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Feb 27 15

ABA January 2015 Continuing Education Webinar Notes

by merlin

These notes are in addition to the program materials themselves.

The Wild World of Cannabis

ABA CLE Webcast Notes – Originally broadcast in January 2015

 

 

John Minan (Associate Professor of Law at University of San Diego)

Federal Law (Classification as Schedule I drug) preempts State standards where inconsistent, but State doesn’t enforce if it doesn’t want to.

  • 2009, US Attorneys told not to prosecute State persons in compliance with medical marijuana
  • 2013 memo – States with sufficient mechanisms won’t be interfered with, but must avoid spillover into other States
  • No med marijuana in the future as of that memo

Preemption:  Only happens if there is a CLEAR CONFLICT.  Nebraska and Utah suit asks Supreme Court to use preemption against Colorado for non-medical

Scott Rhodes – Jennings Strauss (on Professionalism in Cannabis Cases)

Dilemma – can lawyers ethically advise pot clients under ABA Model Rules

State response:

            Lawyers advise client fully (State law OK but conflict with federal law); general trend follows this (AZ) approach

North Dakota – it’s actually per se unethical for attorneys to even use cannabis medically.  Colorado approach – exactly opposite (no connection between legal representation and personal use, per se).  In 6/13, extended from medical to recreational use in CO (under consideration in Washington and Nevada).

Hilary Bricken (Harris Moure) – Representing Marijuana Business

Recreational versus Medical Marijuana – Laws, regulations, permissible business entities (eligibility AND business structure) differ between the two

CA versus WA – CA must be a non-profit cooperative or not allowed

 

Be aware of idea of PROSECUTORIAL DISCRETION (affects federal memos)

 

Raids versus “Landlord Letters” – latter is a “softer touch”, gives 30 days to move out

Federal Conflict

  • Banking
  • insurance availability
  • bankruptcy
  • taxes

Have to make sure that fee agreement expressly states the conflict with federal law and expressly addresses idea that you can only advise on how to comply with State law – can only represent them SO MUCH and SO FAR.

Sean O’Connor (University of Washington School of Law) – Food and Drug Law

3 Major Cannabis Products:

  • Food
  • Drug
  • Dietary Supplements

These laws came from:

  • “Filled Milk” scandals (early 20th Century)
  • Patent Medicine cases (snake oil medicines)
  • Thalidomide cases

3 Major Statutes:

  • Food, Drug, and Cosmetics Act
  • Public Health Act
  • Dietary Supplement Health and Education Act

Questions of PURITY AND POTENCY, and also questions of SAFETY AND EFFICACY (latter includes idea that something else achieves same effect)

  • Have to go through approval process for Foods, also for Drugs, as well as obtaining “NDA” (“New Drug Approval”) – many years and lots of $
  • FDA has been issuing warning letters, but FEW

Cannabis as a DIETARY SUPPLEMENT:

  • Requires only PURITY and POTENCY
  • Relies on CUSTOMER input, rather than established medical claims
  • St. John’s Wort

Tsan Abramson (Cobalt Law) – Trademark/Trade Dress Issues

Terms can be:

  • FANCIFUL/ARBITRARY
  • SUGGESTIVE
  • DESCRIPTIVE
  • GENERIC

  • Products containing THC are still federally illegal, BUT
  • Can seek federal mark protection for products and services that SUPPORT the brand.

DON’T:

  • Seek registration for non-cannabis product and try to use protection for cannabis products of same name
  • Will lose the State protection (ex. Colorado)

Henry Wykowski (Wykowski and Associates) – Tax Issues

  • IRS § 280E: Expressly PUNITIVELY disallows ordinary and necessary business expenses for sale of cannabis (passed in 1982 – War on Drugs)

Champ decision:      CAN deduct for cost of goods sold (cannabis industry)

What if they sell non-cannabis goods (i.e. t-shirts)? They can deduct that; need to develop a formula allocating the two

  • Have a defensible 280E formula (assume they WILL be audited)
  • If audited – ensure they IMMEDIATELY get help on it!!!!!!
    • Don’t let client do it themselves, use an attorney (for privilege; no such privilege for accountants)
    • Advise client – UNDER NO CIRCUMSTANCES respond to letter themselves

Audit:

            Looking for SUBSTANTIATION OF EXPENSES (so keep records)

  • Look at gross sales
  • Look at cost of purchases
  • Look at how 280E allocation done

Julie Anderson Hill (University of Alabama School of Law) – Banks and Federalism

  • Banks often don’t even service the ATMs used in cannabis stores
  • Blame the federal controlled substances act (Anti-money laundering laws)
  • FDIC – “reputation risk”

Questions remain – does the UCC apply (Arts. 2 and 9, especially), and what about BANKRUPTCY?

Dwight Merriam (Robinson+Cole) – Real Estate/Land Use Issues

Even if Cannabis were downgraded to Schedule II regulation (like morphine or codeine, the real estate issues would remain).

  • federal and State crime free/drug free zones, school zones, etc.
  • “Drug Free/Crime Free addendum to leases, prohibiting State-legal use of marijuana since it is federally illegal
  • Landlords often include provision in lease prohibiting growing or use EXPLICITLY
  • Insurance requirements? Electricity requirements?  Mold?  Trespassing?
  • No duty to allow tenant under fair housing act, ADA, etc.

See Los Angeles regulations for most comprehensive

Katharine Liao (DLA Piper) – Employment Law

What about medically-prescribed marijuana use?  20 States allow medical, 4 States allow recreation (now Alaska and DC, also).

  • However, 19 States have express statutes saying that employers don’t have to accommodate use/possession during working hours
  • 4 States have express laws allowing employees to be disciplined, and another 4 have case law

Positive test alone:

  • Not enough in DELAWARE, ARIZONA, MINNESOTA
  • Enough (Zero Tolerance) in CALIFORNIA, MONTANA, OREGON, WASHINGTON
  • Colorado – Coats v. Dish Network, LLC – decision still pending (no evidence he ever used while working; quadriplegic; medically-prescribed
  • New Mexico – carrier must reimburse for med. marijuana costs
  • Michigan – employer can terminate but employee gets unemployment

Is there a disability?

  • Generally, employers must provide “reasonable accommodation”
  • Generally, underlying medical problem being treated by med marijuana will require accommodation

Employers need to continually monitor and update employee drug policies.

  • Courts have consistently been very protective of employers terminating over WORKPLACE SAFETY ISSUES
Feb 18 15

Link to SCOTUS Search

by merlin

After an ice storm trapped us at home with no power or Internet, this site is back up and I may continue my work and my research.

