On a regular basis, people, vehicles, and homes are searched by law enforcement personnel both with and without warrants. If an officer conducting a search observes something that is unlawful (for example, a controlled substance that is apparent to the officer as being such), then it is subject to an exception to the general requirement for seizure of “articulable suspicion” and becomes a matter of “probable cause” (for arrest) because the contraband, or evidence of unlawful activity, is in “plain view”.
The following case, Arizona v. Hicks, 480 U.S. 321 (1987), holds that the illegal nature of an object must be “immediately apparent”. In other words, if law enforcement has to actively manipulate the environment beyond what they might be required to do to achieve their goal (exigent circumstances requiring that weapons be secured and located, in this famous case), then the fruit of that search must be suppressed. The Court spoke about it being impermissible to keep expanding the scope of the search until something incriminating was revealed. This case is also notable, though, for the individual Justice’s opinions, where Justice O’Connor speaks about the problem with this decision because it removes a “valuable tool” used by law enforcement.
A general search may be a “valuable tool”, but the Fourth Amendment to the document that establishes and guides the entire American way of life does not permit the government to exercise such a high degree of control over its citizens’ lives:
A bullet fired through the floor of respondent’s apartment injured a man on the floor below. Police entered the apartment to search for the shooter, for other victims, and for weapons, and there seized three weapons and discovered a stocking-cap mask. While there, one of the policemen noticed two sets of expensive stereo components and, suspecting that they were stolen, read and recorded their serial numbers—moving some of them, including a turntable, to do so—and phoned in the numbers to headquarters. Upon learning that the turntable had been taken in an armed robbery, he seized it immediately. Respondent was subsequently indicted for the robbery, but the state trial court granted his motion to suppress the evidence that had been seized, and the Arizona Court of Appeals affirmed. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, that a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” the Court of Appeals held that the policeman’s obtaining the serial numbers violated the Fourth Amendment because it was unrelated to the shooting, the exigent circumstance that justified the initial entry and search. Both state courts rejected the contention that the policeman’s actions were justified under the “plain view” doctrine.
Held:
1. The policeman’s actions come within the purview of the Fourth Amendment. The mere recording of the serial numbers did not constitute a “seizure” since it did not meaningfully interfere with respondent’s possessory interest in either the numbers or the stereo equipment. However, the moving of the equipment was a “search” separate and apart from the search that was the lawful objective of entering the apartment. The fact that the search uncovered nothing of great personal value to respondent is irrelevant. Pp. 324-325.
2. The “plain view” doctrine does not render the search “reasonable” under the Fourth Amendment. Pp. 325-329.
(a) The policeman’s action directed to the stereo equipment was not ipso facto unreasonable simply because it was unrelated to the justification for entering the apartment. That lack of relationship always exists when the “plain view” doctrine applies. In saying that a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” Mincey was simply addressing the scope of the primary search itself, and was not overruling the “plain view” doctrine by implication. Pp. 325-326.
(b) However, the search was invalid because, as the State concedes, the policeman had only a “reasonable suspicion”—i.e., less than probable cause to believe—that the stereo equipment was stolen. Probable cause is required to invoke the “plain view” doctrine as it applies to seizures. It would be illogical to hold that an object is seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for it if it had been known to be on the premises. Probable cause to believe the equipment was stolen was also necessary to support the search here, whether legal authority to move the equipment could be found only as the inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search objects in plain view. Pp. 326-328.
3. The policeman’s action cannot be upheld on the ground that it was not a “full-blown search” but was only a “cursory inspection” that could be justified by reasonable suspicion instead of probable cause. A truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. This Court is unwilling to create a subcategory of “cursory” searches under the Fourth Amendment. Pp. 328-329.
146 Ariz. 533, 707 P.2d 331, affirmed.
SCALIA, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. WHITE, J., filed a concurring opinion, post, p. —-. POWELL, J., filed a dissenting opinion, in which REHNQUIST, C.J., and O’CONNOR, J., joined, post, p. —-. O’CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and POWELL, J., joined, post, p. —-.
Linda Ann Akers, Phoenix, Ariz., for petitioner.
John William Rood, Phoenix, Ariz., for respondent.
Justice SCALIA delivered the opinion of the Court.
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we said that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. See id., at 465-471, 91 S.Ct. at 2037-2041 (plurality opinion); id., at 505-506, 91 S.Ct. at 2057-2058 (Black, J., concurring and dissenting); id., at 521-522, 91 S.Ct. at 2065-2066 (WHITE, J., concurring and dissenting). We granted certiorari, 475 U.S. 1107, 106 S.Ct. 1512, 89 L.Ed.2d 912 (1986), in the present case to decide whether this “plain view” doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband.
On April 18, 1984, a bullet was fired through the floor of respondent’s apartment, striking and injuring a man in the apartment below. Police officers arrived and entered respondent’s apartment to search for the shooter, for other victims, and for weapons. They found and seized three weapons, including a sawed-off rifle, and in the course of their search also discovered a stocking-cap mask.
One of the policemen, Officer Nelson, noticed two sets of expensive stereo components, which seemed out of place in the squalid and otherwise ill-appointed four-room apartment. Suspecting that they were stolen, he read and recorded their serial numbers—moving some of the components, including a Bang and Olufsen turntable, in order to do so—which he then reported by phone to his headquarters. On being advised that the turntable had been taken in an armed robbery, he seized it immediately. It was later determined that some of the other serial numbers matched those on other stereo equipment taken in the same armed robbery, and a warrant was obtained and executed to seize that equipment as well. Respondent was subsequently indicted for the robbery.
The state trial court granted respondent’s motion to suppress the evidence that had been seized. The Court of Appeals of Arizona affirmed. It was conceded that the initial entry and search, although warrantless, were justified by the exigent circumstance of the shooting. The Court of Appeals viewed the obtaining of the serial numbers, however, as an additional search, unrelated to that exigency. Relying upon a statement in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978), that a “warrantless search must be ‘strictly circumscribed by the exigencies which justify its initiation,’ “ id., at 393, 98 S.Ct. at 2413 (citation omitted), the Court of Appeals held that the police conduct violated the Fourth Amendment, requiring the evidence derived from that conduct to be excluded. 146 Ariz. 533, 534-535, 707 P.2d 331, 332-333 (1985). Both courts—the trial court explicitly and the Court of Appeals by necessary implication rejected the State’s contention that Officer Nelson’s actions were justified under the “plain view” doctrine of Coolidge v. New Hampshire, supra. The Arizona Supreme Court denied review, and the State filed this petition.
As an initial matter, the State argues that Officer Nelson’s actions constituted neither a “search” nor a “seizure” within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. To be sure, that was the first step in a process by which respondent was eventually deprived of the stereo equipment. In and of itself, however, it did not “meaningfully interfere” with respondent’s possessory interest in either the serial numbers or the equipment, and therefore did not amount to a seizure. See Maryland v. Macon, 472 U.S. 463, 469, 105 S.Ct. 2778, 2782, 86 L.Ed.2d 370 (1985).
Officer Nelson’s moving of the equipment, however, did constitute a “search” separate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent’s privacy interest. See Illinois v. Andreas, 463 U.S. 765, 771, 103 S.Ct. 3319, 3324, 77 L.Ed.2d 1003 (1983). But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to Justice POWELL’s suggestion, post, at 333, the “distinction between ‘looking’ at a suspicious object in plain view and ‘moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent—serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.
The remaining question is whether the search was “reasonable” under the Fourth Amendment.
On this aspect of the case we reject, at the outset, the apparent position of the Arizona Court of Appeals that because the officers’ action directed to the stereo equipment was unrelated to the justification for their entry into respondent’s apartment, it was ipso facto unreasonable. That lack of relationship always exists with regard to action validated under the “plain view” doctrine; where action is taken for the purpose justifying the entry, invocation of the doctrine is superfluous. Mincey v. Arizona, supra, in saying that a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation,” 437 U.S., at 393, 98 S.Ct. at 2413 (citation omitted), was addressing only the scope of the primary search itself, and was not overruling by implication the many cases acknowledging that the “plain view” doctrine can legitimate action beyond that scope.
We turn, then, to application of the doctrine to the facts of this case. “It is well established that under certain circumstances the police may seize evidence in plain view without a warrant,” Coolidge v. New Hampshire, 403 U.S., at 465, 91 S.Ct. at 2037 (plurality opinion) (emphasis added). Those circumstances include situations “[w]here the initial intrusion that brings the police within plain view of such [evidence] is supported . . . by one of the recognized exceptions to the warrant requirement,”ibid., such as the exigent-circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the “plain view” doctrine would have sustained a seizure of the equipment.
There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a “reasonable suspicion,” by which it means something less than probable cause. See Brief for Petitioner 18-19.* We have not ruled on the question whether probable cause is required in order to invoke the “plain view” doctrine. Dicta in Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), suggested that the standard of probable cause must be met, but our later opinions in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), explicitly regarded the issue as unresolved, see id., at 742, n. 7, 103 S.Ct. at 1543 n. 7 (plurality opinion); id., at 746, 103 S.Ct. at 1545 (STEVENS, J., concurring in judgment).
We now hold that probable cause is required. To say otherwise would be to cut the “plain view” doctrine loose from its theoretical and practical moorings. The theory of that doctrine consists of extending to nonpublic places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police’s longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. See Payton v. New York, supra, at 586-587, 100 S.Ct. at 1380. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk—to themselves or to preservation of the evidence—of going to obtain a warrant. See Coolidge v. New Hampshire, supra, at 468, 91 S.Ct. at 2039 (plurality opinion). Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for that same object if it had been known to be on the premises.
We do not say, of course, that a seizure can never be justified on less than probable cause. We have held that it can where, for example, the seizure is minimally intrusive and operational necessities render it the only practicable means of detecting certain types of crime. See, e.g., United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) (investigative detention of vehicle suspected to be transporting illegal aliens); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574,45 L.Ed.2d 607 (1975) (same); United States v. Place, 462 U.S. 696, 709, and n. 9, 103 S.Ct. 2637, 2645 and n. 9, 77 L.Ed.2d 110 (1983) (dictum) (seizure of suspected drug dealer’s luggage at airport to permit exposure to specially trained dog). No special operational necessities are relied on here, however—but rather the mere fact that the items in question came lawfully within the officer’s plain view. That alone cannot supplant the requirement of probable cause.
The same considerations preclude us from holding that, even though probable cause would have been necessary for a seizure, the search of objects in plain view that occurred here could be sustained on lesser grounds. A dwelling-place search, no less than a dwelling-place seizure, requires probable cause, and there is no reason in theory or practicality why application of the “plain view” doctrine would supplant that requirement. Although the interest protected by the Fourth Amendment injunction against unreasonable searches is quite different from that protected by its injunction against unreasonable seizures, see Texas v. Brown, supra, 460 U.S., at 747-748, 103 S.Ct., at 1546 (STEVENS, J., concurring in judgment), neither the one nor the other is of inferior worth or necessarily requires only lesser protection. We have not elsewhere drawn a categorical distinction between the two insofar as concerns the degree of justification needed to establish the reasonableness of police action, and we see no reason for a distinction in the particular circumstances before us here. Indeed, to treat searches more liberally would especially erode the plurality’s warning in Coolidgethat “the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” 403 U.S., at 466, 91 S.Ct. at 2038. In short, whether legal authority to move the equipment could be found only as an inevitable concomitant of the authority to seize it, or also as a consequence of some independent power to search certain objects in plain view, probable cause to believe the equipment was stolen was required.
Justice O’CONNOR’s dissent suggests that we uphold the action here on the ground that it was a “cursory inspection” rather than a “full-blown search,” and could therefore be justified by reasonable suspicion instead of probable cause. As already noted, a truly cursory inspection—one that involves merely looking at what is already exposed to view, without disturbing it—is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion. We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a “plain view” inspection nor yet a “full-blown search.” Nothing in the prior opinions of this Court supports such a distinction, not even the dictum from Justice Stewart’s concurrence in Stanley v. Georgia, 394 U.S. 557, 571, 89 S.Ct. 1243, 1251, 22 L.Ed.2d 542 (1969), whose reference to a “mere inspection” describes, in our view, close observation of what lies in plain sight.
Justice POWELL’s dissent reasonably asks what it is we would have had Officer Nelson do in these circumstances. Post, at —-. The answer depends, of course, upon whether he had probable cause to conduct a search, a question that was not preserved in this case. If he had, then he should have done precisely what he did. If not, then he should have followed up his suspicions, if possible, by means other than a search—just as he would have had to do if, while walking along the street, he had noticed the same suspicious stereo equipment sitting inside a house a few feet away from him, beneath an open window. It may well be that, in such circumstances, no effective means short of a search exist. But there is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all. Our disagreement with the dissenters pertains to where the proper balance should be struck; we choose to adhere to the textual and traditional standard of probable cause.
The State contends that, even if Officer Nelson’s search violated the Fourth Amendment, the court below should have admitted the evidence thus obtained under the “good faith” exception to the exclusionary rule. That was not the question on which certiorari was granted, and we decline to consider it.
For the reasons stated, the judgment of the Court of Appeals of Arizona is
Affirmed.
Justice WHITE, concurring.
I write only to emphasize that this case does not present, and we have no occasion to address, the so-called “inadvertent discovery” prong of the plain-view exception to the Warrant Clause. See Coolidge v. New Hampshire, 403 U.S. 443, 469-471, 91 S.Ct. 2022, 2040-2041, 29 L.Ed.2d 564 (1971) (plurality opinion). This “requirement” of the plain-view doctrine has never been accepted by a judgment supported by a majority of this Court, and I therefore do not accept Justice O’CONNOR’s dissent’s assertion that evidence seized in plain view must have been inadvertently discovered in order to satisfy the dictates of the Fourth Amendment. See post, at —-. I join the majority opinion today without regard to the inadvertence of the officers’ discovery of the stereo components’ serial numbers. The police officers conducted a search of respondent’s stereo equipment absent probable cause that the equipment was stolen. It is for this reason that the judgment of the Court of Appeals of Arizona must be affirmed.
Justice POWELL, with whom THE CHIEF JUSTICE and Justice O’CONNOR join, dissenting.
I join Justice O’CONNOR’s dissenting opinion, and write briefly to highlight what seem to me the unfortunate consequences of the Court’s decision.
Today the Court holds for the first time that the requirement of probable cause operates as a separate limitation on the application of the plain-view doctrine.1 The plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), required only that it be “immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” Id., at 466, 91 S.Ct. at 2038 (citation omitted). There was no general exploratory search in this case, and I would not approve such a search. All the pertinent objects were in plain view and could be identified as objects frequently stolen. There was no looking into closets, opening of drawers or trunks, or other “rummaging around.” Justice O’CONNOR properly emphasizes that the moving of a suspicious object in plain view results in a minimal invasion of privacy. Post, at —-. The Court nevertheless holds that “merely looking at” an object in plain view is lawful, ante, at 328, but “moving” or “disturbing” the object to investigate a reasonable suspicion is not, ante, at 324, 328. The facts of this case well illustrate the unreasonableness of this distinction.
The officers’ suspicion that the stereo components at issue were stolen was both reasonable and based on specific, articulable facts. Indeed, the State was unwise to concede the absence of probable cause. The police lawfully entered respondent’s apartment under exigent circumstances that arose when a bullet fired through the floor of the apartment struck a man in the apartment below. What they saw in the apartment hardly suggested that it was occupied by law-abiding citizens. A .25-caliber automatic pistol lay in plain view on the living room floor. During a concededly lawful search, the officers found a .45-caliber automatic, a .22-caliber, sawed-off rifle, and a stocking-cap mask. The apartment was littered with drug paraphernalia. App. 29. The officers also observed two sets of expensive stereo components of a type that frequently was stolen.2
It is fair to ask what Officer Nelson should have done in these circumstances. Accepting the State’s concession that he lacked probable cause, he could not have obtained a warrant to seize the stereo components. Neither could he have remained on the premises and forcibly prevented their removal. Officer Nelson’s testimony indicates that he was able to read some of the serial numbers without moving the components.3 To read the serial number on a Bang and Olufsen turntable, however, he had to “turn it around or turn it upside down.” Id., at 19. Officer Nelson noted the serial numbers on the stereo components and telephoned the National Crime Information Center to check them against the Center’s computerized listing of stolen property. The computer confirmed his suspicion that at least the Bang and Olufsen turntable had been stolen. On the basis of this information, the officers obtained a warrant to seize the turntable and other stereo components that also proved to be stolen.
