Circumstances have required that I look at the issue of DUI (especially breathalyzer-related) again. The following was posted initially on January 15, 2015:
When a person is arrested for the crime of Driving Under the Influence (Section 40-6-391 of the Official Code of Georgia), their driver’s license – whether out-of-state or Georgia-issued – shall be seized, pursuant to Section 40-5-67 of the Code. That section reads as follows:
(a) Whenever any resident or nonresident person is charged with violating Code Section 40-6-391, the law enforcement officer shall take the driver’s license of the person so charged. The driver’s license shall be attached to the court’s copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense. A copy of the uniform traffic citation and complaint form shall be forwarded, within ten days of issue, to the department. Taking the driver’s license as required in this Code section shall not prohibit any law enforcement officer or agency from requiring any cash bond authorized by Article 1 of Chapter 6 of Title 17.
(b) At the time the law enforcement officer takes the driver’s license, the officer shall issue a temporary driving permit to the person as follows:
(1) If the driver refuses to submit to a test or tests to determine the presence of alcohol or drugs as required in Code Section 40-5-55, the officer shall issue a 30 day temporary driving permit;
(2) If the driver’s license is required to be suspended under Code Section 40-5-67, the officer shall issue a 30 day temporary driving permit; or
(3) If the test or tests administered pursuant to Code Section 40-5-55 indicate an alcohol concentration in violation of Code Section 40-6-391 but less than the level for an administrative suspension of the license under 40-5-67.1, the officer shall issue a 180 day temporary driving permit.
This temporary driving permit shall be valid for the stated period or until the person’s driving privilege is suspended or revoked under any provision of this title. The department, at its sole discretion, may delay the expiration date of the temporary driving permit, but in no event shall this delay extend beyond the date when such person’s driving privilege is suspended or revoked under any provision of this title. The department shall by rules and regulations establish the conditions under which the expiration of the temporary permit may be delayed.
(c) (1) If the person is convicted of violating or enters a plea of nolo contendere to a charge of violating Code Section 40-6-391, the court shall, within ten days, forward the person’s driver’s license and the record of the disposition of the case to the department. At this time, the court shall also require the person to surrender the temporary driving permit issued pursuant to subsection (b) of this Code section.
(2) If the person is not convicted of violating and does not enter a plea of nolo contendere to a charge of violating Code Section 40-6-391, and the court is in possession of the driver’s license, the court shall return the driver’s license to the person unless the license is in suspension for any other offense, in which case the court shall forward the license to the department for disposition.
This Code section makes reference to another Code section, 40-5-67.1, on Administrative License Suspension, specifically talking about when a person has a sufficiently high alcohol concentration for an administrative suspension to happen under that section. That section reads as follows:
(a) The test or tests required under Code Section 40-5-55 shall be administered as soon as possible at the request of a law enforcement officer having reasonable grounds to believe that the person has been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer has arrested such person for a violation of Code Section 40-6-391, any federal law in conformity with Code Section 40-6-391, or any local ordinance which adopts Code Section 40-6-391 by reference or the person has been involved in a traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which test or tests shall be administered initially and may subsequently require a test or tests of any substances not initially tested.
(b) At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent notice from the following:
(1) Implied consent notice for suspects under age 21:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”
(2) Implied consent notice for suspects age 21 or over:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial.
If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your ( designate which
tests ) under the implied consent law?”
(3) Implied consent notice for commercial motor vehicle driver suspects:
“Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate the presence of any alcohol, you will be issued an out-of-service order and will be prohibited from operating a motor vehicle for 24 hours. If the results indicate an alcohol concentration of 0.04 grams or more, you will be disqualified from operating a commercial motor vehicle for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your ( designate which tests ) under the implied consent law?”
If any such notice is used by a law enforcement officer to advise a person of his or her rights regarding the administration of chemical testing, such person shall be deemed to have been properly advised of his or her rights under this Code section and under Code Section 40-6-392 and the results of any chemical test, or the refusal to submit to a test, shall be admitted into evidence against such person. Such notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.
(c) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities submits to a chemical test upon the request of a law enforcement officer and the test results indicate that a suspension or disqualification is required under this Code section, the results shall be reported to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident involving serious injuries or fatalities and that the person submitted to a chemical test at the request of the law enforcement officer and the test results indicate either an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege pursuant to Code Section 40-5-67.2, subject to review as provided for in this chapter. Upon the receipt of a report of the law enforcement officer that the arrested person had been operating or was in actual physical control of a moving commercial motor vehicle and the test results indicate an alcohol concentration of 0.04 grams or more, the department shall disqualify the person from operating a motor vehicle for a minimum period of one year.
(d) If a person under arrest or a person who was involved in any traffic accident resulting in serious injuries or fatalities refuses, upon the request of a law enforcement officer, to submit to a chemical test designated by the law enforcement officer as provided in subsection (a) of this Code section, no test shall be given; but the law enforcement officer shall report the refusal to the department. Upon the receipt of a report of the law enforcement officer that the officer had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 or that such person had been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state and was involved in a traffic accident which resulted in serious injuries or fatalities and that the person had refused to submit to the test upon the request of the law enforcement officer, the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege for a period of one year or if the person was operating or in actual physical control of a commercial motor vehicle, the department shall disqualify the person from operating a commercial motor vehicle and shall suspend the person’s driver’s license, permit, or nonresident operating privilege, subject to review as provided for in this chapter.
(d.1) Nothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of Code Section 40-6-391 if obtained by voluntary consent or a search warrant as authorized by the Constitution or laws of this state or the United States.
(e) If the person is a resident without a driver’s license, commercial driver’s license, or permit to operate a motor vehicle in this state, the department shall deny issuance of a license or permit to such person for the same period provided in subsection (c) or (d) of this Code section, whichever is applicable, for suspension of a license or permit or disqualification to operate a commercial motor vehicle subject to review as provided for in this chapter.
(f) (1) The law enforcement officer, acting on behalf of the department, shall personally serve the notice of intention to suspend or disqualify the license of the arrested person or other person refusing such test on such person at the time of the person’s refusal to submit to a test or at the time at which such a test indicates that suspension or disqualification is required under this Code section. The law enforcement officer shall take possession of any driver’s license or permit held by any person whose license is subject to suspension pursuant to subsection (c) or (d) of this Code section, if any, and shall issue a 30 day temporary permit. The officer shall forward the person’s driver’s license to the department along with the notice of intent to suspend or disqualify and the report required by subsection (c) or (d) of this Code section within ten calendar days after the date of the arrest of such person. This paragraph shall not apply to any person issued a 180 day temporary permit pursuant to subsection (b) of Code Section 40-5-67. The failure of the officer to transmit the report required by this Code section within ten calendar days shall not prevent the department from accepting such report and utilizing it in the suspension of a driver’s license as provided in this Code section.
(2) If notice has not been given by the arresting officer, the department, upon receipt of the report of such officer, shall suspend the person’s driver’s license, permit, or nonresident operating privilege or disqualify such person from operating a motor vehicle and, by regular mail, at the last known address, notify such person of such suspension or disqualification. The notice shall inform the person of the grounds of suspension or disqualification, the effective date of the suspension or disqualification, and the right to review. The notice shall be deemed received three days after mailing.
(g) (1) A person whose driver’s license is suspended or who is disqualified from operating a commercial motor vehicle pursuant to this Code section shall remit to the department a $150.00 filing fee together with a request, in writing, for a hearing within ten business days from the date of personal notice or receipt of notice sent by certified mail or statutory overnight delivery, return receipt requested, or the right to said hearing shall be deemed waived. Within 30 days after receiving a written request for a hearing, the department shall hold a hearing as is provided in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” The hearing shall be recorded.
(2) The scope of the hearing shall be limited to the following issues:
(A) (i) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
(ii) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
(B) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequence of submitting or refusing to submit to such test; and
(C) (i) Whether the person refused the test; or
(ii) Whether a test or tests were administered and the results indicated an alcohol concentration of 0.08 grams or more or, for a person under the age of 21, an alcohol concentration of 0.02 grams or more or, for a person operating or having actual physical control of a commercial motor vehicle, an alcohol concentration of 0.04 grams or more; and
(D) Whether the test or tests were properly administered by an individual possessing a valid permit issued by the Division of Forensic Sciences of the Georgia Bureau of Investigation on an instrument approved by the Division of Forensic Sciences or a test conducted by the Division of Forensic Sciences, including whether the machine at the time of the test was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order, which shall be required. A copy of the operator’s permit showing that the operator has been trained on the particular type of instrument used and one of the original copies of the test results or, where the test is performed by the Division of Forensic Sciences, a copy of the crime lab report shall satisfy the requirements of this subparagraph.
(3) The hearing officer shall, within five calendar days after such hearing, forward a decision to the department to rescind or sustain the driver’s license suspension or disqualification. If no hearing is requested within the ten business days specified above, and the failure to request such hearing is due in whole or in part to the reasonably avoidable fault of the person, the right to a hearing shall have been waived. The request for a hearing shall not stay the suspension of the driver’s license; provided, however, that if the hearing is timely requested and is not held before the expiration of the temporary permit and the delay is not due in whole or in part to the reasonably avoidable fault of the person, the suspension shall be stayed until such time as the hearing is held and the hearing officer’s decision is made.
(4) In the event the person is acquitted of a violation of Code Section 40-6-391 or such charge is initially disposed of other than by a conviction or plea of nolo contendere, then the suspension shall be terminated and deleted from the driver’s license record. An accepted plea of nolo contendere shall be entered on the driver’s license record and shall be considered and counted as a conviction for purposes of any future violations of Code Section 40-6-391. In the event of an acquittal or other disposition other than by a conviction or plea of nolo contendere, the driver’s license restoration fee shall be promptly returned by the department to the licensee.