This is a link to a new service (still in Beta mode) that allows a user to search oral arguments before the United States Supreme Court for the past decade+:

http://www.scotussearch.com/

Feb 15 15

Deviating From Georgia Presumptive Child Support (In General)

by merlin

When determining child support due (and in every Georgia divorce, custody, or child-oriented case, even NO child support due must be affirmatively recorded), there have to be certain findings upholding the amount required.  It may be that no reliable evidence of income can be shown, as when a person is unemployed, or maybe the parties’ dispute centers around the evidence that one party has of the other’s ability to earn far more money than they have in the past, and proof exists that they can and should be earning more.  Whatever the situation, the Court has to make factual findings to uphold its decision, as required by Section 19-6-15(E) of the Official Code of Georgia.  That section reads as follows, requiring the Court to:

“(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable as determined by the court or the jury, the written findings of fact shall further set forth:

(i) The reasons the court or the jury deviated from the presumptive amount of child support;

(ii) The amount of child support that would have been required under this Code section if the presumptive amount of child support had not been rebutted; and

(iii) A finding that states how the court’s or the jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support and how the best interest of the child who is subject to the child support determination is served by deviation from the presumptive amount of child support;”

___________________________________________________

Sometimes, the situation has been “worked out” by the Court with the parties, or between attorneys for one or both sides, and the arrangement may genuinely be believed by the parties to be in their best interests, or by the Court to be in the parties’ best interests.  IT DOESN’T MATTER.  The findings of fact referred to above still need to be made; what if the case should be appealed?

If the case is appealed and these findings are not present in the record or the pleadings, then the carefully-crafted decision will fall apart like a stack of cards.  This was exactly the situation in the 2013 Supreme Court of Georgia case, Parker v. Parker, 293 Ga. 300, 745 S.E.2d 645:

William J. Camp, Westmoreland Patterson Moseley & Hinson, Warner Robins, for appellants.

T. Rabb Wilkerson III, Warner Robins, for appellee.

BENHAM, Justice.

        This Court granted the application for discretionary review in this case arising out of an action filed by JoBeth Parker, Appellant, a resident of Georgia, against her then-husband, James Timothy Parker, Appellee, a nonresident, to establish child support pursuant to the Uniform Interstate Family Support Act (UIFSA), OCGA § 19–11–100, et. seq.1 After conducting an evidentiary hearing, the trial court entered a final order of custody and child support. Appellant raises several issues relating to the child support award.

         1. The initial question for review is whether this is an alimony case over which this Court has appellate jurisdiction pursuant to Georgia Constitution of 1983, Art. VI, Sec. IV, Para. III(6). The parties to this appeal were married at the time of the proceedings below. Divorce proceedings were pending in both Alaska and Florida but Appellant alleged that neither of those states had jurisdiction to resolve child custody and child support issues given the residency of the parties and the two children of the marriage. 2 Accordingly, Appellant filed the petition in Georgia and the trial court found it had jurisdiction over this matter.

        In Spurlock v. Dept. of Human Resources, 286 Ga. 512, 513(1), 690 S.E.2d 378 (2010), a case involving a Department of Human Resources review of a child support order under OCGA § 19–11–12, this Court discussed the relationship between alimony and child support, noting that “an award of child support always constitutes [293 Ga. 301]alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context.” In Spurlock, this Court held that “we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding [as well as] actions for modification of alimony … for support of … a child, so long as the original award arose from a divorce or alimony proceeding.” Id. at 513, 690 S.E.2d 378. Thus, the Court concluded we have jurisdiction over proceedings for modification of a child support award made in a prior divorce or alimony action regardless of the code section under which the modification is pursued. By comparison, in O’Quinn v. O’Quinn, 217 Ga. 431, 122 S.E.2d 925 (1961), this Court found it did not have jurisdiction over a case that involved an original petition for child support brought under what is now the UIFSA 3 because we concluded it was not a divorce or alimony case that would bring the matter within the jurisdiction of this Court. The petitioner in O’Quinn, however, sought the establishment of child support after the parties were already divorced, not the modification of a child support order entered in a divorce or alimony proceeding. Without making that distinction, this Court later cited O’Quinn for the proposition that child support actions brought under what is now the UIFSA “are normally within the jurisdiction of the Court of Appeals.” Brown v. Georgia Dept. of Human Resources, 263 Ga. 53, 54, 428 S.E.2d 81 (1993) (assuming jurisdiction over a case in which the Georgia Department of Human Resources filed a petition on behalf of a parent seeking modification of a previously entered child support award as well as payment of arrearages, in order to address confusion in the law regarding collection of child support arrearages).

         The case now before the Court involves an original petition for child support that is not made within a divorce proceeding. The parties were, however, at the time the petition was filed, married and not divorced. Consequently, this case is distinguishable from Kennedy v. Kennedy, 309 Ga.App. 590, 711 S.E.2d 103 (2011), in which the Court of Appeals, and not this Court, had jurisdiction over an original petition for award of child custody and child support in a case involving parents who had already obtained a final divorce decree in [293 Ga. 302]Alabama that did not address the issues of custody and support because their child no longer lived in that state. “Child support is a form of alimony.” Dean v. Dean, 289 Ga. 664, 665, n. 2, 715 S.E.2d 72 (2011). Thus, the factual circumstances of this case provide an example of an award of child support that constitutes alimony even though it is pursued outside the divorce context, as referenced in Spurlock, supra. Accordingly, this Court has jurisdiction over this appeal because it is an alimony case.

        2. Appellant asserts the trial court erred in including in its child support calculations certain nonspecific deviations from the statutory presumptive child support amount that would otherwise apply in this case and in failing to consider the effect of boarding school living expenses upon the allocation of child support between the parties for the older child who was enrolled at boarding school. The record reflects both parties were career commissioned officers in the United States Air Force whose military duties often required them to be geographically separated. At the time Appellant filed this proceeding in 2011, two different divorce proceedings were pending in two other states. Also at the time this proceeding was filed, the parties had enrolled their older, then 16–year–old, daughter in a boarding school in New Jersey and the younger, then seven-year-old, daughter was living with Appellant in Georgia and enrolled in a private day school. Appellee had retired from the military and was a resident of Alaska. The trial court awarded joint legal custody of both children, awarded primary physical custody of the older child to Appellee, in accordance with that child’s stated preference, and awarded primary physical custody of the younger child to Appellant pursuant to a finding that such an arrangement was in the best interest of the child.

        As required by OCGA § 19–6–15( l ) for split parenting arrangements, the trial court prepared a child support worksheet for each child but it appears to be undisputed that the worksheets were not provided to the parties or their attorneys until the day following the hearing on this matter and that the court invited each party to review the worksheets in advance of entry of the final award. Each worksheet reflects that Appellant’s income is 42.22% of the parties’ combined income and that Appellee’s income is 57.78% of the combined income. Tuition, room, and board for the older child’s boarding school was shown on the worksheet to be approximately $44,000 per year (although documentary evidence presented at the hearing reflects that, after credit for a tuition grant, the charges totaled $41,770) and, at the hearing, the judge announced Appellant would be required to pay half, but in any case, no less than $22,000 per year, “toward tuition and living expenses” but no other child support for the older child under the child support guidelines. The judge also announced at the hearing that Appellee would not be required to pay any tuition for the younger child, which was shown to be $5,400 (although evidence was presented showing the actual tuition was $4,200 after application of a tuition deduction) and Appellee’s zero dollar responsibility for the extraordinary educational expenses of the younger child is reflected on that child’s child support worksheet. Both worksheets provide nonspecific deviations by which the trial court apparently intended to “zero out” the remaining child support obligations of the parties such that Appellant would pay Appellee no additional child support with respect to the older child in his custody and Appellee would pay Appellant no child support with respect to the younger child in her custody. The final order, however, states that each party shall share equal financial responsibility for the private school tuition of each child with Appellee to pay no less than $22,000 for the older child’s tuition and Appellee to pay half of the younger child’s tuition. Appellant acknowledges she agreed to pay half of the older child’s boarding school tuition but she sought “guideline child support” for the younger child, including that child’s private school expenses. Before the final order was entered, Appellant submitted alternative worksheets for the court’s consideration and filed a motion for reconsideration of the ruling announced at the conclusion of the hearing. She argued that if the award were entered pursuant to the worksheets the court prepared and submitted to the parties for review after the hearing, the award would place a significantly heavier burden upon Appellant in her obligations to support both children, would provide a windfall to the Appellee, and would deny the younger child of the support that should be paid by Appellee. The motion was denied and the court entered the final order.

