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Georgia Case Law Update – McLendon v. McLendon

In any family law case, it is imperative that you get everything on the record. If you (or your attorney) have an objection to a piece of evidence, get that objection and the corresponding ruling on the record. Anything that is not on the record is not subject to appeal. A wife in a recent appeal to the Georgia Supreme Court learned this lesson the hard way. McLendon v. McLendon, S15F1254 (2015).

In the McLendon case, the parties were divorced with the husband receiving primary physical custody of the children during the school year and the wife having primary physical custody during the summer months. Id. During the school year, the wife pays child support to the husband but, during the summer, neither party pays child support. After the court entered the final divorce decree, the wife filed a motion for new trial and/or motion for reconsideration. In her motion, the wife raised issues regarding custody and personal property. After a ruling on this motion (wherein the court denied the motion as to custody and issued a supplemental order modifying the property division), the wife appealed to the Georgia Supreme Court.

In her appeal, the wife alleged several enumerations of error made at the trial court level, including that the trial court did not comply with the child support statute in abating the child support obligation for the summer months. Id. Unfortunately for the wife, she (or her attorney) did not understand the requirements for challenging a child support order. According to the Court, “[i]t is well-settled that ‘a motion for new trial, but not a motion to set aside, is a proper means by which the movant can complain of the trial court’s failure to comply with the child support guidelines in O.C.G.A. § 19-6-15, including the failure to make findings required thereby.’” Citing Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 591(2) (690 SE2d397) (2010). The wife did not raise any child support issue on appeal and, as such, she waived the Georgia Supreme Court’s review of this issue.

This case should be a wake up call for anyone intending to file an appeal. Make sure you have an attorney who is familiar with appellate law and procedure. You MUST go through the proper procedures or you risk having your appeal dismissed on a technicality. While in this case, the Georgia Supreme Court said that “[i]n any event, Wife’s contentions appear to lack any merit,” there could be another case that deserves an appeal on the merits but, if the appellant does not follow the proper procedure the Court’s hands are tied.

 

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