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Georgia Law on Homosexual Marriage Prior to Obergefell

by merlin on July 3rd, 2015
  • Sumo

 

In light of the decision of the Supreme Court of the United States in Obergefell v. Hodges, Docket No. 14-556, whose holding is summarized succinctly on SCOTUSblog (“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”), the State of Georgia’s longstanding stance on the legitimacy of same-sex marriages must change.

For folks who weren’t aware, Georgia has actually embodied its prohibition in the statutory law, at § 19-3-3.1 (Marriages between persons of same sex prohibited; marriages not recognized).  That section reads as follows:

“(a) It is declared to be the public policy of this state to recognize the union only of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No marriage between persons of the same sex shall be recognized as entitled to the benefits of marriage. Any marriage entered into by persons of the same sex pursuant to a marriage license issued by another state or foreign jurisdiction or otherwise shall be void in this state. Any contractual rights granted by virtue of such license shall be unenforceable in the courts of this state and the courts of this state shall have no jurisdiction whatsoever under any circumstances to grant a divorce or separate maintenance with respect to such marriage or otherwise to consider or rule on any of the parties’ respective rights arising as a result of or in connection with such marriage.”

Georgia actually has a marvellous head start on the equality fight in the area of family law, though, because it has maintained an evaluation of human sexuality as irrelevant to the fundamentally divisive issues involved in divorce and child custody.  Much as with drug use, the cases have long looked to the actual behavior of the parent as it impacts the best interests of the child.  Sexuality is evaluated in the same manner, and it is only an issue (in the context of divorce and child custody matters) when it impacts the child’s best interests.  The following case is In the Interest of R.E.W., found at 471 S.E.2d 6, 220 Ga.App. 861 (Ga.App. 1996), and it talks about that issue directly (“we agree with those courts from other jurisdictions that have held that the primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent”):

Raymond & Dalton, Philip T. Raymond, III, Susan L. Dalton, Macon, for appellant.

Raymond M. Kelley, Jr., Macon, for appellee.

        POPE, Presiding Judge.

        Appellant-father and appellee-mother were divorced in November 1988. Pursuant to the agreement of the parties, custody of their three-year-old daughter was awarded to the mother and the father was allowed only supervised visitation in his mother’s home. In November 1993, five years after the parties’ divorce, the father filed the present complaint seeking to expand his visitation privileges to include, inter alia, unsupervised visitation. The superior court referred the matter to the juvenile court pursuant to OCGA § 15-11-5(c). Following a hearing, the juvenile court entered an order extending the weekend visitation period, but refused to allow unsupervised visitation or specific periods of holiday and summer visitation. We granted the father’s application for discretionary appeal, and the father timely filed his notice of appeal to this court. We now reverse the order of the juvenile court.

        The record shows that for the four years preceding the hearing the father has been engaged in a monogamous homosexual relationship, and that he and his partner own a three bedroom, two bath home in Yorktown, Virginia, where the father is the manager of a funeral home. The father testified that he does not believe that his daughter’s best interests would be served by informing her of the sexual nature of his relationship with his partner, and that he would actively conceal the sexual aspects of their relationship and the fact of his homosexuality from her. The father also testified that he and his partner each have their own bedroom, and that few people know they have a sexual relationship.

        The father also testified about his love for his daughter and his belief that their relationship would be fostered by unsupervised visitation which would allow them to participate in activities outside his mother’s home, such as going to amusement parks and taking trips together. The father also testified that he attends church in Virginia, and that he and his daughter would attend church together when she visited. The evidence shows that the father sends his daughter cards and presents for occasions (and sometimes for no reason) and that he tries to visit his daughter on her birthday and at Christmas. The father testified that although he usually does not spend Easter with his daughter, he has always mailed to her a hand-made Easter basket.

        The father’s mother testified that she has visited her son in his home on several occasions, and that she had never observed anything that would indicate that he and his partner have a sexual relationship. The mother testified that she did not learn of her son’s homosexuality until the initiation of the present proceedings, and that even though she now knows the nature of her son’s relationship with his partner, she has never observed any displays of affection between them or anything to indicate they are more than just friends.