        In her first enumeration of error, Appellant asserts the trial court abused its discretion by granting a $1,503.05 nonspecific deviation in favor of Appellee with respect to his child support obligation to the younger child, thus bringing his support obligation to zero, when that deviation does not serve the best interest of that child. The Final Order of Custody and Child Support provides that neither party shall owe child support to the other and incorporates by reference the child support worksheet for each child. OCGA § 19–6–15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19–6–15(i), are to be set out in Schedule E of the worksheet. OCGA § 19–6–15(b)(8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of child support that would have been required if no deviation had been applied, how the application of the presumptive amount of child support would be unjust or inappropriate considering the relative ability of each parent to provide support, and how the best interest of the child who is the subject of the child support determination is served by a deviation from the presumptive amount. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). In justifying the special deviation applied to the younger child in this case, the judge responded to special interrogatories on Line 14 of Schedule E of the child support worksheet as follows:

        (B) Would the presumptive amount be unjust or inappropriate? Explain. [Answer:] Yes; [Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.

        (C) Would deviation serve the best interests of the children for whom support is being determined? Explain. [Answer:] Yes; will result in funds being available for travel and other expenses for both children.

        (D) Would deviation seriously impair the ability of the CUSTODIAL parent or NON–PARENT Custodian to maintain minimally adequate housing, food and clothing for the children being supported by the order and to provide other basic necessities? Explain. [Answer:] No; both parents have sufficient funds to provide for basic necessities.

In this case, the child support worksheet was incorporated into the final order and thus the order reflects the statutorily required findings to support the deviation. Compare Walls v. Walls, 291 Ga. 757(6), 732 S.E.2d 407 (2012) (reversing and remanding for redetermination of child support where the order recited that the reasons for deviations were set forth in Schedule E of the child support worksheet but the spaces for those findings were left blank). Appellant, however, asserts the nonspecific deviation is erroneous as a matter of law in several respects.

         This Court has held that qualitative determinations regarding deviation from the presumptive amount of child support “are committed to the discretion of the court or jury. Accordingly, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.” [293 Ga. 305]Black v. Black, 292 Ga. 691, 697(4)(a), 740 S.E.2d 613(2013) (citations and punctuation omitted). Among the disputes in Black was the court’s award of a deviation for visitation-related travel expenses to the non-custodial parent, which is enumerated as one of the permissible “Specific Deviations” in OCGA § 19–6–15(i)(2). This Court found that the trial court made sufficient findings that the deviation would leave the non-custodial parent with funds to cover interstate travel expenses for visitation with the children involved in the child support order, that the findings did not appear to be clearly erroneous, and thus the deviation could not be considered an abuse of discretion. Id.

        In this case, the court noted at the hearing the substantial visitation-related travel expenses for each child between Alaska and Georgia and the order requires each parent to bear that expense for the child not in that parent’s custody. Nevertheless, the child support worksheet for the younger child does not provide a specific deviation for travel expenses as permitted by OCGA § 19–6–15(b)(8)(F) and (i)(2)(F).4 Instead, one of the findings to justify the nonspecific deviation that effectively eliminated Appellee’s child support obligations to the younger child was that the deviation served the best interest of the “children for whom support is being determined” because it would “result in funds being available for travel and other expenses for both children.” Another of the findings to justify the nonspecific deviation in favor of Appellee was that the presumptive amount would be unjust or inappropriate because Appellee “is paying for expenses of older child … in addition to … half of her tuition.”

         Pursuant to OCGA § 19–6–165(i)(3), nonspecific deviations are those that “may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Relying upon this language, Appellant asserts that use of a nonspecific deviation is appropriate only when no specific deviation authorized by OCGA § 19–6–15(i)(2) reasonably applies. Pursuant to OCGA § 19–6–15(c)(1), the presumptive amount of child support provided by the Code section “may be increased or decreased according to the best interest of the child for whom support is being considered….” Relying upon this language, Appellant asserts the statute does not permit the granting of a deviation on the ground that it benefits and serves the best interest of a child other than the one who is the subject of the child support worksheet, even if that child is the sibling of the one entitled to support. Although separate worksheets are required for each child in [293 Ga. 306]a split parenting situation, the statute also requires the court to determine “other child support responsibilities for each parent.” See OCGA § 19–6–15( l )(5). Thus, we find no abuse of discretion in the trial court’s consideration of Appellee’s child support obligations to the older child in the child support award for the younger child. By noting Appellee’s obligation to pay expenses of the older child, including half of that child’s tuition, the trial court was obviously taking into consideration Appellee’s other child support obligations in determining what would be unjust or inappropriate for him to be required to pay in the way of support to the younger child. Although it appears to be the better practice not to include within nonspecific deviations factors that are set forth in the statutory list of specific deviations, we are not inclined to impose a hard-and-fast rule that factors such as significant visitation-related travel expenses cannot be considered as reasons for nonspecific deviations. This is particularly true where, as here, the child custody order involved a split parenting arrangement and a virtually identical justification for a nonspecific deviation was afforded Appellant, as the non-custodial parent of the older child. Likewise, we do not deem it to be an abuse of discretion for the trial court, in a split parenting arrangement, to offer reasons relating to child support obligations to a sibling in its findings of fact supporting nonspecific deviations.

         3. Appellant asserts the child support worksheets for both children contained erroneous facts, that the nonspecific deviations were thus erroneous, and that the worksheets, in any event, did not support the final order. The record supports this assertion of error. For example, the child support worksheets prepared by the court reflect, as noted above, overstatement of the private school tuition costs for each child.5 Both worksheets reflect yearly child care costs in the amount of $1,600 incurred by Appellant when no evidence was presented that Appellant incurred any child care costs for the older child and her domestic relations financial affidavit reflected total yearly child care costs in the amount of $1,480, presumably for the younger child who lived with her. Appellee’s financial affidavit reflected child care costs for non-school periods incurred by him, presumably primarily for the older child who lived with him when not in boarding school, in the total yearly amount of $3,000 but neither of the child support worksheets prepared by the court reflect any child care expenses were attributed to Appellee. The worksheets overstate the dental insurance premiums paid by the mother for each child because the total premium paid was entered on each child’s worksheet instead of one-half of the premium being attributable to each child. Finally, although the final order requires each party to pay half of each child’s private school tuition at the schools where they are currently enrolled (or, for Appellant, a minimum of $22,000 annually), the child support worksheet for the younger child reflects the entire amount of extraordinary educational expense is paid by Appellant and nothing is paid by Appellee. In sum, it appears that inaccurate factual data was plugged into the child support worksheets for the purpose of arriving at the pre-determined result the trial judge announced at the hearing—to “zero out” any child support obligations of the parties to each other.