The Court holds that there was an unlawful search of the turntable. It agrees that the “mere recording of the serial numbers did not constitute a seizure.” Ante, at 324. Thus, if the computer had identified as stolen property a component with a visible serial number, the evidence would have been admissible. But the Court further holds that “Officer Nelson’s moving of the equipment . . . did constitute a ‘search’. . . .” Ibid. It perceives a constitutional distinction between reading a serial number on an object and moving or picking up an identical object to see its serial number. To make its position unmistakably clear, the Court concludes that a “search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Ante, at 325. With all respect, this distinction between “looking” at a suspicious object in plain view and “moving” it even a few inches trivializes the Fourth Amendment.4 The Court’s new rule will cause uncertainty, and could deter conscientious police officers from lawfully obtaining evidence necessary to convict guilty persons. Apart from the importance of rationality in the interpretation of the Fourth Amendment, today’s decision may handicap law enforcement without enhancing privacy interests. Accordingly, I dissent.
Justice O’CONNOR, with whom THE CHIEF JUSTICE and Justice Powell join, dissenting.
The Court today gives the right answer to the wrong question. The Court asks whether the police must have probable cause before either seizing an object in plain view or conducting a full-blown search of that object, and concludes that they must. I agree. In my view, however, this case presents a different question: whether police must have probable cause before conducting a cursory inspection of an item in plain view. Because I conclude that such an inspection is reasonable if the police are aware of facts or circumstances that justify a reasonable suspicion that the item is evidence of a crime, I would reverse the judgment of the Arizona Court of Appeals, and therefore dissent.
In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), Justice Stewart summarized three requirements that the plurality thought must be satisfied for a plain-view search or seizure. First, the police must lawfully make an initial intrusion or otherwise be in a position from which they can view a particular area. Second, the officer must discover incriminating evidence “inadvertently.” Third, it must be “immediately apparent” to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure. As another plurality observed in Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535, 1540-1541, 75 L.Ed.2d 502 (1983), these three requirements have never been expressly adopted by a majority of this Court, but “as the considered opinion of four Members of this Court [the Coolidge plurality] should obviously be the point of reference for further discussion of the issue.” There is no dispute in this case that the first two requirements have been satisfied. The officers were lawfully in the apartment pursuant to exigent circumstances, and the discovery of the stereo was inadvertent—the officers did not ” ‘know in advance the location of [certain] evidence and intend to seize it,’ relying on the plain-view doctrine only as a pretext.” Ibid. (quoting Coolidge v. New Hampshire, supra, at 470, 91 S.Ct. at 2040). Instead, the dispute in this case focuses on the application of the “immediately apparent” requirement; at issue is whether a police officer’s reasonable suspicion is adequate to justify a cursory examination of an item in plain view.
The purpose of the “immediately apparent” requirement is to prevent “general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S., at 467, 91 S.Ct. at 2038. If an officer could indiscriminately search every item in plain view, a search justified by a limited purpose—such as exigent circumstances—could be used to eviscerate the protections of the Fourth Amendment. In order to prevent such a general search, therefore, we require that the relevance of the item be “immediately apparent.” As Justice Stewart explained:
“Of course, the extension of the original justification [for being present] is legitimate only where it is immediately apparent to the police that they have evidence before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. Cf. Stanley v. Georgia, [394 U.S. 557], 571-572 [89 S.Ct. 1243, 1251-1252, 22 L.Ed.2d 542] [ (1969) ] (Stewart, J., concurring in result).” Id., at 466-467, 91 S.Ct. at 2038-2039.
Thus, I agree with the Court that even under the plain-view doctrine, probable cause is required before the police seize an item, or conduct a full-blown search of evidence in plain view. Ante, at —-. Such a requirement of probable cause will prevent the plain-view doctrine from authorizing general searches. This is not to say, however, that even a mere inspection of a suspicious item must be supported by probable cause. When a police officer makes a cursory inspection of a suspicious item in plain view in order to determine whether it is indeed evidence of a crime, there is no “exploratory rummaging.” Only those items that the police officer “reasonably suspects” as evidence of a crime may be inspected, and perhaps more importantly, the scope of such an inspection is quite limited. In short, if police officers have a reasonable, articulable suspicion that an object they come across during the course of a lawful search is evidence of crime, in my view they may make a cursory examination of the object to verify their suspicion. If the officers wish to go beyond such a cursory examination of the object, however, they must have probable cause.
This distinction between a full-blown search and seizure of an item and a mere inspection of the item was first suggested by Justice Stewart. In his concurrence inStanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), which is cited in Coolidge, Justice Stewart observed that the federal agents there had acted within the scope of a lawful warrant in opening the drawers of the defendant’s desk. When they found in one of the drawers not the gambling material described in the warrant but movie films, they proceeded to exhibit the films on the defendant’s projector, and thereafter arrested the defendant for possession of obscene matter. Justice Stewart agreed with the majority that the film had to be suppressed, but in doing so he suggested that a less intrusive inspection of evidence in plain view would present a different case: “This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection.“ Id., at 571, 89 S.Ct. at 1251 (emphasis added) (footnote omitted).
Following Justice Stewart’s suggestion, the overwhelming majority of both state and federal courts have held that probable cause is not required for a minimal inspection of an item in plain view. As Professor LaFave summarizes the view of these courts, “the minimal additional intrusion which results from an inspection or examination of an object in plain view is reasonable if the officer was first aware of some facts and circumstances which justify a reasonable suspicion (not probable cause, in the traditional sense) that the object is or contains a fruit, instrumentality, or evidence of crime.” 2 W. LaFave, Search and Seizure § 6.7(b), p. 717 (2d ed. 1987); see also id., at 345 (“It is generally assumed that there is nothing improper in merely picking up an unnamed article for the purpose of noting its brand name or serial number or other identifying characteristics to be found on the surface”). Thus, while courts require probable cause for more extensive examination, cursory inspections—including picking up or moving objects for a better view—require only a reasonable suspicion. See, e.g., United States v. Marbury, 732 F.2d 390, 399 (CA5 1984) (police may inspect an item found in plain view to determine whether it is evidence of crime if they have a reasonable suspicion to believe that the item is evidence); United States v. Hillyard, 677 F.2d 1336, 1342 (CA9 1982) (police may give suspicious documents brief perusal if they have a “reasonable suspicion”); United States v. Wright, 667 F.2d 793, 798 (CA9 1982) (“[A]n officer may conduct such an examination if he at least has a ‘reasonable suspicion’ to believe that the discovered item is evidence”);United States v. Roberts, 619 F.2d 379, 381 (CA5 1980) (“Police officers are not required to ignore the significance of items in plain view even when the full import of the objects cannot be positively ascertained without some examination”); United States v. Ochs, 595 F.2d 1247, 1257-1258, and n. 8 (CA2 1979) (Friendly, J.) (same).
Indeed, several state courts have applied a reasonable-suspicion standard in factual circumstances almost identical to this case. See, e.g., State v. Noll, 116 Wis.2d 443, 343 N.W.2d 391 (1984) (officer, upon seeing television, could check serial numbers); State v. Riedinger, 374 N.W.2d 866 (ND 1985) (police, in executing warrant for drugs, could check serial number of microwave oven); People v. Dorris, 110 Ill.App.3d 660, 66 Ill.Dec. 390, 442 N.E.2d 951 (1982) (police may note account number of deposit slip because, when the police have a reasonable suspicion that an item in plain view is stolen property, the minimal additional intrusion of checking external identification numbers is proper); State v. Proctor, 12 Wash.App. 274, 529 P.2d 472 (1974) (upholding police notation of serial numbers on calculators); People v. Eddington, 23 Mich.App. 210, 178 N.W.2d 686 (1970) (upholding examination of the heels of shoes), rev’d on other grounds, 387 Mich. 551, 198 N.W.2d 297 (1972).
This distinction between searches based on their relative intrusiveness—and its subsequent adoption by a consensus of American courts—is entirely consistent with our Fourth Amendment jurisprudence. We have long recognized that searches can vary in intrusiveness, and that some brief searches “may be so minimally intrusive of Fourth Amendment interests that strong countervailing governmental interests will justify a [search] based only on specific articulable facts” that the item in question is contraband or evidence of a crime. United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). In Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979), we held that the permissibility of a particular law enforcement practice should be judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Thus, “[w]here a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause, we have not hesitated to adopt such a standard.” New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 743, 83 L.Ed.2d 720 (1985). The governmental interests considered include crime prevention and detection. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The test is whether these law enforcement interests are sufficiently “substantial,” not, as the Court would have it, whether “operational necessities render [a standard less than probable cause] the only practicable means of detecting certain types of crimes.” Ante, at —-. See United States v. Place, supra, at 704, 103 S.Ct. at 2643.
In my view, the balance of the governmental and privacy interests strongly supports a reasonable-suspicion standard for the cursory examination of items in plain view. The additional intrusion caused by an inspection of an item in plain view for its serial number is miniscule. Indeed, the intrusion in this case was even more transitory and less intrusive than the seizure of luggage from a suspected drug dealer in United States v. Place, supra, and the “severe, though brief, intrusion upon cherished personal security” in Terry v. Ohio, supra, at 24-25, 88 S.Ct. at 1881-1882.
Weighed against this minimal additional invasion of privacy are rather major gains in law enforcement. The use of identification numbers in tracing stolen property is a powerful law enforcement tool. Serial numbers are far more helpful and accurate in detecting stolen property than simple police recollection of the evidence. Cf. New York v. Class, 475 U.S. 106, 111, 106 S.Ct. 960, 964, 89 L.Ed.2d 81 (1986) (observing importance of vehicle identification numbers). Given the prevalence of mass produced goods in our national economy, a serial number is often the only sure method of detecting stolen property. The balance of governmental and private interests strongly supports the view accepted by a majority of courts that a standard of reasonable suspicion meets the requirements of the Fourth Amendment.
Unfortunately, in its desire to establish a “bright-line” test, the Court has taken a step that ignores a substantial body of precedent and that places serious roadblocks to reasonable law enforcement practices. Indeed, in this case no warrant to search the stereo equipment for its serial number could have been obtained by the officers based on reasonable suspicion alone, and in the Court’s view the officers may not even move the stereo turntable to examine its serial number. The theoretical advantages of the “search is a search” approach adopted by the Court today are simply too remote to justify the tangible and severe damage it inflicts on legitimate and effective law enforcement.
Even if probable cause were the appropriate standard, I have little doubt that it was satisfied here. When police officers, during the course of a search inquiring into grievously unlawful activity, discover the tools of a thief (a sawed-off rifle and a stocking mask) and observe in a small apartment two sets of stereo equipment that are both inordinately expensive in relation to their surroundings and known to be favored targets of larcenous activity, the “flexible, common-sense standard” of probable cause has been satisfied. Texas v. Brown, 460 U.S., at 742, 103 S.Ct. at 1543 (plurality opinion).
Because the Court today ignores the existence of probable cause, and in doing so upsets a widely accepted body of precedent on the standard of reasonableness for the cursory examination of evidence in plain view, I respectfully dissent.
* Contrary to the suggestion in Justice O’CONNOR’s dissent, post, at —-, this concession precludes our considering whether the probable-cause standard was satisfied in this case.
1. In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the plurality opinion expressly declined to “address whether, in some circumstances, a degree of suspicion lower than probable cause would be sufficient basis for a seizure. . . .” Id., at 742, n. 7, 103 S.Ct. at 1543 n. 7. Even the probable-cause standard, in the plurality’s view, requires only facts sufficient to ” ‘warrant a man of reasonable caution in the belief’ . . . that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false.” Id., at 742, 103 S.Ct. at 1543 (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)). See also Texas v. Brown, supra,at 746, 103 S.Ct. at 1545 (POWELL, J., concurring in judgment) (leaving open the question whether probable cause is required to inspect objects in plain view). As the Court recognizes, ante, at 326, the statements in Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), are dicta.
2. Responding to a question on cross-examination, Officer Nelson explained that his suspicion was “based on 12 years’ worth of police experience. I have worked in different burglary crimes throughout that period of time and . . . I’m just very familiar with people converting stolen stereos and TV’s into their own use.” App. 28-29.
3. Officer Nelson testified that there was an opening of about a foot between the back of one set of stereo equipment and the wall. Id., at 20. Presumably this opening was large enough to permit Officer Nelson to view serial numbers on the backs of the components without moving them.
4. Numerous articles that frequently are stolen have identifying numbers, including expensive watches and cameras, and also credit cards. Assume for example that an officer reasonably suspects that two identical watches, both in plain view, have been stolen. Under the Court’s decision, if one watch is lying face up and the other lying face down, reading the serial number on one of the watches would not be a search. But turning over the other watch to read its serial number would be a search. Moreover, the officer’s ability to read a serial number may depend on its location in a room and light conditions at a particular time. Would there be a constitutional difference if an officer, on the basis of a reasonable suspicion, used a pocket flashlight or turned on a light to read a number rather than moving the object to a point where a serial number was clearly visible?
Postings to this site have been infrequent as of late, due to particularly involved cases and an upcoming scheduled long-awaited oral argument. The case below is referenced for sake of the dissent by Justice Hunstein, in which she talks about the case as representing a “watershed moment” in the ability of parties to a divorce to privately, contractually arrange their post-dissolution relationship. I think the dire prediction made that Courts will become nothing more than a “rubber stamp license fee collector” is overbroad, but the concerns expressed are particularly notable in light of the current direction of cases I am concentrating on.
Concerning the right of parties to incorporate self-executing provisions in a divorce decree, the case presented is Quillen v. Quillen, 265 Ga. 779, 462 S.E.2d 750 (Ga. 1995):
Richard G. Milam, Garland & Milam, P.C., Jackson, for Elaine Quillen.
J. Mark Brittain, Smith, Welch & Studdard, Stockbridge, for Ralph Quillen.
CARLEY, Justice.
Appellant and appellee were divorced pursuant to a decree which incorporated their settlement agreement. One provision of the incorporated settlement agreement obligated appellee to pay monthly alimony until appellant “cohabits as same is defined by Georgia law.” When appellee subsequently failed to pay the alimony, appellant filed this contempt action against him. After conducting a hearing, the trial court found that, as of January 1, 1994, appellant cohabited with a third party. Based upon this finding, the trial court concluded that appellee’s obligation to pay alimony ended on that date and that he was not in contempt for failing to make payments thereafter. We granted appellant’s application for a discretionary appeal from the trial court’s order.
1. Appellant urges that the modification of a final divorce decree can “only be accomplished by proceedings under OCGA § 19-6-19″ and that the trial court erroneously exceeded its jurisdiction by modifying the final divorce decree in this contempt action.
To obtain the modification of a final divorce decree, proceedings must be instituted pursuant to OCGA § 19-6-19. However, unless prohibited by statute or public policy, all persons are free to contract on any terms regarding a subject matter in which they have an interest. Porubiansky v. Emory University, 156 Ga.App. 602, 603,275 S.E.2d 163 (1980), aff’d, 248 Ga. 391, 282 S.E.2d 903 (1981). Thus, we have recognized that divorcing parties are free to contract for self-executing changes in an alimony obligation upon the occurrence of certain events. Perry v. Perry, 265 Ga. 186, 187(2), 454 S.E.2d 122 (1995); Weaver v. Jones, 260 Ga. 493, 494(3), 396 S.E.2d 890 (1990). OCGA § 19-6-19 provides that cohabitation is a ground for seeking a judicial modification of an alimony obligation. However, nothing in that statute provides that the divorcing parties themselves cannot contract for the automatic termination of the alimony obligation of one party upon the cohabitation of the other.Thus, in Kent v. Kent, 265 Ga. 211, 213(2), fn. 4, 452 S.E.2d 764 (1995), we held that, if
the parties agree that alimony will terminate on the former spouse’s cohabitation with a third party, [and] that situation occurs, the obligated spouse, under the terms of the agreement, is authorized to stop making alimony payments. (Emphasis in original.)
This holding in Kent recognizes the contractual freedom of divorcing parties to agree to a self-executing termination of an alimony obligation upon the occurrence of cohabitation.
Under Kent, the former spouse who brings a contempt action will [265 Ga. 780] not be faced with what, in essence, is the obligated spouse’s impermissible counterclaim for modification of alimony. The holding in Kent is premised upon the divorcing parties’ mutual agreement to an automatic termination of alimony in the event of cohabitation, which agreement has been incorporated into the divorce decree. Thus, when cohabitation is relied upon as the ground for ceasing to pay and a contempt action is filed, the trial court is called upon to determine whether the pre-existing incorporated agreement authorizing the obligated spouse’s automatic termination of the obligation has been triggered by the former spouse’s subsequent cohabitation. Therefore, the question for resolution by the trial court is whether the obligated spouse is in contempt of the existing terms of the divorce decree, not whether the obligated spouse is entitled to a subsequent modification of the existing terms of that decree. The obligated spouse’s determination that the former spouse has cohabited may be a subjective one, but the trial court must make an objective determination in that regard. If the former spouse did cohabit, then the alimony obligation has been terminated in accordance with the pre-existing incorporated agreement and the obligated spouse cannot be found to be in contempt of the divorce decree. If, on the other hand, there was no such cohabitation, the obligated spouse “risks being found in contempt, or, at any rate, liable for all payments….” Kent v. Kent, supra at 213(2), 452 S.E.2d 764.
