Results

Joseph Cheeley represented the Gwinnett County Department of Family and Children Services as Special Assistant Attorney General from 1982 to 2000 in the following appeals of termination of parental rights and deprivation cases:

Whether a periodic payment is alimony (modifiable) or a property division (not modifiable) can depend on whether the gross amount is specified in the decree. As a result of this case, courts can modify a group award of support into an individual award where there is a change in financial condition. (Brief written while in law school.)

In a custody contest between a parent and a third party, the trial court must find parental unfitness to remove custody. A parent’s ability to raise the child may not be compared to the superior fitness of a third person — the “best interest of the child” test.

Attorney’s fees can be awarded to the prevailing party in a modification-of-support case, even though the statute providing for the award was not in effect at the time of the divorce.

In a child support contempt case for failure to pay educational expenses, the obligor spouse was entitled to a credit for child support paid, because the divorce decree did not specify that the obligor was to pay those expenses in addition to child support.

Obtained reversal of the trial court for failing to specify visitation to a fit parent except as the custodial parent might agree in writing — a provision that effectively denied any visitation. The Supreme Court granted the non-custodial client review after the Court of Appeals had denied it.

Alimony could not be awarded in a modification action beyond the original divorce decree, and the trial court was unauthorized to modify alimony based merely upon the passage of time.

The Court of Appeals upheld summary judgment for the client against his mother. After the client’s parents remarried and divorced again, the mother had released, in the second divorce agreement, any claim from the first — so she was not entitled to any equity in the former marital home.

Upheld the trial court’s decision on whether the other spouse had carried his burden of proving certain properties were marital rather than separate. There is no statutory requirement that the alimony recipient’s income be included in the final decree, as is required for the child support recipient.

Successfully upheld the trial court’s decision refusing to award a reduction in child support based on a parent’s request for a parenting-time deviation — one of the first cases decided under Georgia’s child support guidelines effective in 2007.

The accused’s behavior converted his marital bedroom from a constitutionally protected private place into a public place, even though it was not visible to members of the public outside it.

Appeal of a conviction for attempting to elude a police officer, addressing directed verdict of acquittal, identification, hearsay, alibi, jury instructions, and newly discovered evidence.

The defendant made a sufficient showing of excusable neglect (believing the defense was handled by the insurer) to authorize opening a default. Service is insufficient if left with a relative at the defendant’s place of business, and the wrongdoer’s relationship to her deceased mother did not bar a wrongful death action against the wrongdoer’s spouse.

Statements of a co-conspirator are admissible once a conspiracy has been proved; the mere issuance of a summons and complaint is not sufficient for a claim of malicious abuse of process.

Surviving parents could bring an action over a defense summary judgment motion despite evidence of their decedent child’s unresolved marriage; the husband’s contradictory statements as to the marriage’s validity rebutted the defendant’s proof and discredited his prior statement.

Obtained dismissal of claims against the client: although the plaintiff’s bribery conviction was reversed in a separate case, there was no claim against one who merely reported facts he believed true to the prosecution, which made the ultimate decision to prosecute.

The time for filing an answer runs from actual service, not the filing of the return of service; a stipulation to extend must be made before the deadline and filed with the court. A lay witness was permitted to opine on speed despite not seeing the vehicle before impact, having stated the basis for the opinion.

An agreement between contractor and materialman for payment of a judgment did not bar enforcement of the materialman’s lien against the property owner; the owner’s partial payment of the contract price, when not properly applied, did not relieve the owner of the unpaid lien.

There is no claim for consequential damages from defective machinery where a contractual limitation of damages applies to commercial goods.

Assumption of debt incurred by an agent in a real estate transaction may be shown by a written agency agreement executed after the transfer of the property.

In a land condemnation case, the prejudgment interest rate compensates the owner for the use of funds generated in the action, not for the property condemned. A party seeking to set aside a plat filed by the state should file a separate action to quiet title and may not assert a tort counterclaim in a condemnation action.

A general contractor could recover against a subcontractor for damage to realty in a negligence tort action arising out of a contract.

Obtained dismissal of the contract claim because the claimant was not a party to the contract; the negligence claim was also dismissed, as one cannot recover for loss of the economic value of a defective product under the circumstances.

Reversed summary judgment for the employer on behalf of the employee. She could recover for breach of contract and breach of duty where the employer failed to inform her that her group health policy had terminated and that her pre-existing condition would not be covered under the replacement policy.

Successfully obtained dismissal of a frivolous case in the trial court, which was upheld by the Court of Appeals.

In a contest over two wills, the Supreme Court held that the propounder of a will must give notice to the propounders and beneficiaries of any other wills of the testator offered for probate in the same county. This duty does not end when the first will is filed but continues until a will is admitted to probate.