For a recent matter, I had to look into an area of law that I have not explored in several years – municipal law – and better refresh myself for my client’s upcoming hearing.
It is a given that the municipality where you live has the right to permit or refuse to allow certain businesses within the limits of its power. It is the very basis of the idea of a sovereign, in many ways. One place the rule is written is in Section 3-3-2 of the Official Code of Georgia. It specifically governs the powers of local governing authorities as to the granting, refusal, suspension, or revocation of licenses generally, what due process the businesses that petition for licenses are permitted, and requires that the applicant him- or herself be fingerprinted.
(a) Except as otherwise provided for in this title, the manufacturing, distributing, and selling by wholesale or retail of alcoholic beverages shall not be conducted in any county or incorporated municipality of this state without a permit or license from the governing authority of the county or municipality. Each such local governing authority is given discretionary powers within the guidelines of due process set forth in this Code section as to the granting or refusal, suspension, or revocation of the permits or licenses; provided, however, that residency by an applicant within the city or county issuing the permit or license shall not be a requirement by the respective local governing authority if the applicant designates a resident of the city or county who shall be responsible for any matter relating to the license.
(b) The granting or refusal and the suspension or revocation of the permits or licenses shall be in accordance with the following guidelines of due process:
(1) The governing authority shall set forth ascertainable standards in the local licensing ordinance upon which all decisions pertaining to these permits or licenses shall be based;
(2) All decisions approving, denying, suspending, or revoking the permits or licenses shall be in writing, with the reasons therefor stated, and shall be mailed or delivered to the applicant; and
(3) Upon timely application, any applicant aggrieved by the decision of the governing authority regarding a permit or license shall be afforded a hearing with an opportunity to present evidence and cross-examine opposing witnesses.
(c) As a prerequisite to the issuance of any such initial permit or license only, the applicant shall furnish a complete set of fingerprints to be forwarded to the Georgia Bureau of Investigation, which shall search the files of the Georgia Crime Information Center for any instance of criminal activity during the two years immediately preceding the date of the application. The Georgia Bureau of Investigation shall also submit the fingerprints to the Federal Bureau of Investigation under the rules established by the United States Department of Justice for processing and identification of records. The federal record, if any, shall be obtained and returned to the governing authority submitting the fingerprints.
There are standards that modify this basic set of rules, and which govern how those rules are implemented. I am reminded of a famous movie line from a Star Wars movie. I’m not sure if it is precise (it has been years since I last saw that movie, but Darth Vader tells Lando Calrissian, “I am changing the deal. Pray I do not change it any further.” In Section 3-4-111.1 a tax is levied on all retail consumption establishments.
(a) An annual occupational license tax in the amount of $100.00 is imposed upon each retail consumption dealer in this state.
(b) The annual occupational license tax shall be paid for each place of business operated. An application for a retail consumption dealer’s license required pursuant to this title along with the payment of the tax required by subsection (a) of this Code section shall be submitted to the department immediately upon assuming control of the place of business and annually thereafter for so long as the business is operated.
However, what I am actually trying to get to in this analysis is the ordinances themselves – the “discretionary powers within the guidelines of due process set forth in this Code section as to the granting or refusal, suspension, or revocation of the permits or licenses”. These rules are set out in City Ordinances. To better discern what rules and guidelines apply to the idea of this business, whose appeal is more oriented toward the consumption of alcohol than food (and their liquor licenses were in danger), I looked to the Gainesville City Code of Ordinances. Section 6-4-42 controls the granting, suspension, and revocation of licenses:
(a) Before the denial of any application for an alcoholic beverage license or for the transfer of any alcoholic beverage license or the revocation of any existing alcoholic beverage license, the applicant or licensee, as the case may be, shall be given notice in writing from the city marshal to show cause before the administrative hearing officer at a time and place specified therein not less than three (3) days nor more than thirty (30) days from the date of service of the notice, why such application for license or for transfer of license should not be denied, or why such license should not be revoked or suspended as the case may be, stating the grounds therefore, and at the appointed time and place the applicant or licensee shall have an opportunity to show cause, if any exist, why such application should not be denied or such license revoked or suspended after which the administrative hearing officer shall take such actions as he or she in his or her judgment and discretion, shall deem warranted under the facts. All decisions of the administrative hearing officer shall be in writing with reasons therefore stated and mailed or delivered to the applicant or licensee.
(b) Any person aggrieved by the action or decision of the administrative hearing officer to deny an application or request to transfer a license applied for under the provisions of this article or the revocation or suspension of a license shall have the right to appeal such action or decision to the city council within thirty (30) days after the action or decision has been mailed to the person’s address as shown on the license application form, or to his last known address.
(c) An appeal shall be taken by filing with the clerk of the city council a written statement setting forth the grounds for the appeal.
(d) The clerk shall transmit the written statement to the city manager within ten (10) days of its receipt and the city manager shall set a time and place for a hearing on the appeal before the city council.
(e) A hearing shall be set not later than thirty (30) days from the date of receipt of the appellant’s appeal.
(f) The hearing herein provided for need not be at a regular meeting of the city council, but may be at such time and place as shall be fixed in such notice of hearing.
(g) At any hearing as provided herein, the party afforded the hearing shall have the opportunity to present evidence and cross-examine witnesses.
(h) The hearing herein provided shall be de novo.
(i) All decisions, denying, approving, suspending or revoking any application or request for transfer or license shall be in writing with the reasons therefor stated and mailed or delivered to the applicant.
(j) The decision of the city council shall be final unless appealed by certiorari to the superior court of the county.
(k) In all instances of a denial of any application for an alcoholic beverage license or the revocation of any existing alcoholic beverage license , the applicant, licensee or any person(s) with twenty-five (25) percent or more interest, shall not reapply for a license for at least one (1) year from the final date of the denial or revocation.
(Ord. No. 2000-60, § XVIII, 9-19-00; Ord. No. 2007-24, § I, 7-3-07; Ord. No. 2010-28, § III, 8-3-10)
Section 19-9-3(a)(5) of the Official Code of Georgia sets out a fairly important rule for child custody disputes – the presumptive right of a child fourteen (14) years of age or older to choose which parent they want to live with, when the parents are not together as a couple and they dispute child custody. The law reads as follows:
(5) In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. The parental selection by a child who has reached the age of 14 may, in and of itself, constitute a material change of condition or circumstance in any action seeking a modification or change in the custody of that child; provided, however, that such selection may only be made once within a period of two years from the date of the previous selection and the best interests of the child standard shall apply.
It is important to note that important unless. All too often, parents have an idea that the child’s right is absolute, but this is certainly not the case, because the “best interests of the child” standard still applies. However, what is especially important in this circumstance is that there still be some actual “choice”. That choice CANNOT be one of joint or shared custody. One parent is the primary parent, and one parent is the secondary parent, no matter how much the child does not want his or her parents to seek a divorce.
The case that talks about the necessity of such a choice (and that holds the election that fails to actually make such an election invalid) is the 2007 Georgia Court of Appeals case of Sharpe v. Perkins, 284 Ga.App. 376, in which it was found that an election that fails to choose one parent or the other, delegating joint custodial responsibilities to both, is invalid. That case follows:
James C. Metts III, Savannah, for appellant.
McCorkle, Pedigo & Johnson, Savannah, Kenneth P. Johnson, for appellee.
BLACKBURN, Presiding Judge.
In this domestic relations action, Michael Sharpe appeals the trial court’s order granting the modification petition of Renay Perkins (his former wife) to increase his child support obligation and denying his counterclaim to obtain joint physical custody of their minor daughter. Sharpe contends that the trial court erred in (1) finding that the election signed by the couple’s minor daughter indicating where she desired to live was invalid; (2) characterizing his capital gains from property sales as gross income in its modification order; (3) failing to adequately consider his obligations to his new household in its modification order; and (4) finding that he owed unpaid private school expenses under the original divorce settlement agreement. For the reasons set forth below, we affirm.
Sharpe and Perkins were married in 1980, had three daughters during the marriage, and were divorced in 1993. A settlement agreement, which was incorporated into the final judgment and decree of divorce, granted Sharpe and Perkins joint legal custody of the couple’s three daughters, who were all minors at the time. The settlement agreement granted Perkins sole physical custody of the daughters but provided Sharpe with fairly liberal visitation rights. The settlement agreement also established Sharpe’s child support obligations and further established Sharpe’s and Perkins’s respective obligations to pay for the children’s private school expenses.