It may be true that, under Kent, the former spouse who brings a contempt action will not be afforded the same venue and jury trial options as would be available in a modification proceeding instituted by the obligated spouse pursuant to OCGA § 19-6-19. However, that is entirely a consequence of the former spouse’s own agreement to an automatic termination of alimony upon his or her cohabitation. If a former spouse does not wish to have the alimony obligation subject to an automatic termination upon his or her cohabitation, then he or she should not agree to it. If, on the other hand, the former spouse has made such an agreement, then he or she is bound thereby and must abide by the procedural, as well as the substantive, consequences thereof.
The premise of appellant’s argument is that a modification proceeding pursuant to OCGA § 19-6-19 is the exclusive method by which divorcing parties can accomplish a termination of alimony based upon cohabitation. However, this premise is contrary to Kent, which is based upon established legal principles and to which we adhere. Therefore, appellant’s contention that the trial court exceeded its jurisdiction in this contempt action is without merit.
2. The trial court’s order contains the finding that, “based on the evidence presented, including that of [appellant] herself, [she] has cohabited with a third party.” Although appellant urges that this finding[265 Ga. 781] is not supported by the evidence, she has not provided a transcript of the contempt hearing. In the absence of a transcript, we must assume that the evidence presented at the hearing was sufficient to support the finding of the trial court. Everett v. Everett, 256 Ga. 632(1), 352 S.E.2d 370 (1987).
Judgment affirmed.
All the Justices concur, except HUNSTEIN, J., who dissents.
HUNSTEIN, Justice, dissenting.
This case marks a pivotal point in the direction this Court will follow in regard to divorce settlement agreements. Over my dissent, this Court has already allowed parties to circumvent the judicial process altogether by executing judicially-unsupervised contracts that resolve issues arising out of the dissolution of the marriage contract. Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914 (1993). With the instant case this Court is now permitting parties, whose settlement agreement was incorporated into a divorce decree, to divest the trial court of all supervision over its decree by upholding a provision that places unfettered discretion over the unilateral termination of a judicially-sanctioned obligation, i.e., alimony, into the hands of one party to the decree. If this State wants to move in the direction of self-help divorces with the judiciary acting as a mere rubber-stamp license-fee collector, I believe it should be the Legislature that makes that decision, not this Court.
I find that the termination-upon-cohabitation provision in this case violates the public policy of this State, as expressed in our Constitution and our statutes. As the majority recognizes, the provision results in an implied waiver both of venue rights, see Art. 6, Sec. 2, Par. 1 of the Georgia Constitution (1983), and jury trial rights, see Art. 1, Sec. 1, Par. 11(a), even though the contract fails to reflect that such waiver was “clearly intended and expressed by the person so waiving.” Garcia v. Garcia, 232 Ga. 869, 871, 209 S.E.2d 201 (1974). 1 The provision directly contradicts the Legislature’s mandate set forth in OCGA § 19-6-19(b). 2 Last, but not least, the provision violates [265 Ga. 782] public policy by depriving the courts of their duty to oversee modification of their judgments.
While this Court has a long history of authorizing and, indeed, strongly encouraging the private settlement of family affairs, see, e.g., Trammell v. West, 224 Ga. 365(1), 162 S.E.2d 353 (1968), we have not heretofore approved a divorce settlement agreement provision which divests the judiciary of its discretion, implicates constitutional rights, and conflicts with express statutory provisions. None of the case law cited by the majority justifies or supports its approval of this provision. 3
Accordingly, while I concur in the affirmance of the one issue properly before the trial court, namely, the finding that Ralph Quillen was not in wilful contempt of court, I would reverse the trial court’s ruling retroactively terminating Ralph Quillen’s alimony obligation and would require him to file a modification action in the proper venue pursuant to OCGA § 19-6-19, with Elaine Quillen entitled, upon proper request, to a jury trial on the cohabitation issue.
—————
1 Ironically, the majority allows an implied pre-litigation waiver of the right to a jury trial in this divorce settlement agreement, although rejecting in purely commercial contracts those provisions which explicitly waive that right. See Ekereke v. Obong, 265 Ga. 728, 462 S.E.2d 372 (1995); American Southern Financial v. Yang, 264 Ga. 513, 448 S.E.2d 450 (1994); Bank South, N.A. v. Howard, 264 Ga. 339, 444 S.E.2d 799 (1994).
2 The termination-upon-cohabitation provision conflicts with OCGA § 19-6-19 inasmuch as that statute requires the alimony-paying spouse to file a modification action “under the same rules of procedure applicable to divorce proceedings,” id. at (a); authorizes jury trials in modification actions, upon proper demand, see McElroy v. McElroy, 252 Ga. 553(1), 314 S.E.2d 893 (1984); recognizes that cohabitation is merely a ground to modify alimony and disallows automatic termination or reduction of the alimony obligation, see Allen v. Allen, 265 Ga. 53(2), 452 S.E.2d 767 (1995); and prohibits unilateral termination of alimony upon a claim of cohabitation. Hendrix v. Stone, 261 Ga. 874, 412 S.E.2d 536 (1992).
3 The majority relies upon footnoted dicta in Kent v. Kent, 265 Ga. 211, 452 S.E.2d 764 (1995), a case in which the alimony-paying spouse did file, properly, a modification action to terminate his support payments to his ex-wife on the basis of her alleged cohabitation with a third party. Although the majority cites other cases in which this Court has approved some self-executing future modification provisions, the provisions in those cases are clearly distinguishable, in that those provisions were set forth so explicitly that subjective application was eliminated and the consequences thereof could be reviewed by the trial court before the provision was incorporated into the divorce decree. See, e.g., Weaver v. Jones, 260 Ga. 493(3), 396 S.E.2d 890 (1990) andPearce v. Pearce, 244 Ga. 69, 257 S.E.2d 904 (1979) (inversion clause cases where change was not as to amount of support but only as to person responsible for making the payment); Perry v. Perry, 265 Ga. 186, 454 S.E.2d 122 (1995) and Cabaniss v. Cabaniss, 251 Ga. 177(1), 304 S.E.2d 65 (1983) (escalation clause cases where fixed base amount of support was awarded and variable future award was made contingent upon objective, specified changes). See also Fender v. Fender, 249 Ga. 765, 294 S.E.2d 472 (1982) (defining scope of modification actions).
The following is a redacted Argument section from a Brief in Support of Motion for Reconsideration filed today in a case, that sets out the legal argument against the entry of Orders by a trial court after an appeal has been docketed. Sadly, there are no guarantees in legal practice (nor should there be – a lawyer who guarantees a result needs to be put in jail, because if there is an argument then there are at least two sides to the story).
Argument and Citation to Legal Authority
This case should be reviewed by the Court because it is a direct example of an instance of blatant corruption and one-sided dealing, to the disadvantage of one party following the opportunistic actions of the Court while the remititur was placed in the trial court for assembly of the record for appellate review. “After the remititur is transmitted to the trial court by the appellate court, “[t]he decision and direction [of the appellate court] shall be respected and carried into full effect in good faith by the court below.”” Long v. Long, 307 Ga.App. 790, 790, 706 S.E.2d 152 (Ga. Ct. App. 2011)(quoting OCGA § 5–6–10). Just because a remititur is in the trial court following acceptance of a case for appeal does not enable the trial court to disregard mandatory statutory authority, and the steps for securing appellate review of a decision, laid out with precision in Section 5-6-46(a) of the Official Code of Georgia, were complied with fully and were willfully disregarded by the trial court.
I. Rule 34(1) and OCGA § 5-6-46(a) require the reversal of the Orders entered by the Superior Court of XXXXX County on
XXXXX XX, 2013, as reversible error contrary to law.
Rule 34(1) of the Rules of the Supreme Court of Georgia states that “[a]n application for leave to appeal a final judgment in cases subject to appeal under OCGA § 5-6-35 shall be granted when…[r]eversible error appears to exist” (emphasis supplied). Section 5-6-46(a) of the Georgia Code applies directly to the post-judgment Orders entered by the trial Court and arising from its suspended judgment in this matter. That section states in pertinent part that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas…”. The appeal of the post-judgment Orders improperly entered by the trial court is properly before this Court because the matter appealed from is necessarily part and parcel of the appealed action now pending in docket number S13F1009, and each one of the wrongly-decided Orders arise directly from the willful refusal of that Court to recognize supersedeas over its Final Judgment and Decree of Divorce and to insist that its previous temporary order is without effect. It refused to recognize the suspension of its judgment, and condoned reversing the child custody arrangement of the parties and prospectively, by direct order completely at odds with its own powers, discharging Appellee XXXXX XXXXX from any further liability for debt. A modification of either alimony or of child custody can never be done unilaterally in this manner, and the problem of unilateral action is present in every aspect of the case. It continues the same horribly unlawful trend as the Final Judgment and Decree of Divorce and its incorporated, equally one-sided and unilateral, Contract and Agreement began, and the illegality of the Orders entered in this case turn on the telling fact that the latter document was neither a “contract” nor an “agreement”.
This case has been summed up well in a similar situation in which the Court could have taken unilateral action to protect a party, and was asked to by way of a demurrer, but the appellate courts found that they should not. “If the parties to a transaction do not create binding agreements, the courts are powerless to do it for them”. Scott v. Lewis, 112 Ga.App. 195, 197, 144 S.E.2d 460 (Ga. Ct. App. 1965)(sale of a house contingent on unfulfilled loan proceeds not part of the contract and properly not enforced by the court). Just because a party wants a particular end doesn’t mean the Courts can invalidate the binding contract between them unasked for.
A. Transcripts are required for the actual evaluation of a granted appeal but not to discern probable cause to entertain the appeal.
A transcript is appropriate for introduction where an evidentiary matter is in dispute, and its absence is fatal to the appeal. See generally Martinez v. Martinez, 301 Ga.App. 330, 687 S.E.2d 610 (Ga. Ct. App. 2009). Further, the transcript of the hearing which led to the entry of the Orders in question is available, has been obtained by Appellant, and will certainly be transmitted to the Court were this appeal granted. However, a transcript in full is unnecessary for the Court to engage in evaluation of the potential merit of the instant appeal, because the page of the transcript attached to and incorporated in the Application for Appeal in this matter as Exhibit “A1” states plainly at lines 13-17 that any matters that depended on the enforcement of any Order made prior to the appealed Final Judgment and Decree of Divorce in this matter are moot. In further support for the merit of this argument, Appellant directs the attention of the Court to Pages 8-9 of the transcript of said hearing, attached to and incorporated herein collectively as Exhibit “A22”, which relates in response to the Court’s verbal statement contrary to fact at lines 2 – 6 that the notice of appeal of this case was filed the day after the Court granted the application for appeal numbered S13F1009, and a copy of the notice of appeal was given to the Court and included with the Application for Appeal in this matter as Exhibit “A5”. Since this dispute concerns the legal power of the Court, not provided for in any rule, law, or statute, and completely at odds with the rights of parties to a contract and with the legal system of this State to disregard their will and instead act unilaterally in favor of one party over and to the disadvantage of the other, this matter is primarily a question of law and not of fact. This is true for each and every point of Error raised in this appeal, because the Court set that standard as the initial basis by which it chose to hear any and all motions pending before it, as shown by Exhibit “A1” and contradicted by Exhibit “A22” attached hereto.
Further, there is valid, indisputable evidence of the legal impropriety that arose in this case, for which both strong reason to grant appellate review and strong justification for immediate adjustment of dangerously harmful legal actions exist.
B. Development of the common law is plainly necessary because no inferior Court may ever disregard supersedeas at will.
The Georgia Code governing supersedeas has been restated above, but it is important to examine the motivations behind this statute for an understanding that was plainly lacking by the trial court below and counsel for XXXXX XXXXX. A relevant discussion as to why supersedeas is automatic except in cases involving injunctions and extraordinary remedies is found in Howard v. Smith, 226 Ga. 850, 851, 178 S.E.2d 159 (Ga. 1970)(concerning necessity to obtain separate interlocutory relief on appeal from injunctions), which elaborates that “[p]rior to the passage of the Civil Practice Act, no appeal nor any proceeding for obtaining an appeal could have the effect of establishing or denying an injunction independently [sic] of the order of the judge who, on rendering his decision, might, in his discretion, make such order and require such bond as might be necessary to preserve and protect the rights of the parties until the judgment of the Supreme Court could be rendered thereon.”
However, following the passage of the Civil Practice Act and the Appellate Practice Act, it was no longer automatically fatal to a party when it failed to obtain injunctive relief pending appeal, because that relief was spelled out expressly by statute in Section 5-6-46, in non-injunctive cases not involving extraordinary remedies. It cannot be restated more plainly that the actions of the trial court in this case attached to and incorporated in the Application for Appeal in this matter as Exhibits “A8”, “A12”, “A14”, and “A17”, “A18” and “A20” were illegal, and their entry legally constitutes reversible error and forbidden abuse of discretion.
II. An Order issued by a Court that does not have jurisdiction to rule is of no force or effect, and may be ignored, but a rogue Court and
all of its resources are attacking Appellant.
Section 5-6-46(a) of the Official Code of Georgia states that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant”. A “notice of appeal…divest[s] the trail court of its jurisdiction over the motion for reconsideration before the trial court rendered its decision.” Threatt v. Forsyth County, 250 Ga.App. 838, 845, 552 S.E.2d 123 (Ga. Ct. App. 2001)(trial court did not have jurisdiction to rule on motion for reconsideration after notice of appeal was filed). Exhibit “A20”, attached to and incorporated in the Application for Appeal in this matter, purports to have been withdrawn by counsel for Appellant, but is disputed. The lack of a transcript in this instance would be fatal, except that the Motion underlying the Order, and any consideration of it, were arbitrarily and wrongfully voided by the Court with its formal declaration in Exhibit “A1”. The Court below quite simply lacked jurisdiction to rule on the motion at the moment it declared it and all motions arising from the Temporary Order, a copy of which was attached to and incorporated in the Application for Appeal in this case as exhibit “A2”, were moot.
Here, the problem has arisen because a lower Court is not recognizing the supersedeas effect of a valid application for appeal and is enforcing the superseded Final Judgment and Decree willfully, resulting in the compounding of harm. “[J]ustice delayed for even one day is justice denied to the litigant who was successful in the lower court and who is entitled to his judgment unless the case is properly reversed.” Bush v. Reed, 311 Ga.App. 328, 332, 715 S.E.2d 747 (Ga. App. 2011)(Citation and punctuation omitted, citing to Adams v. Hebert, 279 Ga.App. 158, 159, 630 S.E.2d 652 (2006)). In that case, the failure to file a transcript was fatal to the claim of the party, but the failure to file the transcript was material for a host of reasons and factual matters not present in the instant appeal and demonstrated by the Court’s actions shown in black and white on Exhibit “A1” and Exhibit “A22” hereto. What is most important about this citation is the urgency that it indicates, because justice is equally important to the litigant who was deprived of fairness in the trial court and cannot obtain his judgment “unless the case is properly reversed” (Id.).
“This automatic supersedeas [here, referring to the supersedeas granted by Section 5-6-46] deprives the trial court of jurisdiction to modify or alter the judgment in the case pending the appeal.” Shropshire v. Alostar Bank of Commerce, 314 Ga.App. 310, 312, 724 S.E.2d 33 (Ga. Ct. App. 2012)(vacating every Order of the Court inconsistent with that rule in a dispute concerning promissory notes and contract law principles of estoppels). This is the most recent statement by the appellate courts of this State with regard to the statutory effect of the notice of appeal filed in the underlying case in this dispute, a copy of which was attached to and incorporated in the Application for Appeal in this matter as Exhibit “A5”, was issued immediately after the Court had ruled that it would entertain an appeal of the matter on two distinct points. A copy of the Order of this Court was attached to and incorporated in the Application for Appeal in this matter as Exhibit “A4”.