         It is apparent from the hearing transcript that the trial court in this case attempted to accommodate the parties’ already established practice of devoting a significantly greater portion of the parents’ combined resources to pay for the education of the older child while also providing the younger child with private school education. The court went too far, however, in arriving at an expressed intent to award a zero dollar child support obligation and then fashioning the numbers to achieve that result. The guidelines set forth in OCGA § 19–6–15 provide a detailed scheme for determining the amount of child support to be awarded by the court and compliance with the statute’s terms is mandatory. See Stowell v. Huguenard, 288 Ga. 628, 706 S.E.2d 419 (2011). The intent of the guidelines is to have each parent contribute his or her pro rata share of child support unless deviations, as provided by law, are “supported by the required findings of fact and application of the best interest of the child standard.” OCGA § 19–6–15(b)(8). Here, it appears the trial court’s actions were comparable to making an award of child support outside the parameters of the child support worksheet in order to achieve a specific result, a practice that has been deemed reversible error. See Turner v. Turner, 285 Ga. 866, 684 S.E.2d 596 (2009)(reversing and remanding where, after calculating the amount of child support due from each parent, the order included a separate and special pro rata apportionment for the costs of extracurricular activities instead of including those expenses in the child support worksheet calculations); Johnson v. Ware, 313 Ga.App. 774, 723 S.E.2d 18 (2012) (reversing in part and remanding where the order included an award of tuition outside the overall calculation of child support). While the court in this case made the required findings to support the nonspecific deviations that were granted, they were seemingly result oriented and based on incorrect facts.

         Even though qualitative determinations of whether special circumstances exist to support deviations from the presumptive amount of child support are committed to the discretion of the court or jury (see Hamlin v. Ramey, 291 Ga.App. 222, 224–225(1), 661 S.E.2d 593 (2008)), quantitative calculations regarding the amount of the deviation require the child support worksheet to be populated with accurate facts and figures in order to determine the amount of the deviation. Once that amount is determined, the finder of fact must make findings and provide the reasons why the deviation is appropriate and in the best interest of the child. A deviation requires evidence that rebuts the presumptive amount of child support. See OCGA § 19–6–15(a)(10). As noted above, with respect to evidentiary issues, this court applies a clearly erroneous standard of review. Because the figures used in this case to “back out” the numbers to arrive at the pre-determined zero dollar child support obligation are unsupported by the evidence, we must reverse and remand the child support award. Upon remand, once factually accurate data is supplied to the child support worksheets to quantitatively support specific or nonspecific deviations, then the court, in its discretion, may make the required findings of fact, including how the best interest of the child who is the subject of the child support determination is served by the deviation, as required by OCGA § 9–6–15(c)(2)(E) and (i)(1) (B).

        In a separate enumeration of error Appellant asserts the court erred in failing to take into consideration the effect of the tuition discounts in its grant of deviations for extraordinary educational expenses, as required by OCGA § 19–6–15(i)(2)(J)(i)(I), and also erred in its order that Appellant pay half, but no less than $22,000, of these tuition expenses for the older child. Remand of the case for correction of factual inaccuracies in the child support worksheets serves to address this enumeration of error.

         4. Appellant asserts the trial court erred in failing to consider what she refers to as the “windfall” benefit to Appellee by requiring Appellant to pay half of the total costs of the older child’s education expenses, including boarding expenses, thus relieving Appellee of a portion of the cost of that child’s support. The order requires Appellant to pay no less than $22,000 annually for the older child’s private school tuition. It also requires Appellee to pay an amount equal to half of the younger child’s private day school tuition. Otherwise, the order states that “[n]either party shall pay child support to the other.” Nevertheless, the transcript of the hearing reflects the court acknowledged and intended the $22,000 payment to include living expenses. Private school or college boarding expenses include costs, such as food and lodging, which are by definition part of general child support. See Taylor v. Taylor, 228 Ga. 173(3), 184 S.E.2d 471 (1971) (holding it was error for the court to award board as part of the higher education expenses to be paid in addition to monthly support payments as this would necessarily include an amount for food and lodging and thus result in double payment of support); see also Marshall v. Marshall, 247 Ga. 598(3), 277 S.E.2d 662 (1981) (in a contempt proceeding, trial court did not err in interpreting an ambiguity in the child support decree so as not to require both child support and boarding expenses); Jenkins v. Jenkins, 233 Ga. 902(3), 214 S.E.2d 368 (1975) (child support award did not amount to a double payment of child support when the decree specifically stated college expenses were to be paid “in addition to” the payment for general support). Further, the evidence shows the parties agreed to pay half of each child’s private school tuition and no distinction was made between pure tuition costs and boarding costs. Also, the findings set forth in the child support worksheets demonstrate that the trial court recognized the older child’s boarding expenses were a part of and in addition to her total yearly living expenses.

        One of the justifications and findings in support of granting the nonspecific deviation in favor of Appellee for the younger child was the finding that the presumptive amount (which would result in Appellee paying over $400 monthly in child support to Appellant) would be unjust or inappropriate because “[Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.” The corresponding finding in support of granting a nonspecific deviation in favor of Appellant for the older child was the finding that the presumptive amount would be unjust or inappropriate because “[Appellant non-custodial parent] is paying tuition for younger child.” Of course, Appellant is also paying expenses in addition to tuition for the younger child, since the final order eliminated Appellee’s child support obligations to that child except for half of tuition (even though that amount was not reflected in the child support worksheet), but that factor was not noted in the findings. In addition, though not noted on the child support worksheet, Appellant is paying for a portion of the older child’s general support since she is paying half her boarding fees. The issue of whether the final award, in effect, improperly fails to consider the benefit that accrues to Appellee as a result of requiring Appellant to pay what amounts to child support for that portion of the older child’s general support incurred during the months she lives at boarding school further illustrates the deficiencies in the child support worksheets that the court prepared in this case. As noted, the facts appear to have been fashioned in a manner to arrive at an order that appears to have been pre-determined by the trial court. Appellant complains that this results in the parent earning just over 42% of the parties’ combined income is required to bear over 58% of the total child support expenses for the two children. We do not hold that such an apportionment is erroneous as a matter of law. In fact, deviations may be awarded when the presumptive amount would be unjust or inappropriate considering the relative ability of each parent and in order to arrive at a child support determination that is in the best interest of the child. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). The deviations must be based, however, on accurate facts to guide the calculations set out in the child support guidelines and worksheet and, as set forth above, that does not appear to have occurred in this case.