By 2005, Sharpe had remarried. His new household consisted of his new wife, her two daughters from her previous marriage, and their own new daughter. In addition, Sharpe’s and Perkins’s youngest daughter, now 14 years old (their only daughter who was still a minor), was residing nearly equally with Sharpe and Perkins based on an informal arrangement. At this time, Sharpe primarily derived income from purchasing real estate, renovating homes, and then renting those homes to tenants. However, in 2004, Sharpe had 176,000 in capital gains based mostly upon the purchase and resale of unimproved properties. He further estimated that his income tax return for 2005 would also reflect capital gains earned from these types of real estate ventures.
In April 2005, believing that Sharpe’s financial circumstances had improved since their divorce settlement, Perkins filed a petition for the modification of child support for their minor daughter, requesting that Sharpe’s child support obligation be increased. Sharpe responded and filed a counterclaim, requesting that the court modify the divorce settlement’s custody provision and grant him joint physical custody of their minor daughter.1 In support of his counterclaim, Sharpe filed an election signed by their minor daughter, which stated in part that: “After giving careful consideration to all of the factors involved, I am requesting that the Court award joint legal and physical custody of myself to both of my parents so that I spend an equal amount of time with both parents.” While these claims were pending, Perkins filed a motion to hold Sharpe in contempt for failure to pay for their minor daughter’s private school tuition as required by the divorce settlement.
Following trial, in which the court heard both the modification and the contempt matters, the court granted Perkins’s petition for the modification of child support for their minor daughter and, based on the changes in Sharpe’s financial and familial circumstances, increased his monthly child support obligation. The court denied Sharpe’s counterclaim to obtain joint physical custody of their minor daughter, finding that the daughter’s election as to where she desired to live was invalid. In addition, the court declined to hold Sharpe in contempt but did find that under the divorce settlement agreement, he owed over 7,000 in unpaid private school expenses. Sharpe filed a motion for new trial, which was denied. This appeal followed.
- Sharpe contends that the trial court erred in finding that the election by the couple’s 14-year-old daughter indicating that she desired to live with both parents was invalid. We disagree.
OCGA § 19-9-3(a)(4) provides that: “In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child’s selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of the child.” (Emphasis supplied.) The statute thus allows a child 14 years of age or older to establish which specific parent has physical custody. See Walker v. Walker.2 The language of the statute requires that the child choose one parent with whom he or she desires to live; any language implying that the child’s selection can establish joint physical custody is notably absent. By contrast, OCGA § 19-9-3(a)(5) provides that: “Joint custody as defined by Code Section 19-9-6, may be considered as an alternative form of custody by the court. This provision allows a court at any temporary or permanent hearing to grant sole custody, joint custody, joint legal custody, or joint physical custody where appropriate.” (Emphasis supplied.) Thus, in reading the statute so as to give these two sections sensible and intelligent effect, we hold that the court retains exclusive authority to grant joint physical custody. See Union City Bd. of Zoning Appeals v. Justice Outdoor Displays;3 Walker, supra, 248 Ga. App. at 177(1), 546 S.E.2d 315.
Here, the election signed by Sharpe’s and Perkins’s minor daughter specifically requests that the court award both parents joint legal and physical custody. In doing so, the election fails to choose one parent over the other and instead attempts to interfere with the court’s exclusive authority to designate joint custodial status. Accordingly, the trial court did not err in finding that the election was invalid.
- Sharpe contends that the trial court erred in characterizing his capital gains from property sales as gross income in its modification order to increase his child support obligation. We disagree. Former OCGA § 19-6-19(a) provided that a child support order “shall be subject to revision upon petition filed by either former spouse showing a change in the income and financial status of either former spouse or in the needs of the child or children.”4The statute further provided that:
After hearing both parties and the evidence, the jury, or the judge where a jury is not demanded by either party, may modify and revise the previous judgment . . . in accordance with the changed income and financial status of either former spouse or in the needs of the child or children . . . if such a change in the income and financial status is satisfactorily proved so as to warrant the modification and revision.
OCGA § 19-6-19(a). “The final decision of whether to modify the award is within the discretion of the trier of fact.” (Punctuation omitted.) Scott v. Perkins.5 Furthermore, “[a] trial court’s decision on whether a substantial change in the parent’s income authorizes an upward or downward revision of child support will be allowed to stand on appeal if there is some evidence to support his finding.” (Punctuation omitted.) Thomas v. Whaley.6
Here, the trial court granted the modification petition and increased Sharpe’s child support obligation. It did so based in part on the fact that Sharpe’s gross income had increased due to significant capital gains from property sales in 2004 and 2005. Although Sharpe conceded that he received such capital gains, he argues that the court should not have included those gains in its calculation of his gross income because those gains were derived from a one-time event and thus would be nonrecurring.
However, Sharpe cites to no authority in support of his claim that nonrecurring capital gains should not be included in gross income calculations. Additionally, his claim is belied by the text of former OCGA § 19-6-15(b)(2), which provided that: “For the purpose of determining the obligor’s child support obligation, gross income shall include 100 percent of wage and salary income and other compensation for personal services, interest, dividends, net rental income, self-employment income, and all other income, except need-based public assistance.”7 (Emphasis supplied.) Furthermore, in defining gross income the Internal Revenue Code specifically includes “[g]ains derived from dealings in property.” 26 USC § 61(a)(3). Accordingly, the trial court did not abuse its discretion by including the capital gains from Sharpe’s real estate ventures in its calculation of his gross income and modification of his child support obligation. See Hayes v. Hayes.8
- Sharpe also contends that the trial court erred in failing to adequately consider his obligations to his new household in its modification order. “Under [former] OCGA § 19-6-15(c)(6), a trial court [was] permitted to deviate from the child support guidelines setforth in § 19-6-15(b) if a trial court [found] that a party’s support obligations to another household make the `presumptive amount of support either excessive or inadequate.'” Betty v. Betty.9 In considering subsection (c)(6),
[t]he mere fact of additional children, however, will not justify a reduction in the guideline range. The essential question is whether this additional support obligation renders the presumptive amount of support excessive. The trial court may answer this question only by examining all the relevant circumstances, including the sources of support for the new household. By considering not only the fact of additional children, but also the circumstances relevant to the support needs of those children, the trial court will be able to make a determination of support that best balances the children’s needs and the parent’s ability to pay.
Hoodenpyl v. Reason.10
In this case, the trial court specifically considered Sharpe’s support obligation to his and his current wife’s young daughter in its order increasing his child support obligation for his and Perkins’s minor daughter. In doing so, the trial court considered Sharpe’s income as well as his current wife’s income and ultimately decided that based on his obligations to his current household, Sharpe was entitled to reduce the upward modification of child support payments to his and Perkins’s daughter by 200. Accordingly, the record demonstrates that the trial court adequately considered Sharpe’s obligations to his new household in its decision to increase his child support obligation for his and Perkins’s daughter.
- In his final enumeration of error, Sharpe contends that the trial court erred in finding that he owed unpaid private school tuition under the terms of the original divorce settlement agreement. While Sharpe agrees that under the settlement agreement both he and Perkins were to share the cost of their youngest daughter’s private school education, he argues that Perkins’s motion to hold him in contempt and recover the portion of those costs that he owed was barred by the doctrine of laches. However, this argument is without merit. “[T]he right of a child to support belongs to the child and cannot be waived by a parent.”Dept. of Human Resources v. Mitchell.11 Accordingly, the trial court did not err in finding that Sharpe owed unpaid private school tuition under the terms of the original divorce settlement agreement.
RUFFIN and BERNES, JJ., concur.
- Perkins raised no objection to this counterclaim procedure. See OCGA § 19-9-23(a);Bailey v. Bailey, 283 Ga.App. 361, 363, 641 S.E.2d 580 (2007).
- Walker v. Walker,248 Ga.App. 177(1), 546 S.E.2d 315 (2001).
- Union City Bd. of Zoning Appeals v. Justice Outdoor Displays,266 Ga. 393, 399(3), 467 S.E.2d 875 (1996).
- OCGA § 19-6-19 was amended in 2005 and 2006, but neither of those amendments applied to this matter. See Ga. L.2005, p. 224, § 6/HB 221; Ga. L.2006, p. 583, § 8/SB 382.