This is not a revelation or a new point of law, as the confusion of the Court shown by its apparent supposition and speculation in Exhibit “A1” to the Application for Appeal demonstrates, when it “finds and concludes” matters at Lines 2 through 8 that a certain course of conduct existed, shown directly to be the worst falsehood by both Exhibit “A22” hereto and by Exhibit “A5” to the Application for Appeal, since the explicit direction of the appellate court has been necessary for the guidance of lesser courts following the return of the remititur in this State since at least the 1966 case of Hagan v. Roberts & Co. Associates. “Before the trial court could take any further action in the cases, it was, of course, essential that it be officially informed of the judgment which the Court of Appeals had rendered.” 150 S.E.2d 663, 665, 222 Ga. 469 (Ga. 1966). It is established that a Court has power to affect the judgment and to hear motions concerning a case while the remititur still resides in the trial court, and that – as noted by the trial judge himself in agreement with the statement of counsel for XXXXX XXXXX – the absence of the remititur deprives the Court of authority to enter judgment on motions in the case. See generally Wood v. Delta Ins. Co., 101 Ga.App. 720, 114 S.E.2d 883 (Ga. Ct. App. 1960). As stated initially in this Brief in Support of Motion for Reconsideration, this case revolves around blatant corruption and one-sided dealing, because the remititur is not a grant of unlimited power and carte blanche to disregard the established provisions of Georgia law, and the trial court is necessarily bound by the direction of the appellate courts according to the procedure described in Hagan, infra.
The disregard and bias of the trial court against XXXXX XXXXX and in favor of XXXXX XXXXX in the appealed matter in the case at bar is shown by factual matters, as well. Attached hereto and incorporated herein as Exhibit “A23” is the Certificate of Service of Appellee for her Brief of Appellee in case number S13F1009, which plainly certifies that a copy of that document was served on Appellant by hand-delivery. However, counsel for Appellant employs no support staff and spent the entire day recited on that document in his office, readily accessible to counsel for Appellee, and has yet to be given a copy of this document by any means at all. Counsel for Appellee has disregarded the basic rules of service set out in Section 5-6-32 once before, stating on page 6 of Appellee’s Response to Appellant’s Amended Enumeration of Error (which Certificate of Service never identifies the title of the document supposedly served) in the application for appeal that led to the docketing of Case Number S13F1009 with this Court, docket number S13D0229, that service of that document was made “by using the CM/EFC system, which will automatically send e-mail notification to such filing” to the undersigned. A copy of this document is attached hereto and incorporated herein as Exhibit “A24”. This action demonstrates the truth of Applicant’s contention that this case centers around corruption, since it goes without saying that this is not a valid method of service under Section 5-6-32, or any other Section of the Official Code of Georgia, and Appellee has also disregarded this standard not once but twice. These actions merit sanctions, and this appeal is plainly clothed in validity. An old proverb states that “[w]here there is smoke, there is fire”. The smoke is apparent, and this Court is respectfully requested to extinguish the fire that created it.
This is a redacted Argument section from a Motion done in the Supreme Court of Georgia. I have no guidance except theory, in this situation, because I know that things can be done, but have never tried to do some of them myself. This is either a chronicle of my failure, or a roadmap to succeed. Either way, comments on the logic of this Motion are welcome!
QUESTION PRESENTED
- Can the Supreme Court stay the inferior and parallel proceedings related to and arising from the divorce matter now pending before it on appeal?
SHORT ANSWER
- The Supreme Court is empowered by the legal authority of Section 5-6-46 of the Georgia Code to stay any and all parallel proceedings that arise from the same subject matter as the case pending before it, to prevent the matter at hand from becoming moot. This necessarily includes those collateral proceedings pending in other Courts, including the federal court in question, which are attempting to regulate responsibility for matters still undecided by the appeal granted in the case at bar, as well as those matters that draw resources from the ability of the parties to fully litigate the issues being decided. The Supreme Court of Georgia’s stay of supersedeas acts to stop the parallel and inferior proceedings until it has decided those questions that relate directly to the subjects of the litigation before it, but also extends to matters that directly affect the abilities of the parties to litigate their rights in this Court, such as the lawsuit by Appellant against XXXXX XXXXX in case number XXXX CV XXXXX.
ARGUMENT AND CITATION TO LEGAL AUTHORITY
I. Supersedeas Applies to Stay all Parallel and Collateral Actions to Prevent a Case from Becoming Moot Before the Question Pending Before the Court is Heard and Decided.
“Notwithstanding the trial court’s best intentions, we expected the court to comply with our mandate of supersedeas in both letter and spirit.” In re B.A.S., 254 Ga.App. 430, 444, 563 S.E.2d 141 (Ga. Ct. App. 2002). That is not what has been done in this case, and the disregard of the Court below for the important stay created by law in this matter together with the multiplicity of collateral cases in collateral courts being pressed against Appellant contravene not just the letter of the stay of the Court but its spirit, as well. Rule 9 of the Rules of the Supreme Court of Georgia states in pertinent part that “[t]he Court may issue supersedeas or other orders whenever deemed necessary.” “Supersedeas”, according to The Law Dictionary (Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.), “…has come to be used as a designation of the effect of any proceeding or act in a cause which, of its own force, causes a suspension or stay of proceedings”. http://thelawdictionary.org/supersedeas/. Further, according to Section 5-6-46(a) of the Official Code of Georgia, “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant”. There is no question in the case now pending before this Court that all of the required steps to create the enactment of automatic supersedeas were done, as statutorily-required, but there is also no question that supersedeas has been completely disregarded by several courts and by XXXXX XXXXX, resulting in an amazing level of financial and legal punishment and difficulty to XXXXX XXXXX in trying to preserve the existing status quo of the parties pending adjudication of the underlying conflict by this Court.
A. At the point that a Notice of Appeal was filed in response to a granted Discretionary Appeal, there Could be no Legal Action Taken on the Matters that the Divorce Decree and Contract and Agreement Affected.
When litigation necessarily goes directly to the subject of a question not yet decided by the Supreme Court of Georgia but which it has chosen to hear argument concerning, its decision to hear that argument automatically creates a stay on any and all proceedings affecting the question. “The filing of an application for discretionary review acts as a supersedeas and has the effect of depriving the trial court of jurisdiction to modify or alter its judgment. City of Homerville v.Touchton, 286 Ga. 237, 239, 647 S.E.2d 50 (Ga. 2007)(quoting Department of Human Resources v. Holland, 236 Ga.App. 273, 274, 511 S.E.2d 628 (1999); motion to recuse judge after the fact was moot because trial court could not rule on question after application for appeal filed). The question revolves around the nature of the disputed subject-matter – the responsible party for that disputed subject-matter necessarily being unresolved while the divorce in question is unresolved, since the bills were carried under the names of both parties – and the stage of litigation, this being a matter presently under granted application for appeal by the Supreme Court of the State of Georgia and therefore having no final, resolved judgment. Where “ultimate responsibility” for the issues between the parties is not yet resolved, filing a notice of appeal in a discretionary application for appeal deprives the trial court of jurisdiction to take any further action with regard to those particular issues. See O.C.G.A. § 5-6-46(a); Avren v. Garten, 289 Ga. 186, 192, 710 S.E.2d 130 (Ga. 2011)(special master’s fees could not be Ordered by the trial court while case was pending before the Supreme Court after filing a notice of appeal not yet granted in a discretionary application). In an interlocutory appeal, it is necessary for Appellant to obtain an Order of supersedeas to preserve the jurisdiction of the Supreme Court over the matter and the status quo of the parties; in a discretionary application, there is direct statutory authority that creates that stay without further need for a specially-requested Order. See Georgia 400 Indus. Park, Inc. v. Department of Transp., 274 Ga.App. 153, 156, 616 S.E.2d 903 (Ga. Ct. App. 2005)(denial of motion to set aside required aggrieved party to affirmatively seek equitable relief to preserve status quo pending appeal of condemnation).
B. The Grant of a Discretionary Appeal by the Supreme Court of Georgia Effected a Halt BOTH to inferior proceedings in the same court AND to Collateral Proceedings in Federal Bankruptcy Court.
All of the collateral matters pending during the appeal granted by the Supreme Court of Georgia in the above-styled case deal with the res of the divorce between the parties, and therefore deal with their ownership of the property and their rights and responsibilities concerning payment for the property or income derived from the property. This includes the Chapter 7 Bankruptcy Petition filed by XXXXX XXXXX, the child custody disputes between the parties as they concern the proper exchange of their children, the foreclosure suit brought against the marital residence as a direct consequence of XXXXX XXXXX’s refusal to contribute to the payments due on it despite her financial ability to do so, the dispute involving the property owned by the couple and rented for profit in XXXXX, Georgia, and even the lawsuit brought by Appellant XXXXX XXXXX against XXXXX XXXXX and defended by her insurer, XXXXX Automobile Insurance, pending in the Superior Court of XXXXX County.
It is well-established that supersedeas prevents further action from being taken toward the subject-matter of a case pending the appeal of a final judgment. The power of the Court concerning collateral matters is no less inflexible. There is absolute precedent for the action urged by Appellant XXXXX XXXXX to be taken by the Court in this case, as shown by the case of Huffman v. Murphy, 284 Ga.App. 822, 645 S.E.2d 23 (Ga. Ct. App. 2007). In that case, the President of a corporation declared bankruptcy despite the existence of a TRO staying just such an action. The trial Court found him to be in willful civil contempt, assessing merited civil sanctions for his knowing, deceptive actions. The situation dealt with by the Court in the Huffman case is no less pressing than the situation the Court now faces because of XXXXX XXXXX’s actions, guided by and urged by her counsel in the case at bar on behalf of the law firm that employs him, and the Court should similarly find both XXXXX XXXXX and her attorney in civil contempt. The difference between the 2007 Huffman case and the case which now presents itself before the Court is that the trial court has purposefully ignored the dictates of Section 5-6-46(a) of the Georgia Code and has entered contempt instead against Appellant and his counsel, apparently for daring to interfere with Appellee’s willful contempt. This makes the request of injunctive relief from this Court absolutely necessary, because it not only will not be granted by the trial court but has been acted against already.
The ruling of the Superior Court of XXXXX County in the post-judgment proceedings that arose just before the initial creditors’ meeting in the case at bar, at which the XXXXX Judge sitting for XXXXX XXXXX XXXXX XXXXX declared that his Decree was valid and gave XXXXX XXXXX complete freedom from any and all debts that arose prior to the date of his suspended decree, is directly responsible for her decision to proceed and the encouragement from an authority-figure that condoned her actions. In the Huffman case, the TRO had not been reduced to writing and filed with the Clerk of Court, required by Section 9-11-58(a) for a judgment to become final, prior to filing a Petition for Discharge with the United States Bankruptcy Court. In the case at bar, the appeal had already arisen, and the discretionary application for appeal was granted on reconsideration, meaning the case was still pending even though XXXXX XXXXX sought to discharge all of her debts through bankruptcy. It is not as though she had carte blanche to discharge those debts before the Court had made some final disposition of the divorce before it, whether the motion for reconsideration were granted or otherwise. In a civil proceeding following a final judgment in a case rather than an interlocutory Order, it is the notice of appeal itself, rather than the grant or denial of the appeal, that serves as supersedeas and deprives the lesser courts or the parties themselves from actively usurping the jurisdiction of the court. “Georgia law is clear that the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.” Metropolitan Atlanta Rapid Transit Authority v. Doe, 292 Ga.App. 532, 539, 664 S.E.2d 893 (Ga. Ct. App. 2008)(trial court could not alter or amend judgment to include interest while appellate court had authority). The matter of supersedeas from a final judgment pending notice of appeal versus supersedeas from an interlocutory order pending acceptance of an application for appeal has also been decided resolutely against the efforts of XXXXX XXXXX and her counsel, as erroneously pronounced by the presiding XXXXX XXXXX judge in this case. See generally Georgia 400 Indus. Park, Inc. v. Department of Transp., 274 Ga.App. 153, 616 S.E.2d 903 (Ga. Ct. App. 2005)(“The burden rests upon the appellant [s] to obtain such order as will protect [their] rights and preserve the status quo during the pendency of the appeal.” (quoting Clarke v. City of Atlanta, 231 Ga. 84, 84-85, 200 S.E.2d 264 (1973) and speaking expressly in terms of an interlocutory Order and not a final Order).
The precedent for the chilling effect of an appeal of this decree and its suspension of the disposition of any and all of the marital debts of the parties is, despite the actions of the Court below, well-established. In In re Murphy, 473 B.R. 197 (Bankr. E.D. Mich. 2011), the Court excluded attorney’s fees incurred in enforcing contempt of a divorce decree from classification as a “domestic support obligation” because the debtor was not liable and could not ever be liable for the attorney’s fees of his spouse. However, only last year in Wisconsin, the Bankruptcy Court stated that “[a] strict interpretation of § 523(a)(5) is not in accord with its purpose, which is to protect ex-spouses and their children.” In re Hying, 477 B.R. 731, 735, 67 Collier Bankr.Cas.2d 154 (E.D. Wis. 2012)(quoting In re Papi, 427 B.R. 457 (Bankr.N.D.Ill.2010)). In that case, the Court further clarified the Bankruptcy Abuse Prevention and Consumer Protection Act applies to “all debts owed to the spouse, former spouse, or child”, rendering them “nondischargeable regardless of whether the debtor had ability to pay the debt and regardless of whether the discharge to a debtor outweighs the detriment to the former spouse or child.” Id. It stated bluntly that “[i]f the debts were incurred in the course of a divorce proceeding, they are nondischargeable. “ Id. (reiterating approval of In re Tarone,434 B.R. 41, 48 (Bankr.E.D.N.Y.2010)). The refusal of the Court to give deference to the ability of the debtor to pay is directly at odds with the apparent intent of the Court below, and its concern for XXXXX XXXXX has an equally callous effect on XXXXX XXXXX since forgiving her debt because of her lack of ability saddles him with all of his own as well as all of her forgiven debt, in the face of an equally-crippled ability to earn income to offset them. Bankruptcy should not simply wipe her slate clean, and legally it cannot do so while the debts are still a part of the suspended marital estate.
More pertinent for the relief that is requested right now, the Court issued the guideline to federal courts considering the issue in question (the final disposition of debts and assets of a disputed marital estate) by warning that “a bankruptcy court should be cautious when making any ruling that would in effect overturn a state court decision as the bankruptcy courts were never intended to serve as an avenue through which litigants could collaterally attack the validity of a state court judgment.” Id. That situation perfectly describes the situation in the case at bar, and the Court’s intervention in the end-run efforts of XXXXX XXXXX to collaterally attack the appealed divorce decree by declaring bankruptcy and seeking the same relief in a different forum is absolutely necessary. As the Eastern District of Wisconsin Bankruptcy Court observed in the 1998 decision of In re Tadisch, “[a] bankruptcy court should not place itself in a position of second-guessing a decision by a domestic relations court.” 220 B.R. 371, 376. The Northern District of Georgia has put itself in just such a position, and this Court is requested to issue a stay directing that Court to refrain from pronouncing on the issues until they are resolved properly.
The question turns on the nature of the assets themselves, and the items that XXXXX XXXXX is trying to discharge are assets and liabilities that she is jointly financially responsible for with Appellant XXXXX XXXXX, including the large list of debts that she was named on in the divorce proceedings, as well as subjects of current lawsuits. Specifically, the current suits that involve her as a Defendant are the foreclosure suit pending in case number XXCVXXX before the Superior Court of XXXXX County, a foreclosure suit brought by XXXXX XXXXX Property Owners Association, Inc., concerning payment and covenant obligations that she is trying to have discharged in the bankruptcy action described above but the ownership responsibility of which has not been determined conclusively by this Court despite its status as a part of the marital estate owned outright by the parties to this appeal, the foreclosure suit involving the marital residence itself pending in case number XXCVXXXX after XXXXX XXXXX stopped making any payments without justification, but presumably due to the actions of the Superior Court prospective discharge of her debt liability, now appealed, that commenced her complete refusal to acknowledge liability for debt on the lease, and also XXXXX XXXXX’s pending auto negligence suit against XXXXX XXXXX in case number XXXXCVXXXX. The last case involves the vehicle XXXXX XXXXX drives, and is actively being defended by counsel employed by the insurer of the Defendant, requiring resources for its prosecution that Appellant simply does not have without any assistance from Appellee, as she was required to do by the interlocutory Order in this case.
