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Jan 24 15

Georgia Child Support Worksheet Training Notes

by merlin

This training was conducted yesterday in Hall County, and I stopped taking notes near the end to instead listen and absorb as concerned child support and domestic violence issues, but these notes may help folks that are struggling with them:

Child Support Worksheet Training

Friday, January 23, 2015

Georgia Commission on Child Support – 15 members, appointed by governor, revise and maintain CS guidelines and do training

What is the current version of CS Worksheet – 9.1 (released around 2nd week of January, generally)

www.georgiacourts.gov/CSC

 

click on downloadable calculator button

  • 1st one is the most likely to use, second one is a Turbotax kind of option, and third one is for DV Orders, TPOs, etc.
  • Be sure to ENABLE MACROS when you open the worksheet (usually up on top far right, “enable content”)
  • Click on “enable editing”
  • Any place there is a small red triangle, hover the mouse over the triangle for information
  • “Comments for the Court” – be sure to let the Court know if agreement was reached between the parties
  • Remember, § 9-11-7.1 says no full birthdates (use the year only)
  • Noncustodial parent is EITHER the person the child resides with less OR who has greater CS obligation

 

REMEMBER:

  1. Not all deductions allowed for income tax purposes are allowed as deductions for CSW purposes; also
  2. Needs-based income (such as TANF and SSI) is NOT included in calculations
  3. Arrearages in preexisting child support orders do not count to offset new child support obligations.
  4. If there are other qualified children in the home, and the box is checked to include them, the calculator automatically does this.
  5. Vision, dental, and life insurance are included under Schedule E, and aren’t MANDATORY for children.
  6. If person is Ordered to pay insurance for child, find out how much the cost is so it can be included (often no credit given for payment of it)
  7. Also – NO HIGH INCOME DEVIATION unless household income is above $30K per month.
  8. Low-income deviation is subsection (i), and what qualifies is not an “income cap” (case-by-case determination)
  9. If noncustodial parent, and requested the low-income deviation (OR THE COURT DETERMINES THAT IT IS APPROPRIATE), then CSW will calculate automatically.
  10. Got to select the cell for low-income deviation – there must be other deviations beyond low-income if paying less than $100/month child support

UCSR 24.2 – imputing income

Multiply hourly rate by 174 for monthly income (???)

  • If a parent fails to provide evidence of income, court is required to impute 40 hours/week at minimum wage ($2,175/month)
  • If income is imputed, then other parent has 90 days to request rehearing if they dispute it (§19-6-15(f)(4)(c))
  • In cases of willful or voluntary under/unemployment, Court can look at attendant circumstances to determine if it is reasonable or not

 

Child Support and Domestic Violence Cases

  • 19-13-4(a)(6) – Court may Order support; Guidelines apply
Jan 19 15

The Arc of the Moral Universe is Long, but it Bends toward Justice

by merlin

At this time, the United States seems to be in an upheaval of civil rights crises, and some even seem to hit close to home for me (specifically, a SWAT raid on a supposed drug-dealing hub instead involved a flash-bang grenade tossed into an infant’s crib, disfiguring the infant for life, over a gram or so of marijuana from a non-resident, in a county near my own).  The recent spate of violence in the media involving law enforcement officers against civilians, and vice-versa, is a particularly apt topic for Martin Luther King, Jr.’s day of remembrance.

It begs the question of the use of deadly force (such as a firearm, or even a flash-bang grenade if it were used in close range to an infant, one would postulate) as justified under the law.  Specifically, when does Georgia law permit such force to be used?

This is covered by statute in Georgia – specifically Section 16-3-21 of the Georgia Code.  Subsection (a) describes a specific set of circumstances that must be present for deadly force to be validly, justifiably used (in defense of yourself or in defense of a third person against imminent, unlawful force):

‘(a) A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”

However, that Code section subsequently states when that kind of force cannot serve as a justification:

“b) A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he:

(1) Initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant;

(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony; or

(3) Was the aggressor or was engaged in a combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other, notwithstanding, continues or threatens to continue the use of unlawful force.”  (emphasis supplied).

The key word in this Code section is reasonably, because that implies an objective standard, similar to the idea that students of tort law struggle with (what would a reasonable person do?), but the name of the Code section itself sheds even more light into it, since it requires that a person relying on that Code section to serve as a defense for their actions pay attention to subsection (b)(2): “(2) Is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony”.

Plainly, that Code subsection introduces a subjective judgment call in favor of a police officer, even one who is objectively in the wrong (a recent decision by the courts seems to uphold LEO use of force even when there is no such crime as they are attempting to hold the person responsible for).

 The Courts in Georgia have long held a particular standard in use-of-force/homicide cases, under the law of Bivens v. State, 200 Ga. 729, 38 S.E.2d 273 (Ga. 1946).  The Bivens case is somewhat confusing, since a new trial was allowed for a Defendant accused of murder who appeared to question primarily the malice murder aspects of the jury charge.  The trial court’s order denying him a new trial was reversed, because of witness credibility issues that he had raised and that were not addressed by the trial court properly, but the confusion arises from the extensive discussion by the Georgia Supreme Court of the burden-shifting that can happen in a malice murder situation.  The Court states very plainly that the accused enjoys a presumption of innocence but that all homicides are presumed to be done with malice, and if the evidence shows malice then the accused has a burden of showing his affirmative defense of justification for the homicide.  This confused the issue, it seems, and the current spate of LEO homicides appear to follow a similar line of reasoning, confusing the subjective and the objective to obtain exoneration of the person wearing the badge.  The case is below:

Syllabus by the Court.

        1. The fears of the slayer that will justify a homicide must be the fears of a reasonable man, and the law, in case of homicide, does not take into account the actual fears of the slayer, but considers all the circumstances to determine whether they were sufficient to generate fears in a reasonable person.

        2. There was nothing either in the evidence introduced by the State or in the defendant’s statement to warrant an inference that there had been mutual combat between the parties, and that the defendant relied on justifiable homicide under the fears of a reasonable man, as defined in the Code, §§ 26-1011, 26-1012. It was therefore erroneous for the court to charge section 26-1014, which is applicable only to mutual combat.

        3. The charge on justifiable homicide in defense of habitation was inapplicable to the evidence, but was not subject to any criticism made.

        4. It is not error to fail to charge that the defendant’s statement may be considered in connection with the conflicts in the evidence, and that the jury may believe the statement in preference to the testimony of any witness, where the court elsewhere in the charge appropriately instructed the jury that they might believe the defendant’s statement in preference to the sworn testimony.

        5. The court did not err, under the evidence in the present case, in charging the jury as follows: “The law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification, of mitigation or excuse; and the burden is on the slayer, whenever an intentional homicide has been proved, to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.”

        6. It was not erroneous to charge the jury in the language complained of in special ground 6, as dealt with in the opinion.

        7. It was not erroneous to instruct the jury that: “When the killing is proved to be the act of the defendant, the presumption of innocence with which he enters upon the trial is removed from him and the burden is upon him to justify or mitigate the homicide. But as I have charged you heretofore, the evidence in justification or mitigation may be found in the testimony introduced against him. If there be no evidence introduced to show justification or mitigation, and if the evidence introduced shows the homicide committed as charged in the indictment, the burden would then be upon the prisoner to show mitigation or excuse.”

        8. Where on the cross-examination of a witness it is shown that he has given previous contradictory testimony in connection with the same matter, it is proper to permit him to offer in explanation matters to rebut the discrediting effect of his previous testimony.

        9. Since this case must go back for a new trial for reasons set forth in division 2, no ruling is made on the general grounds of the motion for new trial as to the sufficiency of the evidence to support the verdict.

        Error from Superior Court, Bibb County; Mallory C. Atkinson, Judge.

        Fleming Bivins was convicted of murder, his motion for new trial was overruled, and he brings error.

        Judgment reversed.

        Fleming Bivins was found guilty, with a recommendation of mercy, of the murder of Luke Warren by shooting him with a pistol. The defendant filed his motion for new trial on the general grounds, which motion, as amended, by several special grounds, was overruled by the trial court. The exception is to that judgment.

        The evidence for the State was conflicting in many particulars, and the principal witness for the State, Henry Taylor, admitted that his testimony as given on the trial was contradictory to the testimony given by him at the coroner’s inquest, and explained this variation by stating that immediately after the homicide the defendant and the defendant’s wife, Louella Bivins, had persuaded him to verify the version of the homicide that they would insist upon, that is, that the deceased was advancing on the defendant with an ice pick, and that the defendant shot the deceased in self-defense; and that they had threatened his life if he did not give such account of the homicide. The evidence of Henry Taylor on the trial was to the effect: that on the night of the homicide he was at the home of Luke Warren, and Fleming Bivins was also there; that Luke Warren and Fleming Bivins were gambling; that the witness was not gambling because he had no money; that the trouble started when the defendant accused the deceased of “turning him up” for selling liquor; that they played on for a few minutes, and the defendant “broke” the deceased; that the defendant then went over to his home, which was in the building adjoining the house in which the deceased lived, and came back with his pistol; that the defendant told the deceased that he had come over to kill him because he had “turned him up;” and the deceased pleaded with him not to kill him; that the defendant’s wife encouraged her husband to kill the deceased, and the defendant commenced shooting at him and fired three shots; that the deceased did not move; and that the defendant walked within about three or four feet of him and shot him, and the deceased fell out of the door steps. Henry Taylor further testified: that after the homicide the defendant told him to come over to his house, and they went into the kitchen, and the defendant’s wife got an ice pick and took it to the place where the deceased was lying, and pitched the ice pick over on the right hand side of the deceased; and that afterwards the three of them planned to tell the story to make the homicide appear to be in self-defense, and the defendant and his wife told the witness that, unless he “stuck” to that story, they would kill him.

        Mozell Divins, who lived in the other side of the house in which the deceased lived, testified that she was awakened by the quarreling between the defendant and the deceased, and heard the defendant leave the house; and that he later came back, and she looked out of her door and saw the defendant start to shoot the deceased, whereupon she hastily closed her door to avoid being shot.

        There was evidence that the policeman who investigated the case found an ice pick under the feet of the deceased. The embalmer testified that he found a bullet wound in the body under the left arm and bullet wounds in the head of the deceased. The homicide occurred in Macon, Bibb County.

        The defendant’s counsel in cross-examination brought out the fact that several of the witnesses had testified at the coroner’s inquest, and that their testimony on the trial was different from that given at the inquest.

        The defendant made a statement in which he attacked the testimony of all the witnesses, and gave as his version of the homicide that he and the deceased were gambling, and he won all the money that the deceased had; that the deceased asked to borrow 50 cents from him, which he loaned the deceased, and that the deceased wanted another loan of SO cents, but he refused it and started to go home, and the deceased started toward him and said, “You ain’t going off with my money tonight.” The defendant’s further statement was as follows: “I told him to get back twice, and when I shot him I shot at his feet; the first time I shot he kept coming, I shot three more times, the last time he wheeled around and fell in front of the house down with his head toward Main Street. He was trying to kill me, he come on me with an ice pick; I ‘seed’ he was going to kill me; I told him to get back twice, and I had to shoot him to save my life because I knowed he had done cut somebody down the street. I knowed he would kill me if he could get to me with an ice pick or knife and I had to shoot him to defend myself.”

        Grady Gillan and Thomas A. Jacobs, Jr., both of Macon, for plaintiff in error.

        Chas. H. Garrett, Sol. Gen, of Macon, and Eugene Cook, Atty. Gen, and C. E. Gregory, Jr., Asst. Atty. Gen, for defendant in error.

        HEAD, Justice (after stating the foregoing facts).

        1. In the first special ground, the defendant assigns error on the following charge of the court: “I charge you further that a bare fear on the part of the defendant of any one of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.”

        The assignment of error is on the grounds, that the court should not have required the defendant’s fears to be measured by the fears of a hypothetical “reasonable man, ” and because the court intimated that a criminal homicide had been committed and reasonable fears had not been aroused in the mind of the defendant.

         This charge is in almost the identical language of the Code, § 26-1012, and would not be subject to either criticism offered. The fears of the slayer that will justify a homicide must be the fears of a reasonable man, and if the defendant is an unusually timid man, or lacking in courage, and committed the homicide under circumstances that would not generate fears in a hypothetical reasonable man, he would not be justified. This court has over a period of years decided various phases of this question. See Teal v. State, 22 Ga. 76, 68 Am.Dec. 482; Golden v. State, 25 Ga. 527, 533; Frazier v. State, 112 Ga. 868, 869, 38 S.E. 349; Vincent v. State, 153 Ga. 278, 299, 112 S.E. 120. In Anderson v. State, 117 Ga. 255, 258, 43 S.E. 835, 836, the court said: “The law, in cases of homicide, does not take into account the actual fears of the slayer, but considers all the circumstances with reference to a determination as to whether they were sufficient to excite the fears of a reasonable person.”

        2. In the second special ground, the defendant assigns error on the following charge: “Now there is another basis upon which justifiable homicide may rest, and that is a case of self-defense where there existed a condition of mutual combat, as I have defined that to you, between the parties. If you find from the evidence that such a condition did exist, then, I charge you, if a person shall kill another in his defense, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline further struggle before the mortal blow was given.”

        Among other grounds of objection, the defendant contends that this charge was error because under no theory of the evidence was mutual combat involved. A careful study of the evidence convinces us that this principle of law, found in the Code, § 26-1014, which is applicable only to self-defense in cases of mutual combat, is inapplicable to the present case. Under the State’s evidence, if the defendant was guilty of any offense, he was guilty of murder. The defendant insisted that the homicide was in self-defense. There was no evidence from which an inference could be drawn that mutual combat was involved. The charge of the section above quoted may have confused the jury and led them to believe that, in order to acquit the defendant on his contention that he acted in self-defense and under the fears of a reasonable man, “it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary.” This put a greater burden on the defendant than the law required. Jones v. State, 172 Ga. 500, 506, 158 S.E. 44.

