Justia Civil Procedure Opinion Summaries

Appellee Mother’s parental rights were terminated on January 14, 2013. Since Mother was indigent, she was represented by appointed counsel during the termination proceedings at juvenile court. In a letter that was apparently written prior to the issuance of the final termination of rights order, trial counsel told Mother that he could not represent her in an appeal, that she was not entitled to indigent defense for the discretionary appeal of a civil case, and that she should contact the public defender if she had questions or needed the appointment of another lawyer. On February 13, 2013, Mother, who was acting pro se, filed a notice of appeal in the juvenile court; but, months later, the juvenile court dismissed the notice of appeal because Mother was required to seek review by discretionary application. Mother, now represented by a new attorney, filed an “application for an out-of-time discretionary appeal,” requesting review of the January 2013 termination of rights order. Having decided it could grant the application for out-of-time discretionary review, the Court of Appeals went on to consider the merits and ultimately affirmed the termination of Mother’s parental rights. The Supreme Court granted the Georgia Division of Family and Children Services’ (“the State’s”) petition for certiorari to decide whether the Court of Appeals erred in finding that an appellate court had the authority to excuse the untimely filing of a discretionary application in a civil parental termination case. The Supreme Court vacated the Court of Appeals' judgment so that the appellate court could issue an order dismissing Mother’s application for out-of-time discretionary review. View "In the Interest of B.R.F. f/k/a B.R.M." on Justia Law

This appeal involved two petitions for long-term domestic violence protective orders. Olivia Lee-Magana prevailed both on a petition she brought against her ex-boyfriend Jacob Carpenter and on a petition he brought against her. She moved for attorney’s fees in both cases, but the trial court denied her motions at first and again on reconsideration. Lee-Magana appealed, asserting that the trial court abused its discretion by not awarding her full attorney’s fees on both petitions : on hers because she was the prevailing petitioner in a domestic violence case for whom fees are allowed by statute, and on her ex-boyfriend’s because she was the prevailing party and his petition was vexatious. After review, the Supreme Court affirmed the superior court’s denial of attorney’s fees for Lee-Magana's successful defense against her ex-boyfriend’s petition. As for the court’s denial of attorney’s fees to Lee-Magana as the prevailing petitioner, the Court concluded there was no adequate reason for denying fees and therefore reversed and remanded for an award of fees in an appropriate amount. View "Lee-Magana v. Carpenter" on Justia Law

Jesse, the legal father of Jaelyn under Ohio statutes, challenged the adoption of Jaelyn in Nebraska. In this appeal, Jesse specifically challenged the constitutionality of several Nebraska statutes, including statutes that permitted Jaelyn to be adopted without his consent. Jesse also argued that Nebraska must give full faith and credit to Ohio’s paternity determination. Under Ohio law, Jesse had the right to withhold consent to the adoption of Jaelyn. After the county court issued an adoption decree, the district court declined to grant habeas relief, determining that Jesse lost standing to challenge the adoption after the county court found that Jesse was not Jaelyn’s biological father. The Supreme Court reversed without addressing Jesse’s constitutional challenges, holding that the district court erred in failing to determine that Nebraska must give full faith and credit to Ohio’s determination of Jesse’s paternity. Remanded. View "Jesse B. v. Tylee H." on Justia Law

After 29 years of marriage and three children, appellant Sharmeen Islamkhan (“wife”) filed for divorce. She sought review of the denial of her motion to vacate void judgment in which she asked the trial court to vacate its order modifying certain provisions of the parties’ final divorce decree. Wife argued that, prior to entry of the modification order, appellee Shoeb Khan (“husband”) filed a notice of appeal of the final divorce decree which acted as supersedeas and deprived the trial court of jurisdiction to modify the appealed order. The Georgia Supreme Court granted wife’s application for appeal and asked the parties to address a series of questions related to the issue of whether supersedeas had attached. After review, the Court found that the divorce decree entered by the trial court was not a final judgment and, as a result, husband’s failure to follow the procedures set forth in OCGA 5-6-34 (b) for obtaining interlocutory review rendered his notice of appeal nugatory. Accordingly, the Court affirmed the trial court’s denial of wife’s motion to vacate. View "Islamkhan v. Khan" on Justia Law

U.S., the presumed father of five-year-old Robert S. and three-year-old Miguel S., and J.V., Robert’s biological father, each appealed the termination of their respective parental rights to the children. U.S. and J.V. argued insufficient evidence supported the juvenile court’s finding that the Indian Child Welfare Act of 1978 (ICWA) did not apply in this case, and further argued the Orange County Social Services Agency (SSA) failed to comply with its obligations under ICWA. U.S. and J.V. also argued the juvenile court erred by finding the children adoptable and terminating parental rights while a child abuse report investigation was pending. The Court of Appeal granted SSA’s unopposed motion to take additional evidence under Code of Civil Procedure section 909, which shows the juvenile court concluded the child abuse report was unfounded and the home study for Miguel and Robert’s prospective adoptive parents was completed and approved by SSA. That evidence mooted U.S.’s and J.V.’s challenges to the order terminating parental rights based on the pendency of the child abuse report investigation at the time of the permanency hearing. As for U.S.’s and J.V.’s ICWA challenges, although SSA was informed the children were both eligible to enroll in two different Chippewa tribes, the record did not show that any further efforts on the part of SSA or the juvenile court were made before SSA proposed that the court find that ICWA did not apply and the juvenile court made that finding. The Court of Appeal therefore reversed the order terminating parental rights for the limited purpose of allowing SSA to make active efforts necessary to secure tribal membership for the children, in compliance with rules 5.482(c) and 5.484(c)(2) of the California Rules of Court. View "In re Miguel S." on Justia Law