This last case is included in this list of matters that must necessarily be included in the grant of supersedeas directly from this Court because the very purpose for which a stay of supersedeas exists is to prevent the issues on which the Court is to decide from becoming moot; preservation of the status quo of the parties is impossible if the res of their dispute is dissipated by other, collateral lawsuits pecking away at the property that the Court is asked to pronounce its decision on. See generally Jenkins v. Smith, 308 Ga.App. 762, 709 S.E.2d 23 (Ga. Ct. App. 2011)(failure of school superintendant to seek further injunctive relief after end of stay and before termination hearing sought to be enjoined rendered relief moot; stay is injunctive relief that requires a specific Order to have the same effect as supersedeas). The essence of the relief sought by Appellant XXXXX XXXXX may be stated by a quote from Recycle and Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253, 255, 466 S.E.2d 197 (Ga. 1996), for “practical purposes the existence of a right depends on the availability of an effective remedy to enforce it.” (Emphasis supplied.)(quoting 2 Sutherland Stat. Const. § 41.09, p. 399 (5th ed. 1993)).
II. An Order of Supersedeas Can be Issued by the Court Even Though Such Affirmative Relief is Not Generally Required Because it is Provided for by Statute.
Traditionally, supersedeas was not an automatic right for a party on appeal. “The Civil Practice Act [Citation omitted] provides that an interlocutory injunction shall not be stayed during the pendency of an appeal unless a stay is ordered by the court. Therefore, to stop the holding of a meeting or a conference that has been ordered by the trial court, a supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Without such a supersedeas, the meeting or conference must be conducted as ordered. And once the ordered meeting or conference is held, complaint about its being erroneously ordered becomes moot.” Padgett v. Cowart, 232 Ga. 633, 634, 208 S.E.2d 455 (Ga. 1974)(dispute between two factions of church congregation moot because appealed mandated meeting occurred). However, the current Official Code of Georgia dispenses with the danger of mootness from inaction by a party while an appeal is pending by means of the explicit terms of Section 5-6-46(a), which states that the notice of appeal itself serves as supersedeas.
In the case at bar, Appellant seeks a particular kind of post-judgment relief which is necessary to preserve the Court’s jurisdiction. It is well-established that a litigant must demonstrate both legal error and injury thereby to entitle him to post-judgment relief. See generally Norris v. Sikes, 102 Ga. App. 609, 610, 117 S.E.2d 214, 215-16 (Ga. Ct. App. 1960). Both of these elements, necessary for the grant of a new trial or a grant of a judgment notwithstanding the verdict, are present in this case and their aggravation is in imminent danger of occurring. This is manifest by the dissipation of the resources of the marital estate that both Appellee and the collateral-suit parties are seeking, despite the pending divorce matter.
Contrary to the assertion of the trial court on the issue of child custody in one of the Orders presently being appealed to this Court, a matter which is also included by request in this plea for an Order of supersedeas from the Supreme Court of Georgia, the issue in question did not become moot on the happening of one abusive event, but is instead a question of the respective rights of the parties to make such cataclysmic custody decisions in the face of a statutory stay. “[T]he term “moot” must be narrowly construed to exclude from mootness those matters in which there is “[i]ntrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers….” Collins v. Lombard Corp., 270 Ga. 120, 121-122, 508 S.E.2d 653 (Ga. 1998)(excellent discussion of the test for mootness). The matters described above must be stayed to prevent them from becoming moot before their propriety may be settled or overturned by this Court.
CONCLUSION
“[T]he spirit of our law is against depriving a party who has duly entered an appeal, of the benefits thereof, … , where that failure has not been induced or sanctioned by the appellant.” American Legion Post 69 v. Undercofler, 108 Ga.App. 521, 522, 133 S.E.2d 418 (Ga. Ct. App. 1963)(see generally Holt v. Edmondson, 31 Ga. 357 (Ga. 1860)). In the case now before the Court, several different cases have come together at the same time to destroy a party seeking divorce from his spouse, and the trial court has willfully ignored and violated the sacred duty placed on them by the provisions of Section 5-6-46(a) of the Official Code of Georgia regarding the effect of a validly-appealed final judgment, seeking to add insult to injury thereby and actually affecting that injury through matters of financial impropriety and child custody. “The purpose of an interlocutory injunction is to preserve the status quo pending a final adjudication of the case.” Univ. Health Svcs. v. Long, 274 Ga. 829 (Ga. 2002). As has been repeated for decades by this Court, the interlocutory injunction is a device to keep the parties from hurting each other while the case is under adjudication. Price v. Empire Land Co., 218 Ga. 80, 85, 126 S.E.2d 626 (Ga. 1962). The Appellate Practice Act makes plain at Section 5-6-46 that a valid notice of appeal and payment of all costs in the trial court shall act as supersedeas, and have this effect in the case. The stay and injunctive relief requested from this Court is absolutely necessary to preserve the status quo of the parties pending the requested and granted appellate review of this case.
Respectfully submitted, this 19th day of April, 2013.
/s/ Merlinus Monroe_____________
Merlinus Goodman Monroe, LLC Georgia Bar No. 516401
Attorney At-Law Counsel for Applicant
Post Office Box 2686 Telephone: (678) 450-9743
117½ Bradford Street, Suite 9 Facsimile: (678) 828-5789
Gainesville, Georgia 30503 merlin@merlinusmonroe.com
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A Late Request for Oral Argument
When a case is docketed with the Supreme Court (other than cases involving the Death Penalty and cases in which Certiorari is granted, in which case oral argument is mandatory), the parties have twenty (20) days from docketing to request oral argument, according to Rule 50 of the Rules of the Supreme Court. For your assistance, it reads as follows:
Rule 50. ORAL ARGUMENT.
Oral argument will be scheduled by the Court as follows:
(1) Direct appeals from judgments imposing the death penalty will be placed on the calendar automatically and oral argument in such cases is mandatory;
(2) All granted writs of certiorari will be placed on the calendar automatically unless disposed of summarily by the Court and oral argument in such cases is mandatory; and
(3) Other cases will be placed on the calendar upon the request of either party within 20 days from the date the case is docketed in this Court. See Rule 51. No extensions for requesting oral argument will be granted. Oral argument by counsel in appeals other than where the death penalty is imposed is never mandatory, and argument may be submitted by briefs only. Argument will not be permitted to parties or attorneys whose briefs have not been timely filed. The Court may deny or limit oral argument where appropriate.
These rules speak to when oral argument can occur in a case, but not the way that it should be requested. That is covered by Rule 51, which states that “[a] request for oral argument shall be filed by letter directed to the Clerk, and shall certify that the opposing parties or their attorneys have been notified of the intention to argue the case orally and that inquiry has been made whether they intend also to argue orally. The request shall further certify that the opponents do or do not desire to argue orally, and shall show service of the letter upon such opponents.“
There is a special entry on the Supreme Court’s e-file website for requests for oral argument, although late. The following is a redacted excerpt from a letter brief done for such a request (do not know if it is successful or not, but the law is valid, and the arguments are presented as written);
“The attention of the Court is first directed to Prime Retail Development, Inc. v. Marbury Engineering Co., a 2004 case decided by the Court of Appeals of Georgia and catalogued at 270 Ga.App. 548, 608 S.E.2d 534. That case involved a contractual dispute between a financier and a property developer. The primary conflict in the case involved the dependence of the financier on the oral representations of the property developer, which were at odds from their written representations. The discrepancies were not verbally disclosed even though they were represented fully in written form, and suit resulted. This demonstrates the human willingness to rely on oral statements to the exclusion of written statements, and further exhibits the superiority of oral statements in terms of persuasiveness. In Huffman v. Armenia, also a case decided by the Court of Appeals of Georgia, catalogued at 284 Ga.App. 822, 645 S.E.2d 23 (Ga. Ct. App. 2007), a ruling was issued by the trial court verbally but was not reduced to writing and recorded with the Clerk of Court until a later date. The Court reaffirmed the rule of OCGA § 9-11-58(b) that the judgment is not considered “final” (therefore capable of being appealed from) until such time as it has been finally reduced to writing and recorded. That case also exhibits the relative superiority that oral pronouncements often have in consideration by listeners, involving verbal orders concerning a Temporary Restraining Order that the parties desperately wanted to appeal, and in fact did appeal, but which was not yet ripe for such appeal. Again, the spoken words often have far greater persuasive effect than written words.
Though the 2004 Court of Appeals of Georgia case of Zhou v. LaGrange Academy, Inc., 266 Ga.App. 445, 597 S.E.2d 522, would appear to and does stand for the proposition that parol, oral representations at odds with the written terms of an objective document (in this case, an employment contract for a teacher who was subsequently dismissed) yield before contrary terms contained in the writing between the parties, the case again exhibits the superior nature of oral argument in terms of persuasiveness on human understanding. The case itself would not have arisen if the discussions relied on by the Plaintiff in that case had not prevailed over contrary written terms when he faced the terms of the relationship of the parties. In fact, oral representations are generally considered legally-inferior as evidence in contrast to objective depictions of the same evidence, as shown by Stinski v. State, 281 Ga. 783, 642 S.E.2d 1 (Ga. 2007), which expressly found that photographic evidence had superior value in terms of establishment of facts to contrary oral testimony. However, the case would not have arisen but for the superior persuasive value that people naturally place on verbal transactions.
Again, though I and opposing counsel are in agreement that this case can be decided by the Court without recourse to oral argument, it has a proven greater persuasive value than sterile black-and-white written argument, and I believe an attorney’s highest duty is to his client as a zealous advocate. With that in mind, I request the right to present oral argument to the Court on the issues involved in this case, and believe that such will assist the Court in reaching a fair decision.”
Note that the letter-brief should be both sent to the Clerk/served on the opposing party AND filed.
Thought it might be of interest – either as a study in what not to do in progressing through a domestic appeal, or as an outline for successfully pursuing an appeal.
ALSO – Recently, a reader contacted me by e-mail to alert me that they are unable to leave comments in my blog entries. I have requested information for enabling this feature from my host, but I highly recommend that you do exactly as they did – send an e-mail to me with any comments, corrections, or concerns! I appreciate the learning experience, and welcome your thoughts.
The case presented in this entry is Georgia 400 Indus. Park, Inc. v. Department of Transp., 274 Ga.App. 153, 616 S.E.2d 903, 05 FCDR 2143 (Ga. Ct. App. 2005), which stands for a proposition that is apparently WIDELY misunderstood. It is undisputed that Section 5-6-46(a) of the Official Code of Georgia states that “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond or other form of security be filed; provided, however, that upon motion by the appellee, made in the trial court before or after the appeal is docketed in the appellate court, the trial court shall require that supersedeas bond or other form of security be given with such surety and in such amount as the court may require, conditioned for the satisfaction of the judgment in full, together with costs, interest, and damages for delay if the appeal is found to be frivolous.”
However, the automatic effect only occurs when there has been a FINAL judgment. When an appeal is interlocutory in nature, arising from an Order in a pending case, it requires that a motion be made to enforce a supersedeas stay. The effect is automatic when the appeal is from a final matter, and it is a terrible mistake for someone to proceed otherwise. This case illustrates exactly that difference:
Page 904
COPYRIGHT MATERIAL OMITTED
Page 905
Richard Hubert, Eric White, Chamberlain, Hrdlicka, White, et al, Atlanta, for appellant.
Thurbert Baker, Attorney General, Mark Weinstein, Law Offices of Mark Weinstein, LLC, Cumming, for appellee.
PHIPPS, Judge.
On April 9, 2004, the Georgia Department of Transportation (DOT) filed a petition and declaration of taking pursuant to OCGA § 32-3-1 et seq. to acquire for transportation purposes 0.741 acre of land, the right to dismantle and remove a building situated partly on the condemned land and partly on adjacent land not condemned, and various easements, including a temporary work easement to enter the land not condemned for the purpose of dismantling and removing the building. By that date, the DOT had paid its estimation of just and adequate compensation into court.1
Georgia 400 Industrial Park, Inc., Joshua R. Duncan, and the Billiard Connection, Inc. (collectively “Condemnees”) filed a motion pursuant to OCGA § 32-3-11 to set aside, vacate, and annul the declaration of taking. After a hearing, the trial court denied the motion.
[274 Ga. App. 154] In this interlocutory appeal, Condemnees contest the denial of that motion. They argue that the declaration of taking failed to provide a sufficient description for the temporary work easement and that the DOT failed to follow certain federal and state guidelines in instituting the condemnation proceedings. Their first argument compels reversal of that part of the trial court’s ruling pertaining to the temporary work easement. Their second argument demonstrates no basis for reversal. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
1. Condemnees argue that the declaration of taking failed to provide a sufficient description for the temporary work easement and that the trial court therefore erred by not setting aside that portion of the declaration of taking pertaining to that easement. Condemnees further claim that, without a
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sufficient description, the boundaries of the easement were not established and therefore the DOT’s estimation of just and adequate compensation could not have accurately appraised their loss.
OCGA § 32-3-6(b) requires that a declaration of taking contain or have annexed to it, among other things, a “description of the lands taken sufficient for the identification thereof” and a “statement of the estate or interest in the lands taken for public use.” The Supreme Court of Georgia has held consistently that a condemning body seeking to acquire an easement must describe the easement with the same degree of definiteness required in a deed to land.2 And this court has stated,
The condemnation proceeding operates as a purchase of the land or an interest therein for a certain sum, and [a condemnee] is entitled to have an accurate, definite description of the property it is to lose in this transaction. Nothing must be left open to the judgment or interpretation of another, not even a court. Without this, the owner of the property cannot know what portion of his land is required, the special master cannot know what damage to apprise, and the petitioner cannot know the precise boundaries of the land so as not to trespass on property not acquired.3
In describing the temporary work easement at issue, the declaration of taking sets forth,
[274 Ga. App. 155] A temporary work easement is condemned for the right to enter upon the adjacent lands not condemned for the limited purpose of effectuating removal of a building acquired herein; and the work of removing this building shall be done in an expeditious manner with as little disruption to the remainder as is practicable under the circumstances. The easement will begin on the date possession is granted and continue until the building is removed or until January 31, 2007, whichever comes first, at which time said easement will expire. Said building being shown on the attached plats marked Annex 1-A and is labeled “BLDG.”
The referenced plat does not depict a temporary work easement.
We agree with Condemnees that the trial court erred in determining that this language describes the temporary work easement with the required specificity.4 Among other things, it provides neither the width of the easement nor any limitation regarding a pathway which must be utilized when traversing the land not condemned. It starkly leaves the boundaries of the temporary work easement to be set by those hired by the DOT to dismantle and remove the building. Despite the DOT’s claim that “some of the relevant factors might not be discernable until the demolition crew arrives at the work site and begins work,” “[i]t is not enough in a proceeding to condemn an interest in land for public purposes to describe the interest sought to be acquired so vaguely as to leave it dependent upon the undisclosed opinion of the condemning party as to the quantum of the interest which it may be deemed necessary to take.”5 The DOT argues that the description contains a temporal limitation, but that limitation conveys not even a hint of the extent of the physical invasion contemplated.6
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Because the aforementioned language failed to describe sufficiently the temporary work easement, the trial court erred in [274 Ga. App. 156] refusing to set aside that portion of the declaration of taking purporting to vest title of the temporary work easement in the DOT.7
The DOT argues that, even if the trial court so erred, the issue is moot because during the pendency of this appeal, the building was dismantled and removed and thus the temporary work easement has expired by its own terms.8
A condemning body may acquire property for transportation purposes through the declaration of taking method set forth in OCGA § 32-3-1 et seq. or through various other methods, such as the special master procedure, provided in Title 22 of the Code.9 Under the declaration of taking method, which was used here, title to the property vests in the condemnor once the condemnor files its declaration of taking and deposits into the court’s registry the sum it has estimated as just and adequate compensation.10 In seeking relief from the temporary work easement, Condemnees sought and obtained interlocutory review of the denial of their motion to set aside the declaration of taking. But the mere appeal from an order denying such motion, without further application for an interim order of supersedeas, did not impose any judicial restraint upon the DOT’s activities nor prohibit execution of the matter sought to be enjoined.11 ”The burden rests upon the appellant[s] to obtain such order as will protect [their] rights and preserve the status quo during the pendency of the appeal.”12 Condemnees cite this court to no such order.
Nevertheless, we reject the DOT’s argument that the issue is moot.13 ”The possibility of a condemnor reaping a benefit from having filed a faulty declaration of taking should be avoided.”14 Here, although the status quo was not maintained with regard to the DOT’s traversing the tract of land not condemned, the essence of Condemnees’ contention—that the loss related to the temporary work easement was not accurately apprised by the DOT’s estimation—is not moot.
