SMITH v. PEARCE (Two Cases)
334 Ga. App. 84
| Ga. Ct. App. | 2015Background
- Melissa Smith had a child (T.C.F.) born during her marriage to Cole Fahey; Fahey was listed on the birth certificate but later excluded as biological father by genetic testing. Smith had intermittent relationships with John Pearce and others during the relevant period.
- Pearce took a paternity test in Sept. 2011 showing he was the biological father; Smith moved in with Pearce for a time and Pearce financially supported the child and household expenses.
- Smith’s Florida divorce decree with Fahey (entered before Pearce filed suit) stipulated that Fahey had no parental rights or responsibilities to T.C.F.
- After a period of cohabitation, Smith concealed the child from Pearce for ~18 months, remarried Fahey, and later made allegations of sexual abuse and (separately) a rape by Pearce; multiple investigations and psychosexual evaluation did not substantiate sexual-abuse concerns.
- Pearce filed a superior-court petition for legitimation and custody; the court granted legitimation, changed the child’s surname, awarded joint legal custody with Pearce as primary physical custodian, and awarded attorney fees under OCGA § 9-15-14. Smith’s motions to dismiss and to set aside were denied. The fee award ($68,500) and related contempt order for nonpayment were later vacated/remanded as to amount/apportionment.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (Pearce) | Held |
|---|---|---|---|
| Subject-matter jurisdiction to legitimate child born in wedlock | Brine requires termination of legal father in juvenile court before legitimation; superior court lacked jurisdiction | Fahey had already stipulated to have no parental rights in divorce decree, so there was no legal father to terminate; superior court had jurisdiction | Superior court had jurisdiction; Brine inapplicable because Fahey was not legal father at filing |
| Sufficiency of service (service by publication) | Service by publication improper: no competent evidence of evasion and procedural defects (clerk must mail publication) | Smith evaded service (left town, unlocatable); publication was authorized and properly effected | Service by publication authorized based on evasion; publication challenge rejected (Jahanbin not controlling) |
| Custody determination / consideration of best-interest factors | Court failed to consider OCGA § 19-9-3(a)(3) factors and misapportioned facts; custody award unsupported | Trial court evaluated relevant factors (bond, stability, interference by mother) and made credibility findings after bench trial | Custody and legitimation affirmed; trial court’s credibility determinations supported by evidence |
| Attorney-fee award under OCGA § 9-15-14 and contempt for nonpayment | Fee award excessive/unsupported and should not justify contempt | Smith engaged in sanctionable conduct that expanded and delayed litigation; fee award appropriate | Finding of sanctionable conduct justified awarding fees in principle, but fee award vacated and remanded for apportionment and factfinding as to amount; contempt vacated accordingly |
Key Cases Cited
- Strickland v. Strickland, 330 Ga. App. 879 (bench-trial custody review: view evidence in light most favorable to trial court)
- Brine v. Shipp, 291 Ga. 376 (Ga. 2012) (superior court cannot terminate legal father’s rights in legitimation when juvenile court has exclusive jurisdiction)
- Allifi v. Raider, 323 Ga. App. 510 (superior courts have subject-matter jurisdiction over legitimation petitions)
- Jahanbin v. Rafieishad, 292 Ga. 806 (clerk must dispatch certain international service mailings; limited to contexts requiring clerk involvement)
- Abt v. Abt, 289 Ga. 166 (OCGA § 9-15-14 fee-award standard: lack of substantial justification, delay/harassment, or unnecessary expansion)
- Fedina v. Larichev, 322 Ga. App. 76 (trial court must apportion fee awards to fees incurred because of sanctionable conduct)
- Kautter v. Kautter, 286 Ga. 16 (fees for appellate proceedings not recoverable under OCGA § 9-15-14)