Be Neutral
A Publication of the Georgia Office of Dispute Resolution

Case Watch: For Mediators

The following case analyses are part of a regular series we publish to help neutrals broaden their knowledge of rulings of Georgia’s appellate courts that may affect your practice. Remember: mediators should not give legal advice or opinions

Review of McDonald v. McDonald, decided June 13, 2011, appeal to the Georgia Supreme Court of a ruling by Judge John E. Morse, Chatham County Superior Court.

Judges Have Broad Discretion to Decide Divorce Terms

In most mediations, there comes a time in the decision process when the parties ask, “What will the judge do?”  While we do not know the answer, the Georgia Supreme Court’s decision in McDonald v. McDonald will enlighten you on how you can help your parties understand the vast scope of judicial discretion in divorce cases.

But first, the sad facts of the McDonald case: 

            – Short-term marriage;

            – No children;

            – Prior bankruptcy of parties;

            – More liabilities than assets;

            – No equity in the marital residence;

            – $8,000 of joint marital debt;

            – Husband failed to pay $11,710.02 from temporary order; and

            – Wife filed for contempt for $11,710.02

As you are grasping for ways to reconcile this financial disaster, the facts get worse:

            – Wife is disabled;

            – Wife has a pending slip-and-fall case;

            – Wife’s vehicle has a loan against it;

            – Husband was laid off;

            – Husband broke his ankle;

            – Husband has a pending personal injury case; and

            – Husband’s vehicle has a loan against it.

The wife said she wants $25,000 in alimony, payable over 42 years at the rate of $50 per month.  The husband said he is unable to pay alimony; he lives on monthly disability insurance of $2,397.20 per month.

How would you as a mediator help the parties split up their financial pie?  You’re probably thinking that there’s no way the wife will get alimony.  Well, let’s look at what the McDonald trial court decided:

–   Husband was ordered to pay as alimony the cost of his wife’s health insurance premiums and maintain her on his health insurance for two years;
–   Husband was ordered to pay as alimony the note on wife’s car for 12 months; and
–   Husband was ordered to pay 55% of the $8,000 marital debt and wife was to pay 45%.

From my prior Be Neutral articles, you know that the $11,710.32 contempt that the husband owed would not be considered willful.  He was laid off from his employment and disabled and could not earn money to pay through no fault of his own.  Indeed, the trial court ruled that the husband’s disobedience of the temporary order was not willful and declined to hold him in contempt.

It is anyone’s guess as to the myriad other ways the trial court could have ruled in McDonald.  But from the Supreme Court’s opinion in McDonald, we can be absolutely sure that a trial judge has tremendous flexibility in crafting the terms of a final order.  The McDonald case is a poster child for the wide discretion the appeals court grants to the trial court.  The Supreme Court wrote that:

–   The premise it uses in reviewing any errors made by the trial court judge is to view the evidence:  “in the light most favorable to the trial court’s ruling.”
–   The evidence that it requires to uphold the trial court judge on appeal is: “any evidence.”
–   In distributing marital property (which is why we are all mediating or litigating), it grants the trial court judge: “broad discretion.”
–   As to fixing the amount of alimony, if any, it grants the trial court judge: “wide latitude.”

From this language, there was no doubt that Supreme Court would affirm the trial judge’s ruling in McDonald.

Could the trial judge in McDonald have split the pie differently?  Absolutely, as long as the arrangement fell within the court’s “broad” and “wide” authority.  As a mediator, your job is to help the parties understand there is no way to predict what will happen once their divorce goes before the judge.  A judge may create options that the parties believe are not supported by the facts.  And the judge’s decision is likely to be upheld; the appeals courts rely on the trial court’s interpretation of the evidence and witnesses.

McDonald confirms the unpredictability that can occur when the parties fail to resolve their own dispute.  This uncertainty has always been a strong incentive for parties to enter into a mediated agreement.  Perhaps once your parties realize the scope of discretion granted to the trial court, they will be more flexible in their resolution efforts.  You might remind them that despite the judge’s broad discretion, they have more power and flexibility than any judge does to craft their mediation agreement the way they want it.


Mary Ellen Cates is an attorney and registered mediator in Avondale Estates, Ga.  She has practiced domestic law exclusively since 1985.  A divorce mediator since 1998, she is also a domestic arbitrator, and she has been appointed as special master for DeKalb County Superior Court.

Phone: 404-292-3803; fax: 404-292-1510; or