[274 Ga. App. 157] The record shows that Condemnees were dissatisfied with the DOT’s estimation of just and adequate compensation, and therefore each filed a notice of appeal to a jury trial within 30 days of service of the petition and declaration, citing OCGA § 32-3-14. “After the notice of appeal has been filed as provided in Code Section 32-3-14, it shall be the duty of the court … to cause an issue to be made and tried by a jury as to the value of the property or interest taken and the consequential damages to property or interests not taken….” 15 Furthermore, OCGA § 32-3-19(a) provides that the jury’s verdict “may be molded under the direction of the court so as to do complete justice.” Most pertinent to the issue raised by this contention is OCGA § 32-3-17.1, which authorizes the trial court to order a condemnor to amend a defective declaration of taking.16 That Code section provides in relevant part,
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All questions of law arising upon the pleadings or in any way arising from the cause, subsequent to the filing of the declaration of taking and the deposit of the fund, and subsequent to the filing of the notice of appeal, if any, shall be passed on by the presiding judge who may, from time to time, make such orders and give such directions as are necessary to speed the cause, and as may be consistent with justice and due process of law.
Noting the immediate vesting of title to the land interests in the condemnor upon the filing of the petition and the payment of compensation monies into court, the Supreme Court of Georgia has ruled that, “to ensure due process to the property owner,” the condemning body must strictly conform to the requirements of OCGA § 32-3-1 et seq.17 And this court recently reiterated that due process requires a condemnee to be provided a legally sufficient description of its land interest sought to be acquired.18
Condemnees argue that “[the DOT] should be required to advise the trial court of the total amount of time taken to exercise the `temporary work easement,’ and the area of [the] land used to remove the building, and pay [Condemnees] accordingly.” We agree, and [274 Ga. App. 158] therefore reverse that part of the trial court’s ruling pertaining to the temporary work easement, and remand this case with instruction to the trial court to order the DOT to amend the declaration of taking to provide an accurate and legally sufficient description of the land it traversed, along with the period of time it was used, for purposes of determining the value of the land taken or consequential damages to land not taken.19
2. Condemnees contend that the trial court erred by failing to set aside the declaration of taking, claiming that the DOT failed to adhere to certain provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act (the URA)20 and the Georgia Relocation Assistance and Land Acquisition Policy Act.21
(a) Regarding the URA, Condemnees claim that the DOT violated 42 USC § 4651, which provides steps to be followed by federal agencies seeking to acquire land.22 OCGA § 32-8-1(b) provides that, in acquiring real property for a federal-aid project, such as the one underlying the condemnation in this case, “[the DOT] shall be guided to the greatest extent practicable” by the land acquisition policies in the URA.
However, “[t]he provisions of [42 USC § 4651] create no rights or liabilities and shall not affect the validity of any property acquisitions by purchase or condemnation.”23 ”The provisions of 42 USC § 4651 do not … create a private right of action in landowners. Instead, the section is no more than a statement by Congress of what it perceives to be the preferred method of dealing with landowners when the government wants to acquire their land.”24 Because the URA vests no private right of action in Condemnees, they cannot rely upon a violation of it as a basis for setting aside the declaration of taking.25
(b) The Georgia Relocation Assistance and Land Acquisition Policy Act provides procedures to be followed by state agencies in acquiring property for federal-aid works projects.26 Condemnees contend the
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DOT violated OCGA § 22-4-9, which sets forth procedures for public entities acquiring real property for any federal-aid public works project. However, “OCGA § 22-4-9 does not create a private right of action in favor of a [condemnee], but merely addresses policies that should guide state agencies when they acquire [274 Ga. App. 159] real property for federal-aid projects.”27 Because the Georgia Relocation Assistance and Land Acquisition Policy Act therefore vests no private right of action in Condemnees, they cannot rely upon a violation of it as a basis for setting aside the declaration of taking.28
Thus, the trial court did not err as contended.
Judgment affirmed in part and reversed in part and case remanded.
ANDREWS, P.J., and MIKELL, J., concur.
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Notes:
1. See OCGA § 32-3-7.
2. See City of Atlanta v. Airways Parking Co., 225 Ga. 173, 178-181(4), 167 S.E.2d 145 (1969); B. & W. Hen Farm v. Ga. Power Co., 222 Ga. 830, 831(2), 152 S.E.2d 841 (1966); Gunn v. Ga. Power Co., 205 Ga. 85, 86, 52 S.E.2d 449 (1949).
3. Mosteller Mill, Ltd. v. Ga. Power Co., 271 Ga. App. 287, 289(1), 609 S.E.2d 211 (2005).
4. See Airways Parking Co., supra at 178-181(4), 167 S.E.2d 145; B. & W. Hen Farm, supra at 831(2), 152 S.E.2d 841 (finding that a notice of the intention to acquire the right of ingress and egress on and over the condemnee’s land, described only as being “the nearest and most practical route, using existing roads as far as possible” to and from the strip on which the condemnor sought to locate its transmission line, was insufficient); Gunn, supra at 87, 52 S.E.2d 449 (description of easement, omitting width of the right-of-way or any key as to such width, failed to sufficiently describe the land interest sought to be condemned); Mosteller Mill, Ltd., supra at 288-290(1), 609 S.E.2d 211 (finding that the right to “cut away, remove and dispose of dead, diseased, weak or leaning trees … which may now or hereafter, in falling, strike the conductors…” lacks the required specificity to convey a maintenance easement).
5. Mosteller Mill, Ltd., supra at 289, 609 S.E.2d 211.
6. See id. at 288-289, 609 S.E.2d 211.
7. Airways Parking Co., supra at 181, 167 S.E.2d 145 (in the absence of a definite description, a trial court errs in not enjoining a condemnation); B. & W. Hen Farm, supra at 831(1), 152 S.E.2d 841 (the remedy of the landowner is to apply to a court of equity to enjoin illegal proceedings); Gunn, supra at 87, 52 S.E.2d 449.
8. See generally Dean v. City of Jesup, 249 Ga. App. 623, 624(1), (2), 549 S.E.2d 466 (2001) (if reversal of a trial court’s judgment is of no practical benefit to the parties, any issues raised on appeal are rendered moot).
9. City of Atlanta v. Yusen Air & Sea Svc. Holdings, 263 Ga.App. 82, 83(1), 587 S.E.2d 230 (2003).
10. OCGA § 32-3-7(a); Yusen, supra.
11. Padgett v. Cowart, 232 Ga. 633, 634, 208 S.E.2d 455 (1974); Clarke v. City of Atlanta, 231 Ga. 84, 200 S.E.2d 264 (1973); see OCGA § 9-11-62(a), (c).
12. Clarke, supra at 84-85, 200 S.E.2d 264 (citations and punctuation omitted).
13. Cf. Padgett, supra; Clarke, supra.
14. Dorsey v. Dept. of Transp., 248 Ga. 34, 37, 279 S.E.2d 707 (1981).
15. OCGA § 32-3-16(a).
16. Dorsey, supra.
17. Dorsey, supra; Yusen, supra; OCGA § 32-3-7(b) (nothing in that Code section shall be construed so as to deprive the owner of the property or interest of due process of law as guaranteed by the Constitutions of Georgia and of the United States).
18. See Mosteller Mill, Ltd., supra at 289-290, 609 S.E.2d 211; accord MARTA v. Trussell, 247 Ga. 148, 150(1), 273 S.E.2d 859 (1981) (condemning body did not have power to damage property without a constitutional “taking”).
19. See Dorsey, supra.
20. 42 USC § 4601 et seq.; see also OCGA § 32-8-1 (b).
21. OCGA § 22-4-1 et seq.
22. See Benton v. Savannah Airport Comm., 241 Ga.App. 536, 539(2), 525 S.E.2d 383 (1999)
23. 42 USC § 4602(a); see Benton, supra.
24. Benton, supra (footnote omitted).
25. Id.
26. Id.
27. Id.
28. Id.
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(c) 2013 Thomson Reuters. No Claim to Orig. US Gov. Works
I have never been appointed as a Special Assistant Attorney General, but these seminars always address things that are incredibly useful in the attendant circumstances to divorce where children, incapacitated adults, and persons who are operating under a legal disability or alleged legal disability with respect to matters of family law (such as divorce or child custody) are involved. These are notes I had yesterday from the seminar given on the topic, that are made to supplement the excellent and detailed information at the presentation on the new version of Georgia’s substantial revision of the Juvenile Code.
CHILD WELFARE TRAINING CONTINUING LEGAL EDUCATION
4-12-13 – State Bar Headquarters
LOOK AT THE “TRIAL NOTEBOOK” in the CLE materials – Written versions of most of the things discussed
- 1. Hon. Cassandra Kirk (Fulton County Juvenile Court)
And Mary D. Hermann (attorney for parents in juvenile court)
Remember:
- Juvenile Court IS real Court, and record is necessary if case gets appealed
- DFCS is NOT a “good parent”, any more than any other parent
- Judge doesn’t know the law any more than any other lawyer – please brief and KNOW YOUR TOPIC
- Child welfare law is NOT such an easy topic – do not forget about the appeal!
- Remember – the new juvenile Code makes it clear, but the child’s lawyer (GAL) cannot appeal – the appeal is handled by the CASA
- Fulton County – client-directed model; not a “best interest of the child” model
Look at possibility of Skype interviews to overcome the distance problem.
New Dependancy Code is VERY CLEAR – children 14 years+ must be SERVED WITH ALL OF THE PETITIONS (it isn’t reversible error, but bad practice)
New classification – CHIN (Children in Need – “unruly” previously; represents change in focus from “nobody’s fault but the child” to giving services/holistic need to help them improve)
Department: “reasonable efforts” are now tied to funding, so there has to be reunification efforts, really – start efforts at the first hearing (protective hearing)
- Why is the child at “imminent risk of harm” if they go back to the family?
- More importantly – what needs to be done to remedy?
Get the actual plan meeting scheduled then and there – move the case forward!
Even if everybody agrees, there STILL must be a factual basis for every finding in the disposition/case plan/etc.
New § 15-11-1 (Liberal Construction of Chapter) -
- Must have appropriate JURISDICTIONAL findings in the Orders (or it IS reversible error)
- Focus is on reunification and remedy
Remember – child can be BOTH deprived AND delinquent, and New Code recognizes it
Case Scenario Evaluation
1. Shelter Care Order (Starts the 7-month time limit, so make sure it has DATE AND TIME):
Remember – ANYONE can make a report
- Intake Order – must show “imminent harm” if child remains in that location; remember it is an ex parte Order, and IDEALLY the SAAG or other person seeking the removal Order is going to be told BOTH sides (Conditions – § 15-11-45(a)(4))
2. Probable Cause hearing (“PC Hearing”, “Detention Hearing”, or “72-Hour Hearing”):
- See page 7 of the Trial Notebook in the materials – this is a 72-hour hearing
1. Are there reasonable grounds to believe the allegations are true (low burden)?
-AND-
2. Can children return to home environment safely?
- Rules are relaxed, and it is possible child could be returned to home with Protective Order
- Case can be continued but NEED TO HAVE THE “good cause” for continuance to be STATED and not general
“Deplorable Conditions” – ex. Feces on floor, rotting food, broken glass
Case Citation – 217 Ga.App. 1995
1. DFCS *must* present evidence of *what constitutes* deplorable conditions
-AND-
2. Conditions are affecting child’s emotion/mental/physical well-being
DFCS policy is ONLINE – “Social Services Manual” (not law, but recommended procedure they use)
- Remember – this internal policy does not provide a list of required minimum standards for any particular professional at all (including interpreters, in situations involving immigrants and forensic testing)
- Meaning that the individual Board standards have to be addressed
- Just because that is the “expert” the Juvenile Court generally relies on doesn’t mean they are immune to a good expert evaluation
Georgia does not have any “recognized” Native American tribes; contract Department of the Interior if there might be a “federally-recognized” Native American tribe (registered member) involved.
If ICPC (Interstate Compact on the Placement of Children) is involved – family members are Interstate – then there are many different hurdles that have to be met at certain times and in certain manners.
Reasonable Efforts (required for any and all ongoing child removal situations; have to be shown by DFCS personnel to continue detention:
1. Must state reasons for taking child into care (3 given reasonable efforts – specifically, see OCGA § 15-11-58); and
2. Efforts to prevent PERMANENT REMOVAL
Very good practice – ask for DFCS to give notice of all meetings at the initial PC Hearing.
3. Adjudication
Must happen within 10 days, or the case is dismissed – WITHOUT PREJUDICE
Statutorily – Petition must be “presented to the Court” within (5?) days
- Petition must be FILED within 10 days
- If child is NOT removed from home – 30 days to file, instead
Read the case law section of the materials for specific rules on what Petition for Deprivation must contain (needs to be specifics; ex. “at this time, in this place, this thing happened and the child is deprived – and THIS IS WHY it is not a one-time event”)
Incarcerated Parent
Judge must find that “incarceration has an adverse effect on the familial relationship”
- Need to show efforts to the contrary – ex. Person writes letters daily, etc.
- See the case law in the materials that dictates the above languages in this info
- Need to have a TRANSPORT ORDER (filed more than 10 days in advance of hearing) to have parent brought to Court for hearing
To find the absent parent – ASK FOR AN “ACCURATE SEARCH”!!!!!!!!!
- Again – subpoena to Department of Vital Statistics
Remember – can WAIVE –or- STIPULATE at beginning – probable cause; subsequent final must stipulate or put up evidence and you sure better put up evidence!!!! – SEE PAGE 11 OF MATERIALS
Case plan for reunification – address each of the findings of fact
- Remember – a finding of “deprivation” will haunt them up the road at every child custody matter (same children or not; subsequent marriage, etc.), so CONTEST IT IF REASONABLE
Remember – case plan: Change it from “must have a job” to “must have a VERIFIABLE source of income” – sufficient to provide for family
GET NUMBER/INFO FOR GEORGIA ADVOCACY OFFICE – (800)??? – 4329(??) – not legal help for parents, but other resources to help them deal with raising a family, etc.
Legitimation
- Administrative:
- Just signing some names at the bottom of the birth certificate
- He is then ADMINISTRATIVELY the legal father, but some/many juvenile court judges will not recognize this (the law SAYS it is good, but it is badly effected)
Vs.
- Legal:
- Remember to read back over the Code section because if they signed the paternity acknowledgement, they are STILL the “Legal father”
- Get a subpoena for production of documents and fax to Department of Vital Statistics
- This is a 15-20 minute process often
Department of Vital Statistics – must be a subpoena, and you are going to get DL, State of Issuance, SSN
Attn: Debora Aderhold or Traci Whitef – child’s name, case number, DOB
Tell them – you need Form 3940, Vital Records of Georgia Department of Human Resources
Fax number is 404-679-4765; do this in the beginning of case, because if he is a legal father (signed ACKNOWLEDGEMENT OF PATERNITY AT THE HOSPITAL) then he gets notice, etc., for due process to be satisfied
3. Dr. Alka Aneja, MD, MA
(Potential highly qualified expert for PTSD topic - Medical Director for DHS – Childhood development specialist)
Common injuries at age group:
1-3 years: Often see evidence of shaking, head injury
Remember – different parts of the brain show different kinds of injury
Developmental neglect and trauma have a noticeable PHYSICAL effect/limitation on brain development.
Approximately 1/3 of all children – physical abuse;
¼ of all girls (and 1/5 of boys) – sexual abuse
Victims of child abuse statistically 12 times more likely to commit suicide.
Most important/noticeable long-term effect of childhood abuse seems to be a loss of self-regulation (this is like long-term PTSD)
- “Hypervigilance” – caused by this long-term fight or flight
- Dissociation results – it varies with the intensity of the event
Childhood abuse – cause of delays in, failures in normal developmental milestones
PTSD and Child Abuse Treatment:
- Recursive
- Revisits earlier stages of treatment
- Reinforces the treatment at later points
CDC studies – same information presented and used
BEST – check aacap.org – studies and info there on this topic
4. Judge Gerald Bruce (Enotah Circuit Juvenile Court Judge)
Case Law update:
Bulletin Board for JJC has update blurbs on each case.