(h) If the suspension is sustained after such a hearing, the person whose license has been suspended under this Code section shall have a right to file for a judicial review of the department’s final decision, as provided for in Chapter 13 of Title 50, the “Georgia Administrative Procedure Act”; while such appeal is pending, the order of the department shall not be stayed.
(i) Subject to the limitations of this subsection, any law enforcement officer who attends a hearing provided for by subsection (g) of this Code section for the purpose of giving testimony relative to the subject of such hearing shall be compensated in the amount of $20.00 for each day’s attendance at such hearing. In the event a law enforcement officer gives testimony at two or more different hearings on the same day, such officer shall receive only $20.00 for attendance at all hearings. The compensation provided for in this subsection shall not be paid to any law enforcement officer who is on regular duty or who is on a lunch or other break from regular duty at the time the officer attends any such hearing. The compensation provided for by this subsection shall be paid to the law enforcement officer by the department from department funds at such time and in such manner as the commissioner shall provide by rules or regulations. The commissioner shall also require verification of a law enforcement officer’s qualifying to receive the payment authorized by this subsection by requiring the completion of an appropriate document in substantially the following form:
IMPLIED CONSENT HEARING ATTENDANCE RECORD
OFFICER: S.S. No.
Street City State ZIP Code
DATE: TIME: A.M.
This is to certify that the police officer named above attended an implied consent hearing as a witness or complainant on the date and time shown above.
HEARING OFFICER: TITLE:
I certify that I appeared at the implied consent hearing described above on the date and time shown above and that I was not on regular duty at the time of attending the hearing and that I have not received and will not receive compensation from my regular employer for attending the hearing.
Signature of officer:
APPROVED FOR PAYMENT:
(j) Each time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:
“This breath-testing instrument (serial no. ) was thoroughly inspected, tested, and standardized by the undersigned on (date ) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.”
When properly prepared and executed, as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of Code Section 40-6-392 and subparagraph (g)(2)(F) of this Code section.
It is subsection (d) that is especially important for most savvy drivers, since the basic rule I generally tell folks when it comes to communicating with law enforcement officers during an investigation, whether it seems completely unfounded to the person being investigated or not, is DON’T. Bear in mind that I have tremendous respect for the role law enforcement plays in American society, but I am well-aware how easily a misunderstanding can have severe consequences on someone’s life. Subsection (d) refers to refusals, which automatically result in a license suspension. However, under this statute, the officer will then provide the person with a temporary (30-day) license. The ALS hearing – which must be requested by the person within 10 business days of the incident, and begins to run the day following the ticket, requiring the payment of a $150 fee – is the only way to ensure an extension of this 30-day period (unless something fortunate happens for the person and they are found not guilty before that 30 days ends, in which case their license is reinstated), except by the internal rules of the Department of Driver Services (referred to as the “DDS”). The rule in question is 375-3-3-.09, and it reads as follows:
(1) Extension of 30 day temporary driving permit:
(a) At the time a law enforcement officer takes a person’s driver’s license for refusal to submit to chemical testing or because the person’s blood alcohol concentration is at a level requiring administrative license suspension, the officer shall issue the person a 30 day temporary driving permit. This temporary driving permit shall be on DDS Form 1205 and shall be valid until the expiration of 30 days from the incident date.
(b) If the person timely files an appeal of the license suspension, the Department shall extend the temporary driving permit for an additional 90 days, but not beyond the date when the person’s driving privilege is suspended or revoked.
(c) The 90 day extension will be a DDS Form which, when accompanied with the driver’s copy of DDS Form 1205, will serve as the temporary driver’s permit for the 90 day extension.
(d) The Department may issue an extension of the 90 day temporary driving permit upon receipt of documentation from the Office of State Administrative Hearings indicating that a final decision has not yet been entered in the case and will not be entered prior to the expiration of the temporary driving permit.
(e) In the event an officer issues a DDS Form 1205 to a person whose driver’s license or driving privilege is otherwise valid, but neglects to sign the temporary driving permit at the bottom of such form, the Department shall issue a temporary driving permit to such person for the balance of the 30 days from the incident date. Such permit shall be subject to extension pursuant to Paragraphs (b) and (d) of this subsection.
(2) Extension of 180 day temporary driving permit.
(a) At the time a law enforcement officer takes a person’s driver’s license for a violation of O.C.G.A. §40-6-391 for which the officer has not initiated an administrative license suspension under O.C.G.A. § 40-5-67.1, the officer shall issue a 180 temporary driving permit.
(b) This permit shall be valid until the expiration of 180 days or until the person’s driving privilege is suspended or revoked.
(c) In the event the case has not been resolved within 180 days, the Department shall issue another 180 temporary driving permit. Additional extensions may be issued for as long as the case remains pending.
(d) The Department shall extend the permit only upon receipt of documentation from the judge, clerk of court, or prosecutor from the court of jurisdiction stating that the case has not yet been adjudicated.
(3) Replacement of lost, stolen or destroyed temporary driving permits.
(a) In the event a customer’s temporary driving permit is lost, stolen or destroyed, a replacement may be issued by the Commissioner’s designee on a form designated by the Department upon receipt of a written request from the customer.
(b) Customers seeking replacement of a 180-day temporary driving permit shall provide both a copy of the citation from the Court and documentation from the Court that such charge remains pending. Such permit shall be valid for the applicable period provided in paragraph (1) or (2) of this regulation.
Researching the further implications of seeking to collect on a contract for attorney’s fees in two criminal cases that ended in the past year has uncovered the statute of limitations information.
To recover against a fraudulent transfer of property in Georgia, the Code tracks the federal bankruptcy laws. The statute that govern the issue is Section 18-2-79, which reads as follows:
A cause of action with respect to a fraudulent transfer or obligation under this article is extinguished unless action is brought:
(1) Under paragraph (1) of subsection (a) of Code Section 18-2-74, within four years after the transfer was made or the obligation was incurred or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant;
(2) Under paragraph (2) of subsection (a) of Code Section 18-2-74 or subsection (a) of Code Section 18-2-75, within four years after the transfer was made or the obligation was incurred; or
(3) Under subsection (b) of Code Section 18-2-75, within one year after the transfer was made or the obligation was incurred.
The particular case that has been included here to discuss this Code section is Cunningham v. Gage, 301 Ga.App. 306, 686 S.E.2d 800 (Ga. Ct. App. 2009), which found that even if an argument has technical merit the statutes of limitation are absolute preconditions to validity and must be followed:
Hall, Booth, Smith & Slover, Atlanta, John C. Cheshire, for appellants.
Fleming, Fried & Bonder, Scott L. Bonder; Weissman, Nowack, Curry & Wilco, Jeffrey H. Schneider, Atlanta, for appellees.
ANDREWS, Presiding Judge.
We granted John Cunningham’s application for interlocutory appeal of the trial court’s order denying his motion to dismiss claims brought against him for fraudulent conveyance and quia timet. Cunningham argues that the fraudulent conveyance claim is barred by the statute of limitation and also argues that the plaintiffs lack standing to bring a quia timet action. We agree and reverse.
In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. McLain v. Mariner Health Care, 279 Ga. App. 410, 411(1), 631 S.E.2d 435 (2006). We review the trial court’s ruling de novo. Hoque v. Empire Fire etc. Ins. Co., 281 Ga.App. 810, 811, 637 S.E.2d 465 (2006).
The facts alleged in the complaint are that in 1990, siblings Walter Gage III and Cheryl Johnson won a judgment of more than half a million dollars against their former stepmother, Jeannette Gage. The judgment was memorialized by the issuance of a fi. fa. which has been renewed and remains in force. The lawyers for the siblings each took an interest in the judgment, presumably for unpaid attorney fees.
In 1999, Jeannette Gage executed a quitclaim deed conveying to her brother, John Cunningham, a residence that she owned in Sandy Springs. The deed was recorded in August 1999. According to the complaint, the conveyance was for little or no consideration and was made to avoid the fi. fa.
Jeannette died in 2001, and in 2005, Cunningham conveyed the property by warranty deed to Mansour Maghari, who was apparently an innocent purchaser.
In 2007, Gage, Johnson, and their attorneys (collectively “plaintiffs”) sued Cunningham, asserting claims for fraudulent conveyance and quia timet. They later amended their complaint to include claims for attorney fees and declaratory judgment.1
Cunningham moved to dismiss, arguing that the fraudulent conveyance claim was barred by the statute of limitation and that plaintiffs had no standing to maintain a quia timet action. The trial court denied Cunningham’s motion, but signed a certificate of immediate review.
1. Under OCGA § 18-2-79, a fraudulent conveyance claim must be brought within four years after the transfer was made, “or, if later, within one year after the transfer . . . could reasonably have been discovered by the claimant.” Jeannette transferred the property to her brother in 1999 by a quitclaim deed that was recorded that same year. This is the “fraudulent conveyance” that plaintiffs claim was done for no or extremely low consideration and for purposes of avoiding the fi. fa. Plaintiffs did not file their claim until eight years after the deed was recorded, four years after the statute of limitation had run on the claim. Thus, the fraudulent conveyance claim is time-barred.
Plaintiffs claim that because the deed between Gage and Johnson contained the signature of only one witness, it was not effective notice to the world or to creditors that there was a conveyance. That is not the test set out by the statute of limitation. Plaintiffs do not argue that they did not or could not have reasonably discovered the allegedly fraudulent transfer before the statute had run.