        Moreover, the deviations must be in the best interest of the child. Appellant shows that the younger child in this case is adversely impacted by the trial court’s decision not to require Appellee to contribute to that child’s support beyond paying half her tuition, whereas Appellant is effectively paying for half of the older child’s general support, in addition to half of her tuition, during the school year, thus leaving Appellant with fewer resources to support the younger child. That consideration is not reflected in either child support worksheet. The benefit that accrues to Appellee for this contribution to the older child’s general support is also not reflected in the worksheets. At the hearing, the trial court noted that these parents have elected to spend a greater portion of their combined resources on the higher education of the older child. This election, however, does not appear to justify the judge’s apparently pre-determined decision to relieve Appellee of any duty to support the younger child beyond paying half of her tuition. The cumulative effect of these material inaccuracies and inconsistencies requires us to find the court abused its discretion in arriving at the final order of child support in this case. Upon remand, the trial court is directed to apply accurate facts and figures to the case so the calculations of the child support worksheets are accurate and any deviations granted are properly supported by findings based upon these facts.

        5. Finally, the court erred by finding in its final order that “the parties have agreed and determined that deviations from [the presumptive child support amounts reflected on the child support worksheets] are appropriate as shown on the Worksheets.” The transcript and record reflect that the parties did not submit child support worksheets that had been jointly agreed upon, that the court prepared the worksheets that were incorporated into the final order, and that once those had been provided to the parties subsequent to the hearing at which the court announced its ruling, Appellant objected to the worksheets and the proposed order. Prior to the entry of the final order, Appellant filed a motion for reconsideration to which she attached proposed alternative worksheets for each child. Although the motion was denied, its filing shows that the parties did not agree to the deviations set forth in the final order. Thus, that finding in the final order is reversed. Upon remand, the trial court is required to enter a new final order revised in accordance with this opinion and based upon newly prepared child support worksheets.

        Judgment affirmed in part and reversed in part, and case remanded with direction.

All the Justices concur.

——–

Notes:

        1. Appellant initially filed her petition in the Superior Court of Houston County under the Uniform Child Custody Jurisdiction and Enforcement Act and, after the trial court ruled it had jurisdiction, she amended her petition asking the trial court also to enter a child support order under UIFSA.

        2. As more fully set forth below, the younger child lived with Appellant/Mother in Georgia. The older child lived with Appellee/Father in Alaska.

        3. The petition in O’Quinn was brought under the Uniform Reciprocal Enforcement of Support Act, which was replaced, with respect to proceedings filed on or after January 1, 1998, by the Uniform Interstate Family Support Act (Georgia Code Title 19, Ch. 11, Art. 3). See OCGA § 9–11–40.1.

        4. Neither does the worksheet for the older child.

        5. Appellee acknowledges the final order should be amended to correct this factual error.

Feb 8 15

Sovereign Immunity and the Georgia Sex Offender Registry

by merlin

Though personal and domestic matters have held the lion’s share of my attention lately (transitioning to a home office, which requires installing new flooring in the house first, is taking far longer than it ever should have), a significant portion of my attention continues to be taken by the circumstances surrounding the Georgia Sex Offender Registry.  Specifically, I wondered how it might be approached in a civil f0rum, and the question arose whether the doctrine of sovereign immunity might shield the State from liability for the harm that the Registry can cause.

While there is no case directly on point with regard to this issue, analogous situations have arisen.  The most recent such similar issue that my research uncovered involved a former agency supervisor bringing suit against the governing board for intentional infliction of emotional distress, which relief was granted in a jury trial but then reversed by the Court of Appeals.  The case, Board of Public Safety v. Jordan, 252 Ga. App. 577, 556 S.E.2d 837 (2001), describes how that legal tool would probably work in regards to the Registry, and may provide a roadmap to navigating that murky area of law.

Thurbert E. Baker, Atty. Gen., Kathleen M. Pacious, Deputy Atty. Gen., John C. Jones, Senior Asst. Atty. Gen., Gray, Hedrick & Edenfield, Bruce M. Edenfield, Atlanta, Evan R. Mermelstein, for appellant.

Weinstock & Scavo, Michael Weinstock, Richard J. Capriola, Atlanta, Jet Harris, Athens, for appellee.

BLACKBURN, Chief Judge.

Under the auspices of OCGA § 47-2-2, the Georgia Board of Public Safety (“Board”) terminated Bennett A. Jordan’s employment as Superintendent of the Georgia Police Academy. Following his discharge, Jordan sued the Board and other defendants, asserting multiple claims and amending his initial complaint five times.1 Ultimately, the sole issue remaining for trial was Jordan’s claim for intentional infliction of emotional distress. The jury found against the Board and awarded Jordan 1.8 million in compensatory damages and 360,000 in attorney fees which was reduced to the statutory limit of 1 million.

In this appeal, the Board contends that (1) sovereign immunity bars Jordan’s claim, (2) Jordan should have been collaterally estopped from injecting evidence of a Board “pretext” for termination at trial, (3) the facts presented failed to support Jordan’s claim, and that the trial court erred by (4) allowing the admission of character evidence, (5) failing to bifurcate the trial, (6) restricting the Board from tendering the hearing officer’s recommendation to terminate Jordan to the jury, (7) failing to admit testimony from Board members, and (8) refusing to give three specific charges to the jury. After review, we reverse.

As a merit system employee in a classified position, Jordan could be terminated only upon a “for cause” finding pursuant to OCGA § 47-2-2. Subsection (d) of the Employees’ Retirement System of Georgia (“ERS”) Code lists the following grounds for termination for cause:

An employee may be discharged from employment pursuant to the requirements of this Code section for insubordination, irresponsible performance of duties, malingering, neglect of duty, or unsatisfactory performance of duties in a willful manner or for any combination of such reasons. Any employee so discharged from employment shall not be entitled to and shall not receive a retirement benefit based on involuntary separation from employment without prejudice pursuant to Code Section 47-2-123.

OCGA § 47-2-2(d). The ERS Code specifically defines each ground, including the two pertinent here: “[i]rresponsible performance of dut[ies]” and “neglect of duties.” OCGA § 47-2-2(c)(5), (7). When discharge is under consideration, the State employer must transmit a written notice to the employee in the format specified by subsection (g). See OCGA § 47-2-2(g). An employee’s service may end by “involuntary separation from employment without prejudice,” or ” involuntary separation from employment with prejudice.” OCGA § 47-2-2(a).

In early October 1991, the Board sent two state troopers to Jordan’s house to serve Jordan with formal notice of the proposed termination and the right to a hearing. In the letter, the Board formally apprised Jordan of eight charges, most of which pertained to Jordan’s failure to reduce expenditures during a state-wide budgetary crisis and his failure to disclose certain information to the Board. The Board subsequently sent two amended notices to Jordan. More than two months after the initial notice, on December 11, 1991, presiding officer Melvin M. Goldstein conducted an administrative hearing on the eight charges pending against Jordan. At the hearing, the State sought to prove that Jordan “had been fiscally irresponsible” and “deceptive” in providing or failing to provide certain information to members of the Board. In his opening statement, Jordan’s counsel disputed the validity of the charges and argued, “This is a case that has an underlying motive that’s going to have to be explored in this matter and has really two levels of motive.” Jordan’s attorney claimed that the Board was “attempting to terminate Mr. Jordan as part of a reorganization of the Georgia Police Academy, the Georgia Fire Academy and the Georgia Public Safety Training Center.” He argued that the Board did not want to give him his rights and privileges as a merit system employee and that the Board wanted to prevent him from obtaining involuntary separation benefits and submitting his case to the Merit System Board.