        Visitation rights of non-custodial parents are subject to review and modification upon the motion of either parent every two years without the necessity of showing a material change in circumstances. OCGA §§ 19-9-1(b) and 19-9-3(b). The standard to be applied in deciding visitation rights is the best interests of the child. Further, it is the express policy of this state to encourage contact between a child and the non-custodial divorced parent. OCGA § 19-9-3(d). “Although the trial court is vested with discretion in these matters which will not be disturbed absent abuse, we can affirm the trial court only if there is reasonable evidence to support the decision.” Lightfoot v. Lightfoot, 210 Ga.App. 400, 403(3), 436 S.E.2d 700 (1993).

        The juvenile court premised its denial of the father’s request for unsupervised visitation on the finding that the father was engaged in an “immoral” homosexual relationship, and that the father could not be “trusted to … see that his relationship does not occur in such a manner as to come to the attention of the child.” The juvenile court found the father to be untrustworthy because, prior to the divorce, he had been discovered by the mother with another man in the marital bedroom. The court also found that the father had “followed” his present partner to Virginia, and that the father was concerned primarily with his own wishes and desires.

        We agree with the father that the juvenile court erred in concluding that the pre-divorce incident cited above shows that the father cannot presently be trusted to keep his word that, while in his care, his daughter will not be exposed to sexual conduct of any nature regardless of the gender of the participants. See Mink v. Mink, 195 Ga.App. 760, 395 S.E.2d 237 (1990) (physical precedent only). Moreover, our review of the record discloses no competent evidence to cast doubt on the father’s testimony that he believes it in his daughter’s best interests to conceal the sexual nature of his relationship with his partner, and that he intends to act accordingly. Accord In re the Marriage of Walsh, 451 N.W.2d 492, 493 (Iowa 1990). The juvenile court thus erred in reaching the opposite conclusion.

        As the father points out, the juvenile court also went to great lengths to define the father’s lifestyle as immoral and illegal, and noted that it had “regularly disallowed contact of people who are living in immoral relationships whether it was heterosexual or homosexual.” We agree with the juvenile court that in some instances a parent’s “immoral conduct” might warrant limitations on the contact between parent and child; but only if it is shown that the child is exposed to the parent’s undesirable conduct in such a way that it has or would likely adversely affect the child. See Hayes v. Hayes, 199 Ga.App. 132, 404 S.E.2d 276 (1991)(in which the court noted that both parents were engaged in meretricious relationships, but that there was no evidence that either party committed sexual acts in the child’s presence). In this regard, we agree with those courts from other jurisdictions that have held that the primary consideration in determining custody and visitation issues is not the sexual mores or behavior of the parent, but whether the child will somehow be harmed by the conduct of the parent. “Visitation rights must be determined with reference to the needs of the child rather than the sexual preferences of the parent. The best interests of the child remain paramount.” In the Matter of the Marriage of Cabalquinto, 100 Wash.2d 325, 669 P.2d 886, 888 (1983). See also Birdsall v. Birdsall, 197 Cal.App.3d 1024, 243 Cal.Rptr. 287, 290 (Cal.App.4th 1988) (affirmative showing of harm or likely harm to the child is necessary in order to restrict parental visitation); In the Matter of the Marriage of Ashling, 42 Or.App. 47, 599 P.2d 475, 476 (1979) (restrictions not warranted as long as lesbian mother’s sexual practices remain discreet, “a requirement whatever the sexual preferences of the parties might be”); Brinkley v. Brinkley, 1 Va.App. 222, 336 S.E.2d 901, 902 (1985) (extent to which child is exposed to an “illicit” relationship must be given careful consideration). “Too long have courts labored under the notion that divorced parents must somehow be perfect in every respect. The law should recognize that parents, married or not, are individual human beings each with his or her own particular virtues and vices…. In domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child.” Conkel v. Conkel, 31 Ohio App.3d 169, 31 OBR 335, 509 N.E.2d 983, 985-986 (1987).