- Scott v. Perkins,230 Ga.App. 496, 497, 497 S.E.2d 21 (1998).
- Thomas v. Whaley,208 Ga.App. 362, 364(1), 430 S.E.2d 655 (1993).
- OCGA § 19-6-15 was amended in 2005 and 2006, but neither of those amendments applied to this matter. See Ga. L.2005, p. 224, § 6/HB 221; Ga. L.2006, p. 583, § 8/SB 382. Effective January 1, 2007, “capital gains” were included as gross income for the calculation of child support. See OCGA § 19-6-15(f)(1)(A)(xii).
- Hayes v. Hayes,279 Ga. 741, 744(2)(b), 620 S.E.2d 806 (2005).
- Betty v. Betty,274 Ga. 194(1), 552 S.E.2d 846 (2001).
- Hoodenpyl v. Reason,268 Ga. 10, 11(2), 485 S.E.2d 750 (1997).
- Dept. of Human Resources v. Mitchell, 232 Ga.App. 215, 216(1), 501 S.E.2d 508 (1998).
Georgia Uniform Superior Court Rule 31.1 reads as follows:
“All motions, demurrers, and special pleas shall be made and filed at or before the time set by law unless time therefor is extended by the judge in writing prior to trial. Unless otherwise provided by law, notice of the state’s intention to present evidence of other crimes, wrongs, or acts, notice of the state’s intention to introduce child victim hearsay statements, notice of the defense’s intention to raise the issue of insanity or mental illness, or the defense’s intention to introduce evidence of specific acts of violence by the victim against third persons, shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge. Such filing shall be in accordance with the following procedures.”
However, it didn’t always allow ten days before trial to file pretrial motions, and read that such motions had to be made and filed at or before the time of Arraignment, until quite recently. Though the grant of an extended period of time to file important procedural matters is useful, that extra time also may reflect the judiciary’s further exploration of this important rule, and the de facto application of the rule made by the courts following the 2006 Georgia Court of Appeals case of Dills v. State, 281 Ga.App. 484,636 S.E.2d 166. Importantly, that case (though it found against the Defendant seeking to sever one set of criminal acts – the theft of a vehicle and assorted matters arising from it – from another set – rape and burglary, among others) held that the Uniform Superior Court Rule also permits a court to extend or shorten the time for filing such motions, saying “The same rule gives trial courts the discretion to shorten or lengthen the time allowed to file such motions, however, and we will not reverse this trial court’s decision to do so in the absence of an abuse of discretion.”
The case is below:
William J. Mason, for appellant.
- Gray Conger, District Attorney, for appellee.
James Dills was charged with rape, aggravated sodomy, armed robbery, possession of a firearm during the commission of a crime, false imprisonment, and automobile theft by taking, but was convicted of only the last of these charges. Dills appeals, arguing that the trial court abused its discretion when it denied his motion to sever the theft charge. We affirm.
The evidence showed that in early 2003, a woman and her husband were having car trouble. A friend put them in touch with Dills, who told them in early February that he had two cars available for sale. The woman told Dills that she needed a car as soon as possible because her husband was leaving for military training in late March.
Dills soon called the woman and went out one evening near the end of February with her and another friend for a meal and to a pool hall. At the end of the evening, Dills gave the woman his phone number and told her to call him in the morning so that he could take her to a used car dealer. The woman tried to call Dills the next morning, but the number had been disconnected. The woman and her husband finally obtained a car on or around March 17. On March 21, the woman’s husband left for military training as scheduled.
In the meantime, on March 10, Dills had met a man at a laundromat and told him that he was stranded and needed a ride to Valdosta. The two men agreed to eat at a restaurant before starting the trip. During dinner, Dills told the man that he needed something out of the man’s blue Chevrolet Blazer, obtained the keys, and drove away.
On the afternoon of March 28, Dills arrived at the woman’s house in a blue Chevrolet Blazer. When Dills offered her the Blazer, she told him that she had already obtained a car and that he was too late. Dills then offered to sell her the Blazer for $1,500, but she refused. After learning that she would be home that night, Dills left, returned a short time later with two beers, and asked the woman to put them in her freezer, which she did. Shortly thereafter, Dills came out of the woman’s bathroom with a gun, tied her hands, and took cash from her purses. The woman also testified that he stuck the gun into her side, performed oral sex on her, and forced her to perform oral sex on him. Dills then penetrated her vagina with his penis. Dills was arrested on April 10 in possession of the blue Blazer.
On the morning of trial, Dills moved to sever the automobile theft charge from the charges arising from his contact with the woman. After the state objected to the motion as both untimely and unmeritorious, the trial court denied it on its merits. Dills later took the stand in his own defense.
As a preliminary matter, we note the state’s argument that the motion to sever was untimely. It is true that under Uniform Superior Court Rule 31.1, all motions in a criminal case shall be made and filed at or before arraignment.1 The same rule gives trial courts the discretion to shorten or lengthen the time allowed to file such motions, however, and we will not reverse this trial court’s decision to do so in the absence of an abuse of discretion.2 There was no such abuse here.
On the merits, we look to the recent precedent of Grimes v. State,3 where the Supreme Court of Georgia held that severance “is not] mandatory when one offense could be admitted upon the trial of another offense to show a common motive, plan, scheme, or bent of mind.”4 As the Court explained:
In this situation, severance is a matter for the trial court’s discretion, and severance should generally be granted if it is appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense[,] considering whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.5
Here, a rational trier of fact could have found that Dills’s contacts with and cultivation of the woman, his theft of the Blazer from another person, his appearance at her house on March 28, and his offer of the Blazer to her were all part of a scheme to gain access to her. Nor is there any evidence that the jury confused the theft charge with the other charges, since it found him guilty of the former but acquitted him of the latter. Finally, we note that the denial of the motion to sever did not compel Dills to testify on his own behalf.6 Thus we conclude that the trial court did not abuse its discretion when it denied the motion to sever.7
RUFFIN, C.J., and SMITH, P.J., concur.
- See Ross v. State,235 Ga.App. 7, 7-8, 508 S.E.2d 424 (1998).
- Abernathy v. State,265 Ga. 754, 756(4), 462 S.E.2d 615 (1995).
- 280 Ga. 363, 628 S.E.2d 580 (2006).
- Id. at 365(3), 628 S.E.2d 580.
- Id. (citations and punctuation omitted).
- See Parker v. State,276 Ga. 598, 598-599(2), 581 S.E.2d 7 (2003).
- See Grimes,supra.
Present your bill before the hearing; be very specific and realistic
Remember – this is NOT to punish; rather you are seeking to LEVEL THE PLAYING FIELD (if one party appears to have more money and deeper pockets, then fees will come out of their pockets wherever possible)
- Be prepared – you MUST have an itemized bill BEFOREHAND
Legitimation actions – try § 19-9-3 (because of the custody and control aspect from visitation); remember, § 19-6-15 is for THE WINNER ONLY (in retrospect)
If it is contested, PLEASE COME WITH A PROPOSED PARENTING PLAN!!!!
Also – older child is viewed as more able to deal with being shuttled a distance back and forth, while younger children are NOT (ex. a 45-minute drive)
Question the judges ask themselves about Parenting Plan arrangements:
Is this more of a convenience to the parents?
Is this more of a convenience to the CHILD?
Remember – “AFFIDAVIT OF ELECTION” (Child 14 or older elects which parent to live with) – GET A FORM FOR THIS)
- The argument is that this is A CLEAR CONFLICT OF INTEREST wen prepared by an attorney
- (To avoid this, have child discuss the issue with the judge; sign it there, not beforehand)
Representing Immigrants in Family Law Cases
Adrianaa de la Torriente – Torriente Marum LLC, Decatur
- Unusual immigrant client – Check whether the interpreter is meeting with the opposing party, also – REMEMBER ALL POTENTIAL CONFLICTS
- MAKE SURE!!!!!! That they ACTUALLY UNDERSTAND what you are saying – need to verify to avoid a language barrier
- Mrarriage versus “Union Libre” (maybe they aren’t legally married) versus COMMON LAW MARRIAGES (ex. must use partition to divide property in absence of legal marriage)
- If permanent residence is based on the marriage, consult with an immigration law specialist first to ensure divorce won’t = deportation
Need to check on PROPERTY IN THE COUNTRY OF ORIGIN. If they have family/friends still there, they can pull the title for you, etc.