Mark and Kayla Rath were divorced in January 2013. Kayla was awarded primary residential responsibility of the couple's children. Mark was awarded supervised parenting time. Mark filed a motion for an order to show cause and a motion for relief from the original divorce judgment. He argued both motions in one brief, asserting Kayla violated his due process and First Amendment rights by monitoring his phone calls with the children. He also argued Kayla violated the terms of the divorce judgment by making the children unavailable for scheduled calls, ending calls prematurely, and refusing to allow one of the children to accept a cell phone he sent as a gift. Finally, Mark asserted the district court judge presiding over his case failed to remain impartial and should have recused himself. The district court denied Mark's motion for an order and for relief. Finding no reversible error in the district court's order, the Supreme Court affirmed. View "Rath v. Rath" on Justia Law

A 2004 dissolution decree awarded Kerry custody of the parties’ children, provided Michael with parenting time, and ordered Michael to pay child support. The parties settled a 2011 petition for an increase in support and counter-petition, but neither petition was dismissed. In 2013, the court granted Michael’s motion to compel compliance with the settlement. The Court of Appeals remanded with direction to prepare the applicable worksheets. Following remand, both appealed. In 2015, the Court of Appeals reversed in part. In 2013, while the first modification was ongoing, Michael sought changes of custody and child support. A summons issued, but a deputy was unable to serve Kerry. An appointed special process server later certified that personal service had been “effectuated,” but did not actually serve Kerry with a summons. Kerry objected to jurisdiction. The court found that Kerry received actual notice and had not been prejudiced by the manner of service. Kerry filed an answer. In 2014, the district court granted Michael’s application to modify the order. The Court of Appeals vacated, holding that Michael’s failure to serve the summons on Kerry within six months deprived the court of jurisdiction. The Nebraska Supreme Court reversed. Kerry waived service of process by making a general appearance in the second proceeding and the court retained jurisdiction to modify custody while an appeal on other issues was pending. View "Burns v. Burns" on Justia Law

In her application for rehearing, K.G.S. did not argue that the Alabama Supreme Court overlooked or misapprehended any point of law or fact in holding that J. Michael Druhan, a Mobile attorney, had been improperly appointed to hear the case after the recusal of Judge Don Davis. Instead, K.G.S. moved the Court to "consider the Affidavit of Probate Judge Don Davis and its attached Order of the Presiding Judge of the Circuit Court of Mobile County, Alabama date April 28, 2010." K.G.S. had an "obligation to attach to her petition '[c]opies of any order or opinion or parts of the record that would be essential to an understanding of the matter set forth in the petition.'" But the Supreme Court found K.G.S. failed to do so, omitting the April 28, 2010 order. The Supreme Court overruling K.G.S.'s application for review: "K.G.S. may not now, for the first time in her application for rehearing, present additional documentation in support of her argument." Furthermore, the Court found K.G.S. did not present any evidence indicating that Judge Davis ever certified to the presiding judge of the circuit court his inability to serve in the case. "Therefore, even if we were to consider the new documents presented by K.G.S., she has not demonstrated that this Court overlooked or misapprehended any point of law or fact." View "Ex parte K.R." on Justia Law

Nicole and Jeremy had three children, born in 2001, 2004, and 2005, and lived in Missouri. In 2007, Madysen, then 6 years old, reported that Jeremy had been sexually abusing her for more than a year. Jeremy was arrested. Nicole moved with the children to Nebraska and filed for divorce. The 2007 dissolution granted sole custody of the children to Nicole and stated that Jeremy “shall not have any parenting time.” The court ordered Jeremy to pay $50 per month in child support. IPursuant to a plea agreement, Jeremy was sentenced to 16 years’ confinement. Nicole married William in 2013; they sought adoption by a stepparent and to terminate Jeremy;s parental rights. Jeremy opposed the adoptions. The petitions asked the court to find that Jeremy had abandoned the children under Neb. Rev. Stat. 43-104, such that Jeremy’s consent was not required. Jeremy’s mother had consistently paid the ordered child support; Jeremy had sent the children cards. The court ordered that Jeremy’s consent was not required. The Court of Appeals reversed, concluding that the record did not support a finding upon clear and convincing evidence that Jeremy had abandoned his children. The Nebraska Supreme Court dismissed an interlocutory appeal for lack of jurisdiction, holding that the Court of Appeals had also lacked jurisdiction. The order was not final, pending an order on the adoption petition. View "In re Adoption of Madysen S." on Justia Law

Three consolidated cases involved an ongoing dispute over personal property awarded to Megan Golden in her 2012 divorce from Todd Guion. Golden appealed the district court’s order that: (1) rejected her request for a rehearing on a 2012 denial of her motion to find Guion in contempt of court; (2) denied her motion to vacate a February 2015 order following contempt hearings; and (3) granted Guion’s request for sanctions under W.R.C.P. 11. After review, the Supreme Court dismissed two of the cases for lack of jurisdiction, and affirmed the sanctions case because Golden did not file not file timely notices of appeal. View "Golden v. Guion" on Justia Law