        Based on the evidence of record in this case, we find absolutely no basis for the juvenile court’s conclusion that continued restricted visitation is in the best interests of the child. Indeed we agree with the father that continued restricted visitation will probably raise more questions than the alternative in the mind of this very bright child who will undoubtedly begin to question the restricted nature of her relationship with her father. Accordingly, the juvenile court is directed on remand to award the father customary unsupervised weekend, holiday and summer visitation, with whatever reasonable restrictions are necessary to ensure the best interests of the child. Specifically, the juvenile court is authorized to consider the possible detrimental effect on the child of frequent out-of-state travel, including the possibility of interference with school and other activities, and fashion the visitation accordingly. See Katz v. Katz, 264 Ga. 440, 445 S.E.2d 531 (1994).

        Judgment reversed and case remanded with direction.

        BEASLEY, C.J., and RUFFIN, J., concur.

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* Justice Carley’s dissenting opinion is published at 472 S.E.2d 295.

This is a continuing trend in the law.  The following case, Mongerson v. Mongerson, 285 Ga. 554 (Ga. 2009), is no longer followed because of the idea it represents that it is alright for the Court to force a father to make one of his children a life insurance beneficiary even though that child is no longer a minor nor can he afford to provide support for the child (it isn’t, by the way).  One of the things it incidentally stood for was the reversal of the juvenile court’s provision that the children were to have no contact with the father’s homosexual friends or lifestyle.  The Court expressly found that the provisions to be invalid, and their application of an enduring legal principle in this area can be applied to a broad spectrum of behavior, too (“In the absence of evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person’s presence.”).  Specifically, please read Justice Melton’s concurrence at the end of the opinion for an excellent and succinct examination on the law.  Without further ado, here is the Mongerson opinion:

Hedgepeth & Heredia, Hannibal F. Heredia, Kimberli J. Reagin, Atlanta, for appellant.

Lance P. McMillian, Tyrone, for appellee.

Elizabeth L. Littrell, Atlanta, amicus curiae.

        BENHAM, Justice.

        Appellant Eric Duane Mongerson and appellee Sandy Kay Ehlers Mongerson were married in March 1986 and were divorced by a judgment and decree filed October 1, 2007. This Court granted appellant Husband’s application for discretionary review pursuant to the Family Law Pilot Project.1

        The final judgment, which incorporated the parties’ settlement agreement, gave appellee Wife custody of the couple’s three minor children, gave Husband limited visitation with his children until greater periods of visitation were deemed appropriate by the children’s therapist, and required Husband to pay monthly child support, to maintain a life insurance policy on which the couple’s four children were named as beneficiaries, to pay 90 percent of the minor children’s uninsured health expenses, and to pay Wife monthly alimony for as long as she was enrolled at an educational facility and earning passing grades in a program to obtain a college degree. Husband was ordered to pay attorney fees of $8,800 to Wife’s attorney, with the option of paying $200 a month and with the award accruing interest at an annual rate of 11.25 percent. The children were to have no contact with their paternal grandparents, and Husband was “prohibited from exposing the children to his homosexual partners and friends.”

        1. The trial court’s order requires Husband to maintain a life insurance policy on his life with the four children of the marriage named as equal beneficiaries.2 A life insurance policy is often used as a means of providing child support. See OCGA § 19-6-34. A parent can use a life insurance policy to voluntarily provide more child support than is statutorily required (seeMcClain v. McClain, 235 Ga. 659, 221 S.E.2d 561 (1975)), but an intention to support a child into his majority is found only where there is specific and unambiguous language to that effect.Anderson v. Anderson, 251 Ga. 508, 509, 307 S.E.2d 483 (1983). The couple’s eldest child had reached the age of majority when the October 2007 divorce judgment was entered, and there is no evidence of specific and unambiguous language that reflects a voluntary obligation on the part of Husband to assume a support obligation that exceeded his legal duty. Accordingly, it was error to require Husband to name a child who had reached majority as beneficiary of a policy of life insurance on Husband’s life.