- What about when one parent is undocumented? What happens if they get deported?
- What about international visitation??!!!
Cross-Examining the Psychological Expert
Karine Burney, Esq., and Marlyne Israelian, Ph.D.
Mental and physical health of parent; also recommendation of GAL
REVIEW OF THE FILE
- Obtain Discovery from the Psychological Evaluator;
- Specifically put into Order that you are entitled to ALL NON-PRIVILEGED DISCOVERY (if it isn’t confidential, then it is DISCOVERABLE)
- Review Qualifications, Training, and Competency;
- Evaluate the Selection and Appropriateness of the Tests, the administration of the tests, and how they were interpreted;
- Did the evaluator PROPERLY represent the conversations that occurred?
- Did the evaluator take the information provided by the parties and third parties at face value and assume all to be true, or did they engage on an INDEPENDENT FACT-FINDING MISSION?
- Was there more communication with one side than the other?
Qualifications for Administering and Interpreting Psychological Tests in Custody Evaluations
- Need to have specialized training and experience in understanding how the context of a custody evaluation may affect test results
Need to find out whether projective tests (ex. Rorschach, human figure drawing, etc.) – subject to bias – versus OBJECTIVE TESTS (ex. MMIP-2, etc.) are used (projective is WORTHLESS, but objective is great) – scores generated in comparison to a normative sample, and assesses response style (50 is average, so watch for outliers)
Need to make sure that erratic behaviors are LONGSTANDING, and not just a reaction to the stress the client is going through right then.
What about confirmatory bias (selectively choosing something that confirms the evaluator’s earlier diagnosis) AND confirmatory DISTORTION (actually selectively OMITTING stuff that is contrary to that diagnosis)????????
To verify it:
Hire your own psychological consultant to look at this stuff.
Federal Agencies’ Implementation of Windsor and Same-Sex Marriage Issues
William John Camp (email@example.com; expert at military law issues)
Case is pending in Northern District of Georgia challenging the same-sex marriage ban!!!!
Remember – the VA is hard to deal with, because their benefit determination is based on State of residency of the claimant (and residency State may not recognize same-sex couples)
Remember – SCOTUS has agreed to hear the same-sex challenges in summer 2015.
- Believed that it will be a Loving v. VA kind of decision – expected to strike down DOMA/State versions entirely!
Jurisdiction and Venue in Substantive Areas of Family Law
Andrea M. Knight – Senterfitt and Knight, LLC
Watch the presentation online: tinyurl.com/ka7pjoh
- File divorce in Plaintiff’s county IF Defendant lived in same county within 6 months of filing AND at time parties separated,
- OR marital residence was in same county
- OR waiver cure-all.
- 19-5-2: Subject-matter jurisdiction for divorce in Georgia.
Subject-matter jurisdiction IS essential, but personal jurisdiction is NOT essential
Once UIFSA lost, must file modification where Defendant resides;
After a child support order issued in another state has been registered in Georgia, the responding tribunal of Georgia may modify that order only if Code Section 19-11-172 does not apply and, after notice and hearing, it finds that:
(1) The following requirements are met:
(A) The child, the individual obligee, and the obligor do not reside in the issuing state;
(B) A petitioner who is a nonresident of Georgia seeks modification; and
(C) The respondent is subject to the personal jurisdiction of the tribunal of Georgia; or
(2) The child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of Georgia and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this article, the consent otherwise required of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state, and the order may be enforced and satisfied in the same manner.
(c) A tribunal in Georgia may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that controls and must be so recognized under the provisions of Code Section 19-11-116 establishes the aspects of the support order which are nonmodifiable.
(d) On issuance of an order modifying a child support order issued in another state, a tribunal of Georgia becomes the tribunal having continuing, exclusive jurisdiction.
Uphurch v. Smith, 281 Ga. 28 (2006) – UCCJEA jurisdiction is COUNTY THAT ISSUED THE LAST ORDER
Range of tests available to parties in family law cases
- Drug testing, alcohol testing, paternity testing, DNA testing
- Also long term abuse testing, ???
- They can do an 80-hour test!!!!!
- Hair follicle alcohol – how much alcohol the donor is consuming DAILY
- Test takes 5 full business days to get results
- They can test fingernail or toenail!!!!!
- Hair follicle – if they can’t do head, they’ll do armpit, back, etc.
- THEY CAN CHECK 12 MONTHS BACK!!!!
CHILD GUARD TEST – what if Mom and Dad have sweated on sheets; it absorbs and child will show metabolites from their ENVIRONMENT
They do pre-natal paternity testing; accurate as early as 9 weeks of pregnancy!!!!
If the office schedules the meeting and mentions this presentation, then you get a discount.
If you collect the information on your own – NOT ADMISSIBLE;
It is probably enough to get an Order compelling them.
QDROs – Matt Lundy
- What shouldn’t you do to divide retirement plans?
- Sanmaru case: they were agreeing to pay 50% of “vested pension plan”
- Plainly, when he died 3 years afte divorce, she got nothing
- In settlement negotiations, they NEVER referenced pre-retirement survivor benefits, etc.
- Plans are SELF-SERVING
QDROs are not universal – creatures of individual plan rules, made partly from family law and partly from employment law
Check the materials (pages 4 – 9)
- Get the plan RULES;
- Valuation; what is the accrued benefit (what does the valuation cover, and what are the payout options)?
- What are the different forms of payout available (ex. cash payout option)?
- Time frame for all major events
- Preserve jurisdiction to enter QDROs
- Absolutely address SURVIVOR BENEFITS (all ERISA plans by law have these terms), including cost-of-living adjustments
Child Support Guidelines (Revisited)
Laurie Dyke, CPA/CFF, CFE, CFC
- Income included is in 19-6-15(f)(1)(A); low-income deviation is 19-6-15(i)(2)(B) [ SB 282]
- Current calculator version is 9 (7/1/2014) – NEWEST VERSION OF THE CALCULATOR IS IMPORTANT TO POINT OUT
- Calculator changes (by the end of 2015) – it is ONLY WEB-BASED, not Excel version.
New law – LC 39 6200 – allows LIABILITY FOR IMPROPER RECEIPT (if a party retains overpaid child support
- Allows the court to remove work-related child care an allocate pro rata
- Parenting time deviation both upward and downward
- Sign up for the listserv there
Court MUST make findings of fact:
Black, 740 S.E.2d 613
Court CANNOT award extracurricular expenses OUTSIDE THE WORKSHEET:
Turner, 684 S.E.2d 596
Friday, No. S13A1625 (Ga. Mar. 3, 2014)
Parenting time deviation: Child support PAYABLE by custodial parent:
See Williamson, No. S13A0953 (Ga. Oct. 7, 2013)
Decision-making versus ability to pay: Hardman, No, S14A1187 (Ga. Sept. 30, 2014)
- Decision-making power centers around WHO PAYS – Settlement agreement is NOT res judicata as to continuing obligation to pay money (new Order to pay is not precluded by the original one)
Check LINE 10, SCHEDULE E – that will allow you to do a downward deviation for child support paid to make the worksheet match the agreement
If the parties are going to pay the provider directly, leave it out of the worksheet; what goes INTO the worksheet is the stuff that one party pays the other party for; contemplates paying them back!
“Top 3 Attorney mistakes”:
- Have your child support worksheet done before
- Settle the case before you come to Court!
- Lay out what your goals are at the start of the hearing; lay out the STANDARD for decision; PRE-MARK YOUR EXHIBITS
Parenting time: Not a favored deviation
Experts: Which expert spent the MOST TIME with the subject of the evaluation?
Remember – for alimony, half the business may both KILL the golden goose AND may be 2 times that alimony award because the person’s joy in their work may be gone
Need to raise the attorney fee issue up front and justify it in writing.
- Make a regularly recurring award (also has the benefit of motivating settlement)!!!!
Caroline Kresky and Malone W. Allen (Ichter Thomas, LLC)
- 50-2-21: “Sojourner Rule” – jurisdiction of this State and its laws extend to all persons while in its limits
- Remember – time to answer runs from date it is SIGNED, not the date it is FILED.
Insufficiency of process (§9-11-4(1)(b)) – certain defects on the PROCESS ITSELF
Insufficiency of service of process: arises in situations in which sheriff service is flawed
- 9-11-12(b) require Defendant to ASSERT these defenses in the pleading itself.