2. The trial court also erred in not granting Cunningham’s motion to dismiss the quia timet claim. A quia timet, or quiet title action, is intended to remove a cloud on a plaintiff’s title to land. See OCGA § 23-3-40. In order to bring a quia timet action, the plaintiff “must assert that he holds some current record title or current prescriptive title. . . . Otherwise, he possesses no title at all, but only an expectancy. . . .” (Emphasis in original.) In re Rivermist Homeowners Assn., 244 Ga. 515, 518, 260 S.E.2d 897 (1979). In this case, plaintiffs do not assert that they have title to the property at issue. Thus, they have no standing to maintain a quia timet action. See id.
3. Cunningham also argues that the trial court erred in not dismissing plaintiffs’ claims because the entire complaint is barred by laches. In light of our holdings in Divisions 1 and 2 above, we need not address this argument.
4. Plaintiffs argued that Cunningham’s application should have been denied because interlocutory review will not dispose of the whole case. They point to their declaratory judgment claim, which Cunningham apparently did not seek to dismiss. But the declaratory judgment action is not a viable independent claim. It merely states that plaintiffs are “unsure of their rights relating to the property at issue.” Because plaintiffs’ claim to the property is time-barred, it follows that any declaration of their rights to the property would simply state that they have none. Thus, resolving the fraudulent conveyance and quia timet claims effectively resolves the declaratory judgment claim as well.
MILLER, C.J., and BARNES, J., concur.
1. They also asserted claims against Maghari, but those claims are not at issue here.
What follows is notes that I took from most of an Avvo webinar I was privileged to listen to/see. I had to quit it around half an hour into it because the sound kept coming in an out, and I missed about half of it as a result of the blackouts. It was a verbal presentation, primarily, so I am afraid this is an incomplete list, at best:
The Cargo Cult of Legal Marketing Regulations
November 12, 2015; Avvo Webinar
Moderator: Josh King (Avvo – firstname.lastname@example.org; maintains “Socially Awkward” blog)
- Bates v. Arizona (1977) – no more than “the reasonable costs” of advertising – reflected in ABA Model Rule 7.2
- The “commercial speech” doctrine: commercial speech gets intermediate scrutiny (time, place, and manner only)
- Central Hudson Test : Can’t be deceptive speech; substantial State interest served by restriction; material advancement of State interests by restricting the speech; and narrowly-tailored to curtail the speech that should be restricted
Lawyer Referral Services: A lawyer can pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service (ABA Model Rule 7.2)
- Problem is that it is often $-based instead of being skill-based, etc.
- Cannot run afoul of that “deceptiveness” qualifier
A lawyer or law firm shall not share legal fees with a nonlawyer (ABA Model Rule 5.4).
- Problem with $ overcoming the independence that is necessary for a lawyer
- Obligation versus $ necessity
- Danger inherent in credit card acceptance (lawyer will have to eat the costs to make it ethical, or have it agreed-to by the client ahead of time)
What about the idea of buying somebody else’s website to direct things to yours instead? It is deceiving users, so it is forbidden.
What about the idea of a groupon? Technically, it doesn’t run afoul of the lawyer’s independence (they want an amount of money, and don’t care about the result itself), but it potentially runs afoul of many other obligations the lawyer might have to the client
What about calling yourself a “specialist” or an “expert”? ABA Model Rule 7.4(d) says that a lawyer can’t state or imply they are a specialist in a particular field unless so certified (think of Rand Paul’s optometry certification).
In Court, there are typically statements made by the judge from the Bench that the parties adopt as the way that do business in that particular Court. Sometimes, though, these remarks contradict the written Orders that govern the way the Court, the Circuit, or the government itself actually operate. If the Court insists on following its dicta to the exclusion of the written Orders that are contrary to these remarks, that is an appealable issue. In law school, the importance of having an Order that addresses a contested issue, regardless of what the judge said from the Bench (when it is opposite from what the papers say), is stressed again and again. Too often, we “go along to get along”, though, and we do a disservice to our clients and our cause if we ignore it.
The following case, In re Tidwell, 279 Ga.App. 734, 632 S.E.2d 690 (Ga. Ct. App. 2006), illustrates that issue, establishing the supremacy of the written Order:
COPYRIGHT MATERIAL OMITTED
Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, P. Brian Campbell, Charissa A. Ruel, Assistant Attorneys General, Daniel C. Thomas, for appellants.
John P. Powell, Covington, for appellees.
ANDREWS, Presiding Judge.
In these two cases, the Newton County Department of Family and Children Services (DFCS); its director, Janice Tidwell; its services administrator, Rachel Taylor; its placement supervisor, Margarita Shaw; and caseworker Kristine French appeal from two orders of the Newton County Juvenile Court holding all of them in civil and criminal contempt for alleged failure to comply with an order of that court regarding placement of a deprived child, E.S. The two cases are consolidated for purposes of appeal.1
On August 8, 2005, DFCS filed deprivation complaints on behalf of F.N., E.S., and A.M., all children born of the same mother, Cindella Moore, but fathered by different men. Allen Scott was the father of E.S., a female who was 11 years old in 2005. Following Cindella Moore’s testing positive for drug use in relation to the custody of F.N., the juvenile court entered a shelter care order on behalf of all three children. That order stated that “[i]t is therefore ordered that said child(ren) be placed in the custody of the Newton County Department of Family & Children Services until further order of the Court….”
On August 11, 2005, DFCS filed a deprivation petition regarding these children and Allen Scott, who had remarried, was listed as E.S.’s putative father. On August 15, 2005, following the informal detention hearing required by OCGA § 15-11-49(c)(3), the juvenile court entered its order finding probable cause to believe that the children were deprived. Although Cindella Moore stipulated that the children were deprived as to her because of her substance abuse and Mark Anthony Moore, father of A.M., stipulated that he could not provide for the needs of his son, A.M., by himself, Allen Scott did not stipulate to any causes of deprivation of E.S. as to him. The identity and whereabouts of the father of F.N. were unknown. Temporary custody of the three children, according to this order, was to remain in DFCS pending an adjudicatory hearing on the deprivation petition.
Allen Scott filed a complaint/petition to legitimate E.S. in the juvenile court on September 8, 2005, stating that he was named as the father on her birth certificate in New Jersey and that genetic testing done there showed he was her biological father. Scott also filed with the petition Cindella Moore’s consent to his legitimation of E.S. The results of a drug test conducted on Allen Scott in September were negative.
Contained in the record, although not marked “filed,” is an Order of Adjudication Withholding Disposition, signed by the juvenile court judge and dated October 3, 2005, “nunc pro tunc to September 8, 2005.” Therein, the juvenile court found that the children were deprived as to their mother and the father of A.M. The order, however, withheld adjudication and disposition as to Allen Scott regarding E.S., including the issue of legitimation. Although no transcript of the September 8 hearing is contained in the record here, the order reflects that DFCS submitted into evidence a home evaluation conducted by Oasis of the home of Allen Scott and his wife. The report found the home to be an appropriate placement resource for E.S. The order continued temporary custody and control of the children in DFCS pending receipt of the relative search report from DFCS and the next scheduled hearing on November 10, 2005.
On October 7, 2005, DFCS filed a motion for review of the conditions of visitation with regard to the mother, Cindella Moore, only, requesting that her visitation with E.S. be supervised by DFCS because of her mental and emotional abuse of the children and based on the recommendation of E.S.’s therapist.
A hearing was held on this motion on October 13, 2005. At the beginning of the hearing, counsel for DFCS and Cindella Moore and the guardian ad litem appointed for the children by the juvenile court proposed that E.S. remain with Allen Scott for a period no longer than two years and agreed that E.S. was not deprived as to him. Again, at the conclusion of this hearing, counsel for Cindella Moore stated that there were family issues with E.S. which were going to be dealt with through counseling and that “[w]e’ve stipulated that custody should remain with the father for up to two years and then the counselor determine about visitation [with Cindella Moore].”
During this hearing, a counselor employed by Pathways Transition Program testified that she had been asked to speak with E.S. during the past week. The counseling center had just been retained at that time. She had visited with E.S. at her school to talk about fears E.S. had expressed about visiting her mother for the weekend visitation the coming weekend. According to the therapist, E.S. expressed fears about her mother yelling at her and said that her mother had beaten her the past year. Asked several times if there were any arrangement under which she would be comfortable meeting with her mother, E.S. finally stated “for the police to be there.” The therapist testified that she had no concern with E.S. staying with Allen Scott, her biological father, and that E.S. expressed “she is very happy there.”
At the conclusion of this hearing the juvenile court judge stated:
I see a different picture than y’all see. I have a therapist come in here and she don’t know. She don’t know what the problem is…. As far as [E.S.], I’m no longer approving Mr. Scott’s home. Y’all can put counseling in effect, put both of them involved. But I will not have somebody sitting here saying tell your child you don’t want to see them.2 That’s not going to happen. Y’all got some kids here that’s got problems. I will not allow that to happen. So I don’t believe a lot of what they’re saying. I don’t know what’s going on but it’s — I’m not going to allow this child to be put through that kind of a situation. So take that child out today. I’ll set the hearing for November 10th, like it was before. This case is over.
In an order signed and filed on October 18, 2005, “nunc pro tunc to October 13, 2005,” the trial court stated that the home of Allen Scott was no longer a suitable placement for E.S. and ordered that DFCS “shall no longer utilize the home of the father, Allen Wilson Scott, as a placement for the minor child, [E.S.], and shall remove the child from the placement as of October 13, 2005.” The clerk was directed to mail copies to counsel for DFCS and French and a handwritten notation on the order indicates the order was “faxed and inbox 10/18.”
