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Georgia Evidence Rules

What are Non-Mandatory Deviations in Georgia?

Thursday, November 28th, 2013

Every divorce, child custody and child support matter is different. With that being said, the presumptive child support amount generated by Georgia’s child support worksheet may not always be in the best interest of the child involved or practical for the parents involved. This may be the case for several reasons. For example, if one parent takes on additional or extraordinary child care expense such as paying tuition for private school. Additionally, the presumptive child support amount may not be appropriate in the situation where both parents share an equal amount of parenting time, because this may leave the non-custodial parent without the resources necessary to care for the child during his or her parenting time. For these special circumstances, and many others, Georgia’s Non-Mandatory Deviations to the Presumptive Child Support Amount may help conform the final child support amount to the particular circumstances of each case.

Non-mandatory deviations are changes or adjustments that may be made to the presumptive child support amount if warranted. These deviations are known as non-mandatory because they are discretionary. This means that even though one party may request a deviation, it is within the presiding court’s discretion whether to allow it. Not only may the court refuse to allow a certain deviation, but may also modify the amount of the requested deviation. See O.C.G.A. § 19-6-15(b)(8)(A) et seq.  Below is a list some of the more common allowable non-mandatory deviations in Georgia, along with a brief explanation. If you are curious as to whether any of these deviations may be applicable in your matter, contact a member of our Atlanta divorce Team. We would be more than glad to provide you with some insight.

Parenting Time Deviation

A parenting time deviation is an adjustment to the non-custodial parent’s presumptive child support amount based on the non-custodial parent’s visitation time with the child. This deviation most often applies to cases where the parents share joint physical custody of the child. The purpose of this deviation is to ensure to ensure the on-custodial parent has the ability to care for the minor child during his or her extended parenting time. See O.C.G.A. § 19-6-15(i)(2)(K)(i).

Extraordinary Expenses

This deviation may be applicable in a situation where either the custodial or non-custodial parent incurs extraordinary child care expenses in caring for the child. Expenses are considered extraordinary if they are significantly more than those of an average family. Examples of extraordinary expense include extraordinary educational expenses and extraordinary medical expenses. See O.C.G.A. 19-6-15(i)(2)(J) et seq.

High Income Deviation

If the combined income of both parents exceeds $30,000 per month, the parents are considered to be high income parents and their child support obligation may be deviated upward to produce an appropriate final child support amount. This deviation is necessary because the child support calculator is limited to producing child support calculations for combined incomes of $30,000 or less. This means that even if the combined income of the parents is $50,000, the child support amount will be calculated as if the parents’ income was $30,000.   See O.C.G.A. § 19-6-15(i)(2)(A).

Other Health Related Insurance Deviation

This deviation applies to premiums paid by either parent on behalf of the minor child for health related insurance other than medical insurance, such as vision insurance or dental insurance. O.C.G.A. §19-6-15(i)(2)(C).

Travel Expense Deviation

The travel expense deviation may be applicable if one parent must travel a significant distance in order to exercise his or her parenting time. To counterbalance the costs associated with visitation, the court may apply a downward deviation to the presumptive child support amount. O.C.G.A. §19-6-15(i)(2)(F).

Video Surveillance as Evidence in Georgia Divorces

Monday, October 29th, 2012

Evidence in divorce cases can come in many different formats, including photographs, videos, and electronic communications. This evidence, when obtained in a lawful manner, can be extremely persuasive in a divorce case. In a recent divorce case heard by the Court of Appeals of Georgia, the wife secretly installed video cameras in the marital residence in an effort to obtain information that would help her win custody of the parties’ children. Rutter v. Rutter, A12A0661 (2012). The husband filed a motion to exclude any evidence obtained from the video surveillance, arguing that the wife’s use of these video devices was a violation of OCGA §16-11-62(2), “which makes it generally unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent.” Id. The trial court denied the husband’s motion, relying on an exception to the statute which allows a person to conduct video surveillance of persons “[t]o use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device.” OCGA §16-11-62(2)(C). The husband appealed.

On appeal, the husband first argued that the residence itself is not “within the curtilage of a residence.” Rutter. The Court of Appeals disagreed, using the rule of lenity to conclude that the curtilage does, in fact, include the residence itself.

The husband next argued that the trial court erred when it found that the wife was a resident of the marital residence when she installed the recording devices. Id. Though the wife did not sleep there, she continued to keep clothes and other personal items at the residence, paid part of the mortgage, received mail, and spent fairly significant time there. Thus, though the Court of Appeals acknowledged that evidence of the wife’s residence is disputed, it could not say that the trial court erred when it found that the wife was a resident of the marital home during the time she installed the video devices. Id.