The Board offered evidence showing that despite an ongoing severe budget crisis, Jordan went on trips to Unicoi State Park and Jekyll Island costing 5,000 and over 17,000 respectively. Vice Chairman of the Board, Robert E. Wilson, testified that the Board had oversight responsibility for the Department of Public Safety, the Georgia Bureau of Investigation, the Police Academy, the Fire Academy, and the Georgia Public Safety Training Center. According to Wilson, while there was a proposed plan to create a “supercop” to oversee all these agencies, Jordan’s position would not be eliminated, but the hierarchy would change and he would have reported to an intermediary and not directly to the Board. Under the reorganization plan, Wilson explained that the Police Academy would form an operational division of the Public Safety Training Center. Wilson described political in-fighting as a continuing problem between the Police Academy and the other agencies. Wilson also detailed instances in which he felt that Jordan had not been completely forthright with members of the Board. Wilson testified that it was his conclusion that Jordan’s Jekyll Island trip was “a boondoggle,” “a defiant act toward the Governor,” and “an attempt by Mr. Jordan to have a nice outing, one in the mountains for in the fall, and one at the beach in the summer for chiefs and sheriffs that he could get to attend to keep his political wheels greased.” According to Wilson, Jordan admitted having used bad judgment. Wilson testified that Jordan refused to retire and “insisted that we fire him” because “he wanted involuntary separation” benefits. The administrative hearing consumed three days.

The hearing officer, Goldstein, submitted a lengthy decision to the Board in which he recommended Jordan’s termination for cause. In a 25 page decision, that included comprehensive factual findings as well as legal conclusions, the hearing officer found that: Jordan had misled the Board with respect to the use of certain computer equipment; Jordan’s participation in unnecessary seminars was fiscally irresponsible; Jordan had been untruthful regarding the cancellation of one seminar; Jordan’s decision to proceed with a staff retreat was fiscally irresponsible; and Jordan had been untruthful about his awareness of the general budget crisis in state government. The hearing officer recommended Jordan’s employment be terminated pursuant to OCGA § 47-2-2(c)(5)(D) for “irresponsible performance of duties” and under OCGA § 47-2-2(c)(7) for “neglect of duty.” The Board adopted the hearing officer’s recommendation, and Jordan’s employment ceased effective February 5, 1992.

For reasons not made clear by the record, Jordan did not avail himself of his right to judicial review of the Board’s decision as provided in OCGA § 47-2-3. Acting without a jury, a superior court is empowered to reverse or modify the decision of the employer,

if substantial rights of the employee have been prejudiced because the administrative findings, inferences, conclusions, or decision of the employer were: (1) In violation of constitutional or statutory provisions; (2) In excess of statutory authority of the employer; (3) Affected by other error of law; (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 47-2-3(f). Although judicial review is normally confined to the record, “[i]n cases of alleged irregularities in procedure before the employer, not shown in the record, proof thereon may be taken in the court,” and the superior court, “upon request, shall hear oral argument and receive written briefs.” OCGA § 47-2-3(e).

Instead of exercising his statutory right to appeal the Board’s decision, Jordan waited nearly two years after his discharge to file a multi-count lawsuit which included a claim for intentional infliction of emotional distress. The gravamen of Jordan’s suit was that his rights were abrogated and his reputation sullied when he was wrongfully discharged and that he suffered great emotional harm as a consequence. In a claim for intentional infliction of emotional distress, Jordan specifically alleged that “[the] reprimands, suspensions and ultimate termination of Plaintiff’s employment as the Superintendent of the Georgia Police Academy have caused Plaintiff to suffer and to continue to suffer severe emotional anguish, humiliation, distress and embarrassment.” The Board moved to dismiss Jordan’s case, in part relying upon the doctrine of sovereign immunity. The trial court denied the motion, and the case proceeded to trial.

Eventually the legal issues were narrowed and confined to the parameters of a consolidated pre-trial order. The gist of Jordan’s case as outlined in the PTO was that the Board desired to reorganize and restructure certain public safety organizations and wanted to eliminate certain positions including his superintendent position. According to Jordan’s theory of the case:

[t]he “Super Chief” bill, as it was referred to, would have consolidated all state law enforcement training agencies under one umbrella agency with one agency director. The proposed legislative reorganization plan would have eliminated the Superintendent positions for both the Police Academy and the Fire Academy. The “Super Chief” bill failed to pass the legislature.

According to Jordan’s theory of his case, he was removed from his job and became a “target” because he presented an obstacle to the reorganization plan. By his theory,

[t]he evidence in this case shows that when the “Super Chief” bill failed to pass the legislature, Defendant—knowing elimination of Jordan was essential—began the malicious process of terminating Jordan. Defendant asserted pretextual allegations not of a kind or nature normally relevant to O.C.G.A. § 47-2-2. Ultimately, Jordan was terminated pursuant to O.C.G.A. § 47-2-2 with prejudice based upon Defendant’s pretextual allegations.

By his theory, the Board

in its zeal to accomplish its objective[] engaged in conduct that exceeded the bounds of decency and committed acts that are intolerable in a civilized community, causing Jordan to experience severe emotional anguish, humiliation, distress and embarrassment. Defendant’s conduct was willful, intentional and carried out with utter disregard of Jordan’s rights and the laws governing their conduct.

At trial, Jordan presented evidence to show that the Board “set in motion the malicious process of fabricating `cause’ to justify his termination” in order to facilitate a reorganization plan, thereby causing him to suffer emotional distress. As part of the “malicious process,” Jordan testified that a television news reporter had been tipped off about a seminar that he attended at Unicoi State Park during the budget crisis. Jordan testified that the reporter told him that Board Vice Chairman Wilson was quite upset that he attended the seminar, and the reporter aired a segment on television indicating that Jordan had misused state funds. Jordan testified that he had been “set up” so he could be discredited.

Jordan testified that at an October 1, 1991 meeting with Wilson, then the Vice Chairman of the Board, Wilson mentioned that the Board was “talking about terminating” him. According to Jordan, Wilson warned that the Board could “make it hard or easy” and that he should voluntarily resign. Jordan testified that when he refused to resign, Wilson threatened that he would “write [Jordan’s] termination in a way to protect the Governor…. This will become a permanent record. We will dig things up if necessary…. We must make it legal with [the] reorganization plan.” At a Board meeting, Wilson stated words to the effect that it would strengthen the Board’s position legally, “if everybody bellied up to the bar, signed the [termination] letter, and that we would hang alone or hang together, but there is less chance of hanging if we all join in.” After his discharge became final, Jordan testified that he learned that his record contained notice that he had been permanently disqualified from future merit system employment, although according to Jordan, no statutory authority for such action existed.2

Jordan offered testimony to show that an employee’s complete employment history was usually a “material” consideration when determining disciplinary actions. Jordan testified that he had not received any prior notification of any job performance deficiency from the Board and that he was never provided an opportunity to correct any claimed deficiency. One witness testified that the statute upon which Jordan was terminated was usually reserved for “alcoholics, criminals, malingerers, those who use state property for personal use or gain and excessive absenteeism,” and that the statute had been used on fewer than five occasions in eight years. Moreover, other employees who committed the same acts upon which Jordan was terminated were not similarly disciplined. Jordan testified that because he had been terminated under OCGA § 47-2-2, instead of under the merit system provisions, he was denied involuntary separation retirement benefits. Jordan testified that his termination was widely publicized in the news media. The jury entered a verdict for Jordan in the amount of 1.8 million in compensatory damages for intentional infliction of emotional distress and 360,000 in attorney fees, which was reduced to the statutory maximum of 1 million.

