutional, it could roll back Georgia's statute, restoring the fundamental right to proof of guilt beyond a reasonable doubt for those accused of violence in the future.

No one can question the serious risk that domestic violence presents to members of a household. Our society cannot tolerate unjustified violence against individuals, male or female, and the use of violence to intimidate and control individuals. However, there is a real threat to our protection against criminal sanctions posed by the flood of domestic violence claims. We need to restore protection from the abusive power of the state being wielded by private biased parties.