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Unofficial Opinion 95-7

Unofficial Opinion 95-7

March 10, 1995
To: 

Judge, Superior Court
Douglas Judicial Circuit

Re: 

Petitions for relief under the Family Violence Act and petitions for divorce may be combined in one action; however, the procedures governing the divorce action must comply with the Civil Practice Act. Furthermore, the filing fees for such a combination action would be governed by the general civil action filing fees provisions; only if a petition for relief under the Family Violence Act is filed separately would the unique lesser filing fee in O.C.G.A. § 19-13-3(a) be applicable.

This is in response to your request for my opinion as to whether petitions seeking protective orders under the Family Violence Act and divorce petitions may be combined in the same action and, if so, whether separate filing fees and other treatment should be accorded each petition by the clerk of the superior court.

In the Family Violence Act, O.C.G.A. § 19-13-1 et seq., the General Assembly established a system for providing quick, temporary relief for the protection of victims of family violence (battery, assault, stalking, criminal damage to property, unlawful restraint or criminal trespass). Upon the filing of a verified petition alleging specific facts showing probable cause for the existence of family violence, the court may order such temporary relief ex parte as it deems necessary to protect the victims. O.C.G.A. § 19-13-3(b). Within ten days of the filing of the petition, or as soon as possible thereafter, a hearing must be held in which the allegations of the petition must be proven by a preponderance of the evidence. If such a hearing is not held within thirty days, the petition stands dismissed unless the parties agree otherwise. O.C.G.A. § 19-13-3(c). Any protective orders granted under the Family Violence Act remain in effect only six months unless, upon motion and after notice and a hearing, the court converts a temporary order to a permanent one. O.C.G.A. § 19-13-4. Because of these specific provisions for ex parte orders and short response times, the Family Violence Act is a special statutory proceeding rather than a regular civil action.

The Civil Practice Act [CPA] provides that "[t]his chapter governs the procedure in all courts of record of this state in all actions of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in Code Section 9-11-81." O.C.G.A. § 9-11-1. Code § 9-11-81, in turn, states that the CPA "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith are expressly prescribed by law." Such special statutory proceedings are the only exceptions to the practice and procedure prescribed by the CPA permitted in courts of record. Gresham v. Symmers, 227 Ga. 616, 617 (1971).

As noted above, abbreviated procedures are specifically outlined in the Family Violence Act; therefore, the CPA would not apply in that instance. Moreover, even to the extent that other procedural provisions, for example, those pertaining to service, are not specifically provided, the CPA's service requirements still need not be applied to Family Violence Act proceedings because the latter is not a civil action in the ordinary meaning of the term. Vlass v. Security Pac. Nat'l Bank, 263 Ga. 296, 297 (1993) (service provisions of O.C.G.A. § 9-11-4 not applicable in a foreclosure confirmation proceeding, a special statutory proceeding which is not a civil action initiated by the filing of a complaint). Of course, if the CPA service provisions were used, they would be sufficient. O.C.G.A. § 9-11-4(j).

The filing of a petition for divorce on the other hand, initiates equitable proceedings which are governed by the Civil Practice Act. Allen v. Allen, 260 Ga. 777, 778 (1991); Ivey v. Ivey, 233 Ga. 45 (1974). You have indicated that there have been problems in your circuit with attorneys in divorce cases including family violence allegations in their pleadings merely to get an expedited hearing on the underlying divorce. Under the following authorities, such expedited hearings normally should be held only on the allegations under the Family Violence Act.

Although there are no cases specifically addressing the question of whether family violence petitions and divorce petitions may be combined in one action, the Georgia Supreme Court has answered that question in the affirmative with regard to the combination of a special statutory procedure under the Personal Property Foreclosure Act (O.C.G.A. § 44-14-230 [former Ga. Code Ann. § 67-701]), with a common law action for a money judgment on a debt. The Supreme Court agreed with the Court of Appeals that, since the "creditor could have brought separate actions to foreclose the security interest and on the indebtedness, . . . both remedies could be sought in the same action." Porter v. Midland-Guardian Co., 242 Ga. 1, 2 (1978). However, in so ruling, the Court issued a strong caveat that a claim for the indebtedness, whether filed in a separate action or in the same action as a foreclosure proceeding . . . must stand or fall upon the principles set forth in the Civil Practice Act, including, but not limited to, process and service of process, and may not be "piggy-backed" into court using the special rules applicable to foreclosure actions . . . .

Id. at 2-3 (citation omitted). A similar position was taken by the Court in Superior Rigging & Erecting Co. v. World of Sid & Marty Krofft, 149 Ga. App. 95, 96 (1979), where the plaintiff was attempting to assert its claims in a proceeding which resembled both a civil action for debt and an action for a writ of possession pursuant to a special statutory proceeding. However, the requirement that a defendant file an answer within seven days of service of a summons under the special statutory procedure did not satisfy the procedural requisites of a civil action in debt; consequently, the issuance of a money judgment was not authorized.

Therefore, based on these analogous authorities, it would appear that a person could file a petition for relief under the Family Violence Act either separately or in combination with a petition for divorce. However, the divorce portion of the proceeding must comply with the principles set forth in the CPA and may not be "piggy-backed" into court using the special abbreviated rules under the Family Violence Act. Thus, although the Family Violence Act allows the court to take certain ex parte measures to protect one spouse and the children from the violence of the other spouse, the granting of a divorce between the two spouses would be contingent upon compliance with, inter alia, all of the provisions of the CPA. Porter, supra; Superior Rigging, supra. The practical application of the Porter rationale, therefore, would seem to require the superior court clerk to cause a separate summons, in full compliance with the CPA, to be issued for that portion of the complaint seeking a divorce.

You have raised another question with respect to the amount of fees to be charged in such a hybrid case. This office has previously opined that the various amendments to O.C.G.A. § 15-6-77, regarding fees in civil actions, did not repeal the earlier specific $16.00 filing fee for Family Violence proceedings imposed by O.C.G.A. § 19-13-3(a). 1988 Op. Att'y Gen. U88-11. Therefore, if a person files only a petition under the Family Violence Act, the filing fee would remain $16.00, plus the other incidental service charges discussed in Op. Att'y Gen. U88-11. However, if a Family Violence Act petition is combined with a regular civil action for divorce, the larger filing fee, to compensate the clerk for the additional duties involved in the larger action, would be fixed by the terms of O.C.G.A. § 15-6-77 (currently a total of $58.00) together with any additional fees provided in O.C.G.A. §§ 15-6-77.1 through 15-6-77.4 or subsequent amendments, where applicable.

Therefore, based on the foregoing discussion, it is my unofficial opinion that petitions for relief under the Family Violence Act and petitions for divorce may be combined in one action; however, the procedures governing the divorce action must comply with the Civil Practice Act. Furthermore, the filing fees for such a combination action would be governed by the general civil action filing fees provisions; only if a petition for relief under the Family Violence Act is filed separately would the unique lesser filing fee of $16.00 in O.C.G.A. § 19-13-3 be applicable.

Prepared by:

CAROL ATHA COSGROVE
Senior Assistant Attorney General