On October 24, 2005, Assistant District Attorney Vanessa Weber filed a complaint/motion for contempt which alleged that DFCS, Tidwell, Taylor, Shaw, and French were “ordered to remove the child [E.S.] from the placement as of October 13, 2005 by verbal order and by written order entered on October 18, 2005[,]” and that they had “individually and jointly, wilfully failed and refused to comply with the Court Order and have not removed the child from the home.” As relief, the petitioner sought that they be held in wilful contempt, “be incarcerated in the Newton County Detention Center and fined no more than 1,000.00 for their contemptuous conduct until their compliance with the Court[‘]s Order.”
A rule nisi issued on October 24 for a hearing on October 27 directing the respondents to show cause why they “should not be held in contempt for violating this Court’s Orders dated October 13, 2005.”
On October 26, 2005, Weber filed a substitution of counsel requesting that the juvenile court substitute private attorney John Howell as attorney of record for the contempt hearing. No reason was given for the withdrawal of the district attorney’s office. That same day, the juvenile court entered an order substituting John Howell as counsel. There is also in the record, although containing no stamp indicating it was ever filed, an order dated November 3, 2005, nunc pro tunc to October 26, 2005, appointing John Howell as “Special Prosecutor to conduct all proceedings in relation to the Motion for Contempt….” There is nothing in the record to suggest that any hearing was held on October 26 regarding the substitution of counsel.
On October 27, 2005, DFCS filed a motion for reconsideration of the order of October 18, 2005. The juvenile court continued the contempt hearing until November 4, 2005, and denied the motion for reconsideration by order of October 28.
Following a hearing on November 4, 2005, the written orders at issue here were filed. In the first order, the juvenile court found French in wilful contempt “by disrupting the court proceedings and by obstructing the administration of justice by failing to answer proper questions propounded to the witness that would not violate her rights.” She was ordered to serve a minimum of four hours in the Newton County jail. This order is appealed in Case No. A06A0732.
The second order found all the named respondents “in wilful contempt of the Order of this Court entered on October 18, 2005[,] nunc pro tunc to October 13, 2005 by wilfully failing and refusing to abide by the order in finding another placement for the minor child, [E.S.], and not removing the child until October 31, 2005 from the home of Allen Wilson Scott.” The individuals were each found in civil and criminal contempt and ordered to serve a minimum of 24 hours in the Newton County Jail. This order is appealed in Case No. A06A0731.
1. As stated in appellants’ fifth enumeration of error, the juvenile courts of Georgia are courts of limited jurisdiction and their contempt powers extend only to violations of those court’s legally authorized orders or contumacious conduct in the presence of the court.
Pursuant to OCGA § 15-11-5(a),
[i]n addition to all other inherent powers of the court to enforce its lawful orders, the court may punish a person for contempt of court for willfully disobeying an order of the court or for obstructing or interfering with the proceedings of the court or the enforcement of its orders, subject to the law relating to the procedures therefor and the limitations thereon.
(a) “`A juvenile court is a court of special and limited jurisdiction, and its judgments must show on their face such facts as are necessary to give it jurisdiction of the person and subject matter. [Cits.] If the order of a juvenile court fails to recite the jurisdictional facts, the judgment is void. [Cit.]’ [Cit.]” (Emphasis in original.) Lockhart v. Stancil, 258 Ga. 634, 373 S.E.2d 355 (1988). See also Lewis v. Winzenreid, 263 Ga. 459, 460-461, 435 S.E.2d 602 (1993).
It is not disputed that the juvenile courts of this state have exclusive original jurisdiction with regard to any child “[w]ho is alleged to be deprived….” OCGA § 15-11-28(a)(1)(C). “Deprived child” means [, in relevant part,] a child who: “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals….” OCGA § 15-11-2(8)(A).
Here, as set out above, all parties at the hearing before the juvenile court on October 13, 2005, stipulated that E.S. was not deprived with regard to her father, Allen Scott. Further, the motion before the juvenile court which precipitated this hearing sought only to have changed the circumstances of visitation by Cindella Moore with E.S., who had previously been found to be deprived as to her mother.
In addition to the fact that there was no petition alleging deprivation of E.S. as to Allen Scott pending before the juvenile court, there was no evidence of deprivation with regard to Allen Scott. In fact, the only evidence in the record, aside from the parties’ stipulation, was to the contrary, i.e., that E.S. benefitted from contact with her father and was very happy with him.
Because the written order of the juvenile court filed October 18, 2005, contains nothing on its face to demonstrate that the deprivation of E.S. with regard to Allen Scott had been placed in issue in the hearing, it is void to the extent that it reaches a conclusion regarding this issue. Lockhart, supra at 634, 373 S.E.2d 355.
(b) To the extent that the juvenile court’s finding of contempt was based on its oral pronouncement of October 13, 2005, it is a nullity.
Under the Civil Practice Act (CPA), “(e)xcept when otherwise specifically provided by statute, all judgments shall be signed by the judge and filed with the clerk.” OCGA § 9-11-58(a). This portion of the statute was adopted verbatim in Uniform Juvenile Court Rule 17.1. See English v. Milby, 233 Ga. 7, 9-10(1), 209 S.E.2d 603 (1974) (sections of the CPA may be adopted for the juvenile courts). Very similar language is also found in the Appellate Practice Act (APA): “The filing with the clerk of a judgment, signed by the judge, constitutes the entry of a judgment within the meaning of” the APA. OCGA § 5-6-31. Under the case law, “(i)t is best to think of three requirements. The adjudication must be reduced to (1) writing, then (2) signed by the judge and finally, (3) filed with the clerk of the court.” Gregory, Ga. Civil Practice § 7-4, p. 574 (2d ed.1997). “`”What the judge orally declares is no judgment until it has been put in writing and entered as such.“‘[Cit.]” State v. Sullivan, 237 Ga.App. 677, 678, 516 S.E.2d 539 (1999) (involving “(t)he oral declaration of (a) juvenile judge”). Furthermore, “(t)he filing with the clerk of a judgment, signed by the judge, constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same….” OCGA § 9-11-58(b). See also Uniform Juvenile Court Rule 17.1. “`”(U)ntil an order is signed by the judge (and is filed) it is ineffective for any purpose.” (Cit.)’ [Cit.]” State v. Sullivan, supra at 678, 516 S.E.2d 539.
(Emphases supplied.) Titelman v. Stedman, 277 Ga. 460, 460-461, 591 S.E.2d 774 (2003). See also, e.g., In the Interest of S.S., 276 Ga.App. 666, 667, 624 S.E.2d 251 (2005); In the Interest of W.P.B., 269 Ga.App. 101, 102(2), 603 S.E.2d 454 (2004).
2. In their first enumeration of error, appellants contend that the juvenile court was without authority to order specific placement of E.S. while she was in the temporary custody of DFCS and, therefore, appellants could not be found in contempt of an illegal order which attempted to do so. We agree.
OCGA § 49-5-1 et seq. and OCGA § 15-11-1 et seq. are to be considered in pari materia. In the Interest of R.D., 141 Ga. App. 843, 234 S.E.2d 680 (1977).
Pursuant to OCGA § 49-5-3(12),
“Legal custody” means a legal status created by court order embodying the following rights and responsibilities:
(A) The right to have the physical possession of the child or youth;
(B) The right and the duty to protect, train, and discipline him;
(C) The responsibility to provide him with food, clothing, shelter, education, and ordinary medical care; and
(D) The right to determine where and with whom he shall live.…
Once temporary legal custody of E.S. was placed in DFCS under the shelter care order in August 2005, the sole right to determine where and with whom she would live vested with DFCS. OCGA § 49-3-6; In the Interest of C.A.C., 239 Ga.App. 725, 727(2), 522 S.E.2d 236 (1999); In the Interest of J.N.T., 212 Ga.App. 498, 499, 441 S.E.2d 918 (1994); In the Interest of A.S., 185 Ga.App. 11, 12(2), 363 S.E.2d 325 (1987); see In the Interest of A.V.B., 267 Ga. 728, 729(2), 482 S.E.2d 275 (1997); see also In the Interest of A.L.L., 211 Ga.App. 767, 440 S.E.2d 517 (1994).
Any effort of the court to direct this decision is “merely exhortatory, and not binding….” In the Interest of R.D., supra at 844, 234 S.E.2d 680; In re R.L.M., 171 Ga. App. 940, 942(2), 321 S.E.2d 435 (1984).
Therefore, the direction of the juvenile court to remove E.S. from Allen Scott’s home was not binding and there was no basis for a finding of contempt for failure to comply with it. SeeCarden v. Carden, 276 Ga.App. 43, 47(1), 622 S.E.2d 389 (2005).
3. The third enumeration is that the juvenile court erred in appointing a private attorney to proceed with the contempt hearing after the district attorney’s office had filed the petition for contempt.
Pursuant to OCGA § 15-11-41(c),
[i]n any proceeding before the juvenile court, the judge, upon the court’s own motion, may request the assistance of the district attorney or a member of the district attorney’s staff to conduct the proceedings on behalf of the petitioner. If for any reason the district attorney is unable to assist, the judge may appoint legal counsel for such purpose.
While the juvenile court apparently correctly asked the district attorney to initiate the contempt proceedings, there is nothing in the record to explain the substitution of a private attorney for the district attorney.
The only mechanism for doing so is that contained in OCGA § 15-18-5(a), which provides that when a district attorney is disqualified from interest or relationship from engaging in a prosecution, “the district attorney shall notify the Attorney General of the disqualification.” The Attorney General is then authorized to request the services of and thereafter appoint a district attorney, solicitor-general, or retired prosecuting attorney; designate an attorney from the Department of Law; or appoint a competent attorney to act as district attorney pro tempore. OCGA § 15-18-5(a)(1), (2), (3).