315 Ga.App. 673:
- Medically-fragile twins; parents never married and Mom didn’t visit for 4 months; Legitimation action in Superior Court and deprivation action subsequently in juvenile court
- NOT a disguised custody case (juvie courts can’t hear) BECAUSE –
- Mom left kids in his physical custody, paid no $ for months prior to petition, it WOULD HAVE BEEN custody except that other stuff
316 Ga.App. 86:
- Question is “judicial notice” – trial court supposedly took judicial notice of psych evaluation AND citizen review panel, and they were primary evidence
- If it isn’t in the record, cannot use it
- § 24-2-201 covers idea of “judicial notice”, but requires that FACTS JUDICIALLY NOTICED MUST STILL BE SPECIFICALLY NOTED ON THE RECORD
316 Ga.App. 185:
- Exhibits themselves were NEVER tendered at the hearing, so they were ALL HEARSAY that should have been excluded (hearsay is admissible, but WEIGHT is in question)
31 Ga.App. 246:
- Termination Order has to spell out not just WHY, but also WHAT
316 Ga.App. 296:
- Mom left child with foster care but did not use chance to clean up her act; instead went off a bender for a little while
316 Ga.App. 782:
- Reinforces idea that trial court (juvenile court) makes findings of FACT, even if facts found seem absurd
291 Ga. 376:
- Brine v. Ship – SUPERIOR COURT CANNOT TERMINATE RIGHTS (if Legitimation first requires that father’s rights be terminated)
317 Ga.App. 683:
- Parent in termination or deprivation proceedings – DUE PROCESS RIGHT to be present while ALL witnesses are testifying
- Can have the child outside Defendant’s presence, as long as testimony can be heard/seen, and Defendant can consult with counsel
317 Ga.App. 679:
- Can’t complain about factual findings (judicial notice of evidence with hearsay) if it is unappealed prior case order
In the Interest of EEBW, 318 Ga.App. 65:
- UCCJEA case – child went to Zambia for plastic surgery at 8, stayed (for surgery) until 14, then adopted by foster parents;
- Child then protested; dispute was Fulton County versus Zambia
- Court decided that UCCJEA actually WAS custody
- Court decided to treat Zambia as a “sister State” under the UCCJEA!
- It does NOT apply to adoptions, and this was a Zambian adoption
318 Ga.App. 772:
- § 15-11-58 says if no reunification efforts then place with a list of people, and (a) is relatives; trial court thought there is some kind of presumption in favor of relative placement
- BUT (c) uses the word “OR” – there isn’t a priority under the statute – COURT REVERSED
13 Ga.App. 135; 319 Ga.App. 138; 2013 WL 870274
- § 15-11-94 Termination of Parental Rights (4-step process to determine parental misconduct or inability), ALSO – PARENTAL NEGLECT/FAILURE for 12 months prior ((b)(4)(C))
- There was no evidence to the underlying TPRs
2013 WL 776587:
- GAL must act to appeal; not child by themselves
5. Karlise Y. Grier (Ethics in Child Welfare Cases)
Look at State Bar website (www.gabar.org) for 2011 revision of ethics rules for reference
Professionalism versus Ethics – reaching for the sky versus basic behavior
“Informed consent” for withdrawal, for conflicts of interest MUST BE confirmed in writing!!!!
Scope of Representation: lawyer MUST abide by decisions, but SHALL CONSULT as to means to achieve
Beginning in 2014, child must have BOTH an attorney AND a GAL in Juvenile Court.
ALL lawyers representing children in Juvenile Court need to be aware of a LAUNDRY LIST of possibly applicable acts that may apply IN EVERY CASE (ex. Acts on multi-ethnicity placements, Indian rights, social security, immigrant children) – State Bar website has that list
If client is acting under diminished capacity, and confidence given by client that they are pursuing course of action that you believe is not in their best interests, then MUST obtain a separate GAL and retain the attorney role (and the confidence, but protect the GAL aspect for client).
Redacted Argument and Citation to Legal Authority from Appellate Brief on Divorce Settlement
I apologize for blatant errors in this document. I am actually pretty pleased with the reasoning that underlies all of the contract law points, although the difficulties I have faced during the progression of the case from which this now-published Appellant Brief “Argument and Citation to Legal Authority” and “Conclusion” section come from as far as the fundamental contract law essence of divorce settlement have confused me deeply.
This document being now published, I am presenting it to you for your comments (they are welcome, because I asked around but could find no guidance on this topic or in the area of appellate practice as it pertains to divorce issues, which irritates me very much) and your education, where the points presented were previously unknown to you. This will either add to the growing body of documentation of my downfall, act as documentation of positive steps taken in a growing and expanding career, or simply be text to note. No matter what, I intend to continue my efforts to achieve the undefinable idea of “right” or “good” as I believe it to be, and to pursue what I believe is logical reasoning to reach that end. This will continue until I am killed or incarcerated, or both, and will continue through legal channels as long as I am not disbarred.
Argument and Citation to Authority
Rather than following the pattern of the enumeration of errors made by Appellant in this case, this brief will address the two specific questions put forth by the Court in its grant of this discretionary appeal, which are presented in Enumerations of Error #15, #16, and #17. For the facts and legal argument surrounding enumerations of error #1 through #14, Appellant will address these enumerations within the arguments made for each of the three final Enumerations of Error to the Court. If the conditions argued in Enumerations of Error #15, #16, and #17 are found to be present and valid, the Court is well within its power and authority to grant reversal and also to require that new findings be entered if needed for the remaining issues between the parties. Enumerations of Error #1 through #14 are not abandoned, but are not presented sequentially.
The third necessary condition given by Section 13-3-1 of the Official Code of Georgia for the existence of a contract between two or more parties is their assent to its terms. See OCGA § 13-3-1. A divorce settlement is an executory contract between two parties meant to achieve a particular purpose, defined by Section 13-1-2(b) of the Code as “one in which something remains to be done by one or more parties”, and one of the two necessary parties to this particular contract never agreed to any of its terms before it was adopted by the Court. In other words, he never gave his assent, and there was no contract created under Georgia law, consequentially.
I. The Divorce Settlement Signed by the Court does not accurately represent the Agreement of the Parties.
Section 13-2-3 of the Official Code of Georgia states that the cardinal rule of contract construction is to ascertain the intention of the parties, and it makes it clear that sufficient words and other proof of a clear intention is the end of inquiry. However, in the case at bar there are no indications in either the document put forward by XXXXX XXXXX’s counsel and signed by the judge or in the transcript of the final hearing between the parties that XXXXX XXXXX ever gave any valid consent to the terms of the Contract and Agreement, a copy of which was attached to and incorporated in the Application for Appeal in this matter as Exhibit “F”. In that event, the Official Code provides at Section 13-2-4 that “the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” In contrast to Exhibit “F”, Appellant points to a letter to the Court containing an alternate version of the Contract and Agreement attached thereto which reflected the negotiation of the parties, termed Exhibit “U” in the Application for Appeal and filed and available to the Court for its consideration almost two hours prior to the spontaneous unilateral approval of the document the Court approved. The differences between the document approved by the Court as Exhibit “F” and the actual intentions of the parties detailed in full in Exhibit “U” readily shows the discrepancy that would qualify the Contract and Agreement for evaluation under the standards of Sections 13-2-3 and 13-2-4 of the Georgia Code.
Though entitled Contract and Agreement, and reciting the presence of the written consent of the parties that it purportedly governs, XXXXX XXXXX’s signature does not appear on any page of the document, and because the disposition of child custody matters and property settlement issues that existed under the governing interlocutory Order is incredibly different in the document actually signed unilaterally by the Court, it demonstrates that there was no “contract” and no “agreement” between the parties, despite the name it was given.
A. There were material differences between the version of the settlement negotiated between the parties and the version unilaterally signed by the presiding judge.
In the Temporary Order, a copy of which was attached to and incorporated within the Application for Appeal as Exhibit “J”, the Child Custody and Visitation provisions were as follows:
“Father’s visitation shall begin on XXXXX, 2012, and end on XXXXX, 2012. Mother’s visitation shall begin on XXXXX, 2012, at 7:00 PM, and end on XXXXX, 2012, at 7:00 PM”.
These conditions were then to continue while the Temporary Order remained in effect, alternating week to week, and were followed by the parties until XXXXX XXXXX opted to unilaterally shift the weeks by enforcing the otherwise invalid Contract and Agreement applied by the Court in its Final Judgment and Decree of Divorce. A copy of the Final Judgment and Decree of Divorce was attached to and incorporated within the Application for Appeal as Exhibit “E”. A copy of the text message exchange between XXXXX XXXXX and XXXXX XXXXX dated XXXXX, 2012, demonstrating this alteration in the rotated weeks of visitation and custody is attached hereto and incorporated herein as Exhibit “1” to this document. This text message provides a very clear explanation of the mechanics of the operation of the parties following the final hearing between them with regards to child custody, indicating the reversal in custodial relationships with the children from the final judgment as opposed to the custodial relationship the parties were operating under prior to its entry. Section 13-2-2(1) of the Georgia Code permits the Court to examine this document to obtain a clearer picture of the motivations of the parties, stating that “[a]ll the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained”. Exhibit “1” explains the ambiguity that was present, though arising after the entry of Exhibit “E” in this matter.
In the version of the Contract and Agreement approved unilaterally by the trial court after being unethically and independently put forward by counsel for Appellee, the Child Custody and Visitation provisions were entirely reversed, such that the weeks in which Appellant XXXXX XXXXX spent with his daughters were instead weeks in which the children were placed under the custody and control of Appellee. Mathematically and practically, this resulted in an additional week of time spent by the girls in the care and custody of Appellee and one week less with Appellant. These terms were not negotiated by the parties, and were the exact opposite of the terms that they had previously accustomed themselves to under the existing guidelines. They were put forward independently by Plaintiff and her counsel and approved by the Court without any agreement by Defendant or his attorney as shown by Exhibit “F” on which no signature of Appellant or his counsel appear anywhere. As terms that directly governed the issues of child custody between the parties, they were very material to the divorce itself, and very material to any purported contract settling the marital relationship of the parties.
1. A divorce settlement agreement is a contract between the parties and requires consent to all material terms to be binding on them.
“Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense”. Hadley v. Countrywide Home Loans, Inc., 315 Ga.App. 349, 355, 727 S.E.2d 183 (Ga. Ct. App. 2012)(quoting Wilkins v. Butler, 187 Ga.App. 84, 85, 369 S.E.2d 267 (1988)); OCGA § 13-3-1. The importance of this “meeting of the minds” is self-evident in the context of marital dissolution, especially in a case like the one now pending before the Court, where matters of child custody and child visitation are involved, including the very important issues of extracurricular activities and medical decisions. Georgia law actually requires the agreement of the parties on all material terms of the contract between them, stating at Section 13-3-2 that “[t]he consent of the parties [is] essential to a contract” and providing that “until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”
2. There are situations where a divorce contract can be unilaterally created by the Court but they were not present in this case.
The same rules that govern the basic formation of any contract apply to the formation of a settlement agreement, generally, even when contracts have only been reluctantly entered into. “If the parties to a transaction do not create binding agreements, the courts are powerless to do it for them”. Scott v. Lewis, 112 Ga.App. 195, 197, 144 S.E.2d 460 (Ga. Ct. App. 1965)(sale of a house contingent on unfulfilled loan proceeds not part of the contract and properly not enforced by the court). Though the Code itself only speaks in terms of “bid or proposition”, specifying at Section 13-3-2 that without assent as to all terms of a “bid or proposition” there is no contract, and also delineating the time for acceptance of an “offer” by letter in Section 13-3-3, the Code never speaks plainly about the necessity of acceptance but implies its presence throughout. Every contract necessarily, therefore, involves both an offer and acceptance of that offer, with any modification of the offer being subject itself to acceptance; the Court cannot declare that there has been acceptance without some actual manifestation of the acceptance necessary to create a contract, as these Code sections indicate. There is no special rule that excepts the contracts made between parties to settle their domestic relationship from contracts made for any other legal activity.
More importantly for the situation that arises in this case, the offer and the acceptance need to be identical to each other under the Georgia Code for that agreement to be binding as a contract on the parties. See generally O.C.G.A. § 13-3-2. “An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort” (Citations and punctuation omitted). Herring v. Dunning, 213 Ga.App. 695, 698, 446 S.E.2d 199 (1994). This is no more than the logical explanation of Section 13-3-2 of the Georgia Code, paraphrased above. The direct words of the Section itself give an easy answer to the dispute involved in this case, since it states “[t]he consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.” A purported acceptance of a settlement offer which imposes conditions or otherwise varies the offer will be construed as a counteroffer to the offer. Id.; see also Auto–Owners Ins. Co. v. Crawford, 240 Ga.App. 748, 750(1), 525 S.E.2d 118 (1999)(meeting of the minds and mutual assent can be found only when the acceptance of an offer was unconditional, unequivocal, and without variance of any sort). In this case, there was not even a counter-offer, but rather the sudden institution of an agreement to which one of the two parties did not manifest any consent at all, and the terms were neither accepted nor countered.
3. All of the material terms in a contract must be written and are binding on the parties once the document is executed.
Where there is no reservation in a contract between the parties, or provision in a decree embracing the contract, reserving to the court the power to review the judgment or modify or abrogate it, such contract or decree is conclusive on the parties. Swaim v. Wells, 210 Ga. 394, 397, 80 S.E.2d 321 (Ga. 1954)(referencing Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680 (Ga. 1941)). The Contract and Agreement referenced in this case contains no reservation of power or authority for modification of its terms by the Court at a subsequent date, and the actual understanding of the parties shown by Exhibit “1” hereto indicate that it was considered by XXXXX XXXXX to be a done deal entirely and she would brook no variation from its terms. Such a serious and final disposition of an important and material aspect of the marital relationship is something that plainly requires the agreement and endorsement of the parties whose fundamental rights are directly affected thereby. The law indicates that this is the case where divorce agreements are pronounced upon the parties by Georgia Courts.
“Where, after a final verdict, a decree is rendered, dissolving the marital relations between the parties, and a contract between them is embraced in the decree … and the court does not reserve any right or power to modify the decree as to permanent alimony, such decree is res adjudicata [sic] as to the amount of alimony, its payment, and the termination of the same, and the court has no power to modify or abrogate it.” Christian v. McLeod, 210 Ga. 492, 492, 80 S.E.2d 777 (1954)(reiterating the point made in Swain v. Wells, 210 Ga. 394, 80 S.E.2d 321 (Ga. 1954), that even when the wife subsequently becomes legally incapable of acting for herself, the final decree is binding; the decree passes beyond discretionary control of the judge who thereafter has no authority either to abrogate the decree or to modify the terms). This point has been made again and again, and it indicates exactly how important and irrevocable the rights in question are considered by Courts. Being a document addressing the fundamental relationship of two parties subsequently acting as individual and separate but previously acting as one distinct unit, it is not something that can be altered easily or at will by the Courts once entered. “The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.” Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (Ga. 2006)(emphasis supplied; quoting Kaufmann v. Kaufmann, 246 Ga. 266, 269(3), 271 S.E.2d 175 (1980)).
B. There must be a “meeting of the minds” as to all material terms between the parties to a contract, but the parties that the Contract and Agreement purportedly bound in this case parted ways on several material issues.
In Exhibit “F”, the Contract and Agreement unapproved by Appellant but entered unilaterally by the Court, the parties are purportedly in agreement that they will claim an income tax deduction on both children alternating years, which condition is financially advantageous for Appellee but does not reflect the reality of the living conditions of the children and does not reflect the equity of their shared parenthood. In Exhibit “U”, a document that was agreed-to in verbal, off-the-record negotiations between the parties, they are each to claim a deduction for one dependant each year, which reflects the actual living conditions of the children and provides an equitable result, nor does it maximize the financial gain of one party to the detriment of the other. “If a contract fails to establish an essential term, and leaves the settling of that term to be agreed upon later by the parties to the contract, the contract is deemed an unenforceable “agreement to agree.” Kreimer v. Kreimer, 274 Ga. 359, 363, 552 S.E.2d 826 (Ga. 2001). More plainly, “no contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means that there is no agreement to be enforced.” Id. (quoting Moss v. Moss, 265 Ga. 802, 803, 463 S.E.2d 9 (1995)).
A contract provision that affects the income tax rights and responsibilities of the parties is necessarily material, and an alteration in the contract that increases or decreases the income tax rights and responsibilities of the parties is such a substantial change that it would necessarily go to the heart of the agreement and invalidate it. See generally Singer Asset Finance Co. v. CGU Life Insurance Co. of America, 275 Ga. 328, 567 S.E.2d 9 (Ga. 2002). As has already been established, there is materially-different treatment of the minor children on income taxes in the document unilaterally submitted by Appellee and approved by the Court as Exhibit “F” and the document submitted immediately prior to that document and agreed-to by the parties themselves, denoted Exhibit “U”. The difference is substantial, financially, since the former is financially advantageous only to Appellee but actually hurts Appellant financially.