Remember – filing no responsive pleadings (ex. when they aren’t required, such as “no need to answer a counterclaim”) means the jurisdictional defenses are still preserved for trial
CHECK OCGA § 9-11-12(d)!!!!!!!!!!!!!!!!
Plaintiff has a DUTY to raise jurisdictional issues. – they MUST be raised and argued prior to the case!!!!!
- PLEAS IN ABATEMENT
- Not the same as a Motion for Summary Judgment (that is a judgment on the merits)
Had to leave at the last break – missed the business valuation discussion and the caselaw update.
AT&T has jerked me around for so long it is ridiculous. Please, please use 678-943-3532, or – even better, and preferred – e-mail at firstname.lastname@example.org to reach me.
Though I am in the process of drafting both a further demurrer/motion to dismiss in a criminal matter, and also a much-needed third-party notice to produce in a civil matter, the general obligations surrounding reciprocal Discovery obligations in criminal felony matters is very important right now. On that note, here is the Code section that covers it (although I must admit that the ten-day-window referred to by the Code section, which had slipped my mind, is brutally unfair):
The substance of what is required under the Georgia opt-in law governing criminal Discovery in Felony cases is found in Section 17-16-4 of the Official Code of Georgia. Basically, it is a way of drastically reducing paperwork by requiring that the commonly-requested applicable items in a criminal felony case be provided by either side without specific request, if the defendant elects to proceed under the Section. It provides as follows:
(a) (1) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders, disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution and that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant, before or after arrest, in response to interrogation by any person then known by the defendant to be a law enforcement officer or member of the prosecuting attorney’s staff if the state intends to use that statement at trial. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant written or oral statement made by the defendant while in custody, whether or not in response to interrogation. Statements of coconspirators that are attributable to the defendant and arguably admissible against the defendant at trial also shall be disclosed under this Code section. Where the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of any similar such statement of any witness who was:
(A) At the time of the statement, so situated as an officer or employee as to have been legally able to bind the defendant in respect to conduct constituting the offense; or
(B) At the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been legally able to bind the defendant in respect to that alleged conduct in which the witness was involved.
(2) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, furnish to the defendant a copy of the defendant’s Georgia Crime Information Center criminal history, if any, as is within the possession, custody, or control of the state or prosecution. Nothing in this Code section shall affect the provisions of Code Section 17-10-2.
(3) (A) Except as provided in subparagraph (B) of this paragraph, the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
(B) With respect to any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial of any violation of Part 2 of Article 3 of Chapter 12 of Title 16, such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.
(4) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the prosecuting attorney shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than ten days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any victim or witness.
(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.
(b) (1) The defendant within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the defense’s case-in-chief or rebuttal at the trial.
(2) The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense’s case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any defendant or witness.
(3) (A) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.
(B) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all reports of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinions rendered in the reports, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.
(C) The defendant shall, no later than five days before the trial commences, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. No later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant’s counsel that relates to the subject matter of the testimony of such witnesses unless such statement is protected from disclosure by the privilege contained in paragraph (5), (6), (7), or (8) of subsection (a) of Code Section 24-5-501.
(c) If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
(d) Upon a sufficient showing that a discovery required by this article would create a substantial threat of physical or economic harm to a witness, the court may at any time order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court subject to further order of the court and to be made available to the appellate court in the event of an appeal.
(e) Discovery with respect to alibi witnesses shall be as provided for in Code Section 17-16-5.
However, there are certain very important things that need to be pointed out. Firstly, not everything that a party may need to properly present their case is provided for under this Code section, and if the State isn’t required to provide it then it generally needs to be specially-requested (this is where the recent posts on this site concerning Freedom of Information requests can be a useful tool). Secondly, this is a reciprocal Discovery obligation, and it goes both ways. While the statute only requires that materials obtained by the defendant be provided to the State, also, within ten days of trial, it is often a mistake to let the grass grow under your feet in this situation, and it is very important that a party not forget to give a copy to the State if and when they seek to use that evidence at trial. The provisions governing this, and setting out the penalties for noncompliance (imagine if information exonerates a person entirely but they are not allowed to present it in their defense and are convicted and punished) are found at Section 17-16-2:
(a) This article shall apply to all criminal cases in which at least one felony offense is charged in the event that at or prior to arraignment, or at such time as the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant’s case. When one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.
(b) Except as provided in subsection (c) of this Code section, this article shall not apply to juvenile court proceedings.
(c) This article shall be deemed to have been automatically invoked, without the written notice provided for in subsection (a) of this Code section, when a defendant has sought discovery pursuant to Chapter 11 of Title 9, the “Georgia Civil Practice Act,” pursuant to Code Section 15-11-75, or pursuant to the Uniform Rules for the Juvenile Courts of Georgia where such discovery material is the same as the discovery material that may be provided under this article when a written notice is filed pursuant to subsection (a) of this Code section.
(d) Except as provided under Code Section 17-16-8, this article is not intended to authorize discovery or inspection of attorney work product.
(e) This article shall apply also to all criminal cases in which at least one felony offense is charged which was docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if both the prosecuting attorney and the defendant agree in writing that the provisions of this article shall apply to the case.
(f) Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4, if a defendant has elected to have the provisions of this article apply, the provisions of this article shall also apply to sentencing hearings and the sentencing phase of a death penalty trial.
Given the existence of specific and mandatory rules governing the way in which a Defendant can present and argue his or her alibis, one would think that these conditions would be equally binding on the State, and that violations of such incredibly precise rules by the State, to the disadvantage of a criminal defendant, would be punished with relatively extreme sanctions (such as dismissal of charges, or similarly severe punishments). However, one would be incorrect in thinking that.
The case discussing the duty of the State to respond to a written, timely, pretrial notice of an alibi defense (they have to name the witness or witnesses they will use to rebut the alibi evidence, separately from the general list of witnesses they would otherwise provide prior to trial as part of an Accusation or Indictment), and further clarifying the complete lack of severe sanctions on the decision by the State to ignore this rule, is found in White v. State, a 1999 decision by the Supreme Court of Georgia, found at 271 Ga. 130. It is below:
Lawrence E. Maioriello, Augusta, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
FLETCHER, Presiding Justice.
We granted certiorari to consider the scope of the state’s obligation under OCGA § 17-16-5(b) to make a written response to a defendant’s notice of alibi. We hold that the statute imposes reciprocal obligations and therefore disapprove the Court of Appeals of Georgia’s contrary holding.1 Nevertheless, we affirm the conviction because the defendant failed to object to the state’s rebuttal witnesses.
A jury convicted Ernest Ray White of aggravated assault, burglary, and kidnapping with bodily injury. Prior to trial, White gave written notice to the state of his intention to offer an alibi defense. The state did not provide White with a written response regarding the witnesses it planned to call to rebut the alibi defense. White moved for directed verdict, contending that the state failed to rebut his alibi defense. The trial court denied the motion and the court of appeals affirmed, holding that the victim’s identification of White as her attacker was sufficient to rebut his alibi defense.2 The court of appeals also held that the state had no obligation to file a reply to White’s alibi notification because OCGA § 17-16-5 is solely a means of discovery by the state.3
1. OCGA § 17-16-5 was enacted in 1994 as part of a comprehensive act to broaden discovery in criminal cases.4 The purpose of the act is to prevent surprise and trial by ambush and reduce the caseload of the criminal trial courts.5 To achieve this goal, the act imposes an affirmative duty on both the defendant and the state to disclose specific information. Upon a demand by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense. The written notice must be specific with regard to the place the defendant claims to have been at the time of the alleged offense and must provide the names, addresses, dates of birth, and telephone numbers of the witnesses upon whom the defendant intends to rely.
Once the defendant has provided this notice, the state “shall serve upon the defendant… a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses … upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.” The use of the word “shall” indicates clearly that the state is required to file a rebuttal to the defendant’s notification.6 Because the court of appeals’ contrary statement ignores the plain language of the statute, we disapprove this holding.
2. The state contends that it satisfied its obligation under OCGA § 17-16-5 because it had previously supplied a list of witnesses and the rebuttal witnesses were named on that list. The statute, however, is concerned not with witnesses generally, but with witnesses who will testify regarding the alibi defense. Requiring specific disclosure of the witnesses upon whom the state will rely to rebut the alibi furthers the act’s purpose of preventing surprise and promoting fairness. Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain.7
3. The state’s failure to comply with OCGA § 17-16-5 does not, however, demand that a trial court grant a defendant’s motion for acquittal. When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include the grant of a continuance and the exclusion of evidence. The record reveals that White did not raise the state’s noncompliance at trial. Therefore, White did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.