Therefore, on the record before us, it appears that the substitution of counsel was in error. See In the Interest of K.R.C., 235 Ga.App. 354, 356(2), 510 S.E.2d 547 (1998); K.G.W. v. State of Ga., 144 Ga.App. 251, 252(1), 240 S.E.2d 755 (1977).
4. In light of our rulings set out above, the remaining enumerations of error are rendered moot.
In addition to the facts set out in Case No. A06A0731, the following facts are pertinent to this appeal of the contempt order issued regarding the testimony of French, the case manager, during the contempt hearing on November 4, 2005.
During French’s testimony, the following exchange occurred:
MR. HOWELL: … Did you hear the Judge’s pronouncement at the conclusion of that hearing as to what his Order would be?
THE WITNESS: I’m asserting my Fifth Amendment [r]ight.
THE COURT: Answer the question, Ms. French.
THE WITNESS: I’m asserting my Fifth Amendment [r]ight.
THE COURT: Mr. Campbell [DFCS’s and individuals’ attorney], do you want to talk to her? All he asked her was did you hear what the announcement was in the Court?…
MR. HOWELL: Did you specifically here [sic] the Court Order that the Newton County [DFCS] shall no longer utilize the home of the father, Allen Wilson Scott, as a placement of the minor child, [E.S.], and shall remove the child from placement as of October 13th, 2005?
THE WITNESS: I am asserting my Fifth Amendment [r]ight.
THE COURT: Mr. Campbell, you want to talk to your client?
MR. CAMPBELL: No, sir.
THE COURT: All right. Ms. French, I’m going to direct you to answer the question…. I’m explaining to you if you do not answer the question I’m going to hold you in contempt of court and incarcerate you in the Newton County jail.
THE WITNESS: I am asserting my Fifth Amendment [r]ight.
THE COURT: Mr. Bailiff, take her into custody. You will be held at the Newton County jail until such time as you answer the question. You are now obstructing justice and you will be held there until you answer the question.
Following this exchange, Campbell spoke with French and she agreed to answer questions, subject to her objection that answering was in violation of her Fifth Amendment rights. She did acknowledge being in court and hearing the oral pronouncement. Asked if she subsequently received a copy of the written order, French again asserted her Fifth Amendment rights, whereupon the following occurred:
THE COURT: Mr. Campbell, are we going to have this going on all morning?
MR. CAMPBELL: I believe so.
THE COURT: All right. Then I’m going to do this. I’m going to reinstate my Order. You’ll be incarcerated and held until you answer these questions… [.] I find the fact as to whether you received a copy of the order or not is, in fact, germane to this issue. It does not violate your rights. And I’m going to incarcerate you until you give me the answer and I’m going to incarcerate you for a minimum of four hours now.
5. As we held in Case No. A06A0731, the order entered regarding removal of E.S. from the Scott home was not a valid order and any finding of civil or criminal contempt for failure to comply with it was a nullity.
Since, however, French did spend time incarcerated for her failure to answer the questions set out above, we address the issue of criminal contempt arising from French’s assertion of her Fifth Amendment right.
On appeal from a conviction of criminal contempt, we review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Barlow v. State, 237 Ga.App. 152, 157(3), 513 S.E.2d 273 (1999). “Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court.” (Citation and punctuation omitted.) Id. It is “`a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.’ Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).” Garland v. State, 253 Ga. 789, 790(1), 325 S.E.2d 131 (1985). Every court has the power “to preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings.” OCGA § 15-1-3(1). “Disobedience to the lawful order of a court is an obstruction of justice, and for such a violation the court, in order to compel respect or compliance, may punish for contempt.” Griggers v. Bryant, 239 Ga. 244, 246(1), 236 S.E.2d 599 (1977).
In re Long, 276 Ga.App. 306, 309-310, 623 S.E.2d 181 (2005).
The Fifth Amendment of the United States Constitution provides that no person shall be compelled in any criminal case to be a witness against himself. U.S. Const., Amend. V. The Georgia Constitution also provides a similar privilege, providing that no person shall be compelled to give testimony tending in any manner to be self-incriminating. Ga. Const. of 1983, Art. I, Sec. I, Par. XVI. In addition, OCGA § 24-9-27(a) states that: “No party or witness shall be required to testify as to any matter which may criminate or tend to criminate himself or which shall tend to bring infamy, disgrace, or public contempt upon himself or any member of his family.”
This privilege against self-incrimination extends not only to those answers that would in themselves support a conviction, but also to answers creating a “real and appreciable” danger of establishing a link in the chain of evidence needed to prosecute. Axson v. Nat. Surety Corp., 254 Ga. 248, 250, 327 S.E.2d 732 (1985); see also Begner v. State Ethics Comm., 250 Ga.App. 327, 330(1), 552 S.E.2d 431 (2001).
The appropriate course where, as here, a witness invokes his right to remain silent is as follows: First, the trial court must determine if the answers could incriminate the witness. If so, then the decision whether it might must be left to the [witness]. On the other hand, where the trial court determines that the answers could not incriminate the witness, he must testify (or be subject to the court’s sanction). It is for the court to decide if the danger of incrimination is “real and appreciable.”
(Citations omitted; emphases in original.) Lawrence v. State, 257 Ga. 423, 424, n. 3, 360 S.E.2d 716 (1987); Spivey v. State, 200 Ga. App. 284, 285, 407 S.E.2d 425 (1991) (physical precedent only).
Under the circumstances here, it is apparent that the trial court did not engage in the required analysis, but merely declared that answering the questions concerning knowledge of the court’s order regarding Allen Scott’s home would not incriminate French. At a minimum, such knowledge would establish a link in the chain of evidence needed to prove French was in contempt of that order. Compare In re Victorine, 230 Ga.App. 209, 211(1), 495 S.E.2d 864 (1998).
Judgment reversed in Case No. A06A0731.
Judgment reversed in Case No. A06A0732.
BARNES and BERNES, JJ., concur.
1. No brief has been filed on behalf of the District Attorney’s Office, which initially prosecuted these contempt matters.
2. During Cindella Moore’s testimony, she had described an incident of contested visitation during which she said Allen Scott told her to tell E.S. she did not want to see her because the parents could not agree on a pickup time. Allen Scott denied this.
Mortgage foreclosures are not an area that I generally handle, though I have had some exposure to the process in the past. The following are the general rules that a foreclosure, a purely statutory procedure rather than an equitable one (which must, therefore, be strictly construed) must follow; certain formalities have been established by statute (Section 44-14-184). That section states them plainly:
Mortgages on real estate may be foreclosed in the following manner:
(1) Any person who applies and who is entitled to foreclose the mortgage shall, by himself or his attorney, petition the superior court of the county wherein the mortgaged property is located, which petition shall contain a statement of the case, the amount of the petitioner’s demand, and a description of the property mortgaged;
(2) Upon the filing of the petition, the court shall grant a rule directing that the principal, the interest, and the costs be paid into court. The rule shall be published twice a month for two months or served on the mortgagor or his special agent or attorney at least 30 days prior to the time at which the money is directed to be paid into the court; and
(3) Notwithstanding paragraphs (1) and (2) of this Code section, where the land covered by the mortgage shall consist of a single tract of land divided by a county line or county lines, the mortgage may be foreclosed on the entire tract in either of the counties in which part of it is located; but, if the mortgagor shall reside upon the land, the mortgage shall be foreclosed in the county of his residence.
These formalities MUST be observed; a mere filing of the petition will not authorize an action that has not followed the requisite formalities with regard to issuing a Rule Nisi. However, that does not mean that deficiencies in the petition cannot be readily corrected, and the ultimate issue can still be reached. The following case, York v. Edwards, 52 Ga.App. 388, is from 1936, but it is still valid law and it illustrates that point well:
1. In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney’s lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void.
2. But assuming that the service of a certified copy of the rule nisi is the better practice, the service of an uncertified copy in the instant case being at most an irregularity, which, when objected to by a plea in abatement and traverse of the officer’s return, was properly corrected, under an amendatory order taken during the return term of the original rule nisi, requiring service of a certified copy of the rule nisi, by due service of certified copies of the original rule nisi and the amendatory order, the amended proceedings were not subject to the motion to dismiss or the plea in abatement. The subsequent service relating, back to the original petition, which was filed within the period of the statute of limitations, the proceedings were not barred by the statute.
3. The petition with the attached lien, which was made part of the petition, having fully set forth the nature of the proceedings, and of the litigation in which the legal services were performed, it was unnecessary to itemize the fee claimed upon implied contract or quantum meruit by stating specific amounts for specific detailed items of service. The court properly overruled the demurrers based on this ground.
Error from Superior Court, Habersham County; B. P. Gaillard, Jr., Judge.
Proceeding by J. C. Edwards and others against J. L. York to foreclose an attorney’s lien against real estate. To review a judgment for plaintiffs, defendant brings error.
John L. York, of Washington, D. C, for plaintiff in error.
J. C. Edwards, of Clarkesville, and H. E. Edwards, of Atlanta, for defendants in error.
JENKINS, Presiding Judge.