        In Lamp v. State, 164 Ga. 57, 59, 137 S.E. 765, the court charged the law of mutual combat and section 26-1014 of the Code in connection therewith in language almost identical with that under consideration, and in that case the court said: “It is the settled law in this State that to charge section 73 of the Penal Code [now section 26-1014], which applies only to cases where the evidence tends to show a mutual intention to fight, when there is no evidence of a mutual combat, is error, and requires a reversal. There was no evidence in the present case tending to show a mutual intention to fight on the part of the deceased and the defendant, and consequently it was error, requiring the grant of a new trial, for the court to charge the jury section 73 of the Penal Code. Lowman v. State, 109 Ga. 501 (3), 34 S.E. 1019; Jordan v. State, 117 Ga. 405(2), 43 S.E. 747, et cit.; James v. State, 123 Ga. 548(2), 51 S.E. 577; McCray v. State, 134 Ga. 416, 418(13), 68 S.E. 62, 20 Ann.Cas. 101; Crawford v. State, 149 Ga. 485, 100 S.E. 633; Brown v. State, 151 Ga. 497, 501, 107 S.E. 536; Campbell v. State, 157 Ga. 233,121 S.E. 306.”

         It was error requiring a reversal, under the evidence in the present case, to charge section 26-1014 of the Code. Powell v. State, 101 Ga. 9, 11(6, 7), 29 S.E. 309, 65 Am.St.Rep. 277;Teasley v. State, 104 Ga. 738, 30 S.E. 938; Parks v. State, 105 Ga. 242(3), 31 S.E. 580; Smith v. State, 106 Ga. 673(3), 32 S.E. 851, 71 Am.St.Rep. 286; Delegal v. State, 109 Ga. 518(3),35 S.E. 105; Stubbs v. State, 110 Ga. 916, 36 S.E. 200; Ragland v. State, 111 Ga. 211(3), 36 S.E. 682; Wheeler v. State, 112 Ga. 43, 44, 37 S.E. 126; Freeman v. State, 112 Ga. 48(3), 37 S.E. 172; Mell v. State, 112 Ga. 78, 37 S.E. 121; Morgan v. State, 152 Ga. 537(3), 110 S.E. 286.

        3. The defendant assigns error, in the third special ground, on the following charge: “I charge you further, if after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another; but it must appear that such killing was absolutely necessary to prevent such attack or invasion, and that a serious injury was intended, or might accrue to the person, property, or family of the person killing.”

        The defendant contends that this charge was error because: (a) the rule of absolute necessity to kill applies only in those cases where the circumstances are such that there is not only time and opportunity for persuasion, remonstrance, or other gentle measures, but a duty to use such measures before resorting to slaying the assailant; (b) the charge was inapplicable and prejudicial to the defendant because he contended that he acted in self-defense and under the fears of a reasonable man; (c) the defendant had the right to defend his home or habitation against a forcible attack, if he acted under the fears of a reasonably courageous man that it was necessary to take life to prevent the invasion of his property or habitation.

         In the present case, there was absolutely no evidence to require the charge of the court on defense of habitation, and the charge was totally inapplicable, but it will be noted that no objection was made on the ground that the charge was not supported by the evidence. The instruction is a correct statement of the principle of law charged, being in the language of the Code, § 26-1013, and it was not erroneous for any reason assigned.

        4. The fourth special ground complains of the following charge: “If there are conflicts in the testimony, it is your duty to reconcile those conflicts if you can, so as not to impute perjury to any witness sworn, but if there are conflicts which you cannot reconcile, then you should believe that witness, or those witnesses, whom you think most entitled to credit.”

        The errors assigned are: (1) that this charge was prejudicial because, in reconciling conflicts, the jury must take into consideration the equal credibility of witnesses, and the court should have instructed them that they should believe that witness or those witnesses having the best opportunity to know the facts, provided the witnesses were of equal credibility; and (2) because the court failed to instruct the jury that the defendant’s statement might be considered in connection with the conflicts in the evidence, and that the jury might believe the statement in preference to the testimony of any witness, and might consider his statement in an effort to reconcile conflicts and ascertain the truth of the case. It is this latter objection that the defendant insists upon in his brief filed in this court.

         Language very similar to that charged by the trial court was approved by this court in Stiles v. State, 57 Ga. 183, 184 (5), where it was held that it was not error to charge the jury “that they should reconcile all the testimony if possible, and if not, to believe those whom they thought most entitled to credit.” The credibility of witnesses is a matter peculiarly within the province of the jury, and they are not required to believe those witnesses who have the best opportunity to know the facts.

        In regard to the objection that the court should have instructed the jury that the defendant’s statement might be considered in connection with the conflicts in the evidence, we find that, immediately after the charge under consideration here, the court correctly instructed the jury on the weight to be given the defendant’s statement. The court did not directly connect the two portions of the charge, but we do not think that the jury could have failed to understand that they could consider the defendant’s statement in connection with any phase of the case, and believe it in preferance to the sworn testimony if they so desired. In the latter part of the charge, the court again referred to the statement of the defendant in the following language: “If, under all or any of the law I have given you in charge, from a consideration of the evidence, the evidence and the defendant’s statement, or from the defendant’s statement alone, you believe he is not guilty, or there rests upon your minds a reasonable doubt of his guilt, it would be your duty to acquit him.”

         It has been repeatedly held that it is not error to fail to instruct the jury that they can consider the defendant’s statement in connection with the evidence, when the court has elsewhere charged substantially in the terms of the statute as to the defendant’s statement. Miller v. State, 94 Ga. 1 (2), 21 S.E. 128; Cargile v. State, 137 Ga. 775 (1), 74 S.E. 621; McCrary v. State, 141 Ga. 4 (2), 80 S.E. 305; Godbee v. State, 141 Ga. 515, 520, 81 S.E. 876; Morris v. State, 177 Ga. 365, 366 (3), 170 S. E. 217. It is not error for a judge to shape his general charge with reference to the evidence, where he properly instructs the jury in some portion of the charge in regard to the defendant’s statement. Roberts v. State, 123 Ga. 146 (7), 51 S.E. 374; Rouse v. State, 136 Ga. 356 (5), 71 S.E. 667; Fry v. State, 141 Ga. 789 (3), 82 S.E. 135; Hoxie v. State, 114 Ga. 19 (7), 39 S. E. 944; Tolbirt v. State, 124 Ga. 767 (2), 53 S.E. 327; Booker v. State, 183 Ga. 822 (5), 190 S.E. 356.

        5. In the fifth special ground, the defendant quotes a long extract from the charge, but the paragraph at which his criticism is apparently aimed is the last paragraph of the extract, as follows: “I charge you further that the law presumes every intentional homicide to be malicious until the contrary appears from circumstances of alleviation, of justification, of mitigation or excuse; and the burden is on the slayer, whenever an intentional homicide has been proved, to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.”

        The grounds of objection are: (a) because every intentional killing with malice is not murder, and, if the defendant was fully justified, although he entertained malice, the offense is nevertheless justifiable; (b) because every intentional homicide is not presumed to be malicious, and the burden is not upon the slayer in every case of intentional killing to make out circumstances of alleviation, justification, mitigation, or excuse to the jury; (c) the defendant is clothed with the presumption of innocence throughout the trial, and the burden is upon the State to negative mitigation, alleviation, or excuse, and the burden is not upon the accused to introduce evidence to show excuse, mitigation, alleviation, or justification, as the charge implies.

         The contention of the defendant that every intentional killing with malice is not murder has no application to this charge, which gives the rule as to the presumption of malice from an intentional killing. The leading case on the rule of the presumption of malice when a homicide has been proved is Mann v. State, 124 Ga. 760 (1), 53 S.E. 324, 4 L.R.A, N.S, 934, in which the court held: “In the trial of one indicted for murder, where the evidence adduced to establish the homicide presents two conflicting theories of fact, one based upon circumstances indicating malice and the other upon warranted inferences which negative its existence, then it becomes a question of fact, to be decided by the jury, as to which one of these inconsistent theories is in accord with the real truth of the occurrence. In such a case it is proper to charge the jury that the law presumes every homicide to be malicious until the contrary appears from circumstances of alleviation, of excuse, or justification, and that it is incumbent on the prisoner to make out such circumstances to the satisfaction of the jury, unless they appear from the evidence produced against him.” It will be noted that the language complained of by the defendant is almost identical with that approved in the Mann case, supra, which has been cited with approval in many subsequent decisions of this court. See Bradley v. State, 128 Ga. 20, 21 (5), 57 S.E. 237; Godfrey v. State, 135 Ga. 571 (1), 69 S.E. 1080; Turner v. State, 139 Ga. 593 (3), 77 S.E. 828;O’Pry v. State, 142 Ga. 600 (1), 83 S.E. 228; Fitzpatrick v. State, 149 Ga. 75 (3), 99 S.E. 128; Gaillard v. State, 149 Ga. 190 (1), 99 S.E. 629; Greer v. State, 159 Ga. 85 (3), 125 S.E. 52; Cady v. State, 198 Ga. 99, 111, 31 S.E.2d 38.

        6. Special ground six assigns error on the following charge: “If, however, the proof, if there be any, that shows the homicide itself discloses that the homicide was done without malice, this presumption that the homicide is malicious does not exist; but if the accompanying proof, if there be any, docs not disclose that the killing was done without malice, then, it is incumbent upon the slayer to show that it was done without malice. I charge you, however, that this presumption which arises against the slayer where an intentional homicide is shown, does not arise against a defendant unless it be first shown to a moral and reasonable certainty and beyond a reasonable doubt that the defendant is the intentional slayer. Unless it appears beyond a reasonable doubt and to a moral and reasonable certainty that this defendant is the intentional slayer, this presumption does not arise in this case and has no application to the case and you will not consider such rule in passing upon the case.”

        The objections are: (a) It is error to charge that every killing with malice is murder; (b) because the court expressed an opinion that, if the defendant was the intentional killer in this case, the presumption of malice and murder would arise, thereby expressing an opinion that the defendant was guilty of murder, and his statement and the evidence failed to show excuse, justification, mitigation, or alleviation; (c) the defendant says that every intentional killing is not presumed to have been committed with malice, but may be voluntary manslaughter, or justifiable, and an intentional homicide may be justifiable, although the slayer may have entertained malice at the time the fatal blow was struck.

         The first objection to this instruction is without merit, since the court did not charge that every killing with malice is murder, but charged on a presumption of malice which might be rebutted by the defendant. The objection that this instruction expressed an opinion that the defendant was guilty of murder is also without merit. The court elsewhere fully charged concerning the instances where the killing might be reduced to voluntary manslaughter or found to be justifiable homicide, and the last objection has no merit.

        7. In the seventh special ground, the defendant assigns error on the following charge: “When the killing is proved to be the act of the defendant, the presumption of innocence with which he enters upon the trial is removed from him, and the burden is upon him to justify or mitigate the homicide. But as I have charged you heretofore, the evidence in justification or mitigation may be found in the testimony introduced against him. If there be no evidence introduced to show justification or mitigation, and if the evidence introduced shows the homicide committed as charged in the indictment, the burden would then be upon the prisoner to show mitigation or excuse.”

        The objections are: (a) the burden of proof and of introducing testimony may shift, but the presumption of innocence remains with the defendant throughout the trial, and it is error to instruct the jury that the presumption of innocence is removed when the State proves a homicide as charged in the indictment; (b) the charge put the burden on the defendant of introducing evidence to show justification or mitigation, whereas under the law the defendant may show justification or mitigation through his statement alone, which is technically not evidence; (c) before there is any burden of proof resting on the defendant, the State must show an unlawful killing, and it is error to instruct the jury that the presumption of innocence is removed when the State proves a killing to be the act of the defendant.

         In Mann v. State, supra, the court had under consideration a charge, the first part of which is almost identical with that here complained of, and it was held that it was proper to instruct the jury as was done in that case. The last sentence of the charge here quoted was a mere amplification of the previous language. In the Mann case, the objection was raised that the defendant’s statement and some of the circumstances appearing in evidence tended to show that the homicide was accidental, and that it was error to charge that, if the killing was proved to be the act of the defendant, malice would be presumed from the factum of the homicide. The court reviewed at great length the earlier cases bearing on the subject, and held the charge to be proper. The instruction objected to in the present case does not place the burden on the defendant of introducing evidence to show justification or mitigation, but leaves it to the defendant to show justification or mitigation by evidence or by his statement, the language in no way limiting it to evidence. Under the ruling in the Mann case, supra, we do not think that the charge complained of in this case was error.

        8. Special ground eight contends that it was error to allow the State’s witness, Henry Taylor, to testify as to alleged conversations between the witness and Louella Bivins, wife of the defendant, while the witness was in jail after the homicide, as follows: “At that time I was still sticking to the story that I told the coroner, and she told me to never change it, ‘Say if you do, don’t say anything about that ice pick, do, somebody is going to get a lie bill against you and put you in the chaingang.’ She said, ‘If you change it, ‘ said, ‘They will convict both of you all.’ * * * one day she come over here * * * in the back runway going out the drive * * * and she halloed up there to me, * * * said, ‘Well, don’t worry, ‘ said, ‘You will be out next week.’ * * * She said, if I had to have a lawyer, she would hire me a lawyer, and she said they done paid $400 and two lawyers, and she would send him to represent me.”

        The objections to this evidence were that no conspiracy had been shown, that Louella Bivins was not on trial, and that it was hearsay evidence.

        The State’s witness, Henry Taylor, had given testimony on the trial before the jury, making out a case of murder against the defendant. On cross-examination, the defendant’s counsel elicited the fact that Taylor had made statements at the coroner’s inquest that would make out a case of justifiable homicide.

         “Where testimony as to a matter tending to discredit a witness has been introduced in evidence, or drawn from him on cross-examination, it is proper to permit him to explain the matter, in order to rebut its discrediting effect.” Gazaway v. State, 15 Ga.App. 467, 468, 83 S.E. 857, 858. The witness explained his conduct in testifying falsely, as he contended, at the coroner’s inquest by relating that immediately after the homicide the defendant and his wife induced him to conceal the truth of the crime and swear falsely concerning the matter by threatening his life if he told the truth of the homicide. He explained his action in “sticking to” this version of the homicide by relating the conduct of the defendant’s wife, as shown by the conversations objected to, in that the wife threatened that he would be indicted for perjury if he changed his testimony. The witness, having admitted that he had committed perjury at the coroner’s inquest, was entitled to explain as best he could his reasons for doing so, and the jury could take these facts into consideration in passing on the credibility of the witness. Hunter v. State, 43 Ga. 483, 484(2); Gazaway v. State, supra.