4. The court of appeals reviewed the evidence under the proper standard and found it sufficient to support White’s convictions.
All the Justices concur.
1. White v. State, 233 Ga.App. 24, 503 S.E.2d 26 (1998).
2. Id. at 26, 503 S.E.2d 26.
4. 1994 Ga. Laws 1895.
5. See Jeffrey A. Hannah, Peach Sheet, Criminal Procedure, 11 Ga. St. U.L.Rev. 137, 138 (1994) (discussing enactment of criminal discovery provisions).
6. See Hardwick v. State, 264 Ga. 161, 163, 442 S.E.2d 236 (1994) (generally, “shall” is recognized as mandatory command).
7. Hannah, Criminal Procedure, 11 Ga. St. U.L.Rev. at 154.
It is important to note that the Court does keep sanctions available for misconduct by the State in the Discovery process, as it notes in #3:
“The state’s failure to comply with OCGA § 17-16-5 does not, however, demand that a trial court grant a defendant’s motion for acquittal. When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include the grant of a continuance and the exclusion of evidence. The record reveals that White did not raise the state’s noncompliance at trial. Therefore, White did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.”
The sanctions that the Code section mentions describe include the following remedies: “the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances.” The Court specifically talks about a continuance to permit the Discovery (this seems like a refusal to punish the State, though) and also about the exclusion of evidence (this, however, seems like excellent and fitting punishment).
If anyone has any experience with this particular issue, please enlighten us in the comments below!
Apologies for the confusion, but I have been under the misimpression for several years that demurrers were not part of Georgia jurisprudence, and were neither favored nor permitted. At some point, a mentor may have directed me to avoid them, and I somehow incorporated it into my mental canon of legal practice.
A demurrer is defined partly in The Law Dictionary at
http://thelawdictionary.org/demurrer/ as follows:
“The formal mode of disputing the sufficiency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which objection is taken be true, yet their legal consciences are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause.”
That said, the topic has arisen again with recent investigation into the proper use of an alibi defense in a case, and I was fascinated to discover that Uniform Superior Court Rule 31.2 provides that:
“[a]ll such motions, demurrers, special pleas and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.”
It seemed strange that this antiquated technique might be mentioned in the newest form of the rule, so further investigation failed to reveal that demurrers were no longer used, and in fact revealed that they come in two different flavors: general (a demurrer to the charges in the indictment), and special (a demurrer to the form of the indictment). A special indictment, by the way, has to be raised at the time of Arraignment. A general demurrer, on the other hand, can arguably be raised at any time, and is an appropriate vehicle, it appears, for delayed alibi evidence.
Specifically concerning the effect of a general demurrer (that sustaining a general demurrer quashes the indictment – exactly what the alibi I seek to prove will do), the case of Traylor v. State, 165 Ga.App. 226 (Ga. Ct. App. 1983) was directly on point:
A. Frank Grimsley, Cordele, for appellant.
Gary C. Christy, Dist. Atty., Cordele, for appellee.
DEEN, Presiding Judge.
Appellants were arrested on two charges of burglary stemming from two incidents that had occurred in Rochelle, Ga., on the same night. Footprints leading from the burglary scenes were found to correspond to footprints in the yard of a friend of appellant Gibson’s. The friend told the sheriff, and later so testified, that he had given Gibson a ride to his father’s home in the early morning following the occurrence of the burglaries. The sheriff went to the father’s house to inquire as to Gibson’s whereabouts and was greeted in the front yard by the father, who subsequently testified that he had not objected to the sheriff’s presence there. While talking with the father the sheriff saw in the unenclosed carport a pair of tennis shoes conforming to the footprints. After the father had identified them as his son’s, the sheriff removed the shoes from the premises. Appellant Traylor was implicated when a paper bearing his name was found in the abandoned truck identified as that in which two male perpetrators had been seen fleeing the scene of the second burglary. Stolen items were found in the mobile home recently rented by appellant Gibson.
Appellants were jointly indicted and tried, and a Wilcox County jury found both guilty as charged. Both received fifteen-year sentences on each count, and both have appealed from this judgment. Appellant Gibson enumerates as error the denial of his motion to suppress the tennis shoes as evidence. Appellant Traylor enumerates as error the trial court’s denial of his motions to quash the indictment and to try himself and his co-defendant separately. Held:
1. Appellant Gibson contends that the sheriff should have obtained either a search warrant or the consent of his father before removing the tennis shoes from the premises. The state contends that the tennis shoes were lying in the carport in plain view of anyone standing in the front yard, and that since the father made no objection either to the sheriff’s entering the yard or to his removing the shoes, his acquiescence constituted consent. The state further argues that, since appellant was in the process of moving his belongings from his father’s house to quarters of his own and had in fact slept at his father’s house no more than three nights out of the immediately preceding seven, he no longer resided there and therefore had no expectation of privacy on those premises.
We find that the trial court did not err in denying the motion to suppress and in admitting the shoes in evidence. Contrary to appellant’s contention, the testimony of his father indicates tacit consent to the sheriff’s actions. There is no indication in the record that the sheriff’s questions or actions were coercive or that the actions of appellant’s father were involuntary. See Williams v. State, 151 Ga.App. 833, 261 S.E.2d 720 (1979). We further find that appellant could not reasonably expect privacy in an unenclosed portion of a building where he would be more accurately classified as a frequent visitor than as a resident. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The motion to suppress was properly denied.
2. The basis for appellant Traylor’s motion to quash was two-pronged. The first prong was that his girl friend, on whose statement the sheriff had based much of his testimony before the grand jury, had lied. The second was that matters taking place before the grand jury were improperly raised at the hearing on the motion. The state contended that these assignments of error were immaterial because the motion to quash was not filed in a timely manner, OCGA § 17-7-111 (Code Ann. § 27-1501), and that even if it had been timely, the allegation of insufficiency of evidence could not be entertained by the trial court.
A motion to quash is classified as a general rather than a special demurrer to an indictment. State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Dillard v. State, 147 Ga.App. 587, 249 S.E.2d 640 (1978); Woods v. State, 10 Ga.App. 476, 73 S.E. 608 (1911). “A general demurrer challenges the very validity of the indictment and may be raised [at] any time.” 1 State v. Eubanks, supra 239 Ga. at 485, 238 S.E.2d 38. “In contrast, a special demurrer is waived if not raised before pleading to the merits of the indictment.” Id. at 486, 238 S.E.2d 38. In the instant case, therefore, the motion to quash was not untimely.
Even though the motion was timely, however, the court below properly denied it. It is the settled rule in Georgia that “[w]here a competent witness or witnesses were sworn and examined before the grand jury before whom the indictment was preferred, … no inquiry into the sufficiency of the evidence is indulged. The sufficiency of the evidence introduced before the grand jury is a question for determination by the grand jury and not by the court.” Summers v. State, 63 Ga.App. 445, 11 S.E.2d 409 (1940); Welch v. State, 130 Ga.App. 18, 202 S.E.2d 223 (1973). This court cannot properly consider the first prong of this enumeration, and the second is moot. The enumeration is without merit.
3. Appellant Traylor’s enumeration regarding the trial court’s denial of his motion to sever is likewise without merit. Separate trials for co-indictees is a matter within the court’s discretion, and the decision will not be overturned unless there is abuse of discretion. Mathis v. State, 231 Ga. 401, 202 S.E.2d 73 (1973). Criteria for assisting the court in considering motions to sever are set forth in Cain v. State, 235 Ga. 128 at 129, 218 S.E.2d 856 (1975): “1. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other or to each other’s rights?” Culpepper v. State, 156 Ga.App. 331, 274 S.E.2d 616 (1980). The court affirmatively stated that it had considered these criteria and had found that none of them would preclude denial of the motion to sever. Moreover, there was no showing that prejudice amounting to denial of due process would ensue to appellant Traylor from the court’s denial of the motion. The burden is on the appellant to show the likelihood of such prejudice. Cain v. State, supra 235 Ga. at 129, 218 S.E.2d 856. Absent such showing, we find that the court below did not err. Murphy v. State, 246 Ga. 626, 629, 273 S.E.2d 2 (1980); Carroll v. State, 147 Ga.App. 332, 248 S.E.2d 702 (1978).