1. We review the trial court’s denial of the Board’s motion to dismiss on sovereign immunity grounds de novo. See Cobb County v. Jones Group, P.L.C.3

“Under the Georgia Constitution, sovereign immunity extends to the state and all of its departments and agencies. This immunity may be waived only by a legislative act which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” (Punctuation and footnotes omitted.) Dept. of Veterans Svcs. v. Robinson.4 The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., provides a limited waiver of sovereign immunity for torts committed by State employees acting within the scope of their employment. Rhoden v. Dept. of Public Safety;5 McLemore v. City Council of Augusta.6 But there are exceptions to the limited waiver. Under OCGA § 50-21-24, the State remains immune for “losses” resulting from performance of a discretionary function or from slander and libel.

To determine whether these exceptions protect the Board’s sovereign immunity, we focus upon the conduct which actually produced Jordan’s “losses,” his severe emotional distress and loss of reputation. See Youngblood v. Gwinnett Rockdale & c. Svc. Bd.;7 Ga. Military College v. Santamorena;8 Dept. of Human Resources v. Hutchinson.9 If the Board’s conduct that caused Jordan’s emotional distress was based on its policy judgment or if the Board’s acts were slanderous or libelous, then the Board was protected by immunity. See OCGA § 50-21-22(2).

We find that the conduct at issue either involved slander, libel, or discretionary acts of the Board. Under OCGA § 51-5-4(a)(3), a party slanders or orally defames by “[m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” OCGA § 51-5-1(a) defines libel as “a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to public hatred, contempt, or ridicule.” Jordan’s allegations concerning the Board’s purported statements to the media that Jordan was engaged in extravagant seminars and was misusing funds constitute slander as defined under the statute. Even assuming arguendo that Jordan’s employment record contained a malicious and false notation permanently disqualifying him from future merit system employment, and further assuming arguendo that such writing constituted libel, no liability attached.10 See OCGA § 50-21-24(7).

We find that the remaining Board actions were within the ambit of the Board’s discretion inherent to the exercise of its administrative functions. See OCGA § 50-21-24(5). OCGA § 50-21-24(2) allows the government to retain its immunity for discretionary acts, whether or not that discretion is abused. See Brantley v. Dept. of Human Resources.11 Discretionary acts involve “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22(2). The exception prevents “judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” (Punctuation omitted.) Brantley, supra at 682-683, 523 S.E.2d 571. “A discretionary act … calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Schulze v. DeKalb County.12

Apparently recognizing the preclusive effect of the factual findings entered by the hearing officer and ratified by the Board, Jordan claims that he is not contesting his discharge but the manner in which it occurred. As stated in the response to the Board’s reply brief, “Jordan’s claim does not challenge an employment decision by the Board; the discretionary decision-making process is not the issue in Jordan’s case. Rather Jordan’s claim rests upon the Board’s conduct in carrying out that termination.” Somewhat incongruously, Jordan asserts that he did not base his intentional infliction of emotional distress claim upon the decision to terminate him but that the manner in which the Board effected his termination caused his distress.

Here, there can be no doubt that the Board’s actions in effectuating Jordan’s termination were grounded in social, economic, or political goals or a combination thereof.13 The manner in which the Board effected Jordan’s termination was wholly a matter of choice by the Board. Jordan offered no evidence showing that the Board’s decision did not fully comply with the provisions of OCGA § 47-2-2. Nor has he pointed to any specific rule or regulation directing the Board to follow any particular procedure in effecting the minor details of his termination. Even assuming arguendo that the Board was attempting to follow what it perceived were the Governor’s guidelines for reorganizing the public safety agencies, no specific instructions were provided to the Board regarding how to effect the reorganization, i.e., utilizing “for cause” provisions of OCGA § 47-2-2, serving notice and retrieving his automobile from his house at 9:00 p.m., trying to get the support of the entire Board so they could “all hang” together, failing to similarly discipline others that committed the same acts as Jordan, and failing to give Jordan the chance to cure his alleged deficiencies. Thus, the Board’s actions were discretionary in nature and protected, even if the Board could be said to have abused its discretion. OCGA § 50-21-24(2). See Brantley, supra; Rowe v. State Bd. of Pardons & Parole.14

In so holding, we note that

[n]othing we have said goes to the wisdom of refusing to waive sovereign immunity in circumstances such as those in this case. Sovereign immunity is a harsh doctrine, not an equitable one. Indeed, it is just the opposite of equity—it is the state declaring that it cannot be sued even where it would otherwise be liable…. Our job is to read the statute, not to rewrite it to conform to an equitable result.

Dept. of Human Resources v. Coley15 (physical precedent only).

2. The Board contends that the trial court erred by failing to direct a verdict on Jordan’s claim for intentional infliction of emotional distress. The Board argues that since it acted within its rights to terminate the employment for cause, then, as a matter of law, Jordan’s allegation that his termination was pretextual is insufficient to support a claim for intentional infliction of emotional distress.

To establish a claim for intentional infliction of emotional distress requires evidence of four essential elements: (1) the conduct must be intentional or reckless; (2) the conduct must be extreme and outrageous; (3) the existence of a causal connection between the wrongful conduct and the emotional distress; and (4) the emotional distress must be severe. Jarrard v. United Parcel Svc.16 “Liability for intentional infliction of emotional distress has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Punctuation omitted.) Biven Software v. Newman.17

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been extreme and outrageous.

(Punctuation omitted). Jarrard, supra at 61, 529 S.E.2d 144. The issue of whether the conduct at issue rises to the requisite level of outrageousness is a question of law for the trial court. Johnson v. Savannah College of Art &c.18 When the acts of an employer, even when proven, are not sufficiently outrageous and egregious to constitute intentional infliction of emotional distress, the employer is entitled to judgment as a matter of law. See Fox v. Ravinia Club.19 For this reason, even if Jordan’s claim for intentional infliction of emotional distress had not otherwise been foreclosed by the doctrine of sovereign immunity, reversal would be warranted on this basis. See Odem v. Pace Academy.20

3. In light of the above, we need not address the Board’s remaining enumerations of error, including its collateral estoppel argument. See Swain v. State.21 We note that while Jordan claims that the administrative hearing was inherently “unfair” and that he did not have an opportunity to argue “pretext,” the transcript of that hearing and a contrary finding by the trial court belie those assertions.