         It is urged by counsel for the defendant that the evidence should not have been admitted, since the wife, being incompetent to testify, could not contradict it. It is the general policy of our law that the wife is neither competent nor compellable to testify for or against the husband in criminal cases. Code, § 38-1604. We do not think, however, that this rule would prevent a witness from testifying to matters involving the wife of the defendant to explain his adherence to an alleged false version of the homicide, in order to rebut its discrediting effect.

         9. The judgment denying the motion for new trial being otherwise reversed, no ruling is made on the general grounds of the motion.

        Judgment reversed.

        All the Justices concur.

_____________________________________________________

Take a look at paragraph #2 of that opinion.  It appears there is a large portion of the public, myself included, that is under an incorrect impression regarding what is necessary for a homicide to be justifiable, and that opinion makes it clear that it is not as stringent a standard as might be generally assumed.  Human life has less value, sadly, than one would hope.

Still, today is a reminder that “the arc of the moral Universe is long but it bends toward Justice.”  Realize the problem, and address it.  Remedy it so that we are all better human beings.  Fulfill Dr. Martin Luther King, Jr.’s hopes.

Jan 15 15

Temporary Driving Permits and DUI Arrestees

by merlin

When a person is arrested for the crime of Driving Under the Influence (Section 40-6-391 of the Official Code of Georgia), their driver’s license – whether out-of-state or Georgia-issued – shall be seized, pursuant to Section 40-5-67 of the Code.  That section reads as follows:

(a) Whenever any resident or nonresident person is charged with violating Code Section 40-6-391, the law enforcement officer shall take the driver’s license of the person so charged. The driver’s license shall be attached to the court’s copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense. A copy of the uniform traffic citation and complaint form shall be forwarded, within ten days of issue, to the department. Taking the driver’s license as required in this Code section shall not prohibit any law enforcement officer or agency from requiring any cash bond authorized by Article 1 of Chapter 6 of Title 17.

(b) At the time the law enforcement officer takes the driver’s license, the officer shall issue a temporary driving permit to the person as follows:

(1) If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 30 day temporary driving permit;

(2) If the driver’s license is required to be suspended under Code Section 40-5-67, the officer shall issue a 30 day temporary driving permit; or

(3) If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under 40-5-67.1, the officer shall issue a 180 day temporary driving permit.

This temporary driving permit shall be valid for the stated period or until the person’s driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of the temporary driving permit, but in no event shall this delay extend beyond the date when such person’s driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of the temporary permit may be delayed.

(c) (1) If the person is convicted of violating or enters a plea of nolo contendere to a charge of violating Code Section 40-6-391, the court shall, within ten days, forward the person’s driver’s license and the record of the disposition of the case to the department. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.

(2) If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver’s license, the court shall return the driver’s license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.

__________________________________________________

This Code section makes reference to another Code section, 40-5-67.1, on Administrative License Suspension, specifically talking about when a person has a sufficiently high alcohol concentration for an administrative suspension to happen under that section.  That section reads as follows:

 (a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.

(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:

(1) Implied consent notice for suspects under age 21:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

(2) Implied consent notice for suspects age 21 or over:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your ( designate which
tests ) under the implied consent law?”

(3) Implied consent notice for commercial motor vehicle driver suspects:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your ( designate which tests ) under the implied consent law?”

If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.

(c) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities submits to a chemical test upon the request of a law enforcement officer and the test results indicate that a suspension or disqualification is required under this Code section, the results shall be reported to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident involving serious injuries or fatalities and that the person submitted to a chemical test at the request of the law enforcement officer and the test results indicate either an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege pursuant to Code Section 40-5-67.2, subject to review as provided for in this chapter. Upon the receipt of a report of the law enforcement officer that the arrested person had been operating or was in actual physical control of a moving commercial motor vehicle and the test results indicate an alcohol concentration of 0.04 grams or more, the department shall disqualify the person from operating a motor vehicle for a minimum period of one year.

(d) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person’s driver’s license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.

(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.

(e) If the person is a resident without a driver’s license, commercial driver’s license, or permit to operate a motor vehicle in this state, the department shall deny issuance of a license or permit to such person for the same period provided in subsection (c) or (d) of this Code section, whichever is applicable, for suspension of a license or permit or disqualification to operate a commercial motor vehicle subject to review as provided for in this chapter.

(f) (1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person’s refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver’s license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 day temporary permit. The officer shall forward the person’s driver’s license to the department along with the notice of intent to suspend or disqualify and the report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver’s license as provided in this Code section.

(2) If notice has not been given by the arresting officer, the department, upon receipt of the report of such officer, shall suspend the person’s driver’s license, permit, or nonresident operating privilege or disqualify such person from operating a motor vehicle and, by regular mail, at the last known address, notify such person of such suspension or disqualification. The notice shall inform the person of the grounds of suspension or disqualification, the effective date of the suspension or disqualification, and the right to review. The notice shall be deemed received three days after mailing.

(g) (1) A person whose driver’s license is suspended or who is disqualified from operating a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” The hearing shall be recorded.

(2) The scope of the hearing shall be limited to the following issues:

(A) (i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or

(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and

(B) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test; and

(C) (i) Whether the person refused the test; or

(ii) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and

(D) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.

(3) The hearing officer shall, within five calendar days after such hearing, forward a decision to the department to rescind or sustain the driver’s license suspension or disqualification. If no hearing is requested within the ten business days specified above, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived. The request for a hearing shall not stay the suspension of the driver’s license; provided, however, that if the hearing is timely requested and is not held before the expiration of the temporary permit and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer’s decision is made.

(4) In the event the person is acquitted of a violation of Code Section 40-6-391 or such charge is initially disposed of other than by a conviction or plea of nolo contendere, then the suspension shall be terminated and deleted from the driver’s license record. An accepted plea of nolo contendere shall be entered on the driver’s license record and shall be considered and counted as a conviction for purposes of any future violations of Code Section 40-6-391. In the event of an acquittal or other disposition other than by a conviction or plea of nolo contendere, the driver’s license restoration fee shall be promptly returned by the department to the licensee.

(h) If the suspension is sustained after such a hearing, the person whose license has been suspended under this Code section shall have a right to file for a judicial review of the department’s final decision, as provided for in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act”; while such appeal is pending, the order of the department shall not be stayed.

(i) Subject to the limitations of this subsection, any law enforcement officer who attends a hearing provided for by subsection (g) of this Code section for the purpose of giving testimony relative to the subject of such hearing shall be compensated in the amount of $20.00 for each day’s attendance at such hearing. In the event a law enforcement officer gives testimony at two or more different hearings on the same day, such officer shall receive only $20.00 for attendance at all hearings. The compensation provided for in this subsection shall not be paid to any law enforcement officer who is on regular duty or who is on a lunch or other break from regular duty at the time the officer attends any such hearing. The compensation provided for by this subsection shall be paid to the law enforcement officer by the department from department funds at such time and in such manner as the commissioner shall provide by rules or regulations. The commissioner shall also require verification of a law enforcement officer’s qualifying to receive the payment authorized by this subsection by requiring the completion of an appropriate document in substantially the following form:

IMPLIED CONSENT HEARING ATTENDANCE RECORD

OFFICER: S.S. No.

ADDRESS:

Street City State ZIP Code

DATE: TIME: A.M.
P.M.

CASE:
This is to certify that the police officer named above attended an implied consent hearing as a witness or complainant on the date and time shown above.

HEARING OFFICER: TITLE:
I certify that I appeared at the implied consent hearing described above on the date and time shown above and that I was not on regular duty at the time of attending the hearing and that I have not received and will not receive compensation from my regular employer for attending the hearing.

Signature of officer:

APPROVED FOR PAYMENT:

Comptroller

(j) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
“This breath-testing instrument (serial no. ) was thoroughly inspected, tested, and standardized by the undersigned on (date ) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.”

When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of Code Section 40-6-392 and subparagraph (g)(2)(F) of this Code section.

____________________________________________________

It is subsection (d) that is especially important for most savvy drivers, since the basic rule I generally tell folks when it comes to communicating with law enforcement officers during an investigation, whether it seems completely unfounded to the person being investigated or not, is DON’T.  Bear in mind that I have tremendous respect for the role law enforcement plays in American society, but I am well-aware how easily a misunderstanding can have severe consequences on someone’s life.  Subsection (d) refers to refusals, which automatically result in a license suspension.  However, under this statute, the officer will then provide the person with a temporary (30-day) license.  The ALS hearing – which must be requested by the person within 10 business days of the incident, and begins to run the day following the ticket, requiring the payment of a $150 fee – is the only way to ensure an extension of this 30-day period (unless something fortunate happens for the person and they are found not guilty before that 30 days ends, in which case their license is reinstated), except by the internal rules of the Department of Driver Services (referred to as the “DDS”).  The rule in question is 375-3-3-.09, and it reads as follows:

(1) Extension of 30 day temporary driving permit:

 (a) At the time a law enforcement officer takes a person’s driver’s license for refusal to submit to chemical testing or because the person’s blood alcohol concentration is at a level requiring administrative license suspension, the officer shall issue the person a 30 day temporary driving permit. This temporary driving permit shall be on DDS Form 1205 and shall be valid until the expiration of 30 days from the incident date.

 (b) If the person timely files an appeal of the license suspension, the Department shall extend the temporary driving permit for an additional 90 days, but not beyond the date when the person’s driving privilege is suspended or revoked.

 (c) The 90 day extension will be a DDS Form which, when accompanied with the driver’s copy of DDS Form 1205, will serve as the temporary driver’s permit for the 90 day extension.

 (d) The Department may issue an extension of the 90 day temporary driving permit upon receipt of documentation from the Office of State Administrative Hearings indicating that a final decision has not yet been entered in the case and will not be entered prior to the expiration of the temporary driving permit.

 (e) In the event an officer issues a DDS Form 1205 to a person whose driver’s license or driving privilege is otherwise valid, but neglects to sign the temporary driving permit at the bottom of such form, the Department shall issue a temporary driving permit to such person for the balance of the 30 days from the incident date. Such permit shall be subject to extension pursuant to Paragraphs (b) and (d) of this subsection.

 (2) Extension of 180 day temporary driving permit.

 (a) At the time a law enforcement officer takes a person’s driver’s license for a violation of O.C.G.A. §40-6-391 for which the officer has not initiated an administrative license suspension under O.C.G.A. § 40-5-67.1, the officer shall issue a 180 temporary driving permit.

 (b) This permit shall be valid until the expiration of 180 days or until the person’s driving privilege is suspended or revoked.

(c) In the event the case has not been resolved within 180 days, the Department shall issue another 180 temporary driving permit. Additional extensions may be issued for as long as the case remains pending.

(d) The Department shall extend the permit only upon receipt of documentation from the judge, clerk of court, or prosecutor from the court of jurisdiction stating that the case has not yet been adjudicated.

 (3) Replacement of lost, stolen or destroyed temporary driving permits.

 (a) In the event a customer’s temporary driving permit is lost, stolen or destroyed, a replacement may be issued by the Commissioner’s designee on a form designated by the Department upon receipt of a written request from the customer.

 (b) Customers seeking replacement of a 180-day temporary driving permit shall provide both a copy of the citation from the Court and documentation from the Court that such charge remains pending. Such permit shall be valid for the applicable period provided in paragraph (1) or (2) of this regulation.

 

Jan 7 15

Legal Authority for Summary Judgment in a Child Custody Case in Georgia

by merlin

I apologize for the short shrift I give this, but at my client’s request I am moving on from this.  However, after presenting my motion for summary judgment in a child custody case, and after showing that legally I was not required to wait thirty days to make the motion, and not required to hold a hearing, I unfortunately did not research further what I felt was obvious (what seems obvious to me is often not obvious to the decision-makers, such as judges or Guardians ad litem) and demonstrate the availability of summary judgment as a remedy in child custody matters.  Though I am not pursuing this route any longer, I wanted to post this case for the use of others in similar circumstances.  It (summary judgment as a means of addressing child custody cases) represents a rarity, but it IS quite possible (though be certain to have full affidavits and expert testimony to bolster any such motion).

The case is Miller v. Rieser, 213 Ga. App. 683, 446 S.E.2d 233.  It was decided by the Court of Appeals in 1994, appears to be good law still, and is particularly relevant on this particular question (since summary judgment was directly used by the Court as a remedy in a child custody modification matter).  I would like to highlight one particular finding of the Court in that case, since it speaks directly to the ability of the Courts to decide the issues involved in summary judgment in a child custody forum (especially in a situation involving third-party/grandparent rights under Section 19-7-1) – “[t]he court confirmed the summary judgment on the issue of present unfitness…”

The decision follows:

       Bernard Knight, Randy J. Comins, for appellants.

        Susan G. Bueter, Patricia B. Ball, Julian A. Mack, for appellees.

        BEASLEY, Presiding Judge.

        Joscelyn Rieser was born on June 21, 1982, of Mary and Ray Rieser. Since 1987, when she reached age five, Joscelyn has lived in Atlanta with her maternal grandmother Rosalind Miller. The Riesers are divorced, and Mary resides in California. In August 1991, Mary came to Atlanta and announced she was taking nine-year-old Joscelyn back to California.

Course of the litigation

        On August 19, 1991, the grandmother filed a petition against the parents, seeking permanent custody of the child and asking that the parents be temporarily restrained and enjoined from removing her from the custody of the grandmother or the jurisdiction of the court. She alleged that the parents are unfit custodians; that they failed to meet the child’s physical, mental, and emotional needs; and that they lost parental power under OCGA § 19-7-1(b)(3) and (b)(6) by their failure to provide necessaries, by abandonment, and by cruel treatment. The court granted the temporary restraining order. The grandmother later amended her petition by adding a request that she be granted visitation for an extended period each year if the court declined to give her custody.

        A guardian ad litem was appointed to represent the child’s interests, on the father’s motion, and the parents moved for summary judgment based on the evidence of record. The court denied the parents’ motion on the issue of whether parental control had been lost under OCGA § 19-7-1 but granted it on the issue of parental fitness, concluding that there was no genuine issue of material fact as to the present unfitness of either parent. In an order denying reconsideration of this ruling, the court distinguished other appellate cases which involved past behavior of parents towards the child which related to present unfitness and concluded that the evidence in this case was not comparable.