BANKE and CARLEY, JJ., concur.
1 The court notes that a contrary result was reached in Bramblett v. State, 139 Ga.App. 745, 229 S.E.2d 484 (1976), which is not expressly overruled by Eubanks or Dillard.
Trial Evidence CLE
September 19, 2014 – State Bar HQ
Georgia has adopted an Evidence Code based on the Federal Rules, so everything said here is directly applicable to the corresponding Georgia rule, though couched as FRE (Federal Rules of Evidence).
Thomas A. Mauet (University of Arizona) – Former US Attorney, Illinois State Attorney, private attorney
- Need to WIN in the trial Court (b/c appellate reversal on evidentiary grounds is EXCEEDINGLY rare)
- Move the mind of the judge
- FRE 103 objections
His Three R’s
Is it RELEVANT?
If so, is it RELIABLE (ex. Not hearsay)?
If so, is it RIGHT (did it then get transferred to factfinder correctly)?
General Relevance- FRE 401-403
- Logical Rules (General relevance)
- What’s in issue (pleadings and underlying substantive law)?
- What’s it prove (“any tendency”; “more or less probable”)?
- 403 balancing test (“substantially outweighs”):
(a) “unfair prejudice”;
(b) “confusion, repetition”
– Case is Old Chief (1997) – can you prove it in a less inflammatory way?
“Prejudicial”, by itself, is probably the least persuasive term because it is OVERUSED. Got to elaborate.
Special Relevance – FRE 404-415
- Situations based on POLICY and POLITICS
- Character Traits (FRE 404-405) – The kind of person they are
- Essential Element (405(b)) – says that every so often character is an essential element of the case
- This arises in primarily CIVIL matters (ex. Custody disputes)
- Circumstantial evidence of conduct (404(a))
- This is a criminal case issue only – did they act consistently in that situation (using it only in criminal situations is a POLICY choice)
- It is an issue that must be brought in by Defendant, and then rebutted by prosecution (the State can’t open that door)
- How can they prove character, and whose character is involved by the proof?
- Special exception – lets prosecution attack Defendant’s character if they open the door about the Victim’s character.
- Other Acts (FRE 404(b)) – Particular incident in past that meets the general relevance standards; inadmissible to show “in accordance with”, “propensity for” and “bad character”
- Almost ALL appellate reversal happens from OVER-ADMISSION
- We know that jurors put TOO MUCH WEIGHT on past events.
- Use appellate court language – “propensity for” and “bad character”
- It BECOMES probative if it can be used to prove onbe of the specific things actually in issue (ex. identity, plan, preparation, motive, opportunity, absence of mistake, or accident)
- Argue the PROPER USE, and then also deny that you are offering it for the IMPROPER USE
- Argue that NOT evidence of other crimes (once does not mean always); argue NOT evidence of a “continuing course of conduct”; argue that the two are NOT “inextricably intertwined” (See Huddleston, 1988, and Dowling, 1990)
- Habit (FRE 406) – Not the same as above
- Gets confused with character often
- Admissible if it can be shown to be a “routine practice”
Cross examination (405(a)) – “Have you heard…?”; “Did you know…?”
- Can cross-examine a character witness with specific instances of inconsistent conduct (Michelson case – 1948)
- Couldn’t use something the guy did 20 years ago to show his new action was the same.
Policy exclusions: FRE 407-415
- FRE 407 (subsequent remedial measures)
- Inadmissible to show fault (ex. ability to pay, etc.); admissible if probative of specific things actually in issue (ex. negligence and strict liability, product and design defects, warning and instruction defects, recalls [if governmental, then ADMISSIBLE; if private, NOT ADMISSIBLE], “state of the art”, and ownership or control)
- FRE 409 (Medical expenses rule – Inadmissible to prove)
- FRE 411 (INSURANCE; it could show agency, control, bias, and interest)
- “Don’t worry; I’m insured”; might be admissible if it is then contested
- FRE 408 (Offers of compromise or settlement offers); these are distinctly inadmissible.
- FRE 410 (Plea offers)
- Was settlement of negotiation intended?
- What if it shows BIAS or INTEREST???
- Victim’s past behavior in sexual assaults (FRE 412)
- Past acts with Defendant – admissible
- Identity is uncertain – admissible
- Defendant’s prior similar acts in sexual assaults (FRE 413) – ADMISSIBLE
- Defendant’s prior similar acts in child molestation (FRE 414) – ADMISSIBLE
- Civil cases (FRE 415) – This applies that rule (past sexual assault evidence is admissible in current cases) to civil cases (ex. employer sexual harassment)
FRE 501+State Law
In federal diversity cases, it is the forum jurisdiction privilege law that applies (even if it is STATE law, not federal)
- Privileges are personal (They belong to who? That is the only person that can WAIVE them)
- Termination rule that applies (what about when they terminate on the occurrence of a particular event?)
- Domestic Relations cases (the marital privilege):
Right to bar a spouse from testifying VERSUS marital communications are privileged
Federal court (because of the Trammel decision in 1979), the testifying spouse is the holder of the privilege (most States say opposite)
Almost every jurisdiction says that the privilege terminates when the marriage terminates
Interspousal torts and joint crimes: Usually not privileged; DEAL WITH THIS UP FRONT; The interspousal communications privilege NEVER TERMINATES in most cases, and applies in every jurisdiction
- Attorney-Client Privilege
Must be a communication specifically to deal with a LEGAL MATTER (also can only be between LAWYER/his agent and CLIENT)
Need to specifically contractually bring agents within the attorney-client privilege
- Check Swidler & Berlin, 1998 – even death of client doesn’t terminate attorney-client privilege
FRE 502 (this is known as a “quick peek”, and there must be a WRITTEN AGREEMENT, and it needs to be incorporated by the judge into a written order – then it is binding on all third parties):
- Attorney-Client AND work-product doctrines are affected
- Limited subject-matter waiver
- This covers INADVERTENT DISCLOSURES during Discovery
- It addresses the effect of Federal Court Orders on waiver as to third parties
Federal Courts have NEVER recognized a doctor-patient privilege; current thing is a LIMITED privilege only (Jaffe v. Redmon, 1996 – psychotherapist and patient have a privilege, definitely)
- Most STATES have far broader rules (make sure of the particular privilege – communications, or records, or BOTH)
- There is a MEDICAL RECORDS privacy rule (ex. HIPAA and State parallels)
- Waiver and nonapplicability apply (put injury in issue and the records and communications become directly relevant)
- Is it RELIABLE?
Hearsay (FRE 801(c) – dividing all things up into hearsay and non-hearsay, and there are EXCEPTIONS to inadmissible hearsay in 801(d), 803, & 804).
“Reliable” – First-hand knowledge (REQUIREMENT)
Ex. THE TELEPHONE GAME
Definition of hearsay (FRE 801(c)):
- Is there a “statement” (FRE 801(a))?
- It must be an assertion or assertive conduct
- Was the statement made “out of court”?
- Is the statement being “offered to prove the truth of the matter asserted”?
- Versus whether it is being offered simply to prove that it was said!!!!
- The statement may have Independent Legal Significance
- Fraudulent Misrepresentation
- Contract (existence and terms of one)
- Gift (versus purchase, theft, etc.)
- Consent (res ipsa loquitor)
- Impeachment with Prior Inconsistent Statement
- LISTENER’S STATE OF MIND
- Notice (effect on the party to show knowledge);
- Fear/State of mind induced BY HEARING
(It has probative value BECAUSE IT WAS SAID)
Common Hearsay Exceptions:
- 801(d) – Prior Statements
The 6th Amendment Confrontation Clause:
- Crawford, 2004 (even if it is a hearsay objection, it still violates the 6th Amendment)
- Davis and Hammon, 2006
- Statement by Party-Opponent (FRE 801(d)(2))
Rule is based on adversarial nature – if they said it, you can use it.