The trial court explicitly decided that the findings of fact made by the hearing officer and adopted by the Board were “binding and conclusive because there was a full and fair opportunity to litigate those matters.” The trial court continued, “Having said that, I consider those findings of fact to be the equivalent of what would be an evidentiary stipulation.” Moreover, the transcript of the administrative hearing is replete with testimony as well as argument about the impact of the Williams Commission Report that studied governmental effectiveness and economy and the prospect of pending reorganizing and restructuring the public safety agencies. In any event, it is undisputed that Jordan failed to avail himself of the opportunity under OCGA § 47-2-3 for independent judicial review of the Board’s decision to discharge him from the position of Superintendent of the Police Academy. Nor did Jordan appeal the findings of fact adopted by the Board that his discharge was for cause.

Judgment reversed.

POPE, P.J., and MIKELL, J., concur.

——–

Notes:

        1. Jordan also asserted claims under 42 USC § 1983, the Age Discrimination in Employment Act, 42 USC § 1988, as well as tortious interference with business opportunity, conspiracy to commit tortious and illegal conduct, and violation of his substantive due process rights based upon an alleged liberty interest in his reputation. These other claims were summarily adjudicated or dismissed and are not at issue in this appeal.

2. A letter from the Commissioner of the State Merit System indicates that Jordan was disqualified only from reemployment by the Department of Public Safety. The letter states, “NOT ELIGIBLE FOR REHIRE IN TERMINATING DEPARTMENT.” Jordan testified that the disqualifying language was later removed.

3. Cobb County v. Jones Group, P.L.C., 218 Ga. App. 149, 153, 460 S.E.2d 516 (1995).

4. Dept. of Veterans Svcs. v. Robinson, 244 Ga. App. 878, 879, 536 S.E.2d 617 (2000).

5. Rhoden v. Dept. of Public Safety, 221 Ga.App. 844, 845(1), 473 S.E.2d 537 (1996).

6. McLemore v. City Council of Augusta, 212 Ga. App. 862, 864(2), 443 S.E.2d 505 (1994).

7. Youngblood v. Gwinnett Rockdale & c. Svc. Bd., 273 Ga. 715, 717(3), 545 S.E.2d 875 (2001).

8. Ga. Military College v. Santamorena, 237 Ga. App. 58, 60(1), 514 S.E.2d 82 (1999).

9. Dept. of Human Resources v. Hutchinson, 217 Ga.App. 70, 71-72(1), 456 S.E.2d 642 (1995).

10. Jordan also claims that he should have been able to argue at trial that the Board made “false” statements concerning his job performance and that such conduct caused him distress.

11. Brantley v. Dept. of Human Resources, 271 Ga. 679, 680, 523 S.E.2d 571 (1999).

12. Schulze v. DeKalb County, 230 Ga.App. 305, 308(2), 496 S.E.2d 273 (1998).

13. Federal courts interpreting the very similar Federal Tort Claims Act have found that employment decisions, in particular, involve discretionary acts, since they “require consideration of numerous factors, including budgetary constraints, public perception, economic conditions, individual backgrounds, office diversity, experience and employer intuition.” (Punctuation omitted.) Beebe v. Wash. Metro. Area Transit Auth., 129 F.3d 1283, 1287 (III) (D.C.Cir.1997); see also Richman v. Straley, 48 F.3d 1139, 1146-1147 (III) (10th Cir.1995) (“Decisions regarding employment and termination are inherently discretionary, especially where, as here, the relevant statutes provide no guidance or restrictions. [Cit.] Such sensitive decisions are precisely the types of administrative action the discretionary function exception seeks to shield from judicial second-guessing.”).

14. Rowe v. State Bd. of Pardons & Parole, 240 Ga.App. 163, 164, 523 S.E.2d 40 (1999) (supervision of employee requires exercise of discretion).

15. Dept. of Human Resources v. Coley, 247 Ga. App. 392, 398-399(3), 544 S.E.2d 165 (2000).

16. Jarrard v. United Parcel Svc., 242 Ga.App. 58, 59, 529 S.E.2d 144 (2000).

17. Biven Software v. Newman, 222 Ga.App. 112, 113 114(1), 473 S.E.2d 527 (1996).

18. Johnson v. Savannah College of Art &c., 218 Ga.App. 66, 67, 460 S.E.2d 308 (1995).

19. Fox v. Ravinia Club, 202 Ga.App. 260, 262, 414 S.E.2d 243 (1991).

20. Odem v. Pace Academy, 235 Ga.App. 648, 655, 510 S.E.2d 326 (1998).

21. Swain v. State, 251 Ga.App. 110, 552 S.E.2d 880 (2001).

——–

Feb 2 15

Banishment as a Tool in the Judge’s Arsenal

by merlin

Recently, a reader talked about their encounter with the judicial punishment of banishment.  They were astonished that such a thing is legal, and also wondered why it isn’t done uniformly in every criminal case that involves definite victims and definite perpetrators.  I informed them that the act is perfectly legal (technically, to be Constitutional, there must be at least one State in Georgia that the person is not banished from), and that there is authority for the act being done, but that it is a very severe sanction since it applies to so many aspects of a person’s life.  The case below is Parkerson v. State, found at 156 Ga.App. 440 , 274 S.E.2d 799.  It is concerned with the power of the Court over other persons beyond the accused for whom it is deciding the sentence, providing insight into just why a Court can’t simply banish a person convicted of a crime from the State altogether.  It was decided in 1980, and it provides a good discussion of banishment as a tool available to a judge in crafting an offender’s sentence:

____________________________________________________

        Alva J. Hopkins, III, Folkston, for appellant.

        Dewey Hayes, Dist. Atty., Willis Blacknall, Asst. Dist. Atty., for appellee.

        SOGNIER, Judge.

        Appellant was convicted of aggravated assault and received a sentence of 10 years confinement to be served on probation. The trial court ordered as special conditions of probation that: “Defendant is to remove himself and his wife immediately from the Waycross Judicial Circuit, particularly Charlton County and specifically from where he is now living. Defendant is further ordered to stay out of the Waycross Judicial Circuit during his entire probation period.”

        Appellant’s sole enumeration of error is that the trial court erred in ordering as a special condition of probation that appellant remove his wife from the Waycross Judicial Circuit. We agree.

        Code Ann. § 27-2709 gives jurisdiction to the trial court to determine the question of probation of a defendant who has been found guilty of a criminal offense; Code Ann. § 27-2711 permits the court to determine the terms and conditions of probation, and lists 10 conditions of probation. It is well settled that the conditions enumerated in that section are not exclusive, but the trial court may impose other requirements not specifically listed therein. Wood v. State, 150 Ga.App. 582, 583, 258 S.E.2d 171 (1979); Gay v. State, 101 Ga.App. 225, 113 S.E.2d 223 (1960). Banishment of one convicted of a crime from a county or counties has been held to be a reasonable condition of probation. State v. Collett, 232 Ga. 668, 208 S.E.2d 472 (1974).

        We know of no statute or other authority, however, which grants jurisdiction to the trial court to banish a person other than the convicted criminal as a condition of his probation. Not only would such a condition unreasonably restrict an innocent party’s freedom to travel, but it imposes a condition on the probationer over which he has no control. Such a condition, banishing appellant’s wife from the Waycross Judicial Circuit is, therefore, invalid and unenforceable.

        Judgment affirmed with direction that the above condition, relating to the wife only, be deleted from the trial court’s order of probation.

        DEEN, C. J., and BIRDSONG, J., concur.

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.