        Following a lengthy trial, the court entered final judgment on July 29, 1993. It states that the grandmother seeks custody under OCGA § 19-7-4 as well as 19-7-1(b)(3) and (b)(6). The court confirmed the summary judgment on the issue of present unfitness, found that the child had not been legally abandoned by the parents, and found that it had not been established by clear and convincing evidence that they failed to furnish necessaries or are chargeable with cruel treatment so as to have lost parental power. However, the court did find that it is in the child’s best interest to spend significant time with the grandmother. Until August 1, 1994, she was granted visitation with the child several hours each Monday and Wednesday, every other weekend, and four consecutive weeks during the summer. The court ordered the mother to remain with the child in the Atlanta area at least until the beginning of August 1994. In the event she and the child subsequently move more than 150 miles from Atlanta, the grandmother is granted visitation for five consecutive weeks during the summer and parts of holidays.

        We granted the grandmother’s and the guardian ad litem’s application for discretionary appeal of the summary judgment for the parents on the issue of parental fitness.

Case No. A94A0566 is their appeal of that order. Case No. A94A0567 is the parents’ appeal of the court’s grant of visitation to the grandmother. Most of the trial record, but not the transcript of the trial, has been transmitted to this court.

Evidence

        Since the issue in the grandmother’s and guardian ad litem’s appeal is whether summary judgment was proper for the defending parents, the evidence is viewed in the light most favorable to the non-moving petitioner. “The party opposing the motion … is entitled to all favorable inferences and the benefit of every doubt, and the evidence is construed most strongly in its favor. [Cit.]” Dixieland Truck Brokers, Inc. v. Intl. Indem. Co., 210 Ga.App. 160, 163(3), 435 S.E.2d 520 (1993); see, e.g., Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). Although this case has now been tried, albeit not on the fitness issue, we apply this evidence rule to that which was presented to the trial court before its ruling on summary judgment. Meade v. Heimanson, 239 Ga. 177, 180, 236 S.E.2d 357 (1977); Lawal v. Stanley Bostitch Co., 209 Ga.App. 439, 440, 433 S.E.2d 706 (1993); Dove v. Nat. Freight, 138 Ga.App. 114, 117(6), 225 S.E.2d 477 (1976).

        From May 1983, when the child was less than a year old, until September 1984, the parents failed to adequately clothe her in cool weather, so that her feet turned blue. They failed to adequately feed her, so that when she was first taken to visit others, she ate ravenously and gained many pounds. They failed to properly clean her, so that she had eczema behind her ears and sores in her diaper area. They failed to take her to the doctor for well baby check-ups or immunization. They failed to have a laceration suture removed from her knee, causing inflammation and scarring. They failed to see that she got proper rest; she slept for unusually long periods of time at the beginning of each visit with others.

        The paternal grandfather is Dr. James Rieser, a family practice physician. When the child was first taken to visit him and his wife, the step-grandmother, she had totally flat affect and did not interact with them, laugh, smile, or speak, although she is a bright child. He opined that she was suffering from a condition known as failure to thrive, which is often the result of lack of parental care and attention. He testified that the father admitted to him that he did not know how to take care of the child.

        Although the mother testified that using her training and experience as a nurse, she took care of the child, giving her vitamins and good food, and she was very rarely ill, Dr. Rieser testified that without request, he immunized the child and provided pediatric medical care.

        In September 1984, the parents left the child with grandfather Rieser in order to make a trip to California for several months. Shortly after Thanksgiving in 1984, the father took the child to grandmother Miller without any prearranged plans and left her there. She took care of the child until after Christmas, when the mother returned from California. During that month, the father did not care for the child and visited her infrequently. She cried repeatedly for grandfather Rieser and his wife. Beginning in January 1985, the child began staying with grandmother Miller on the weekends and spending the weekdays with her parents. Her parents separated in 1986, and the father moved to California. He did not see or speak to the child again until the summer of 1989. The mother remained in Atlanta. The parents’ 1988 divorce decree makes no provision for the custody or support of the child.

        The mother testified that when the child lived with her, she generally would keep her during the day and leave her with babysitters at night. The grandmother testified that one of the babysitters was mentally unstable, had thrown the child on the floor, and had taken her to pornographic movies and to prostitutes. The child likewise testified that the babysitter had hurt her by throwing her on the floor. Her mother laughed when she told her about this.

        The child testified that when she and her mother lived together, her mother would be either asleep or at her boyfriend’s house when she awoke in the morning. She was frightened when she awoke and no one was there. She would have to pester her mother in order to get her to make her something to eat, which at times she would not do. When she was at the mission where the mother worked, many times her mother was not there when she got hungry. When that happened, she would beg other people for money, go to the drugstore, and get candy to eat. At night, she would sleep on the floor if she was tired. She would stay at the mission until 1:00 to 3:00 a.m. If her mother was not there, she would ask someone else to take her home. The grandmother testified that she would often find the child running around the mission unsupervised or asleep on the floor, and that upon coming to her house for the weekend, she usually slept the first 24 hours.

        In the summer of 1987, the step-grandmother informed the mother that the child had four cavities. The mother said she would take care of it but did not do so. When the child next saw a dentist whom the step-grandmother had taken her to, she had four additional cavities. The step-grandmother paid for fillings.

        In the fall of 1987, the grandmother enrolled the child in kindergarten after the mother failed to do it. The child began living with the grandmother and spending weekends with the mother, who picked her up from kindergarten on Friday afternoons. The grandmother pleaded with her to go there on other occasions such as to have lunch with the child or see her perform in a program, but she said she did not have time.

        On one occasion, the child got chicken pox, and the grandmother left her in the mother’s care. The mother left her in the care of a teenage boy who neglected her. She called her mother and asked her to come take care of her, but she said she was too busy. On another occasion, she got the flu and the mother again said she was too busy to see her.

        In the spring of 1989, the mother moved to California. Afterward, she saw the child only sporadically. The mother sometimes telephoned the child, but sent no presents at Christmas or on her birthday and showed no interest in her development. Beginning in the summer of 1989, the father began to telephone the child, infrequently; he also did not send cards or presents for her birthday, Christmas, or other holidays. While the child lived with the grandmother, she was supported by her grandparents.

        A psychologist who has seen the child since May 1990 testified that she is not significantly bonded to her mother and has not bonded at all to her father; that due to her mother’s lengthy pattern of neglecting her physical and emotional needs, she is afraid of leaving her grandmother and returning to her mother; and that if removed from the security and stability of her present environment, she could withdraw, become severely depressed, and regress academically. This psychologist also testified that when a parent has established a lengthy pattern of neglecting the physical and emotional needs of a child, the pattern is unlikely to change and most probably would continue.

        The psychologist acknowledged that the child enjoys and wants to see her parents and establish a relationship with her mother, and that she is comfortable with overnight visitation. After this litigation began, a parental visitation schedule was established, and the grandmother testified that it worked well. With this view of the evidence, none of which was conclusively overcome by defendant’s evidence, we confront the current legal issue.

        1. The grandmother and the guardian ad litem contend that the court erred in ruling that there is no genuine issue of material fact as to the parents’ present unfitness, based on the evidence of past conduct and likelihood of continuation. In erring, they contend, the court misapplied ruling case law in comparable cases.

        “On motion for summary judgment, the burden is on the movant … to establish the absence of any genuine issue of material fact and its right to [prevail] as a matter of law. OCGA § 9-11-56(c); Kinney [v. American Mfg. Mut. Ins. Co., 189 Ga.App. 882, 883 (377 SE2d 900) (1989) ].” Dixieland Truck Brokers, supra, 210 Ga.App. at 163(3), 435 S.E.2d 520.

        Where a third party seeks to obtain custody of a child, the trial court must find by clear and convincing evidence that the parent is presently unfit, Blackburn v. Blackburn, 249 Ga. 689, 292 S.E.2d 821 (1982), or otherwise not entitled to custody under OCGA §§ 19-7-1 and 19-7-4. In the Interest of C.T.L., 182 Ga.App. 845, 357 S.E.2d 298 (1987). A determination of unfitness, which is the only question here, must be based on the parent’s present condition,Bozeman v. Williams, 248 Ga. 606, 607, 285 S.E.2d 9 (1981), and relates to the child’s welfare. Perkins v. Courson, 219 Ga. 611, 617(2), 135 S.E.2d 388 (1964).

        The parental fitness doctrine is intended to cover cases where a parent has not forfeited or relinquished his or her parental rights by any of the modes prescribed by statute but for some other reason has been shown to be an unfit parent. Perkins, supra at 623(2), 135 S.E.2d 388. It focuses on a parent’s character, Proctor v. Proctor, 164 Ga. 721, 139 S.E. 531 (1927), “habits and conduct.” Perkins, supra at 614, 135 S.E.2d 388. Peck v. Shierling, 222 Ga. 60, 148 S.E.2d 491 (1966), speaks of “unfitness for the trust.”

        If summary judgment is ever proper when the challenge is parental fitness, which for one thing is not a jury question, it is not proper here. We doubt its utility on this subject because, to dispose of a case, or in this instance an issue, in this expedient before-trial manner, the undisputed evidence must preclude a finding of unfitness as a matter of law. OCGA § 9-11-56(c). Although “unfitness” vel non is a question of fact, to reach such a finding inherently requires an application of discretion. It is not like finding the light was red or green, an objective fact, but requires the application of judgment, within certain defined boundaries. Here, were a court to find unfitness, we could not conclude it erred as a matter of law. Likewise, if the evidence recited constitutes the facts in the case, it does not show an absence of evidence to support the non-moving party’s case on the question of fitness, applying the test of Lau’s Corp., supra at 491 and 495, 405 S.E.2d 474. Moreover, because the question of custody is based in part on discretion, summary judgment, which precludes the intangible side of live testimony, is ill-suited for the resolution except in “clear, plain, and palpable cases.” Cf. Lozynsky v. Hutchinson, 159 Ga.App. 715, 285 S.E.2d 70 (1981).

        In this case, there is a long history of character, habits, and conduct showing an unconcerned attitude towards the child, lack of interest and attention, thoughtlessness, failure to understand a child’s basic nurturing needs, and unconcerned reliance on others to fulfill parental responsibility. These bring into question the parent’s priorities when measuring self versus child. Although the history of the relationship and interaction or absence thereof between the parents and the child is relevant to the statutory issues of abandonment, cruel treatment, and failure to provide necessaries, the script written over time by the parents is also relevant to the issue of their present fitness. The statutory grounds focus on the child, whereas the judicially created ground focuses on the parent. Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471 (1981), reiterated that “[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent … The ability of a parent to raise his or her child … must be examined in a scrutinous, abstract light.” This, of course, must be jealously guarded so as not to categorize as unfit those who have unconventional values.

        Unlike those cases where there was evidence of change of detrimental past conditions so as to show present fitness, here there was none. Instead, there is expert testimony that a lengthy pattern of child neglect is unlikely to change. Thus, there is more than merely evidence of past unfitness, which standing alone would not be sufficient. Blackburn, supra at 692, 292 S.E.2d 821.

        While decisions such as Bozeman, supra; Durden v. Barron, 244 Ga. 277, 279, 260 S.E.2d 17 (1979); Shaddrix v. Womack, 231 Ga. 628, 632(6), 203 S.E.2d 225 (1974); Heath v. Martin, 225 Ga. 181, 182(2), 167 S.E.2d 153 (1969); In the Interest of S.K.L., 199 Ga.App. 731, [213 Ga.App. 689] 733(1), 405 S.E.2d 903 (1991); and In the Interest of R.L.L., 192 Ga.App. 869, 386 S.E.2d 852 (1989), do not expressly recognize this doctrine, they are in conformity with it.

        In Heath and Shaddrix, the only evidence showing or tending to show unfitness related to occurrences some years prior to the date of the trial, and other undisputed evidence showed changes which the parents had made in their lives since the prior years which rendered them fit parents. In both cases, the Supreme Court held that there was insufficient evidence of present unfitness. In Bozeman, supra at 607, 285 S.E.2d 9, “there [was] ample evidence that the mother’s condition [had] changed for the better….” However, in Durden, the Supreme Court held that the trial court did not abuse its discretion in finding the parent presently unfit, when there was evidence of unfitness based on past conduct and indifference to the child and there was conflicting evidence as to the parent’s present condition. In R.L.L., this court referred to evidence of the father’s past involvement in drug use and held that whether his treatment caused a present abatement of his addiction was an issue for determination by the factfinder on the basis of all the evidence. Also referring to evidence showing a continued absence of financial support of the children, the court in R.L.L. found competent evidence supporting a finding of present unfitness. S.K.L. recognized the general rule that while past deprivation is not sufficient for termination of parental rights without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are “likely to continue.” Id. at 733, 405 S.E.2d 903. See OCGA § 15-11-81(b)(4)(A).

        In this case, the court in ruling on summary judgment merely distinguished the cases relied on by petitioners as involving “long established patterns of extremely destructive and neglectful behavior.” That is a matter of degree, the category of fitness is broad, Perkins, supra at 623-624, 135 S.E.2d 388 and a factfinder could find the circumstances here constitute just such a pattern. While the question of fitness is based on present fitness, it is affected by what has gone on before to bring the parent and child to this point, and it obviously involves a determination which has significance only in the future, for it is the child’s custody from the time of the judgment forward that is at stake.

        The evidence relied upon by the grandmother and the guardian ad litem creates genuine issues of material fact as to the parents’ present fitness as parents. Although the third party has a heavy burden when seeking the legal custody which ordinarily belongs to the parents, who have the right by law to custody in the absence of a statutory ground or unfitness, the evidence does not fall short as a matter of law from challenging that strong legal right. On the record before us, the parents have not shown that the issue is nonexistent, [213 Ga.App. 690] Lau’s Corp., supra, either by proof that the appellants’ evidence is not true or by proof that they are currently fit.

        The trial court as the factfinder in this case may not be persuaded that this evidence meets the clear and convincing evidence test, but it is not such evidence which no factfinder could accept as the basis for a finding of unfitness, exercising its discretion. The court erred in granting partial summary judgment in the parents’ favor and foreclosing this issue from trial.

        2. The parents argue that the main appeal should be dismissed as to the guardian ad litem, for lack of standing to appeal.

        Where a minor is interested in pending litigation and has no guardian or the minor’s interest is adverse to that of the guardian, the court may appoint a guardian ad litem for the minor. OCGA § 29-4-7. Where, as here, the court does appoint a guardian ad litem to represent the minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. Cf. In the Interest of G.K.J., 187 Ga.App. 443(1), 370 S.E.2d 490 (1988); OCGA § 15-11-85(a). Moreover, when it has been shown that there are parties besides the plaintiffs and defendant who have a direct interest in the result of an appeal, we have authority to allow such other parties to appear by counsel on equal terms with the parties directly before the court. OCGA § 5-6-1. No one has a greater interest than the child who is the subject of the custody dispute and whose future is at stake. The child’s interest is paramount. OCGA § 19-9-3.