Don’t confuse this with the idea of a statement against party interest
- Statement of an agent or a CO-CONSPIRATOR is admissible, BUT:
- Must prove that person was employee, in scope of employment, or person was a co-conspirator (did conspiracy, with all legal requirements, exist), in furtherance of the conspiracy itself
- Remember that SILENCE can qualify
- Prior consistent versus inconsistent statements (FRY 801(d)(1))
- Consistent (it is hearsay, and irrelevant, unless it is a prior identification or a recent fabrication)
- Inconsistent (Policy says it is NOT hearsay, and certainly relevant; used for impeachment and also for substantive purposes)
- Statements against interest (FRE 804(b)(3))
- Witness is unavailable;
- Statement is “SO FAR CONTRARY to pecuniary, proprietary, or penal self-interest;
- When it was made (shows truth of statement against interest); OR
- Statement sometimes admitted because it exculpates the accused
- Former testimony (FRE 804(b)(1)
Allowed when a witness is “unavailable” (or testifying contrary);
- Is it fair to the opposing party? Were they present at the earlier hearing (and have an opportunity to examine witness then) – or, in civil cases, were they a “predecessor in interest”?
- Are the issues in the proceedings the same?
- Spontaneous Statements (Present Sense Impressions under 803(1) versus Excited Utterances under 803(2))
- Perceiving event or immediately thereafter, describing or explaining event
- Under stress or excitement OR related to a startling event
Excited utterance rule = “Oh my God” rule; psychologists agree this is a stupid rule, but the law likes it still
- Language under Excited Utterance exception includes RELATING TO startling event
- Present mental or physical condition (FRE 803(3))
Can be direct evidence OR circumstantial (proof of condition)
- Also casts light on EMOTIONAL CONDITION
Present state of mind as proof of future conduct:
Used in execution, revocation, and alteration of terms of a WILL.
See Shepard, 1933, and Hillmon, 1892
Most federal Courts say Hillmon is no longer applicable (can’t use a statement of possible future intent to prove actions in conformity to the intention); most States permit that presumption
- Dying declarations (FRE 804(b)(2))
- Witness is NECESSARILY unavailable
- Used in both criminal cases involving homicide and also in civil cases
- Declarant needs to believe their death is “imminent”
- It concerns the cause or circumstances of their impending death
- Statements for diagnosis and treatment (FRE 803(4))
- Is the statement about the patient?
- Is it symptoms and medical history?
- Does it help diagnosis or treatment?
- Treating versus Non-Treating?
- Is it a question of PURE FAULT? Those statements STAY OUT (make a motion to exclude such statements and then RAISE THE OBJECTION WHEN APPLICABLE)
- Statement doesn’t just have to be BY the patient; can be ABOUT the patient
Distinguish this stuff from the stuff the victim might say to an EXPERT WITNESS.
- Business Records (FRE 803(6),(7))
Certification in FRE 902 (certain records, such as official records, newspapers, etc., are self-authenticating). Conversely, FRE 901 – how to authenticate evidence to establish that it is what it purports to be
5-Step Foundation (check the booklet)
If it is admitted as a business record, not everything in it gets in:
- Does making of record indicate a lack of trustworthiness?
- What about DOUBLE-HEARSAY?
- Expert opinions are subject to their own level of inquiry.
- If it is a summary, be aware!
See Palmer v. Hoffman, 1943, and Johnson v. Lutz, NY, 1903.
- Double Hearsay in business records:
Johnson v. Lutz – May be several folks making a report, at several different hierarchical levels, but there is ONLY ONE BUSINESS
- However – what if some of the info was NOT from an employee? They wouldn’t have any presumed duty of accuracy.
- Example – conclusory statements by a non-employee.
You would still have to show a FOUNDATION for these separate statements (“the business record exception does an end-run around expert witnesses”)
- Simple test to ask the judge: would he let them do this LIVE?
Summaries: FRE 1000(6) – NOT THE SAME as business record exception
Should do BOTH – foundation objection AND business record objection; should immediately provide NOTICE if improperly designated (as business record when it should be foundational, and vice-versa)
Present objections to evidence anticipated LATER in trial early on – get a ruling AHEAD OF TIME when you can.
- Is the witness competent to testify?
Rule 601 – Erie Doctrine: Forum jurisdiction competency rule applies in diversity jurisdiction cases.
FRE 602 – Witness must have personal knowledge.
Can lead IF NECESSARY under FRE 607
FRE 612 is refreshing recollection; provides procedure to refresh, admissibility as an exhibit, and CAN BE USED ON CROSS. That rule also covers when a writing is used to refresh BEFORE TESTIFYING (it’s in judge’s discretion to turn it over to the other side)
Impeachment with Prior Inconsistent Statements
- Impeachment must be MATERIAL (not insignificant);
- Ethically, must have a VALID FACTUAL BASIS TO SUGGEST THE IMPEACHING MATERIAL (be able to BACK IT UP with proof)
- Get them to ADMIT the inconsistency, as a final step to successful impeachment
If you can’t prove it, they might be able to successfully move for mistrial.
Prior Bad Acts (FRE 608) are kind of unimportant.
Cross Examination of a Deposition (No in-Court Witness)
- FRE 806 is means: When testimony comes in by hearsay exception – out of Court declarant.
- Can use any of the impeachment methods you would ordinarily be able to use.
- TIP: Ask the judge to allow you to have another person read the answers from the deposition
FRE 901, 902, 803, 804
Chain of Custody:
- Only has to be sufficient proof that “it is what it purports to be”
Remember: Visual Aids (don’t go back with the jury) versus DEMONSTRATIVE EVIDENCE
- To make this admissible, must argue and CONVINCE THE JUDGE that it is the “right and fair thing to do”.
The “Best Evidence” Rule:
- Evidence was lost or destroyed in good faith;
- Other party won’t give it up; OR
- Original is BEYOND THE SUBPOENA POWER
The below post was originally put on this site three years ago, and my class reunion mentioned therein happened, but I could not go. Nevertheless, I have upcoming conflicts, and updated the Uniform Superior Court Rule (16.1) to reflect the most recent text. I have a few upcoming conflicts that I do not want to interfere with my trial schedule, and the refresher is useful. The re-post follows, with the exception of the updated Court Rule:
“I AM AWARE OF THE FORMATTING FLAWS ON THIS – LEARNING HOW TO FIX THEM!!!!!
Apologies are necessary for the extraordinarily long hiatus between new posts on this site. This is not because of lack of new information that could be written about, and is certainly not because of any lack of information that should be written about. However, a powerful lack of motivation to accomplish the necessary tasks of office administration – resulting in doing the “bare minimum” required to get just enough done to meet obligations as they arise – coupled with an overwhelming amount of deadlines coinciding together in the past week, has caused publication of new material to be put on hold temporarily. If it makes any difference, there have been substantial personal distractions that interfered with the orderly administration of a smoothly-functioning law office in the past week, but that isn’t much of an excuse.
The other day, I mentioned to a client that I am compiling a list of judges, opposing counsel, and Courts for each case. In part, I’m doing this to “take stock” of my current caseload, but I’m also doing this because my ten-year law school reunion in New Orleans happens in October, and I have certain legal requirements I have to comply with to allow for time away from the practice of law for this. The Superior Courts of Georgia provide for Leaves of Absence in the Court Rules, and I have (heavily) excerpted the pertinent rules for leaves of absence of less than thirty days below. I have done this because of the ignorance of the general public about the fact that attorneys have certain rules they must comply with, and because I have seen various attorneys also fail to comply with these, themselves (to the detriment of their clients, often causing incarceration of the unwary, or worse), and I want to remedy any ignorance that people might have.
Rule 16. LEAVES OF ABSENCE
Rule 16.1. Leaves for Thirty (30) Calendar Days or Less”
An attorney of record shall be entitled to a leave of absence for thirty days or less from court appearance in pending matters which are neither on a published calendar for court appearance, nor noticed for a hearing during the requested time, by submitting to the clerk of the court at least thirty (30) calendar days prior to the effective date for the proposed leave, a written notice containing:
(a) a list of the actions to be protected, including the action numbers;
(b) the reason for leave of absence; and
(c) the duration of the requested leave of absence.
A copy of the notice shall be sent, contemporaneously, to the judge before whom an action is pending and all opposing counsel. Unless opposing counsel files a written objection within ten (10) days with the clerk of the court, with a copy to the court and all counsel of record, or the court responds denying the leave, such leave will stand granted without entry of an order. If objection is filed, the court, upon request of any counsel, will conduct a conference with all counsel to determine whether the court will, by order, grant the requested leave of absence.
The clerk of the court shall retain leave of absence notices in a chronological file two (2) calendar years; thereafter, the notices may be discarded