This was a petition with a rule nisi to foreclose an attorney’s lien against real estate, under the statutory procedure analogous to the foreclosure of a mortgage on real estate. The lien was recorded on August 27, 1932. The petition and a second original were filed on August 18, 1933, and the rule nisi was signed by the judge on August 19, 1933. This was made answerable, as provided by the statute, on the first day of the next term, beginning the fourth Monday in November, 1933. The rule nisi provided that “service of this rule be perfected on said [two defendants] as provided by law by second original or publication.” The defendant, now excepting to the procedure, who resided in De Kalb county, was served on August 28, 1933, “personally with a copy of the within petition and order.” On November 27, 1933, that defendant filed a traverse of the officer’s return and a plea in abatement, attacking the return and the jurisdiction of the court on the ground that the process and purported service were defective and illegal because the purported copy of the rule nisi served had not been certified by the clerk. On the same date, the defendant filed general and special demurrers and an answer to the merits of the petition, reciting that both pleadings were filed without waiving his traverse or plea in abatement. On February 3, 1934, before adjournment of the November term, 1933, on ex parte motion by the plaintiffs, the judge signed an amended rule nisi, setting forth the previous procedure, the service of the copy of the original rule nisi, the contention of the plea that it was void and a nullity, and ordering that the original rule nisi and the amending order be served on the defendant by serving certified copies of such orders as well as the petition; and that the defendants pay the lien debt into court by the first day of the next term, the March term, 1934, “or the next succeeding term of said court to which service and return thereof can be lawfully perfected.” Service as thus provided was made on the defendant on February 26, 1934. On June 2, 1934, without waiving his previous pleadings, but insisting thereon, the defendant filed a motion to dismiss the petition and action, on the following grounds: That the order of February 3, 1934, had been granted ex parte without notice, that the original rule nisi and attempted service being void and “functus officio, ” no suit was legally pending when the amending order was made, after the return term and during the trial term of the case, and the court was without authority to make the order, and that the rule nisi not having been legally served, the foreclosure suit was not commenced within twelve months from the record of the lien, August 27, 1932, and was barred by the statute of limitations. The demurrers attack the failure to set forth the contract or itemize the legal services for which the lien was claimed. The petition and attached copy of the recorded claim of lien of $300, made part of the petition, stated that the services were the successful defense of the defendants through five years of litigation in a specifically described case, resulting in an alleged benefit to the defendants of the value of $9,900. Error is assigned on a verdict and judgment for the plaintiffs, because of the rulings adverse to the defendants on the pleadings stated; but no question is presented, under the evidence as to the merits of the case.
1. “Void process may not be amended nor in the absence of waiver may process be supplied.” Code 1933, § 81-1313. “No technical or formal objections shall invalidate any process; but if the same shall substantially conform to the requisites of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded: Provided, a legal cause of action as required by this Code is set forth.” Code, § 81-220.
“A proceeding to foreclose an attorney’s lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land. * * * The process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases.” Moss v. Strickland, 138 Ga. 539, 541, 75 S.E. 622, 623; McCalla v. Nichols, 102 Ga. 28, 28 S.E. 988; Montgomery v. King, 123 Ga. 14(2), 50 S.E. 963; Code 1933, §§ 9-613, 67-201, 67-2301. While the rule nisi signed by the judge differs from the process issued by the clerk in ordinary cases, under Code 1933, §§ 81-201 to 81-220 inclusive, in that there must be personal service or service by publication, and the leaving of a copy at the defendant’s residence is not sufficient, as well as differing in other respects [Southern States Phosphate Co. v. Clark, 149 Ga. 647(2), 101 S.E. 536; Moss v. Strickland, supra], it is nevertheless in many respects analogous to regular process. Thus, as in the case of ordinary process served an insufficient length of time before the appearance term, which the statute makes good for the next succeeding term (Code 1933, § 81-218), it has been held that “a rule nisi issued upon a petition to foreclose a mortgage upon realty, service of which is made prior to the term at which the mortgagee is directed to pay the money into court, but too late to be due service for that term, goes over, and becomes returnable to the next succeeding term.” Ray v. Atlanta Banking Co., 110 Ga. 305(3), 35 S.E. 117, and cit.; Vaughn v. Farmers’ & Merchants’ Bank, 145 Ga. 338, 89 S.E. 195. While courts in some jurisdictions have said that it is the proper and better practice, where a decision or order of a court is rendered, requiring service of the decision or order on a party, and there is fro statute, rule of court, or provision in the order itself as to what sort of copy shall be served, that a copy of the original order duly certified by the clerk should be delivered to the party (42 C.J. 540, § 232, and cit.), yet it is also the generally recognized rule that where process or pleadings are to be served on a defendant, the copies delivered need not be certified, in the absence of a statutory requirement. 50 C.J. 484, § 79; 49 C.J. 655, § 927; and cit. In the instant case, the mortgage foreclosure statute not requiring service of a certified copy of the rule nisi on a defendant residing outside of the county of foreclosure, where the land was situated, the fact that an uncertified but undisputedly true copy was duly served, did not render the process, services, or proceedings void. Especially would this seem clear where the rule nisi itself provided that service be perfected “as provided by law by second original or publication.” Whether or not the provisions of Code 1933, § 81-215, applicable to ordinary process, that “if any of the defendants shall reside out of the county, the clerk shall issue a second original and copy * * * and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same issued, ” are ordinarily applicable to the service of rules nisi in mortgage and lien foreclosures on defendants residing outside of the county, there is no prohibition of law against such manner of service, and the judge having in effect so provided in his rule nisi, the service of an ordinary copy in accordance therewith was not a nullity. The statement inFalvey v. Jones, 80 Ga. 130, 131, 4 S.E. 264, that “all that was necessary to do was for the clerk to make a certified copy of the rule nisi, and send it with the original to the sheriff * * * [with his fee for service], let the sheriff serve the copy, and return the original to the clerk, with his entry of service thereon, ” is clearly obiter, since the only question there involved was whether service by an official person instead of the sheriff was legal. It was further stated in the opinion in that case that “it is usual to provide in the rule the mode of service [as was done in the instant case], but this is not necessary.” Merely defective service, like defective process, which is not wholly illegal and insufficient, does not render a subsequent judgment void, and is no cause for abatement of the suit. Milltown Lumber Co. v. Blitch, 146 Ga. 253, 255, 91 S.E. 62; Hobby v. Bunch, 83 Ga. 1, 12, 10 S.E. 113, 20 Am.St.Rep. 301; Harris v. Taylor, 148 Ga. 663(1), 667, 668, 98 S.E. 86; Minsk v. Cook, 48 Ga.App. 567(3), 570, 173 S.E. 446; Hayes v. American Bankers’ Ins. Co., 46 Ga.App. 552, 167 S.E. 731; Fielding v. M. Rich Bros. Co., 46 Ga.App. 785, 787, 788, 169 S.E. 383.
2. Where there is a total absence of a rule nisi in a mortgage foreclosure, as with a total absence of legal process in an ordinary suit, or where the plaintiff or his attorney has been guilty of laches in correcting amendable imperfections in the process or service until after the return term, the suit fails, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. But where valid process has been issued with a suit setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or his attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the suit. Code 1933, § 81-112; Lee v. Pearson, 138 Ga. 646(3), 75 S.E. 1051; Simmerson v. Herringdine, 166 Ga. 143, 142 S.E. 687; Sims v. Sims, 135 Ga. 439, 442, 69 S.E. 545; Cox v. Strickland, 120 Ga. 104, 47 S.E. 912, 1 Ann.Cas. 870;Church v. Church, 151 Ga. 98, 101, 106 S.E. 114; Adams v. Farmers’ & Merchants’ Bank, 47 Ga.App. 420, 422, 170 S.E. 704, and cit; Nail v. Popwell, 32 Ga.App. 20, 122 S.E. 632; Union Marine Fire Ins. Co. v. McDermott, 31 Ga.App. 676, 121 S.E. 849; McClendon v. Ward-Truitt Co., 19 Ga.App. 495, 498, 499, 91 S.E. 1000; Southern States Phosphate Co. v. Clark, 19 Ga.App. 376(2), 386, 91 S.E. 573. In the instant case, even if the service of an ordinary copy of the lien foreclosure rule nisi should be treated as insufficient, it was only an irregularity, which did not render the proceeding and process void; and where no laches or negligence by the plaintiff or his counsel appeared, the court did not err, during the return term under the original rule nisi, after the defendant had failed to traverse a plea in abatement attacking the manner of service, in entering an amendatory order which extended the time for payment or defense to the next legal term and provided that certified copies of the original rule nisi and the amendatory order be served on the defendant. Proper service of these orders rendered legal the subsequent verdict and judgment for the plaintiffs, irrespective of the regularity of the original service. See Lee v. Pearson, supra, 138 Ga. 646, page 648, 75 S.E. 1051. The defendant, having had his day in court, with full knowledge of every phase of the proceedings, in which he participated after service of the undisputedly accurate copy of the original rule nisi and subsequent due service of the certified copies, was not entitled to have the judgment set aside as void, under the exceptions pendente lite to the refusal of the court to dismiss the proceedings on his motion and plea in abatement.
The defendant having been duly served, if not by the first, in any event by the final, service, and such service relating back to the date of filing the petition, which was within the statutory period of limitation following the record of the lien, the foreclosure proceedings were not barred and the court did not err in denying the motion to dismiss the action; the motion being based on this ground.
3. The petition for the foreclosure of the attorneys’ lien, and the lien itself which was made part of the petition, having fully set forth the nature of the cause and the litigation in which the legal services were rendered on an implied contract or quantum meruit, it was unnecessary to split and itemize the particular detailed services, so as to state a specific charge for each item. Walker v. Floyd, 30 Ga. 237, 240. The court did not err in overruling the demurrers.
STEPHENS and SUTTON, JJ, concur.
When there are minor children involved in a divorce, even if there are NO issues between the parents (as in, no child support is being sought and no alimony asked for between the parties, etc.), there must still be certain required findings. These findings are actually good for the parties, as they provide a base-line for future actions that might seek a change in the status of payment, or a modification of the payment terms.
Section 19-6-15(c) of the Official Code of Georgia contains the rules for what the Court’s findings should include. Subsections (1) through (6) are included here for reference:
(c) Applicability and required findings.