        3. The parents contend that the trial court erred in considering the amendment to the custody petition requesting grandparent visitation rights, as the amendment was procedurally improper.

        OCGA § 19-7-3(b) gives any grandparent the right to file an original action for visitation rights to a minor child or to obtain visitation rights by intervening in an existing proceeding concerning custody, divorce, termination of parental rights, visitation rights, or adoption by a blood relative or stepparent. See Anderson v. Sanford, 198 Ga.App. 410, 401 S.E.2d 604 (1991). OCGA § 19-7-3(c) authorizes the court to grant any grandparent reasonable visitation rights upon proof of special circumstances which make such visitation rights necessary to the best interests of the child, but it also provides that an original action requesting visitation rights shall not be filed by any grandparent more than once during any two-year period and shall not be filed during any year in which another custody action has been filed concerning the child.

        The parents maintain that the amendment to the petition is not authorized by OCGA § 19-7-3(b), because it is not an original action or an intervention in an existing proceeding. They thus argue that where a grandparent has filed an original action seeking custody, she cannot amend her petition to seek visitation rights. This argument is [213 Ga.App. 691] without merit. OCGA § 19-7-3(b) refers to an “original action,” not an “original pleading.” Since this action was originated by the grandmother who has sought visitation rights through an amendment to her petition, it is an “original action for visitation rights” within the meaning of OCGA § 19-7-3(b). Contrary to the parents’ argument, it has not been filed during any year in which “another custody action” has been filed concerning the child. The petition for custody and amendment for visitation rights were filed by the grandmother in the same action.

        4. The parents contend that the court abused its discretion in granting extended visitation rights to the grandmother, relying on Ryback v. Cobb County Dept. of Family, etc. Svcs., 163 Ga.App. 165, 293 S.E.2d 563 (1982). We find no abuse of discretion under the facts of record. Moreover, the parents have not provided us with a transcript of the trial and we must assume the findings of the trial court were authorized by the evidence presented. MacDonald v. MacDonald, 156 Ga.App. 565, 569(1c), 275 S.E.2d 142 (1980).

        5. The motion of grandmother and guardian ad litem for frivolous appeal penalties pursuant to Court of Appeals Rule 26(b) is denied.

        Judgment reversed in Case No. A94A0566. Judgment affirmed in Case No. A94A0567.

        ANDREWS and BLACKBURN, JJ., concur.

        JOHNSON, J., disqualified.

Jan 6 15

Motion for Summary Judgment in a Child Custody Case (Heavily Redacted)

by merlin

The following represents a Motion for Summary Judgment in a Child Custody case.  I will post legal precedent for the possibility of such a motion to this site after I have it better assembled (there was some question in Court as to the possibility of such an action in this type of case, but research has shown that there is precedent).  The motion was filed, and my rules dictate that it be posted, but I am curious as to your thoughts on this issue.

___________________________________________________

MOTION FOR SUMMARY JUDGMENT

            COMES NOW Plaintiff XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion for Summary Judgment, circumventing the thirty (30) days’ advance notice of such a matter ordinarily required by the Georgia Code, pursuant to the principles announced in Brooks et al. v.  Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga.App. 264, 730 S.E.2d 509 (Ga. Ct. App. 2012)(Court converted to and granted summary judgment to bank upon motion for judgment on the pleadings without giving guarantor 30 days to respond, because of admissions made in Discovery showing there was no genuine issue remaining and guarantor could not cure his admissions), and respectfully shows the Court that there remains no genuine issue as to any material fact and XXXXX XXXXX is entitled to a judgment as a matter of law.  In support thereof, Movant states the following:

1.

            This motion can be decided by the Court before trial on the merits.  A pretrial conference in this case is being heard on XXXXX XX, 20XX, at which time the Guardian Ad Litem intends to present his formal recommendations to the Court.  However, trial in this matter is not scheduled until XXXXX.  The Guardian Ad Litem has already released a preliminary intended report, but that evaluation was made prior to the Order of the Court on Sufficiency of Defendant’s Answers to Plaintiff’s First Continuing Requests for Admission and Sanctions (hereinafter referred to simply as “the Order”), which legal admissions materially and substantially affect the best interests of the child and are necessarily persuasive for purposes of a final, binding judgment on the merits in this matter.  Section 19-9-3(a)(2) of the Official Code of Georgia sets out the conditions for this determination plainly, and the consideration of the judge is to include “all the circumstances of the case…in determining to whom custody of the child should be awarded.”  The matters conclusively established by the Order affect these considerations, change all of the circumstances of the case, and reflect directly on the mental and physical health of the party in whom custody is currently vested.

Uniform Superior Court Rule 6.6 requires that a motion for Summary Judgment “shall be filed sufficiently early so as not to delay the trial.”  There was insufficient evidence on the record prior to the Order to make a persuasive motion for summary judgment, but this motion follows the revelations of the Order closely in time, and this will not act to delay the trial at all.  The matter can be decided fully by the Court without unnecessarily confounding the Court’s trial schedule.

2.

            This motion can be decided by the Court without need for a hearing.  According to Uniform Superior Court Rule 6.3, “all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing.”  The validity of this rule was confirmed by Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746 (Ga. Ct. App. 1988), echoing Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (Ct. App. 1986), when it said that “under the Uniform Rules (Rule 6.3), unless otherwise ordered by the court, or requested by one of the parties, all motions in a civil action, including a motion for summary judgment, will be decided without oral argument” (188 Ga.App. at 847)(emphasis supplied).

3.

            Plaintiff is entitled to judgment as a matter of law.  Section 9-11-56(c) of the Official Code of Georgia states that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”.

This Code Section does not require that any affidavits be submitted, and the best interests of the child have been shown by the admissions on file to be contravened by the Defendant’s actions in this case.  Specifically, the admissions on file are as follows:

  • Defendant has ADMITTED that she has a presently pending indictment against her for possession of a controlled substance in XXXXX County, Georgia, as well as a current charge against her for reckless conduct in XXXXX County, Georgia. Defendant further ADMITTED that she lied to the Court under oath when asked about existing legal proceedings against her.
  • Defendant was also found in a tangential hearing to have lied to the courts in XXXXX County following XXXXX arising immediately from that same hearing.Though the allegations themselves are denied, Defendant ADMITTED that she has an existing police report made against her in XXXXX County for child endangerment following an alleged act of sexual congress while XXXXX XXXXX XXXXX was in the room and on the bed with her.

A statement made by her roommate, XXXXX XXXXX, recounting this incident, is attached hereto and incorporated herein as Exhibit “A”.

  • Defendant ADMITTED that she had two children prior to the birth of XXXXX XXXXX XXXXX, that she does not believe her parental rights were terminated or abrogated in any way by the Department of Family and Children Services but that said children were placed in the custody and control of relatives prior to the removal of those rights; that one child had a torn ear and a broken leg, and that neither child was old enough to attend school. She further qualified the responses by stating that the persons responsible were her romantic partners on each occasion.

Even if this does not reflect directly on her care for the best interests of any of her past natural children, or her care for her current child, she has shown remarkable irresponsibility in the selection of her romantic partners, endangering the health and safety of her children before.  She has a demonstrated track record of being unable to act with the best interests of her child at heart.

  • Defendant ADMITTED that she has not maintained her most recent employment for more than six (6) months before the date of the requests for admission served on her, and further qualified her answer by stating that she is currently unemployed.

In fact, the source of the funds which she has been Ordered by the Court to pay to counsel for Plaintiff following her blatant untruths to the Court previously is, apparently, TANF (Temporary Assistance for Needy Families) funds, as she stated unapologetically in open Court.  She uses the child as a source of income, rather than seek employment herself.

  • Defendant ADMITTED that the prescription pill bottle containing Xanax and Loritab located by agents of the XXXXX Drug Task Force during a search of the residence located at XXXXX XXXXX Street, in XXXXX, Georgia, on XXXXX XX, 20XX, was labelled with her name and was her property.

The source of one of the two criminal charges against Plaintiff arises entirely from a bottle labeled with the name of Defendant.  The other charge arises from living in a home that was previously rented in Defendant’s name and which she was an integral part of.

  • Defendant ADMITTED that she previously executed a document purporting to create a guardianship over XXXXX XXXXX XXXXX to Plaintiff in the presence of witnesses and a notary public.

Defendant qualified this statement in Court by stating that she subsequently learned that the document was not properly executed and did not, in fact, create a legal guardianship.  However, it is important to note that she had no such knowledge at the time of execution, and did so fully and knowingly, comfortable in the knowledge that Plaintiff was an appropriate caretaker for the child.  This speaks directly to the best interests of the child.

  • Defendant ADMITTED that on or about XXXXX XX, 20XX, she was admitted to the XXXXX treatment center at XXXXX XXXXX Medical Center for an ingestion of controlled substances; that her injury was self-inflicted, caused by a voluntary overdose of substances including Loritab, Xanax, and Methamphetamine.

This item also speaks directly to the best interests of the child, because it is an admitted suicide attempt, and it is admitted use of heavily-controlled substances, indicating Plaintiff’s extreme instability and the inappropriate nature of any placement with her.

  • Defendant ADMITTED that she was arrested in possession of marijuana and at least one (1) other kind of controlled substance immediately after her father died.

It is important to note when discussing the question of custodial rights of the parties, given that Plaintiff seeks sole custody and the complete exclusion of Defendant from any and all future interactions with the child in question, that Defendant has been arrested on multiple occasions, generally oriented around or arising from the use of controlled substances, whereas Plaintiff has been arrested exactly one (1) time in his life, on charges directly related to and arising from his residence in a household with Defendant.

4.

The standard of “the best interests of the child” for Georgia courts is spelled out carefully in Section 19-9-3(a)(3).  It enumerates certain factors that have been addressed in the negative by Defendant’s legally-binding admissions, already.  That Section lists these factors as including the following:

  • The love, affection, bonding, and emotional ties existing between each parent and the child;
  • The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
  • The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
  • Each parent’s knowledge and familiarity of the child and the child’s needs;
  • The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
  • The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
  • The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
  • The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;
  • The mental and physical health of each parent;
  • Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;
  • Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
  • The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
  • Each parent’s past performance and relative abilities for future performance of parenting responsibilities;
  • The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent- child relationship between the child and the other parent, consistent with the best interest of the child;
  • Any recommendation by a court appointed custody evaluator or guardian ad litem;
  • Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
  • Any evidence of substance abuse by either parent.

 5.

The standard for loss of parental power in this kind of case, in which child custody is sought by the natural parent who has not obtained – but seeks – an order of legitimation from the Court, is clearly stated in Section 19-7-1(b.1): “parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.”  Speaking as to what custodial arrangement should prevail, the Georgia Code is also clear in Section 19-9-3(a)(1) that “[t]here shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent.”  Section 19-9-3(a)(2) further clarifies this by saying that “[t]he duty of the judge in all such cases shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.”  The Code section makes it clear that sole custody is an option for the judge to decide, and sole custody is plainly apparent in this case because it is the option that “will best promote the child’s welfare and happiness”.  The rebuttable presumption described by the Code, that it is in the best interest of the child for custody to be awarded to the parent, has been overcome, because Plaintiff has successfully shown “than an award of custody to such third party is in the best interest of the child”.  The Court is urged to decide accordingly.

Jan 4 15

Georgia DUI Formalities for Blood/Breath Tests

by merlin

In Georgia, the basic crimes for the offense of Driving Under the Influence are “Less Safe” and “Per Se” offenses.  The former involves demonstrating the manner in which a vehicle was operated, while the latter merely involves showing that a person’s blood-alcohol concentration (or BAC) exceeded a certain level, 0.08 parts per gram or more, within three (3) hours of operating a motor vehicle.  The statute describing these conditions is Section 40-6-391 of the Official Code of Georgia.

Of particular interest are the multitude of rules and regulations that govern proof of that BAC number.  The actual statute that governs it is Section 40-6-392, which reads as follows:

(a) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis of the person’s blood, urine, breath, or other bodily substance shall be admissible. Where such a chemical test is made, the following provisions shall apply:

(1) (A) Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

(B) In all cases where the arrest is made on or after January 1, 1995, and the state selects breath testing, two sequential breath samples shall be requested for the testing of alcohol concentration. For either or both of these sequential samples to be admissible in the state’s or plaintiff’s case-in-chief, the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams and the lower of the two results shall be determinative for accusation and indictment purposes and administrative license suspension purposes. No more than two sequential series of a total of two adequate breath samples each shall be requested by the state; provided, however, that after an initial test in which the instrument indicates an adequate breath sample was given for analysis, any subsequent refusal to give additional breath samples shall not be construed as a refusal for purposes of suspension of a driver’s license under Code Sections 40-5-55 and 40-5-67.1. Notwithstanding the above, a refusal to give an adequate sample or samples on any subsequent breath, blood, urine, or other bodily substance test shall not affect the admissibility of the results of any prior samples. An adequate breath sample shall mean a breath sample sufficient to cause the breath-testing instrument to produce a printed alcohol concentration analysis.

(2) When a person shall undergo a chemical test at the request of a law enforcement officer, only a physician, registered nurse, laboratory technician, emergency medical technician, or other qualified person may withdraw blood for the purpose of determining the alcoholic content therein, provided that this limitation shall not apply to the taking of breath or urine specimens. No physician, registered nurse, or other qualified person or employer thereof shall incur any civil or criminal liability as a result of the medically proper obtaining of such blood specimens when requested in writing by a law enforcement officer;

(3) The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer. The justifiable failure or inability to obtain an additional test shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer; and

(4) Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney. The arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section.

(b) Except as provided in subsection (c) of this Code section, upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391, the amount of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance, may give rise to inferences as follows:

(1) If there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391; or

(2) If there was at that time an alcohol concentration in excess of 0.05 grams but less than 0.08 grams, such fact shall not give rise to any inference that the person was or was not under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391, but such fact may be considered by the trier of fact with other competent evidence in determining whether the person was under the influence of alcohol, as prohibited by paragraphs (1) and (4) of subsection (a) of Code Section 40-6-391.