        2. Husband complains the trial court abused its discretion when it ordered that the children not be exposed to their paternal grandparents and prohibited Husband “from exposing the children to his homosexual partners and friends.” While this State has a policy to “encourage parents to share in the rights and responsibilities of raising their child[ren] after such parents have separated or dissolved their marriage” (OCGA § 19-9-3(d)), a trial court has discretion to prohibit the exercise of visitation rights by a non-custodial parent in the presence of certain people if the evidence demonstrates the children have been exposed to inappropriate conduct involving the specified persons or that exposure to the prohibited persons would adversely affect the children. Brandenburg v. Brandenburg, 274 Ga. 183(1), 551 S.E.2d 721 (2001); Moses v. King, 281 Ga.App. 687, 691, 637 S.E.2d 97 (2006). “In the absence of evidence that exposure to a third party will have an adverse effect on the best interests of the children, a trial court abuses its discretion by prohibiting a parent from exercising his or her custodial rights in that person’s presence.” (Citation omitted.) Arnold v. Arnold, 275 Ga. 354, 566 S.E.2d 679 (2002).

        Contrary to Husband’s assertion, the record contains evidence that supports the trial court’s decision that exposure to the paternal grandparents will have an adverse effect on the best interests of the children. There was evidence the grandparents had been physically and emotionally abusive of the children, and Husband acknowledged he had not fulfilled his promise to never leave his children alone with his parents. Accordingly, the trial court did not err when it restricted contact between the children and their paternal grandparents.

        The blanket prohibition against exposure of the children to members of the gay and lesbian community who are acquainted with Husband is another matter. There is no evidence in the record before us that any member of the excluded community has engaged in inappropriate conduct in the presence of the children or that the children would be adversely affected by exposure to any member of that community. The prohibition against contact with any gay or lesbian person acquainted with Husband assumes, without evidentiary support, that the children will suffer harm from any such contact. Such an arbitrary classification based on sexual orientation flies in the face of our public policy that encourages divorced parents to participate in the raising of their children (OCGA § 19-9-3(d)), and constitutes an abuse of discretion. See Turman v. Boleman, 235 Ga.App. 243, 244, 510 S.E.2d 532 (1998) (abuse of discretion to refuse to permit mother to exercise visitation rights with child in the presence of any African-American male); In the Interest of R.E.W., 220 Ga.App. 861, 471 S.E.2d 6 (1996) (abuse of discretion to refuse father unsupervised visitation with child based on father’s purported “immoral conduct” without evidence the child was or would be exposed to undesirable conduct and had or would be adversely affected thereby). In the absence of evidence that exposure to any member of the gay and lesbian community acquainted with Husband will have an adverse effect on the best interests of the children, the trial court abused its discretion when it imposed such a restriction on Husband’s visitation rights. Arnold v. Arnold, supra, 275 Ga. 354, 566 S.E.2d 679. Accordingly, we vacate the blanket prohibition against exposure of the children to Husband’s gay and lesbian acquaintances.

        3. The trial court’s order requires Husband to pay 90 percent of any uninsured health care expense of the minor children and contains a non-exhaustive list of various healthcare expenses covered by the provision, including “psychiatric/psychological.” Citing Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980) (“medical expenses,” as used in divorce decree, did not cover bills for children’s psychological care), Husband contends he should not be held responsible for payment of bills for the children’s psychological counseling. Wimpey stands only for the proposition that psychological care is not included within the phrase “medical care,” when that phrase is used in a judgment of divorce and is not defined therein. Id. at 546, 272 S.E.2d 278. In the case at bar, the phrase at issue is “health care expenses” and that term is defined in the judgment as including psychological care. Inasmuch as Husband is responsible for 90 percent of “uncovered health care expenses,” including psychological care, Husband’s contention is without merit.

        4. Husband’s assertion that the trial court failed to make a finding of Wife’s gross income is without merit. The trial court’s order contains a finding of each party’s gross monthly earnings, and the transcript of the final hearing contains evidence supporting said finding. See Dyals v. Dyals, 281 Ga. 894(1), 644 S.E.2d 138 (2007) (factfinder’s determination of gross income not disturbed when supported by evidence of record).