Finally, the husband argued that the wife did not use the surveillance devices for a permissible purpose under the statute: security purposes, crime prevention or crime detection. Id.The Court of Appeals disagreed with the husband, agreeing with the trial court that the surveillance was used for crime detection. The Court found persuasive that the wife testified “she installed and used the video surveillance devices in an effort to discover and document any harm that [the husband] might visit upon the children.” Id. This would, in turn, help her obtain custody of the children.

Having disagreed with the husband on all of his arguments, the Court of Appeals affirmed the trial court’s denial of the husband’s motion to exclude the video evidence. The facts of this case are something to consider if you are thinking about videotaping your spouse, or you think you may be videotaped. Under this case, if the surveillance falls within the exception to the statute, it will likely be admitted as evidence in your divorce case.

Can a Georgia divorce lawyer testify in murder case?

Monday, February 27th, 2012

A recent article on ABAJournal.com recently reported how one Georgia court is currently wrestling with a tough a question: can a divorce attorney representing a murder defendant’s wife be made to testify in the husband’s criminal trial?

Superior Court Judge Gregory Adams of DeKalb County Superior Court must now rule on the issue after hearing arguments regarding a motion to quash a witness subpoena for the wife’s attorney Esther Panitch. Though any information gathered by Panitch for the purpose of providing legal advice to her client will remain confidential due to attorney-client privilege, the defense counsel argues Panitch possesses material information separate from her representation of the wife.

Precisely what that information is has yet to be revealed by the defense. The defense counsel said that he anticipates “calling her as a witness… because we think she has independent facts that may be important in the case,” adding: “There is a legitimate basis for this subpoena, and I want to hold out the possibility that we may need to call her.”

Panitch originally served as divorce attorney and now acts as an advisor to the wife, Ariela Neuman, for the murder trial of her husband, Hemy Zvi Neuman.

Her attorney and business partner, James R. Hodes, argued that Panitch does not have any relevant evidence concerning the murder case of her client’s husband and argued that subpoenaing her as a witness interferes with her ability to counsel her client effectively.

The case, currently in the middle of trial, revolves around a murder allegedly committed by Henry Neuman, a father of three, who is accused of killing Rusty Sneiderman on November 18, 2011, after Sneiderman dropped off his 2-year-old at Dunwoody Prep Pre-School. Investigators believe Neuman and Sneiderman’s wife may have been having an affair.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

Can I record telephone conversations in Georgia?

Wednesday, January 14th, 2009

When two parties are going through a divorce, one party may feel that it is necessary to record the telephone conversations. For instance, if the parties in a divorce are going through a heated custody battle and one of the spouses is alienating the minor child against him or her, he or she may feel it is necessary to record the telephone conversations to use as evidence in his or divorce case.

According to O.C.G.A. § 16-11-66, you can record telephone conversations in Georgia, but you must be a party to the conversation. Therefore, if you and your spouse are having a telephone conversation, and both parties are in Georgia at the time of the telephone call, it is legal for you to record the conversation under Georgia law.

You cannot, however, record a telephone conversation between your spouse and his mistress because you are not a party to the conversation. There is an exception to this statute. If one of the parties involved in the conversation gives you his or her consent, then you can legally record the conversation according to O.C.G.A. § 16-11-66. In most cases, however, this is not possible.

Evidence at temporary hearing vs. final hearing in divorce case in Georgia

Thursday, November 1st, 2007

In Georgia, there is a difference between the evidence that can be presented in a temporary hearing versus a final hearing in a divorce case. In Pace v. Pace, after a temporary hearing at which both parties testified, the husband was awarded physical custody of the children and the parties were awarded legal custody. Pace v. Pace, S10F0843 (2010). About a year later, a final hearing was held, at which both parties and multiple witnesses testified, and a Final Judgment and Decree of Divorce was entered, awarding permanent physical and legal custody of the children to the husband. Id. The wife appealed after being denied a new trial.

In its review, the Georgia Supreme Court noted that “the trial court relied substantially on testimony adduced at the temporary hearing in making its determination on permanent custody,” that the parties were not on notice that this testimony would be considered for permanent custody, and that the trial court relied on its “memory and notes” rather than a transcript in reaching its decision. Id. at 2.

The Georgia Supreme Court held that the trial court erred in its reliance on evidence from the temporary hearing because an award of temporary custody “differ[s] in its nature and purpose from an award of temporary custody”. Id. at 3, quoting Foster v. Foster, 230 Ga. 658, 660 (1973). Further, temporary orders and final orders are not governed by the same rules of law.Pace, at 3. In a temporary hearing, only the parties and one additional witness for each side may testify. Uniform Superior Court Rule 24.5(A). In addition, minor children cannot testify at temporary hearings. Id. at (B). These rules do not apply at a final hearing. Thus, stated the Court, “the nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing…” Pace, at 4. The Georgia Supreme Court held that “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. at 5.