(c) (1) In any civil or criminal action or proceeding arising out of acts alleged to have been committed in violation of paragraph (5) of subsection (a) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.08 or more grams in the person’s blood, breath, or urine, the person shall be in violation of paragraph (5) of subsection (a) of Code Section 40-6-391.

(2) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (i) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.04 grams or more in the person’s blood, breath, or urine, the person shall be in violation of subsection (i) of Code Section 40-6-391.

(3) In any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of subsection (k) of Code Section 40-6-391, if there was at that time or within three hours after driving or being in actual physical control of a moving vehicle from alcohol consumed before such driving or being in actual physical control ended an alcohol concentration of 0.02 grams or more in the person’s blood, breath, or urine, the person shall be in violation of subsection (k) of Code Section 40-6-391.

(d) In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.

(e) (1) A certification by the office of the Secretary of State or by the Department of Public Health that a person who drew blood was a licensed or certified physician, physician assistant, registered nurse, practical nurse, medical technologist, medical laboratory technician, or phlebotomist at the time the blood was drawn;

(2) Testimony, under oath, of the blood drawer; or

(3) Testimony, under oath, of the blood drawer’s supervisor or medical records custodian that the blood drawer was properly trained and authorized to draw blood as an employee of the medical facility or employer

shall be admissible into evidence for the purpose of establishing that such person was qualified to draw blood as required by this Code section.

(f) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

“This breath-testing instrument (serial no. ) was thoroughly inspected, tested, and standardized by the undersigned on (date) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.”

When properly prepared and executed, as prescribed in this subsection, the
certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g)(2)(F) of Code Section 40-5-67.1.

____________________________________________________

Needless to say, a large part of the litigation in these cases for a very long time involved the certification and calibration papers on the machines used to test BAC, but the Code section above addressed a way to establish that.  When the State doesn’t have the papers available, for any reason, they still faced difficulty establishing their case.  However, the 1997 Court of Appeals case of Gidey v. State, 228 Ga.App. 250, 491 S.E.2d 406, rendered the standard a little looser, easing the burden the State faced to establish the reliability of the technology it used to establish how much alcohol was in a driver’s system.  In that case, the Court reaffirmed that “substantial statutory compliance [with OCGA § 40-6-392(a)(1)(A)] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test.” (emphasis supplied).  The case in full is below:

Sidney L. Moore, Jr., Atlanta, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Joseph N. Walden III, Asst. Solicitors, for appellee.

        RUFFIN, Judge.

        Jacob Gidey appeals from his conviction for driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. For reasons which follow, we affirm.

        The record shows that DeKalb County police officer Steven Davis saw Gidey’s vehicle weaving on the interstate one morning at approximately 4:00 a.m. Officer Davis followed Gidey, noticed a continuing pattern of weaving, and eventually conducted a traffic stop. During the stop, Davis noticed that Gidey’s eyes were “red and watery” and detected a strong odor of alcohol on Gidey’s breath. At Davis’ request, Gidey exited the vehicle. Noting that Gidey appeared unsteady on his feet, Davis asked Gidey to complete several field sobriety tests. According to Davis, Gidey was unable to accurately recite the alphabet, exhibited clues evidencing alcohol impairment in the horizontal gaze nystagmus test, and could not successfully perform the walk and turn test. Davis further testified that in his opinion, Gidey was under the influence of alcohol to the extent he was a less safe driver.

        Davis arrested Gidey and transported him to the Dekalb County Police Station. At the station, intoximeter operator Gregory Waters tested Gidey’s breath twice on an Intoxilyzer 5000 machine. The first test showed Gidey’s alcohol level at .140, and the second test resulted in a .147 alcohol level.

        The jury found Gidey guilty of driving under the influence of alcohol, driving with unlawful alcohol concentration, and failure to maintain lane. Immediately after the trial, Gidey was sentenced to 12 months of confinement, with 30 days in custody and the remainder on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. The trial court subsequently denied Gidey’s motions for new trial and for reduction of sentence.

  1. Gidey first argues that the trial court erred in admitting the results of the Intoxilyzer 5000 test because the State failed to meet the admissibility requirements of OCGA § 40-6-392(a)(1)(A). We disagree.

        Under OCGA § 40-6-392(a)(1)(A), a breath test is valid if, among other things, it is “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order….” Section 40-6-392(f) further provides that a properly prepared and executed inspection certificate for the breath-testing machine is admissible to satisfy this requirement.

        Gidey claims that the State failed to present an adequate inspection certificate pursuant to OCGA § 40-6-392(f) or otherwise establish that the electronic and operating components of the Intoxilyzer 5000 used in this case were in good working order. The record shows that the trial court excluded the inspection certificates offered by the State. The State’s other evidence, however, was sufficient to meet the requirements of OCGA § 40-6-392(a)(1)(A).

        Greg Waters, the individual who conducted the breath tests, testified that he was trained and certified to operate the Intoxilyzer 5000 when he tested Gidey. Waters’ permit to operate the machine was introduced into evidence. According to Waters, the methods used to perform Gidey’s tests were approved by the Division of Forensic Sciences and the GBI. He conducted the tests using an Intoxilyzer 5000 machine that he had used before and has used since Gidey’s tests. Waters further testified that the machine functioned properly when he tested Gidey and did not appear to have any pieces or components missing. The machine also appeared to be in good working order, and the diagnostic tests the machine conducted on itself before the breath analysis revealed no problems. Waters admitted that he does not know what is under the machine’s “hood,” but testified that “there [was nothing] irregular about the machine that night[.]”

        We find that the State sufficiently proved by competent circumstantial evidence that the breath tests were performed on a machine operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. Bazemore v. State, 225 Ga.App. 741, 743-745(2), 484 S.E.2d 673 (1997). As we have previously found, “substantial statutory compliance [with OCGA § 40-6-392(a)(1)(A) ] can be established by circumstantial evidence arising from the testimony of [the trained and certified individual] who operated the machine and performed the test.” Id. at 744, 484 S.E.2d 673. The trial court did not err in admitting the breath test results based upon Waters’ testimony. Id.

  1. Citing again to OCGA § 40-6-392(a)(1)(A), Gidey similarly claims that he was entitled to a directed verdict on the alcohol concentration charge because the State failed to show that the breath tests were performed on a machine operated with all its electronic and operating components properly attached and in good working order. As found in Division 1, however, the State presented competent circumstantial evidence sufficient to make the showing required by OCGA § 40-6-392(a)(1)(A). Gidey was not entitled to a directed verdict on this ground.
  1. Finally, Gidey argues that the sentence imposed by the trial court is disproportionate and unduly harsh. The trial court sentenced Gidey to 30 days in custody, 11 months on probation, 40 hours of community service, a single fine of $1,000 on the two alcohol counts, and a $1,000 fine for failure to maintain lane. We find no error.

        The record shows that this was Gidey’s first offense for driving under the influence of alcohol. The statutory guidelines for sentencing a first offender under OCGA § 40-6-391 provides generally for (1) a fine of not less than $300 or more than $1,000; (2) a period of imprisonment of not less than ten days or more than 12 months, which may be suspended, stayed or probated; and (3) not less than 40 hours of community service. OCGA § 40-6-391(c)(1). The maximum punishment for failure to maintain lane is a fine up to $1000 or confinement not to exceed 12 months, or both. OCGA § 17-10-3(a); OCGA § 40-6-1.

        Gidey’s sentence falls within the range of statutorily prescribed punishment for his offenses. He argues on appeal, however, that his sentence is unduly harsh in comparison with the sentence normally imposed upon first offenders who elect to plead nolo contendere 1 and that the trial court improperly punished him for exercising his right to trial by jury. This claim has no merit. We have recognized that a trial court does not engage in unconstitutional “vindictiveness” by imposing a harsher sentence following a jury trial than may have been imposed if the defendant had accepted a plea bargain. Allen v. State, 193 Ga.App. 670, 671-672, 388 S.E.2d 889 (1989). Rather, the trial court is “merely ‘following through’ on the inevitable and permissible ‘threat’ which is implicit in any plea bargain situation–that rejection of the plea bargain may diminish or destroy the very rationale for the imposition of a lenient sentence.” Id. at 671, 388 S.E.2d 889.

        Gidey’s sentence is not ” ‘grossly out of proportion to the severity of the crime.’ [Cit.]” Haygood v. State, 225 Ga.App. 81, 83(2), 483 S.E.2d 302 (1997). Accordingly, we find no error in the trial court’s sentence.

        Judgment affirmed.

        BIRDSONG, P.J., and ELDRIDGE, J., concur.

—————

1 The sentencing guidelines established in OCGA § 40-6-391(c)(1) govern penalties imposed on all DUI first offenders, including those who plead nolo contendere. OCGA § 40-6-391.1.

Dec 30 14

Re-Post (10/25/11 – “What it means to HAVE A LAWYER”)

by merlin

Recent events have made it necessary for this to be stated AGAIN: If you have ANYTHING to do with the Courts, it is almost ALWAYS better to have an attorney representing you.  You’ve tried what you knew how to do already; let a professional try something, for a change.  It just might work!

Also – as of the first day of the New Year, I am closing this office to work from my home in Dahlonega.  I will still be available via my e-mail address (merlin@merlinusmonroe.com) and may be reached, or a message left for me, at 678-943-3532.

Rather than publish the results of my research and work today, I wanted to write about an issue that has been debated back and forth by people for a very long time, and that will continue to be discussed back and forth for the foreseeable future, but which nevertheless needs to be addressed.

“Having a lawyer” is very much like “having a doctor”, in that crafting a legal remedy to a situation may be as easy as you think it is, but IT PROBABLY ISN’T.

What defines your particular issue may be a relatively small, isolated event – such as a “simple” dispute about a speeding violation, but it might be bigger than you realize.  By virtue of the fact that you are HIRING a legal professional to deal with the complexities of the situation in which you find yourself necessarily means that it seems to be MUCH BIGGER THAN YOU ARE COMFORTABLE DEALING WITH ON YOUR OWN.

You have gone the extra (substantial) step of obtaining legal representation.  In other words, what you think works to address this particular situation is not working, and is not something that you can easily do yourself.  Over the course of the past decade as a practicing attorney, I have had more problems from people who felt they didn’t need (or, without trying harder and looking deeper) couldn’t afford an attorney.  This ALWAYS makes the situation uglier and more complex than it needs to be.

Further, realize that a trained attorney, just like a trained medical professional, might discover that your problems are actually the result of some other unaddressed issue, that has to be resolved to eliminate the problem that brought you to the attorney in the first place.

What you need to take away from this is simple: LET THE ATTORNEY WORK.  This isn’t about what you would do in response to the situation, because you have hired another person to address the situation for you.  Your help is appreciated, but your will is now diverted through your advocate, and they have things to do to address it that may be unknown or unavailable to you.

Dec 29 14

Fraud as an Exception to “Due Diligence”

by merlin

Previously, in a post on 11/20/14, the issue of sufficient due diligence for service by publication was discussed.  In order to secure a valid order for service upon a party by publication, the party seeking to serve them must execute an affidavit stating that they have exercised sufficient diligence – the diligence that is due – in locating them.  Often, in today’s highly mobile world, simply observing that they have moved from their last known address is sufficient.

However, what happens when the party seeking to serve them by publication lies to the Court to secure a judgment?  It is, of course, fraud.  The following is the 1927 Georgia Supreme Court case of Millis v. Millis, 165 Ga. 233, 140 S.E. 503, and it illustrates a rule that is still valid today – a judgment procured by fraud is subject to being set aside:

 Error from Superior Court, Fulton County; John D. Humphries, Judge.

        Petition to set aside a decree of divorce by John Millis against Mrs. M. R. Millis. A demurrer to the petition was sustained, and plaintiff brings error. Reversed.

        Dorsey, Howell & Heyman and Mark Bolding, all of Atlanta, for plaintiff in error.

        Anderson, Rountree & Crenshaw and Granger Hansell, all of Atlanta, for defendant in error.

        HINES, J. On August 7, 1926, John Millis filed his petition against Mrs. M. R. Millis to set aside verdicts and final decree granting her a divorce from him. He made these allegations: He and defendant, after marriage, lived together as husband and wife for 20 years and until January 1, 1914, when without cause she left him and established her domicile in Fulton county of this state. On May 6, 1925, she filed a suit for divorce and made an affidavit, stating that he resided outside of Georgia and in Cleveland, Ohio. An order was taken for the service on him by publication. This service was to be effected by publication of process, twice a month for two months prior to the next term of court, in the public gazette known as Fulton County Daily Report. On May 26, 1925, the deputy clerk of the court certified that he had that day mailed a copy of said gazette, containing a marked notice of said suit, properly stamped and addressed, to petitioner at Cleveland, Ohio. On January 26, 1926, the first verdict in the divorce suit was granted to the wife. On June 3, 1926, a second verdict was granted, and on the same day a decree divorcing the parties was signed. At the time she made the affidavit of May 6, 1925, Mrs. Millis knew the street and number at which petitioner resided, and could and should have stated his full and complete street address. He did not receive any copy of said public gazette containing a marked notice of the suit, did not know of its pendency, and did not have any information or knowledge whatsoever of the bringing thereof and the obtaining of said verdicts and decree until he was notified by the attorneys for Mrs. Millis by letter received on July 9, 1926. Said gazette is not a paper of general circulation, but is of a limited local circulation.

        The record in the divorce suit does not disclose that the judge, before the trial thereof, determined that service of said suit had been properly perfected as required by section 5558 of the Code (Civ. Code 1910) any order to that effect, showing service, nor do the minutes of the court disclose any such order; and petitioner charges that there was no such adjudication and no service as contemplated by law. Petitioner did not make an appearance, did not plead to the suit, and has never waived service. He is not in laches, has a meritorious defense, and is ready for instant trial. He is willing to submit himself to the jurisdiction of the court for the determination of the issues of law and fact that he will raise. He attaches as exhibits a demurrer and answer which he prays leave to file in the divorce suit, on the setting aside of the verdicts and decree. This answer sets out a meritorious defense to the libel for divorce. The failure of Mrs. Millis to furnish the well-known street address and number of the house at which petitioner resided in Cleveland, Ohio, was a concealment of material fact, amounting in law to a fraud on the court and against petitioner, and was omitted for the purpose of preventing him from appearing and making defense. The court was without jurisdiction to render said verdicts and said decree, and they are void. He prays that they be set aside, and that Mrs. Millis be enjoined from changing the present status.