(1) The child support guidelines contained in this Code section are a minimum basis for determining the amount of child support and shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent. This Code section shall be used when the court enters a temporary or permanent child support order in a contested or noncontested hearing or order in a civil action filed pursuant to Code Section 19-13-4. The rebuttable presumptive amount of child support provided by this Code section may be increased or decreased according to the best interest of the child for whom support is being considered, the circumstances of the parties, the grounds for deviation set forth in subsection (i) of this Code section, and to achieve the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.
(2) The provisions of this Code section shall not apply with respect to any divorce case in which there are no minor children, except to the limited extent authorized by subsection (e) of this Code section. In the final judgment or decree in a divorce case in which there are minor children, or in other cases which are governed by the provisions of this Code section, the court shall:
(A) Specify in what sum certain amount and from which parent the child is entitled to permanent support as determined by use of the worksheet;
(B) Specify as required by Code Section 19-5-12 in what manner, how often, to whom, and until when the support shall be paid;
(C) Include a written finding of the parent’s gross income as determined by the court or the jury;
(D) Determine whether health insurance for the child involved is reasonably available at a reasonable cost to either parent. If the health insurance is reasonably available at a reasonable cost to the parent, then the court shall order that the child be covered under such health insurance;
(E) Include written findings of fact as to whether one or more of the deviations allowed under this Code section are applicable, and if one or more such deviations are applicable as determined by the court or the jury, the written findings of fact shall further set forth:
(i) The reasons the court or the jury deviated from the presumptive amount of child support;
(ii) The amount of child support that would have been required under this Code section if the presumptive amount of child support had not been rebutted; and
(iii) A finding that states how the court’s or the jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support and how the best interest of the child who is subject to the child support determination is served by deviation from the presumptive amount of child support;
(F) Specify the amount of the noncustodial parent’s parenting time as set forth in the order of visitation;
(G) Include a written finding regarding the use of benefits received under Title II of the federal Social Security Act in the calculation of the amount of child support; and
(H) Specify the percentage of uninsured health care expenses for which each parent shall be responsible.
(3) When child support is ordered, the party who is required to pay the child support shall not be liable to third persons for necessaries furnished to the child embraced in the judgment or decree.
(4) In all cases, the parties shall submit to the court their worksheets and schedules and the presence or absence of other factors to be considered by the court pursuant to the provisions of this Code section.
(5) In any case in which the gross income of the custodial parent and the noncustodial parent is determined by a jury, the court shall charge the provisions of this Code section applicable to the determination of gross income. The jury shall be required to return a special interrogatory determining gross income. The court shall determine adjusted income, health insurance costs, and work related child care costs. Based upon the jury’s verdict as to gross income, the court shall determine the presumptive amount of child support in accordance with the provisions of this Code section. The court shall inform the jury of the presumptive amount of child support and the identity of the custodial and noncustodial parents. In the final instructions to the jury, the court shall charge the provisions of this Code section applicable to the determination of deviations and the jury shall be required to return a special interrogatory as to deviations and the final award of child support. The court shall include its findings and the jury’s verdict on the child support worksheet in accordance with this Code section and Code Section 19-5-12.
(6) Nothing contained within this Code section shall prevent the parties from entering into an enforceable agreement contrary to the presumptive amount of child support which may be made the order of the court pursuant to review by the court of the adequacy of the child support amounts negotiated by the parties, including the provision for medical expenses and health insurance; provided, however, that if the agreement negotiated by the parties does not comply with the provisions contained in this Code section and does not contain findings of fact as required to support a deviation, the court shall reject such agreement.
Don’t think that the paperwork necessary is meaningless because of subsection (6), above. Even though that subsection allows the parties to enter “into an enforceable agreement contrary to the presumptive amount of child support”, the numbers still need to be accurate in the worksheets. The following is the case of Parker v. Parker, 293 Ga. 300, 745 S.E.2d 605 (Ga. 2013), which turned on the fake numbers that the Court used to “zero out” the child support obligations the parties had agreed to. The best statement of the point I’m trying to make is found at p. 311:
“In fact, deviations may be awarded when the presumptive amount would be unjust or inappropriate considering the relative ability of each parent and in order to arrive at a child support determination that is in the best interest of the child. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B).”
To make the deviations that the parties were seeking, there must be affirmative evidence showing why such deviations are in the best interests of the child. The case is below:
William J. Camp, Westmoreland Patterson Moseley & Hinson, Warner Robins, for appellants.
T. Rabb Wilkerson III, Warner Robins, for appellee.
This Court granted the application for discretionary review in this case arising out of an action filed by JoBeth Parker, Appellant, a resident of Georgia, against her then-husband, James Timothy Parker, Appellee, a nonresident, to establish child support pursuant to the Uniform Interstate Family Support Act (UIFSA), OCGA § 19–11–100, et. seq.1 After conducting an evidentiary hearing, the trial court entered a final order of custody and child support. Appellant raises several issues relating to the child support award.
1. The initial question for review is whether this is an alimony case over which this Court has appellate jurisdiction pursuant to Georgia Constitution of 1983, Art. VI, Sec. IV, Para. III(6). The parties to this appeal were married at the time of the proceedings below. Divorce proceedings were pending in both Alaska and Florida but Appellant alleged that neither of those states had jurisdiction to resolve child custody and child support issues given the residency of the parties and the two children of the marriage. 2 Accordingly, Appellant filed the petition in Georgia and the trial court found it had jurisdiction over this matter.
In Spurlock v. Dept. of Human Resources, 286 Ga. 512, 513(1), 690 S.E.2d 378 (2010), a case involving a Department of Human Resources review of a child support order under OCGA § 19–11–12, this Court discussed the relationship between alimony and child support, noting that “an award of child support always constitutes alimony if it is made in a divorce decree proceeding, but it may or may not represent alimony outside the divorce context.” In Spurlock, this Court held that “we have jurisdiction over a case involving an original claim for child support which arose in either a divorce or alimony proceeding [as well as] actions for modification of alimony … for support of … a child, so long as the original award arose from a divorce or alimony proceeding.” Id. at 513, 690 S.E.2d 378. Thus, the Court concluded we have jurisdiction over proceedings for modification of a child support award made in a prior divorce or alimony action regardless of the code section under which the modification is pursued. By comparison, in O’Quinn v. O’Quinn, 217 Ga. 431, 122 S.E.2d 925 (1961), this Court found it did not have jurisdiction over a case that involved an original petition for child support brought under what is now the UIFSA 3 because we concluded it was not a divorce or alimony case that would bring the matter within the jurisdiction of this Court. The petitioner in O’Quinn, however, sought the establishment of child support after the parties were already divorced, not the modification of a child support order entered in a divorce or alimony proceeding. Without making that distinction, this Court later cited O’Quinn for the proposition that child support actions brought under what is now the UIFSA “are normally within the jurisdiction of the Court of Appeals.” Brown v. Georgia Dept. of Human Resources, 263 Ga. 53, 54, 428 S.E.2d 81 (1993) (assuming jurisdiction over a case in which the Georgia Department of Human Resources filed a petition on behalf of a parent seeking modification of a previously entered child support award as well as payment of arrearages, in order to address confusion in the law regarding collection of child support arrearages).
The case now before the Court involves an original petition for child support that is not made within a divorce proceeding. The parties were, however, at the time the petition was filed, married and not divorced. Consequently, this case is distinguishable from Kennedy v. Kennedy, 309 Ga.App. 590, 711 S.E.2d 103 (2011), in which the Court of Appeals, and not this Court, had jurisdiction over an original petition for award of child custody and child support in a case involving parents who had already obtained a final divorce decree in Alabama that did not address the issues of custody and support because their child no longer lived in that state. “Child support is a form of alimony.” Dean v. Dean, 289 Ga. 664, 665, n. 2, 715 S.E.2d 72 (2011). Thus, the factual circumstances of this case provide an example of an award of child support that constitutes alimony even though it is pursued outside the divorce context, as referenced in Spurlock, supra. Accordingly, this Court has jurisdiction over this appeal because it is an alimony case.
2. Appellant asserts the trial court erred in including in its child support calculations certain nonspecific deviations from the statutory presumptive child support amount that would otherwise apply in this case and in failing to consider the effect of boarding school living expenses upon the allocation of child support between the parties for the older child who was enrolled at boarding school. The record reflects both parties were career commissioned officers in the United States Air Force whose military duties often required them to be geographically separated. At the time Appellant filed this proceeding in 2011, two different divorce proceedings were pending in two other states. Also at the time this proceeding was filed, the parties had enrolled their older, then 16–year–old, daughter in a boarding school in New Jersey and the younger, then seven-year-old, daughter was living with Appellant in Georgia and enrolled in a private day school. Appellee had retired from the military and was a resident of Alaska. The trial court awarded joint legal custody of both children, awarded primary physical custody of the older child to Appellee, in accordance with that child’s stated preference, and awarded primary physical custody of the younger child to Appellant pursuant to a finding that such an arrangement was in the best interest of the child.