        5. Husband takes issue with three provisions of the final judgment on the ground that the trial court’s oral ruling at the close of the hearing did not include such measures. A trial court’s oral pronouncement is not a judgment until it is reduced to writing and entered as a judgment. Williams v. City of LaGrange, 213 Ga. 241(1), 98 S.E.2d 617 (1957). The trial court’s oral pronouncements are not binding because, while they may provide insight on the intent of the subsequent written judgment, any discrepancy between the written judgment and oral pronouncements is resolved in favor of the written judgment. Blair v. Bishop, 290 Ga.App. 721(2), 660 S.E.2d 35 (2008).

        With regard to the final judgment’s provision giving Wife a “right of first refusal” that requires Husband to notify Wife when he plans to leave the children in the care of a third party in order that Wife can decide whether she shall provide care for the children in that instance, Husband additionally complains that the parties did not agree to such a provision. However, the judgment issued by a trial court in a divorce action is not limited to only those matters upon which the parties have agreed.

        6. Husband complains that the award of alimony to Wife constitutes an abuse of discretion, contending the trial court made no finding concerning Husband’s ability to pay and Wife’s needs, and contending the award is grossly excessive because it is possible under the terms of the award for Wife to remain a student and receive alimony for the rest of her life.

        The factfinder is given wide latitude in fixing the amount of alimony, and may use personal experience as an enlightened person in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case. Farrish v. Farrish, 279 Ga. 551, 552, 615 S.E.2d 510 (2005). The record reflects that the trial court considered that Wife has a monthly income approximately one-tenth that of Husband and that Wife has spent the majority of her time during the 21-year marriage as a full-time homemaker and child caregiver and requires additional education to obtain gainful employment. The trial court did not abuse its discretion in making its alimony award. Arkwright v. Arkwright, 284 Ga. 545(2)(a), 668 S.E.2d 709 (2008).

        Husband’s concern that the alimony award as entered gives Wife an opportunity to abuse the alimony award in the future is speculative and can be addressed in a petition for modification should Husband’s fears be realized at some point in the future.

        7. Husband finds fault with the assessment of attorney fees against him, arguing the trial court did not make factual findings necessary to support an award of attorney fees based on OCGA § 19-6-2(a), the trial court did not afford Husband an evidentiary hearing to challenge the value and need of the legal services performed by Wife’s attorney, and the trial court abused its discretion by including a provision authorizing the accrual of interest on the award at 11.25 percent until paid in full.

        The final judgment and decree of divorce did not cite a statutory basis for the attorney fee award, but that omission does not mean that the statutory basis of the award is in question.Mixon v. Mixon, 278 Ga. 446(2), 603 S.E.2d 287 (2004). OCGA § 19-6-2 authorizes the trial court in a divorce action to exercise its sound discretion and award attorney fees after considering the financial circumstances of both parties. The award is “`to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.’ [Cit.]” Id. Wife’s request for attorney fees in her complaint sought the award for her representation during the divorce litigation, evidence of the parties’ disparate financial conditions was presented at the final hearing before the trial court, no motion for an award of attorney fees pursuant to OCGA § 9-15-14 was made, there is no indication in the record that the trial court sua sponte undertook a consideration of an award of attorney fees on that basis, and Husband does not contend the award was made pursuant to any statutory provision other than OCGA § 19-6-2. Id.; Gomes v. Gomes, 278 Ga. 568, 569, 604 S.E.2d 486 (2004). We conclude the award was made pursuant to OCGA § 19-6-2.

        Whether to award attorney fees in a divorce action pursuant to OCGA § 19-6-2 is a matter within the discretion of the trial court, and the exercise of that discretion will not be reversed unless manifestly or flagrantly abused. Dasher v. Dasher, 283 Ga. 436(2), 658 S.E.2d 571 (2008). The trial court is required by OCGA § 19-6-2(a) to consider the financial circumstances of the parties when considering an award of attorney fees, and the transcript of the final hearing establishes the trial court properly considered the relative financial positions of the parties. See Patel v. Patel, 285 Ga. 391, 393(4), 677 S.E.2d 114 (2009); Wood v. Wood, 283 Ga. 8(6), 655 S.E.2d 611 (2008); Rieffel v. Rieffel, 281 Ga. 891, 893, 644 S.E.2d 140 (2007).