        By amendment he alleged that since the filing of his petition in this case he has learned that on August 9, 1926, Mrs. Millis obtained a purported order reciting that legal service had been perfected upon him in the divorce case, and a judgment of perfection of service by publication was granted on August 9, 1925, and entered nunc pro tunc. Said order was invalid, because not in compliance with section 5558 of the Code, and because the court had no jurisdiction of the divorce case and no jurisdiction to pass said order after the final verdict and decree.

        The defendant demurred upon the ground that the petition set forth no cause of action. The court sustained the demurrer, and petitioner excepted.

         1. Service of a nonresident defendant in a divorce suit shall be perfected as prescribed in the Code in causes in equity. Civil Code 1910, § 2951. If the defendant in an equitable petition does not reside in this state, service of the petition may be made by publication. Section 5553. Where the defendant resides out of this state, and it is necessary to perfect service upon such person by publication, upon the fact being made to appear to the judge of the court in which suit is pending, said judge may order service perfected by publication in the paper in which sheriff’s advertisements are printed, twice a month for two months. The contents of the notice are prescribed. Section 5556. It has been held that there can be no service by publication without this order. Where the residence or abiding place of the nonresident party is known, the party obtaining the order shall file in the office of the clerk, at least 30 days before the term next after the order of publication, a copy of the newspaper in which such notice is published, with the notice plainly marked, and thereupon it shall be the duty of the clerk at once to inclose, direct, stamp, and mail said paper to the party named in the order, and make an entry of his action upon the petition or other writ in said case. Section 5557. This section, being in derogation of the common law, must be strictly construed in favor of getting notice to the nonresident party. So we have held that the paper containing this notice cannot be mailed by any person except the clerk or his deputy. Williams v. Batten, 156 Ga. 620. 119 S. E. 709. The courts quite uniformly hold that all the statutory requirements for the institution and prosecution of such proceedings, and especially such as are of a jurisdictional character, must be strictly and literally observed, in order that the judgment entered therein shall be of legal force and validity. 21 R. C. L. 1293, § 36.

        Counsel for the defendant in their brief suggest that, since it is the duty of the clerk to mail the notice, that officer presumably must make proper inquiries to enable him to comply with the statute, and that there is no obligation resting upon the plaintiff in the premises. We cannot agree to this suggestion in its entirety. We think it is incumbent upon the clerk to make proper inquiries to enable him to discharge the duties resting upon him in this matter, but we dissent from the proposition that no obligation is on the plaintiff in the premises. It is the duty of the party, obtaining an order for service by publication upon his nonresident adversary, to furnish all information which he possesses or can reasonably acquire touching the residence or abiding place of the nonresident adversary. In Gwinn v. Gwinn, 145 Ga. 481, SO S. E. 574, it was held that, when the plaintiff in a divorce suit knew of the residence and address of the defendant, and willfully and fraudulently failed to comply with this section of the Code, and fraudulently procured an order showing service by publication in terms of the law, these facts were sufficient to show fraud upon the part of the plaintiff in procuring the verdicts and judgment in his favor. It follows necessarily from this ruling that the duty rests upon the plaintiff, in a divorce suit against a nonresident defendant, to furnish to the court or its clerk such pertinent information in his or her possession as will enable the clerk to properly mail to the defendant the notice of the suit as required by the Code. 21 R. C. L. 1293, § 38: Romig v. Gillett., 187 U. S. 111, 23 s. Ct. 40, 47 L. Ed. 97; Grigsby v. Wopschall, 25 S. D. 564, 127 N. W. 605, 37 L. R. A. (N. S.) 206.

        This brings us to construe section 5557, and to ascertain what information which the plaintiff possesses must be furnished by him or her to the Court or its clerk, so as to enable that officer to properly mail such notice, and thus give notice to the defendant of the pendency of the suit. The decisions which bear upon this subject are few, so far as we have been able to find. The exact point raised in this case has never been passed upon by this court. In the first place, we have seen that this section is to be strictly construed in favor of facilitating the giving of notice to nonresident defendants in divorce cases. It must be borne in mind that the object of this statute is to provide personal as well as constructive notice to a nonresident defendant of the pendency of a suit against him in this state. This law should be so construed as to effectuate this wholesome purpose. Constructive notice is effected by publication of the process requiring him to appear. Personal notice on the defendant is to be secured by mailing to him a copy of the newspaper in which the notice calling upon him to appear is published, with said notice plainly marked, and this newspaper must be mailed in the manner prescribed in section 5557. Newspapers, with said notices plainly marked, are required to be mailed only in “cases where the residence or abiding place of the absent or nonresident party is known.” This language does not prescribe the method of mailing the newspapers containing the notice referred to, and does not undertake to fix the addresses of such defendants to which such newspapers shall be mailed. This language simply defines the circumstances under which such newspapers containing such notices are required mailed. Its purpose is to make necessary the mailing of such newspapers containing such notices, only where the residences or abiding places of the absent or nonresident defendants are known. If their residences or abiding places are unknown, then the mailing of such newspapers to ab sent or nonresident defendants is not necessary. The statute does not attempt to provide how the packages containing such newspapers shall be addressed to the absent or nonresident defendants. It provides that, in a case where a defendant’s residence or abiding place is known, the party obtaining the order for service by publication shall file in the office of the clerk a copy of the newspaper in which the notice has been published, with the notice plainly marked. When this is done, it becomes the duty of the clerk at once, “to inclose, direct, stamp, and mail said paper” to the absent or nonresident party. The statute does not specifically provide how the envelope or wrapper containing the newspaper shall be directed. It is fair to presume that the Legislature in enacting this statute intended that the package should be directed in compliance with the requirements promulgated by the Post Office Department of the United States, for the purpose of securing the safe delivery of mail matter. Section 113 of the requirements of the Post Office Department, which deals with addressing domestic mail matter, is as follows:

        “Write plainly the name of the person addressed, street and number, number of rural route, or post office box, and the name of the post office and state in full.” United States Official Postal Guide, July, 1927, p. 21.

        This provision was expressly promulgated for the purpose of effecting the delivery, and preventing the nondelivery, of domestic mail matter. Under our statute, in view of this” provision, an envelope or wrapper inclosing a newspaper in which is published a notice calling upon a nonresident defendant to appear in a divorce case, where such defendant lives in a town or city where the streets are numbered, should be directed to his street address, if such address is known to the plaintiff. This is more imperative where such defendant resides in a large city like Cleveland, Ohio. It is a matter of common knowledge that mail matter directed to addresses at the post office in large cities, without giving their street addresses, is often never delivered. In view of the great importance of giving notice to nonresident defendants of the pendency of divorce suits against them in this state, compliance with the requirements of the above provision of the post office department can reasonably be required.

         2. It appears that the defendant made an affidavit in her divorce suit for the purpose of procuring an order for service by publication of plaintiff, in which she deposed that the residence of plaintiff was at Cleveland, Ohio. The petition alleges that the wife well knew the street and number of plaintiff’s residence in that city and his street address, before and at the time she instituted her suit for divorce, and that she concealed his full and complete address and failed to furnish it to the court, for the deliberate purpose of preventing him from receiving notice of her suit and appearing and making a valid defense which he had thereto. The demurrer admits the truth of this allegation. The wife should have stated, in her affidavit for the purpose of obtaining the order for perfecting service by publication in the divorce suit, the street address of her husband in Cleveland, Ohio. As, under his allegations, he did not receive the newspaper containing the notice of the divorce suit, and did not know of its pendency until after the decree was granted, and as the wife is charged in the petition with concealing and failing to give to the court or the clerk the street address for the express purpose of preventing the husband from receiving the notice and making a defense to her suit, such conduct on the part of the wife, if true, amounted to such fraud as would entitle the husband to have the verdicts and decree case set aside. Civil Code 1910, § 4584; Gwinn v. Gwinn, supra; Lynn v. Allen, 145 Ind. 584, 44 N. E. 646, 33 L. R. A. 779, 57 Am. St. Rep. 223.

        The petition made a case to be passed upon by the jury. In De Lay v. Latimer, 155 Ga. 463, 117 S. E. 446, the preceding was one to foreclose a mortgage, and it is true that the inclosure or envelope containing the newspaper in which the notice to the defendant was published was addressed to the defendant at Charleston, S. C; but in that case the question raised in this case was not made nor involved, and besides there was a collateral attack by a claimant upon the judgment of foreclosure. In Moore Realty Co. v. Carr, 61 Or. 34, 120 P. 742, the judgment was collaterally attacked, and the Supreme Court of Oregon held that it was not necessary to decide the question whether the failure of the affidavit to state the post office address of the defendant would be fatal to the proceeding, when raised in a direct attack upon it. In the present case the attack upon the judgment in the divorce case is direct. Furthermore, in that case, the defendant was later served, before judgment, with the notice. Counsel for the defendant strongly rely upon Burke v. Donnovan, 60 111. App. 241, where the Court of Appeals of Illinois, in construing a statute of that state, held that a preliminary affidavit made for the purpose of obtaining an order for perfection of service by publication, which stated the urban place of residence of the defendant, was sufficient, and that it was not necessary to give the street and number at which the defendant resided. The terms of the Illinois statute were not set out. To sustain its ruling the court cited Hannas v. Hannas, 110 111. 53, and Schaefer v. Kienzel, 123 111. 430, 15 N. E. 164. By reference to these eases it will appear that the court was dealing with a statute which required that the affidavit made by the complainant or his attorney, for the purpose of obtaining an order for the perfection of service by publication, should state that the defendant resided or had gone out of the state, and should state the place of residence of such defendant. The Court of Appeals of Illinois held that an affidavit which stated that the defendant resided in a given city was a sufficient compliance with this statute, and that it was not necessary to give the street and number at which the defendant resided.

         3. In the divorce suit service by publication was ordered. No order by the trial judge, adjudging that such service had been properly perfected, was passed and written on the petition in the case before the second verdict and final decree were rendered. Afterwards an order was taken on August 9, 1926, adjudging that legal service had been perfected on the defendant therein, that an order to that effect had been granted on August 9, 1925, and that such order be entered nunc pro tunc. Petitioner contends that the rendition of the divorce verdicts and decree, before the entry of such order on the petition in the divorce case, made such verdicts and decree void, and that the nunc pro tune order, granted after the divorce case had been finally disposed of and ended, was void for lack of jurisdiction in the court to grant it Our statute does most explicitly require the court to pass such an order before the trial. Civil Code 1910, § 5558; Langston v. Langston, 141 Ga. 675, 82 S. E. 36; Schulze v. Schulze, 149 Ga. 532, 534, 101 S. E. 183. We have seen that the requirements of our statute, and especially those which are jurisdictional, must-be strictly and literally complied with. Noncompliance with those of these requirements which are not jurisdictional can be taken advantage of before judgment, but does not render the judgment void. Compliance with those requirements which are jurisdictional must be had before judgment. Failure to comply with such requirements before judgment renders the judgment void. This brings us to inquire whether the order adjudging that perfection of service by publication had been effected, and the entry of such order upon the petition by the judge before trial, are jurisdictional. Service of the notice, both by its publication and by mailing it to the nonresident defendant, is jurisdictional. Lack of either one would render the judgment void. When service is perfected both by publication of the notice and by mailing it to the nonresident defendant as required by our statute, the court acquires jurisdiction. Such notice and its service in the above ways are essential to jurisdiction. The adjudication by the trial judge that service has been perfected in these ways, though essential and important, is like the return of an officer of service, not jurisdictional. Jones v. Bibb Brick Co., 120 Ga. 321, 324, 48 S. E. 25. Jurisdiction is dependent upon the fact of service, and not on proof thereof. Love v. National Liberty Insurance Co., 157 Ga. 259, 267, 121 S. E. 648. The order furnishes the proof of service, but its absence does not render the judgment void. In Schnlze v. Schulze, supra, the record failed to show that the judge had passed an order before the trial of the case, adjudging that service by publication had been perfected, as required by the Civil Code, § 5558, and it was urged that this omission constituted a defect on the face of the record which invalidated the judgment. This court, in dealing with this question, said:

        “The statute mentioned does explicitly require the court to pass such an order before the trial, and it is the duty of the court to comply with the statute; but an order of the court reciting that service has been perfected is not itself service. It is an adjudication that satisfactory evidence of service has been submitted to the court and that it met the requirement of the statute. Failure to take the order is an irregularity of practice. It does not amount to an affirmative showing from the record that service has not been perfected.”

        It necessarily follows from this ruling that the grant of such order and its entry by the judge upon the petition are not jurisdictional, and that the absence of such order and its entry would not render the judgment void.

        Did the court err in entering this order nunc pro tunc? If the trial judge actually made an investigation and viva voce granted an order adjudging perfection of service by publication, which he omitted to reduce to writing and enter upon the petition in the divorce case, he could by judgment nunc pro tunc have such order entered upon the petition. Vaughn v. Fitzgerald, 112 Ga. 517, 37 S. E. 752; Selph v. Selph, 133 Ga. 409, 411, 65 S. E. 881. No attack is made upon the nunc pro tunc judgment as having been granted without notice to the plaintiff and without an opportunity to be heard in resistance to its allowance. Whether a nunc pro tunc judgment can be rendered ex parte and without notice to the opposite party is not now for decision. Certainly, the better practice would be to file a motion for the grant of such nunc pro tunc judgment, and give to the opposite party notice of such motion and an opportunity to be heard. So we are of the opinion that an order, adjudging perfection of service by publication, and its entry upon the petition in a divorce case are not jurisdictional in character, and that the lack of such order and its entry does not render the judgment void. Where such order has been orally granted by the judge, and he omitted to reduce the same to writing by entering it on the petition in the divorce case, such omission could be cured by an order nunc pro tunc.

        4. The court erred in sustaining the demurrer to the petition, under the rulings made in the first and second divisions of this opinion.

        Judgment reversed.

        All the Justices concur.

Dec 26 14

Summary Judgment With Fewer Than Thirty Days’ Notice

by merlin

Statutorily, summary judgment as a tool to dispose of all or a part of a case based on the pleadings and other information that has come to light – without the expense and stress of a formal trial – is a useful method of resolving competing claims.

It is defined by The Law Dictionary as “[a] quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment. Also known as accelerated judgment.”
(Found at http://thelawdictionary.org/summary-judgment/).