II. The trial court erred by incorporating an “agreement” to which husband did not consent into the divorce decree.
The very first section of Title 13 of the Georgia Code – the very definition of the idea of a “contract” in Section 13-2-1 – is “an agreement between two or more parties for the doing or not doing of some specified thing”. This definition embraces the idea that there are “two or more parties”, and there is no factual doubt in this case that there were not two or more parties involved in the “Contract and Agreement” that the Court unilaterally imposed on XXXXX XXXXX. The Court’s only basis for finding some verbal indica of consent of the parties, since there are no signatures or other marks that appear on the Contract and Agreement from XXXXX XXXXX, is embodied in the hand-written note appended by the trial judge to the Final Judgment and Decree, which states “[t]he Court finds and concludes that the Agreement accurately reflects the agreement of the parties announced, affirmed, and acknowledged by the parties and their counsel in open court on XXXXX, 2012”. A copy of this document was submitted to the Court previously as part of the Application for Appeal in this matter as Exhibit “E”. However, even a quick check of the announcements made at the hearing before the Court on XXXXX, 2012, a copy of the transcript of which has been submitted to the Court previously as part of the Application for Appeal in this matter as Exhibit “G”, show that the arrangements that were ultimately made the Order of the Court via the one-sided Contract and Agreement were very different from the agreement of the parties, and this chicanery cannot be permitted to prevail. Section 13-2-4 of the Official Code of Georgia places an emphasis even in the black-and-white world of contract interpretation on substance over procedure, when it recognizes that “[t]he intention of the parties may differ among themselves” and specifies that “[i]n such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.” This is consistent with the idea that parol evidence is deemed admissible under Section 9-12-43 of the Official Code of Georgia for the limited purpose of showing that a topic allegedly pronounced upon by the Court was not actually addressed by it, as in the case at bar. Here, however, it is unnecessary for the Court to address verbal testimony because there is written extrinsic evidence made contemporaneously to show the true meaning understood by the parties, contrary to the document endorsed by the Court, shown in previously-submitted Exhibit “U”. For this reason, the direct statements of the parties shown in Exhibit “1” attached hereto are incredibly enlightening and relevant.
A. There are occasions in which circumstances permit or require the Court to enter an ex parte Order for divorce, but they were not present in the case at bar.
There are circumstances in which the contribution of both parties to a settlement agreement between them cannot or will not be involved. Section 19-5-8 of the Official Code of Georgia expressly forbids a divorce from being taken by default, and requires the issues that have been contested in this case to be proven “to the satisfaction of the Court”. However, Section 19-5-10 provides for circumstances in which a judge hearing the issue of divorce when only one party is present can grant ex parte relief, stating at subsection (a) that “[i]n divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him.” It is also well-established that “[a] trial court may strike a party’s pleadings as a proper sanction for willful refusal to participate in the proceedings pursuant to a court’s inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court.” Pennington v. Pennington, 291 Ga. 165, 166, 728 S.E.2d 230 (Ga. 2012). Defendant did not willfully refuse to participate in the divorce, and he did not fail to defend the divorce, either. Instead, the voluntary and active involvement by the husband in the delicate processes of divorce resolution and child custody relationships between the parties after the conclusion of the divorce process was ignored by the trial judge when he decided to grant the relief sought by the Plaintiff without even acknowledging the valid defenses, objections, or even the involvement of Defendant and his counsel.
It has been well-established in Georgia law that when there is no disability restraining the right of a party to contract, there can be no contract binding on them absent their consent to all material terms. Fredette v. Fredette, 233 Ga. 69 , 69, 209 S.E.2d 594 (Ga. 1974)(judgment awarding wife divorce and property settlement was affirmed in case in which husband never appeared but verdict of the jury was in writing and signed by the foreman; there was a complete trial). Cases that have appeared at first blush to depart from this rule are easily distinguished. An example of this is the Fredette case cited above, in which there was certainly a complete trial even if one party refused to participate. In the case at bar, there was no evidence that a party failed to participate but rather that the other party unethically ignored their participation with the assistance of an improper act by the Court. The counsel representing parties, with the assent of the Court, can bind them on their own behalf, in the absence of “ express directions by client to counsel, known to the adverse party or counsel, or fraud, accident, or mistake”. Dixon v. Dixon, 49 S.E.2d 818, 818, 204 Ga. 363 (Ga. 1948). Here, of course, the trial judge attempted to indicate that this had occurred with his hand-written note at the bottom of Exhibit “E” to the Application for Appeal, but a quick reference to the transcript of that hearing, Exhibit “G” to the Application for Appeal, shows that this is not an accurate statement at all, and no specifics were given.
The actions of the Court with regard to Appellant XXXXX XXXXX’s efforts to participate in his divorce trial bear remarkable similarity to the actions taken by the trial court in the 1948 Supreme Court of Georgia case of Tatum v. Tatum, 46 S.E.2d 915, 203 Ga. 406. There, the trial court attempted to enter a divorce in favor of the husband after its term had ended, based on a purported waiver that the wife had tendered. She attempted to set the decree aside and was overruled by the trial court, with its basis being the fictitious waiver. The trial court was reversed, and the same logic should apply here. Recently, the Court reaffirmed its position with regard to the rule that no judgment may be taken in a divorce by default, affirming the actions of the trial court setting aside an improvidently-granted decree after finding it had inappropriately granted a divorce by default in Harold v. Harold, 686 S.E.2d 123, 286 Ga. 175 (Ga. 2009). Broadly, both the matter now before the Court and the Tatum case are examples of the same general rule upheld by the Court in the Harold case that no divorce by default may be taken.
Some of the terms of the agreement that the parties are entering into in a divorce situation are enforceable on their own, even without the contribution of one or the other of the parties, such as child support obligations. Section 19-6-9 of the Official Code of Georgia provides for the enforcement of a child support obligation against an absent responsible party, even without their consent. However, the payment of support is for the benefit of the child or children, and the Code section itself begins by qualifying its relief, saying that it applies “[a]bsent the making of a voluntary contract or other agreement…” In the case at bar, there was absolutely nothing present that would indicate to the trial court that it was either proper or appropriate to enter a decree without the contribution of the actively-involved Appellant and his counsel.
B. Because of the long duration and binding nature of a divorce decree on the parties, it is important that the document approved by the Court reflect more than just its desire for expediency.
The decree in a divorce case sets out the contractual guidelines that bind two parties’ relationship after the termination of a marriage, and it therefore needs to address many different issues well. It has been held that it is acceptable for the decree not to happen until after the trial has finished, as in Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (Ga. 1971), and a divorce of the parties themselves can even be entered in the absence of full agreement on all of the child custody matters between two parties while those particular issues were actually pending elsewhere, as in Norowski v. Norowski, 267 Ga. 841, 483 S.E.2d 577 (Ga. 1997), but the trial judge cannot prematurely end the process without addressing the many different pending disagreements of the parties. See generally Henderson v. Henderson, 258 Ga. 205, 367 S.E.2d 40 (Ga. 1988)(prematurely entered final judgment after concluding at temporary hearing that no common-law marriage existed, where 23 days remained for filing of defensive pleadings and where both parties filed timely demands for jury trial); OCGA § 9-11-40(a) and (b); OCGA § 19-5-1. The trial court has full authority to grant a divorce even in the absence of full litigation of all of the potential issues, such as the remarriage of one of the parties, similar to the pregnancy of the wife in the case at bar before the termination of all litigation, while deciding issues of property division as opposed to any grant of alimony. Coleman v. Coleman, 240 S.E.2d 870, 240 Ga. 417 (Ga. 1977). In other words, the Court can appease matters of expediency, but it cannot do so where, as in the case at bar, it sacrifices the rights of one party to the detriment of the divorce process itself and for the blatantly one-sided benefit of the other.
The Georgia Supreme Court will not reverse the factual findings of the trial court as long as there is any evidence to support such finding. Berman v. Berman, 238 S.E.2d 27, 239 Ga. 443, appeal after remand, 253 S.E.2d 706, 243 Ga. 246 (Ga. 1977). However, in the case at bar there is no factual evidence that supports the decision of the trial court to enter a judgment when it did. There is, in fact, evidence that shows the contrary of even its hand-written notations as to factual determinations that it made and there is evidence in the actual record itself that contradicts these hand-written determinations – specifically the contrary agreement tendered by Defendant mere hours before the sudden and swift final judgment of the court, that may have recited the agreement of the parties but which failed entirely to acknowledge the reality of their post-divorce relationship.
III. The trial court passed over many instances of contempt of its orders by ignoring them until after they had grown stale or refusing to find contempt until after an unnecessary hearing.
One of the most important issues that this case presented was the ability of the Courts to find contempt for disobedience of its lawful decrees and rulings without need for hearing – a matter that is well-documented in the cases on the issue but which the Court seemed to ignore in favor of an antiquated and costly criminal mechanism, treating every manifestation of contempt as a criminal situation rather than a civil enforcement mechanism and prompting the necessary withdrawal by counsel of motions in deference to timeliness and efficiency. Section 15-1-4(a) of the Official Code of Georgia permits Courts to punish certain acts with contempt through attachment of summary punishment. Among the matters which may be so punished are “(2) Misbehavior of any of the officers of the courts in their official transactions; [or] (3) Disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”. In Toles v. G & K Services, Inc., 230 Ga.App. 452, 453-454, 496 S.E.2d 550 (Ga. Ct. App. 1998), the Court stated that “[t]he trial court is not required to hold a hearing on the issue of willfulness in every case. “ ‘Such a requirement serves no purpose where the trial court(, as here,) (sic) can otherwise determine willfulness (sic) on the part of the party against whom the sanctions are sought.’ [Cit.]” (citing Champion Mgmt. Assn. v. McGahee, 227 Ga.App. 895, 896(1), 490 S.E.2d 215 (1997))(errors in original).
The power of the Courts to compel obedience to their lawful Orders is well-established, but it was abused by the presiding judge in the court below. “It is well established that courts possess an inherent ‘power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.’” United States v. Neal, 101 F.3d 993, 996 (4th Cir. 1996)(citing International Union, UMWA v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994)). The burden that the Court seemed to place on Appellant arose most noticably because it did not act when presented with disobedience to its orders, but instead seemed to consistently insist on a hearing on the actions taken by the parties, such as would be required before criminal incarceration would result.
The power of the Court to impose criminal contempt penalties is very different in nature to the power to impose sanctions for civil contempt, since criminal contempt is a crime in and of itself, and “requires that the contemnor be afforded fundamental procedural safeguards.” Neal at 998. However, no criminal penalties were requested at any time by either Appellant or his counsel for the purging of the Contempt, as such action would only serve to punish but would not remedy the problem that Appellee and her counsel created. Instead, the relief sought was tailored to address the financial wrong perpetrated against him and abetted by her counsel. “A contempt fine is considered civil and remedial if it either coerces into compliance with a court order or compensates the [Appellant] for losses sustained.” International Union, UMWA at 2553. Criminal contempt is punitive, seeking to vindicate the authority of the court, while civil contempt is remedial in nature and is for the benefit of the complainant. Id. at 827-828. At the purposeful and unremedied urging of counsel for Appellant, the contempt became willful and complete, and it was appropriate for the court below to immediately take action against the party in disobedience, rather than dragging the matter out longer; no hearing was necessary on the subject since the willful nature of the actions was undeniable, and punishment for the actions should have been directed.
Further, by denying the valid counterclaim of Appellant XXXXX XXXXX for damages and reimbursement for the financial costs she inflicted on him initially and for the legal expenses for representation that he incurred because of her admitted and avowed adultery, the Court acted to disregard valid law on both of these points. The Seventh Edition of Black’s Law Dictionary (1999) defines “equitable distribution” as “[t]he division of marital property by a court in a divorce proceeding, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of property between spouses”. When the trial court at the hearing on XXXXX, 2012, denied XXXXX XXXXX’s request for temporary alimony even though the Domestic Relations Financial Affidavits of the parties demonstrated a greater financial ability to contest the divorce in Appellee, it acted inequitably, especially in light of the acknowledged misdeeds of Appellee.
Conclusion
The divorce proceedings begun by Appellee XXXXX XXXXX against Appellant XXXXX XXXXX have demonstrated a consistent disregard of his rights and financial punishment against him even in the face of her established wrongdoing, but the final acts taken by the trial court with regard to the divorce between the parties on XXXXX, 2012, were taken with complete disregard for the rights of parties to contract as to the material matters that govern their relationship following divorce. They disregard, as well, the contractual nature of divorce settlement agreements, and the pattern of behavior demonstrates a suspicious and partial refusal by the Court to permit XXXXX XXXXX to fully litigate the misdeeds that XXXXX XXXXX inflicted upon him perpetrated fully and knowingly by her counsel and against the interests of the minor daughters of the parties. There has been no valid divorce between the parties because there has been no valid and binding contractual agreement between them. Reversal of the judgment in its entirety is urged and merited.
Having realized that it has been an extraordinarily long time since the last post on this site (due to some furious drafting, the fruits of which will, hopefully, be shared after the work has been completed and filed with the relevant Courts), an issue that was researched should be shared with the public.
Specifically, the particular Code section that is presented today is what is commonly believed to only be a section for allegedly “frivolous appeals”. However, the Code section itself does not actually use that language, and instead describes the penalty as being one to be assessed by the Court when it appears the case “was taken up for delay only”. There is a particular standard at work here, and the language of the Code section in question and the cases that discuss it present some argument in favor of the idea that it is more than merely a one-sided tool for use by the Appellee to punish an Appellant who seeks to overturn a wrongful judgment.
The Code section is 5-6-6 of the Official Code of Georgia, and it reads as follows:
When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur.
Notice that the decision to impose the fine rests on the judgment of the Court itself. The issue of one-sidedness of course means that an Appellant needs to affirmatively show that they did not take the case up for delay only, but it also appears to present the possibility that the case was “taken up” by a party to the underlying judgment in question for delay only. Sometimes, the facts might merit such a position for the Appellant, and not just for the Appellee. The test is whether the ’appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal was ill-founded.’ The argument that should be affirmatively made by the Appellant is shown by the following case, Williams v. Kaminsky, a 1987 Court of Appeals decision at 183 Ga.App. 283:
[183 Ga.App. 284] Claude E. Hambrick, Atlanta, for appellant.
Patricia E. Ratner, Robert W. Beynart, Atlanta, for appellee.
[183 Ga.App. 283] POPE, Judge.
1. Williams appeals the order and judgment of the lower court in a garnishment action. Because appellant has failed to obtain an order of the court permitting the filing of an appeal, the appeal must be dismissed. OCGA § 5-6-35(a)(4); Mason v. Osburn Hardware, etc., Co., 174 Ga.App. 865, 331 S.E.2d 888 (1985).
2. We grant appellee Kaminsky’s motion to impose damages against Williams pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. The record shows as follows: In 1984 appellee Kaminsky obtained a judgment in the amount of $63,167.15 in a contract action against C & W Land Development Corporation. Appellant Williams was a shareholder in said corporation who, prior to the filing of the contract action, executed an agreement “to indemnify and hold harmless the Corporation for … any judgment that might be obtained by Kaminsky against the Corporation….” Before going out of business in 1985, the corporation paid just over $25,000 on the judgment debt. In an effort to collect the remainder of the judgment, Kaminsky filed this garnishment proceeding against Williams as garnishee. The trial court found that the indemnity agreement created a debt owed by Williams to the corporation and awarded Kaminsky garnishment in the amount of $51,747.33, representing the amount of the judgment plus accrued interest after giving credit for the payment made against the judgment by the corporation.
Quoting from Parker v. Puckett, 129 Ga.App. 265, 267, 199 S.E.2d 343 (1973), Williams argues that ” ‘ “[i]ndemnity” means “reimbursement….” ‘ ” Williams claims the corporation has paid nothing on the judgment and therefore has sustained no loss for Williams to indemnify. The record shows the corporation paid more than $25,000 on the judgment before it went out of business. Therefore, not only is this appeal frivolous, it is based upon a purposeful misrepresentation of the facts. It is ludicrous to argue that a judgment debtor must first pay a judgment before it
Page 668
can collect “reimbursement” from its indemnitor.
”Upon careful examination of the record, we have concluded that there was no arguable merit to the appeal and that ‘appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal was ill-founded.’ Ray v. Standard Fire Ins. Co., 168 Ga.App. 116, 118 (308 SE2d 221) (1983).”Holcomb v. Commercial Credit Svcs., 180 Ga.App. 451, 452, 349 S.E.2d 523 (1986). In light of the fact that Williams’ liability under the indemnity agreement was clear and unambiguous, considered in conjunction with Williams’ misrepresentation of the facts appearing in the record, “[i]t does not appear that there was any valid reason for the appellant to [183 Ga.App. 284] anticipate reversal of the [trial] court’s judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee’s request for award of damages in the amount of 10 percent of judgment is granted.” Hanover Ins. Co. v. Scruggs Co., 162 Ga.App. 640, 641, 292 S.E.2d 493 (1982). The clerk of this court is directed to enter upon the remittitur ten percent damages against Williams and in favor of Kaminsky.
Appeal dismissed with damages.
BIRDSONG, C.J., and DEEN, P.J., concur.