        Husband’s complaint that he was not afforded a hearing on the issue of attorney fees is without merit. The trial court began the final hearing by stating that the issues remaining for resolution at the hearing were alimony and attorney fees, and reminded the parties that testimony “is regarding alimony and attorney fees only.” During the hearing, Husband’s counsel argued that no award of attorney fees should be made due to Husband’s financial condition. After the evidence was presented, the trial court orally announced a ruling on the issue of attorney fees and Husband voiced no objection.

        Husband’s concern about the interest rate imposed on the award of attorney fees is justified. OCGA § 7-4-12(a) states that “[a]ll judgments in this state shall bear annual interest upon the principal amount recovered at a rate equal to the prime rate … on the day the judgment is entered plus 3 percent.” Husband asserts the date of the judgment was October 1, 2007, and the applicable prime rate was 7.75 percent. Wife contends the applicable prime rate is 8.25 percent, the rate on July 20, 2007, the day the trial court orally pronounced its judgment. However, as we stated earlier, an oral pronouncement is not a judgment; it must be reduced to writing and entered as a judgment to be effective. See Division 5, supra. The portion of the attorney fee award which set the rate of interest is vacated and the case is remanded to the trial court to determine the rate of interest the judgment is to carry pursuant to OCGA § 7-4-12(a).

        8. In its order, the trial court awarded child custody and visitation according to the terms of the parties’ stipulated agreement. The trial court’s order went on to express its opinion that, but for the agreement, the trial court would not have permitted Husband the limited contact to which the parties agreed. The trial court’s order advised the parties that it would “entertain a request to review and modify the current visitation schedule at any time, at the request of either party,” and would consider specified facts established at the hearing when faced with a request to review and modify visitation.

        We read the language at issue as an attempt by the trial court to retain jurisdiction of the case and, as such, it is wholly ineffective. Anthony v. Anthony, 212 Ga. 356, 358, 92 S.E.2d 857 (1956). Accordingly, the case is remanded to the trial court for removal of that language from the judgment.

        Judgment affirmed in part and vacated in part, and case remanded with direction.

        All the Justices concur, except CARLEY and MELTON, JJ., who concur specially.

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Notes:

1. Pursuant to the Family Law Pilot Project, this Court grants all non-frivolous applications seeking review of a judgment and decree of divorce. Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

2. While the parties’ settlement agreement did not include this provision, Husband agreed when he testified at the divorce hearing to maintain the life insurance policy for the benefit of his children. Thus, we do not see this as a case in which the trial court imposed over the parent’s objection the requirement that the parent maintain a life insurance policy for the benefit of minor children. Compare Gardner v. Gardner, 264 Ga. 138, 441 S.E.2d 666 (1994); Clavin v. Clavin, 238 Ga. 421, 422, 233 S.E.2d 151 (1977).

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        MELTON, Justice, concurring specially.

        While I concur with the overall result of the majority opinion, I write separately to emphasize that Division 2 of the majority opinion should only be read to stand for the well-settled proposition that, absent evidence of harm to the best interests of the children through their exposure to certain individuals, a trial court abuses its discretion by prohibiting a parent from exercising their visitation rights while in the presence of such individuals (in this instance, Husband’s homosexual partners and friends). See Brandenburg v. Brandenburg, 274 Ga. 183(1), 551 S.E.2d 721 (2001); Arnold v. Arnold, 275 Ga. 354, 566 S.E.2d 679 (2002). While Husband’s behaviors or actions affecting his children’s well being could support the trial court’s imposition of any number of restrictions on Husband’s visitation rights, the trial court abused its discretion by restricting Husband’s visitation rights based on his children’s potential exposure to Husband’s compatriots, independent of whether or not Husband’s friends exhibited any harmful behavior that could affect the children. Our case law is clear that such a visitation restriction must fail.

        I am authorized to state that Justice Carley joins in this special concurrence.

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