As required by OCGA § 19–6–15( l ) for split parenting arrangements, the trial court prepared a child support worksheet for each child but it appears to be undisputed that the worksheets were not provided to the parties or their attorneys until the day following the hearing on this matter and that the court invited each party to review the worksheets in advance of entry of the final award. Each worksheet reflects that Appellant’s income is 42.22% of the parties’ combined income and that Appellee’s income is 57.78% of the combined income. Tuition, room, and board for the older child’s boarding school was shown on the worksheet to be approximately $44,000 per year (although documentary evidence presented at the hearing reflects that, after credit for a tuition grant, the charges totaled $41,770) and, at the hearing, the judge announced Appellant would be required to pay half, but in any case, no less than $22,000 per year, “toward tuition and living expenses” but no other child support for the older child under the child support guidelines. The judge also announced at [293 Ga. 303]the hearing that Appellee would not be required to pay any tuition for the younger child, which was shown to be $5,400 (although evidence was presented showing the actual tuition was $4,200 after application of a tuition deduction) and Appellee’s zero dollar responsibility for the extraordinary educational expenses of the younger child is reflected on that child’s child support worksheet. Both worksheets provide nonspecific deviations by which the trial court apparently intended to “zero out” the remaining child support obligations of the parties such that Appellant would pay Appellee no additional child support with respect to the older child in his custody and Appellee would pay Appellant no child support with respect to the younger child in her custody. The final order, however, states that each party shall share equal financial responsibility for the private school tuition of each child with Appellee to pay no less than $22,000 for the older child’s tuition and Appellee to pay half of the younger child’s tuition. Appellant acknowledges she agreed to pay half of the older child’s boarding school tuition but she sought “guideline child support” for the younger child, including that child’s private school expenses. Before the final order was entered, Appellant submitted alternative worksheets for the court’s consideration and filed a motion for reconsideration of the ruling announced at the conclusion of the hearing. She argued that if the award were entered pursuant to the worksheets the court prepared and submitted to the parties for review after the hearing, the award would place a significantly heavier burden upon Appellant in her obligations to support both children, would provide a windfall to the Appellee, and would deny the younger child of the support that should be paid by Appellee. The motion was denied and the court entered the final order.
In her first enumeration of error, Appellant asserts the trial court abused its discretion by granting a $1,503.05 nonspecific deviation in favor of Appellee with respect to his child support obligation to the younger child, thus bringing his support obligation to zero, when that deviation does not serve the best interest of that child. The Final Order of Custody and Child Support provides that neither party shall owe child support to the other and incorporates by reference the child support worksheet for each child. OCGA § 19–6–15 provides a process for calculating child support which, pursuant to subsection (m), requires the necessary information used in that calculation to be recorded on the child support worksheet. Deviations from the presumptive amount of child support, as provided by OCGA § 19–6–15(i), are to be set out in Schedule E of the worksheet. OCGA § 19–6–15(b)(8). If the factfinder deviates from the presumptive amount of child support, certain specific findings of fact must be set forth in the child support order, including the reasons for the deviation, the amount of [293 Ga. 304]child support that would have been required if no deviation had been applied, how the application of the presumptive amount of child support would be unjust or inappropriate considering the relative ability of each parent to provide support, and how the best interest of the child who is the subject of the child support determination is served by a deviation from the presumptive amount. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). In justifying the special deviation applied to the younger child in this case, the judge responded to special interrogatories on Line 14 of Schedule E of the child support worksheet as follows:
(B) Would the presumptive amount be unjust or inappropriate? Explain. [Answer:] Yes; [Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.
(C) Would deviation serve the best interests of the children for whom support is being determined? Explain. [Answer:] Yes; will result in funds being available for travel and other expenses for both children.
(D) Would deviation seriously impair the ability of the CUSTODIAL parent or NON–PARENT Custodian to maintain minimally adequate housing, food and clothing for the children being supported by the order and to provide other basic necessities? Explain. [Answer:] No; both parents have sufficient funds to provide for basic necessities.
In this case, the child support worksheet was incorporated into the final order and thus the order reflects the statutorily required findings to support the deviation. Compare Walls v. Walls, 291 Ga. 757(6), 732 S.E.2d 407 (2012) (reversing and remanding for redetermination of child support where the order recited that the reasons for deviations were set forth in Schedule E of the child support worksheet but the spaces for those findings were left blank). Appellant, however, asserts the nonspecific deviation is erroneous as a matter of law in several respects.
This Court has held that qualitative determinations regarding deviation from the presumptive amount of child support “are committed to the discretion of the court or jury. Accordingly, we review any findings based on disputed facts or witness credibility under the clearly erroneous standard, and we review the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.” Black v. Black, 292 Ga. 691, 697(4)(a), 740 S.E.2d 613(2013) (citations and punctuation omitted). Among the disputes inBlack was the court’s award of a deviation for visitation-related travel expenses to the non-custodial parent, which is enumerated as one of the permissible “Specific Deviations” in OCGA § 19–6–15(i)(2). This Court found that the trial court made sufficient findings that the deviation would leave the non-custodial parent with funds to cover interstate travel expenses for visitation with the children involved in the child support order, that the findings did not appear to be clearly erroneous, and thus the deviation could not be considered an abuse of discretion. Id.
In this case, the court noted at the hearing the substantial visitation-related travel expenses for each child between Alaska and Georgia and the order requires each parent to bear that expense for the child not in that parent’s custody. Nevertheless, the child support worksheet for the younger child does not provide a specific deviation for travel expenses as permitted by OCGA § 19–6–15(b)(8)(F) and (i)(2)(F).4 Instead, one of the findings to justify the nonspecific deviation that effectively eliminated Appellee’s child support obligations to the younger child was that the deviation served the best interest of the “children for whom support is being determined” because it would “result in funds being available for travel and other expenses for both children.” Another of the findings to justify the nonspecific deviation in favor of Appellee was that the presumptive amount would be unjust or inappropriate because Appellee “is paying for expenses of older child … in addition to … half of her tuition.”
Pursuant to OCGA § 19–6–165(i)(3), nonspecific deviations are those that “may be appropriate for reasons in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Relying upon this language, Appellant asserts that use of a nonspecific deviation is appropriate only when no specific deviation authorized by OCGA § 19–6–15(i)(2) reasonably applies. Pursuant to OCGA § 19–6–15(c)(1), the presumptive amount of child support provided by the Code section “may be increased or decreased according to the best interest of the child for whom support is being considered….” Relying upon this language, Appellant asserts the statute does not permit the granting of a deviation on the ground that it benefits and serves the best interest of a child other than the one who is the subject of the child support worksheet, even if that child is the sibling of the one entitled to support. Although separate worksheets are required for each child in a split parenting situation, the statute also requires the court to determine “other child support responsibilities for each parent.” See OCGA § 19–6–15( l )(5). Thus, we find no abuse of discretion in the trial court’s consideration of Appellee’s child support obligations to the older child in the child support award for the younger child. By noting Appellee’s obligation to pay expenses of the older child, including half of that child’s tuition, the trial court was obviously taking into consideration Appellee’s other child support obligations in determining what would be unjust or inappropriate for him to be required to pay in the way of support to the younger child. Although it appears to be the better practice not to include within nonspecific deviations factors that are set forth in the statutory list of specific deviations, we are not inclined to impose a hard-and-fast rule that factors such as significant visitation-related travel expenses cannot be considered as reasons for nonspecific deviations. This is particularly true where, as here, the child custody order involved a split parenting arrangement and a virtually identical justification for a nonspecific deviation was afforded Appellant, as the non-custodial parent of the older child. Likewise, we do not deem it to be an abuse of discretion for the trial court, in a split parenting arrangement, to offer reasons relating to child support obligations to a sibling in its findings of fact supporting nonspecific deviations.
3. Appellant asserts the child support worksheets for both children contained erroneous facts, that the nonspecific deviations were thus erroneous, and that the worksheets, in any event, did not support the final order. The record supports this assertion of error. For example, the child support worksheets prepared by the court reflect, as noted above, overstatement of the private school tuition costs for each child.5 Both worksheets reflect yearly child care costs in the amount of $1,600 incurred by Appellant when no evidence was presented that Appellant incurred any child care costs for the older child and her domestic relations financial affidavit reflected total yearly child care costs in the amount of $1,480, presumably for the younger child who lived with her. Appellee’s financial affidavit reflected child care costs for non-school periods incurred by him, presumably primarily for the older child who lived with him when not in boarding school, in the total yearly amount of $3,000 but neither of the child support worksheets prepared by the court reflect any child care expenses were attributed to Appellee. The worksheets overstate the dental insurance premiums paid by the mother for each child because the total premium paid was entered on each child’s worksheet instead of one-half of the premium being attributable to each child. Finally, although the final order requires each party to pay half of each child’s private school tuition at the schools where they are currently enrolled (or, for Appellant, a minimum of $22,000 annually), the child support worksheet for the younger child reflects the entire amount of extraordinary educational expense is paid by Appellant and nothing is paid by Appellee. In sum, it appears that inaccurate factual data was plugged into the child support worksheets for the purpose of arriving at the pre-determined result the trial judge announced at the hearing—to “zero out” any child support obligations of the parties to each other.
It is apparent from the hearing transcript that the trial court in this case attempted to accommodate the parties’ already established practice of devoting a significantly greater portion of the parents’ combined resources to pay for the education of the older child while also providing the younger child with private school education. The court went too far, however, in arriving at an expressed intent to award a zero dollar child support obligation and then fashioning the numbers to achieve that result. The guidelines set forth in OCGA § 19–6–15 provide a detailed scheme for determining the amount of child support to be awarded by the court and compliance with the statute’s terms is mandatory. See Stowell v. Huguenard, 288 Ga. 628, 706 S.E.2d 419 (2011). The intent of the guidelines is to have each parent contribute his or her pro rata share of child support unless deviations, as provided by law, are “supported by the required findings of fact and application of the best interest of the child standard.” OCGA § 19–6–15(b)(8). Here, it appears the trial court’s actions were comparable to making an award of child support outside the parameters of the child support worksheet in order to achieve a specific result, a practice that has been deemed reversible error. See Turner v. Turner, 285 Ga. 866, 684 S.E.2d 596 (2009)(reversing and remanding where, after calculating the amount of child support due from each parent, the order included a separate and special pro rata apportionment for the costs of extracurricular activities instead of including those expenses in the child support worksheet calculations); