In litigation involving domestic relations, Georgia judges often invite the parties’ attorneys to submit proposed forms of order, including final orders containing detailed findings of fact and conclusions of law. Instructions regarding a court’s intended ruling at times accompany those invitations. At other times, a court will reserve its decision and invite both parties to propose outcomes based on the evidence admitted. A judge in either scenario theoretically will review and incorporate the best parts of each side’s proposed order into a final form which best fits the court’s desired outcome. In practice though – and much to the dismay of the litigants getting the proverbial short end of the stick – our overworked judges too frequently accept the proposed order submitted by the prevailing party and enter it either verbatim or with only minor changes. The losing party whose order was not entered naturally feels cheated, having seemingly wasted substantial effort and money to craft a proposed order which the trial court seemingly ignored. But does the cheated party have a remedy? Does Georgia law permit a challenge to even the verbatim entry of a prevailing party’s proposed order on appeal? This article explores those questions.

The U.S. Supreme Court and Georgia’s appellate courts have expressly admonished judges against verbatim adoption of orders prepared by the prevailing party’s attorney.(1) As our nation’s Supreme Court has stated, “[w]e, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record[; and w]e are also aware of the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor.”(2) The Court of Appeals of Georgia also has spoken strongly against this practice, noting that “[w]e take this opportunity to reiterate that the practice of a trial court adopting orders prepared and presented by counsel is greatly disfavored by this [c]ourt.”(3)

Unfortunately, those strong words of principle bare few if any teeth in practical application. The Supreme Court itself followed its admonishment against verbatim adoptions with the caveat: “[n]onetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court, and may be reversed only if clearly erroneous.”(4) Georgia’s appellate courts have held likewise and specified that a trial court’s adoption of a party’s proposed order does not constitute an abuse of discretion.(5) Expanding further, while construing verbatim adoptions as orders prepared ex parte, our appellate courts have held that such orders “do not violate due process and should not be vacated unless a party can demonstrate that the process by which the judge arrived at them was fundamentally unfair.”(6)

Establishing fundamental unfairness may prove difficult though, to say the least. To this author’s knowledge, no published appellate decision in Georgia has ever vacated a trial court’s order because the order was adopted nearly or entirely verbatim from one party’s proposed form. Thus, no successful template exists for challenging verbatim adoptions on appeal.

Instead, existing decisions rejecting appellants’ claims of error at best offer theoretical avenues of attack on appeal. The U.S. Supreme Court, for instance, in rejecting a claim of error in a district court’s adoption of a petitioner’s proposed findings of fact and conclusions of law, noted the following:

In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner's counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued -- and particularly the crucial findings regarding petitioner's qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen -- vary considerably in organization and content from those submitted by petitioner's counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions.(7)

Georgia appellate decisions have added that “[j]udges may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.”(8) In such events, “as long as the order of the court is supported by evidence, in the absence of evidence that the court did not seriously consider proposed findings and conclusions of law presented to it, no error results even if a proposed order is adopted verbatim.”(9)

In one seminal case, the Supreme Court of Georgia held as follows in rejecting a wife’s challenge to a trial court’s purported verbatim adoption of a husband’s proposed final decree of divorce and proposed order denying wife’s contempt motion:

The trial court explained that, rather than adopt Husband's proposed orders verbatim, it had reviewed both parties' submissions and instructed Husband's counsel to make certain changes in his, basically to include provisions which Wife's attorney had requested in her proposal… The initial submission of proposed orders in this case clearly was not reversible error, especially since both parties participated, their attorneys had not previously been informed of the trial court's decision, and the orders were not adopted verbatim … [T]he trial court had already made its decision and it simply directed that the orders be revised so as to include certain provisions beneficial to Wife… Here, the trial court did not abdicate its adjudicative function, but rather played an active and independent role when it considered the proposals of both parties, reached a decision to use primarily the orders prepared on behalf of Husband, and directed the inclusion of provisions requested by Wife. Wife has had a full opportunity to present her arguments in the trial court and on appellate review. Accordingly, the trial court ‘in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party.’(10)

Thus, theoretically, an appellant should be able to attack and vacate an order entered nearly or entirely verbatim by showing that a) the trial court’s findings were clearly erroneous, b) the appellant did not receive an opportunity to submit its own proposed order before the trial court entered the appellee’s proposed order, or c) the trial court failed to seriously consider the proposed findings and conclusions of law presented by both parties before entering its verbatim judgment and uncritically accepted the findings and conclusions submitted by only the prevailing appellee. As a practical matter, however, the most this author can offer to an appellant making those arguments is “good luck!”

(1) See Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed. 2d 518 (1985); Hughes v. Cornerstone Inspection Grp., Inc., 336 Ga.App. 283, 284, 784 S.E.2d 116 (2016); and CNL APF Partners v. Dept. of Transp., 307 Ga.App. 511, 514 n. 17(3), 705 S.E.2d 862 (2010). (2) Anderson, supra, 470 U.S. at 572 (citations omitted). (3) CNL APF Partners, supra, 307 Ga.App. at 514 n. 17(3). (4) Anderson, supra, 470 U.S. at 572. (5) Fuller v. Fuller, 279 Ga. 805, 806 (1), 621 S.E.2d 419 (2005); Spirnak v. Meadows, 355 Ga.App. 857, 844 S.E.2d 482, 495 (8) (2020); Noble v. Noble, 815 S.E.2d 150, 153 (Ga. Ct. App. 2018); and Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 739 (5), 698 S.E.2d 19 (2010). (6) Woodyard v. Jones, 285 Ga.App. 323, 324-325 (2), 646 S.E.2d 306 (2007), citing Fuller, supra, 279 Ga. at 806 (1). (7) Anderson, supra, 470 U.S. at 572-573. (8) Cuyler v. Allstate Ins. Co., 284 Ga.App. 409, 411 (2), 643 S.E.2d 783 (2007), citing Fuller, supra, 279 Ga. at 806 (1). (9) Spirnak, supra, 844 S.E.2d at 495 (8) (citation omitted). (10) Fuller, supra, 279 Ga. at 806-807 (1) (citations omitted).