In the Official Code of Georgia, Section 9-11-56 addresses summary judgment in civil cases.  It reads as follows:

“(a) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and proceedings thereon. The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.

(d) Case not fully adjudicated on motion. If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

(g) Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party may be adjudged guilty of contempt.

(h) Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.”

Subsection (c) indicates that there must be a hearing and that the hearing has to be at least thirty (30)days after the motion has been made.  However, this is not a rigid and inflexible rule, because the Uniform Superior Court Rules that control how Superior Courts must be run also direct that all motions in civil cases are to be decided without a hearing wherever possible.  In the case of summary judgment motions, this is often possible, and the Uniform Superior Court Rules and the cases discussing the issue recognize it, and carve out an exception.

Specifically, USCR 6.3 addresses both of the above statements directly.  It reads as follows:

“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.

However, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.”

In other words, it is fully possible to have a hearing on a motion for summary judgment, when it hasn’t been clearly proven by the facts, evidence, supporting affidavits, etc., but only under the specific conditions outlined in that second paragraph above.

The application of this rule was explored more fully recently in a case involving a dispute between a bank and the corporation and personal guarantor that a note had been issued to.  The case is Brooks v. Multibank 2009-1RES-ADC Venture, LLC, 317 Ga.App. 264, 730 S.E.2d 509 (Ga. Ct. App. 2012).  It specifically upheld the Court’s decisions to convert a motion for judgment on the pleadings into a motion for summary judgment, and to grant that summary judgment even though it was made less than thirty (30) days before judgment was issued, since civil motions were supposed to be decided without hearing when it was appropriate.  By the way, something else that this case shows is the devastating effect that a failure to admit something that was requested in civil Discovery but subsequently proved true, or a failure to even respond, can have on those matters, and it was because of the legal admissions that the Court was empowered to grant summary judgment here.  The case is as follows:

James William Clifton, Atlanta, for Appellant.

Andrew James Gebhardt, John Philip Webb, Stockbridge, for Appellee.

BARNES, Presiding Judge.

Appellants A.L. Brooks & Company, also known as ALB & Company and Aaron Brooks (hereinafter “Brooks”) appeal from the trial court’s order granting summary judgment to Multibank 2009–1 RES–ADC Venture, LLC (hereinafter “Multibank”). Brooks argues on appeal that the trial court erred in denying his motion to withdraw admissions and also in converting Multibank’s motion for judgment on the pleadings to a motion for summary judgment without providing him 30 days to respond pursuant to OCGA § 9–11–12(c) and OCGA § 9–11–56(c). Upon our review, we affirm.

On January 28, 2009, FirstCity Bank filed a complaint on a note and guaranty against Brooks, alleging that the corporation was in default on the loan and Brooks, as the guarantor, was liable for the $3,509,043.74 due on the loan, prejudgment interest and attorneys fees. A copy of the note and Brooks’ guaranty were attached to the complaint. On March 13, 2009, Brooks, acting pro se, filed a “response to summons” on his and the company’s behalf in which he responded simply, “We do not agree with the amounts of the indebtedness owed to FirstCity Bank. We are also working closely with a client who has expressed genuine interest in purchasing the collateral.”

In June of 2009, FirstCity Bank was granted a motion to extend discovery until March 13, 2010, and notified the court that it was under receivership by the Federal Deposit Insurance Company (“FDIC”). On January 21, 2010, the trial court sua sponte granted Brooks’ corporate entity, A.L. Brooks & Company, 31 days from the date of the order to have an attorney file a answer on the corporation’s behalf. It advised that a default judgment would be entered against the corporation if an answer was not filed by an attorney. On February 22, 2010, an attorney filed an entry of appearance and answer on behalf of “the Corporation only,” in which it challenged the court’s jurisdiction over Brooks and the corporation and also consideration for the underlying loan. On March 25, 2010, Multibank was substituted as the party plaintiff, and was granted an additional six-month discovery period until September 15, 2010.

On July 13, 2011, Multibank served discovery on Brooks, including requests for admissions. On July 14, 2010, Multibank moved to strike the answer and enter default judgment as to the corporation because the answer was not filed by an attorney, and moved for judgment on the pleadings as to Brooks, alleging that he had failed to deny the allegations in its complaint. On July 21, 2010, the trial court denied the motion to strike as to the corporation, but scheduled a September 7, 2010 hearing on the motion for judgment on the pleadings against Brooks. It also directed Brooks to file a written response to the motion “within 30 days of service of the motion and provide a copy to [Multibank].” The trial court further advised that, should Brooks fail to timely respond, the court would rule on the motion “based on the pleadings and the evidence.” Brooks did not timely respond, and on August 20, 2010, a new attorney filed a notice of appearance and substitution of counsel on behalf of the corporation and Brooks, and also moved for an extension of time in which to file his response to the motion for the judgment on the pleadings. Brooks argued his failure to respond on time was due to “excusable neglect,” and that he should be allowed to respond pursuant to OCGA § 9–11–6(b).1 The trial court placed the motion for an extension of time to respond to Multibank’s motion for judgment on the pleadings on the September 7, 2010 hearing calendar, to be addressed before the motion for judgment on the pleadings.

During this period, Brooks’ responses to several discovery requests were due, including requests for admissions, answers to interrogatories, and motions to produce, but he did not respond to them. At the September 7, 2010, hearing on the motions, Brooks was not present but was represented by his new counsel, who argued that his motion for an extension of time to respond to the motion for judgment on the pleadings should be granted pursuant to OCGA § 9–11–6(b), due to “excusable neglect,” because he was not represented by counsel during that time and did not know how to file responsive pleadings or answers.

The trial court denied the motion for more time to respond, finding no excusable neglect. It then heard Multibank’s motion for judgment on the pleadings and Brooks’ response, then orally granted the motion, after advising the parties that it was converting Multibank’s motion to one for summary judgment “because [it] was unable to ascertain the liquidated damages from the complaint alone” and had “looked to the previously filed Request for Admissions that were not responded to by Brooks.”.

On September 8, 2010, Brooks filed a motion to withdraw his admissions and a motion to extend the time to file answers to the requests for admissions. In a September 13, 2010 order, the trial court scheduled a hearing on the motion for October 19, 2010; however, on October 14, 2010, the trial court entered a written order granting Multibank’s motion for summary judgment against Brooks personally, nunc pro tunc to September 7, 2010. In the order, the trial court noted that Brooks did not file his motion to withdraw his admissions until after the trial court had ruled against him from the bench, and had not proffered any evidence that would have excused his failure to respond to the discovery request. The court awarded Multibank $3,509,043.74, plus attorneys fees of $567,359.05. Brooks appeals from this order.

1. Brooks first contends that the trial court erred in not granting his motion to withdraw his admissions. He argues that the presentation of the merits of the case would clear up the miscalculations of the debt and also that Multibank failed to show that it would be prejudiced by the withdrawal of the admissions.

If the time for response to a request for admission passes “without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under OCGA § 9–11–36(b) on motion to have his admissions withdrawn….” (Citation, punctuation and emphasis omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga.App. 421, 422 S.E.2d 76 (1992). Thus, the matters in the requests for admissions were admitted by operation of law when Brooks failed to answer the requests within 30 days of service. OCGA § 9–11–36(a)(2). The trial court had the discretion to permit withdrawal of the admissions if (1) that withdrawal would subserve or advance the presentation of the merits of the action, and (2) that there is no satisfactory showing that withdrawal will prejudice the party who obtained the admissions. OCGA § 9–11–36(b).

However, “[t]he motion in this case, made after grant of summary judgment for the defendant, was not timely.” Meadows v. Dalton, 153 Ga.App. 568(2), 266 S.E.2d 235 (1980). By issuing the order nunc pro tunc the “trial court caused the written [order] to relate back to … the date of the hearing and its oral ruling.” Hinkle v. Woolever, 249 Ga.App. 249, 252, n. 1, 547 S.E.2d 782 (2001). Moreover,

[t]he party seeking to withdraw the admissions has the burden of establishing the first prong by showing that the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay. Failure to present admissible, credible evidence contradicting the admitted matters justifies the denial of the motion to withdraw.

(Citations and punctuation omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga.App. 828, 829–830(1), 670 S.E.2d 464 (2008). Under the first prong, Brooks bore the burden of either showing the admissions were incredible on their face or presenting admissible, credible evidence refuting the admissions. “If the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions.” Turner v. Mize, 280 Ga.App. 256, 257(1), 633 S.E.2d 641 (2006). Under such circumstances, “there is no need to address the second prong.” Id. at 259(1), 633 S.E.2d 641.
Brooks made no attempt in the trial court to make either showing relative to the first prong. Thus, the trial court did not abuse its discretion in denying his request to withdraw the admissions.

2. Brooks also contends that the trial court erred in converting the motion for judgment on the pleadings to a motion for summary judgment without providing additional time for him to “confront the evidence.”

When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to OCGA § 9–11–56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment.

(Citation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga.App. 615, 616–617(1), 639 S.E.2d 399 (2006). The 30–day notice period can be waived through acquiescence of the party opposing the motion. Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 507(2), 634 S.E.2d 452 (2006). Moreover, the error is not reversible absent a showing of harm. Sentry Ins., etc. v. Echols, 174 Ga.App. 541, 542(1), 330 S.E.2d 725 (1985).
Here, Multibank acknowledged at the hearing that the trial court could not ascertain the amount of liquidated damages from the complaint alone. The court then considered Brooks’ default admissions to ascertain the amount of damages and informed Brooks that it would treat the motion as one for summary judgment. It then permitted Brooks to present arguments on the summary judgment motion. Brooks argued that a general denial of indebtedness was sufficient to present a triable issue, and that Multibank failed to properly plead venue, and also addressed several discovery issues.

Even though Brooks asserts harm as a result of the ruling, he has offered nothing to suggest that the ruling would have been any different if he had been given 30 days to respond with more evidence. Christensen v. State, 219 Ga.App. 10, 12(4), 464 S.E.2d 14 (1995). Under the Civil Practice Act, a venue defense shall “be asserted in the responsive pleading thereto, if one is required … [or] by motion in writing.” OCGA § 9–11–12(b). Want of venue, however, may be waived expressly by failing to raise it in an answer or by written motion, or impliedly by failing to elicit a ruling from the trial court on the question of venue before the entry of judgment or the commencement of trial. Williams v. Willis, 204 Ga.App. 328, 329, 419 S.E.2d 139 (1992). A defense based on improper venue must be brought to the attention of the trial court “at the earliest opportunity to plead.” Maalouf v. Knight, 237 Ga.App. 509, 511(2), 515 S.E.2d 650 (1999).

Brooks never raised the issue before the hearing, and as was noted at the hearing, had not filed a motion to transfer venue. Even in his affidavit filed the day after the hearing, Brooks merely asserted that the amounts due were incorrect, and alluded to the payments not being made because of “certifications and approvals” related to the real estate development for which the monies had been loaned. He presented no documentation showing a contradictory amount owed on the loan, nor any evidence contravening his guaranty of the loan.

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required. See Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga.App. 820, 823(2), 600 S.E.2d 778 (2004).

Judgment affirmed.

ADAMS and McFADDEN, JJ., concur.
——–

Notes:

1. The Civil Practice Act provides that, when an act is required within a specific time, “the court for cause shown may at any time in its discretion[,] … upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect….” OCGA § 9–11–6(b).

Dec 23 14

The Georgia Code on “Best Interests of a Child”

by merlin

Though it is a duplicative list, the Georgia Code actually provides two sections that each list the objective factors that go into the prevailing consideration for a judge in a child custody determination.  The primary section that governs is Section 19-9-3(4), which lays out a list of specific issues the judge (and the Guardian Ad Litem, if one is selected by the judge) is to consider in making their decision:

(3) In determining the best interests of the child, the judge may consider any relevant factor including, but not limited to:

(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent’s knowledge and familiarity of the child and the child’s needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

(G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;

(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.

___________________________________________________

I have emphasized the word “and” in the subsection above to make it clear that this is an INCLUSIVE list, and no one factor dominates.  Additionally, the factors that the judge can/should use in considering what constitutes the “best interests of the child” can be found in the sections of the Uniform Code of Georgia dealing with Juvenile Court, Section 15-11-26 sets these out, and they are a good way to consider the above specific items:

“Whenever a best interests determination is required, the court shall consider and evaluate all of the factors affecting the best interests of the child in the context of such child’s age and developmental needs. Such factors shall include:

(1) The physical safety and welfare of such child, including food, shelter, health, and clothing;

(2) The love, affection, bonding, and emotional ties existing between such child and each parent or person available to care for such child;

(3) The love, affection, bonding, and emotional ties existing between such child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(4) Such child’s need for permanence, including such child’s need for stability and continuity of relationships with his or her parent, siblings, other relatives, and any other person who has provided significant care to such child;

(5) Such child’s sense of attachments, including his or her sense of security and familiarity, and continuity of affection for such child;

(6) The capacity and disposition of each parent or person available to care for such child to give him or her love, affection, and guidance and to continue the education and rearing of such child;

(7) The home environment of each parent or person available to care for such child considering the promotion of such child’s nurturance and safety rather than superficial or material factors;

(8) The stability of the family unit and the presence or absence of support systems within the community to benefit such child;

(9) The mental and physical health of all individuals involved;

(10) The home, school, and community record and history of such child, as well as any health or educational special needs of such child;

(11) Such child’s community ties, including church, school, and friends;

(12) Such child’s background and ties, including familial, cultural, and religious;

(13) The least disruptive placement alternative for such child;

(14) The uniqueness of every family and child;

(15) The risks attendant to entering and being in substitute care;

(16) Such child’s wishes and long-term goals;

(17) The preferences of the persons available to care for such child;

(18) Any evidence of family violence, substance abuse, criminal history, or sexual, mental, or physical child abuse in any current, past, or considered home for such child;

(19) Any recommendation by a court appointed custody evaluator or guardian ad litem; and

(20) Any other factors considered by the court to be relevant and proper to its determination.”

As noted, these factors overlap, but they provide different ways of looking at the standard.  Of course, the overarching point of these is to consider that it isn’t just “material” issues alone, and it isn’t just emotional considerations, either, since there needs to be a balance between these two things.  As long as the balance provides for both the basic material, educational, and emotional needs of the child, it is appropriate.  However, these factors must be evaluated to determine the actual balance of the placement of the child!