Brewer v. Harvey
Brewer v. Harvey
Opinion of the Court
Joe Larry Brewer appeals from the trial court’s order awarding him 20 percent of the settlement proceeds in an action for the wrongful death of his son, Austin Brewer. We affirm for the reasons set forth below.
Brewer and Rebecca Harvey, who never married, were Austin’s parents. Four-year-old Austin was killed on April 5, 2004, in an automobile collision while riding in a car driven by Harvey. Harvey filed a wrongful death action against the other vehicle’s driver and the driver’s husband. After Brewer intervened through a consent order, the defendants’ insurer agreed to pay a $100,000 settlement. Harvey then filed a motion pursuant to OCGA§ 19-7-1 (c) (6) requesting that the trial court apportion fairly the settlement proceeds between Brewer and Harvey.
Viewed in a light most favorable to the trial court’s findings, the evidence adduced at the hearing showed that from the time of
After Brewer went to jail, Austin visited with his father approximately every two weeks for an hour. During this time Austin continued to live with Harvey, and Brewer’s mother helped to provide support for Austin with money given to her by Brewer from a tax refund. Brewer and Harvey ended their relationship as a couple while Brewer was incarcerated. After Brewer’s release in June 2003, he moved into a trailer neighboring the trailer in which Harvey and Austin were living, and he saw Austin on the weekends. Brewer provided child support under a court order requiring him to pay $25 per week for Austin and $25 per week for Brewer and Harvey’s other child. Brewer and Austin maintained a father and son relationship until the time of Austin’s death.
After hearing the foregoing evidence, the trial court issued its order finding as pertinent that during a significant portion of Austin’s life (i) Brewer was incarcerated, (ii) Brewer regularly used methamphetamine, and (iii) Harvey had primary custody and control of Austin. The trial court then apportioned the settlement proceeds by awarding 80 percent to Harvey and 20 percent to Brewer. Brewer claims that the trial court abused its discretion in making this apportionment. We disagree.
Pursuant to OCGA § 19-7-1 (c) (6), the trial court was required to allocate fairly the settlement proceeds, considering each parent’s relationship with the deceased child, “including permanent custody, control, and support, as well as any other factors found to be pertinent.” Id. We may not disturb the trial court’s decision absent an abuse of discretion. Id.
Brewer challenges the trial court’s finding that Harvey had primary custody and control of Austin because no legal proceeding had ever awarded custody or control of Austin to Harvey. However, given that the trial court was directed by OCGA § 19-7-1 (c) (6) to make its decision in light of the relationship between the parents and the deceased child, the trial court was entitled to consider that in practice, if not by judicial order, Harvey retained primary custody and control of Austin.
Brewer also contends that the trial court ignored Harvey’s admitted drug use, failed to acknowledge that Harvey did not provide
While evidence showed that Brewer continuously maintained a father and son relationship with Austin, Brewer was either in jail or not living with his son for a significant portion of the child’s lifetime. In contrast, Harvey lived with and cared for Austin his entire life. Under the circumstances, we cannot say that the trial court abused its discretion in allocating the settlement proceeds. See, e.g., Hall v. Bailey, 253 Ga. App. 595, 596 (1) (560 SE2d 76) (2002) (trial court did not err in awarding ninety-five percent of the settlement proceeds for a son’s wrongful death to his mother and five percent to his father).
Judgment affirmed.
“For cases in which the parents of a deceased child are divorced, separated, or living apart, a motion may be filed by either parent prior to trial requesting the judge to apportion fairly any judgment amounts awarded in the case.” OCGA § 19-7-1 (c) (6).
Reference
- Full Case Name
- BREWER v. HARVEY
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- 3 cases
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- Published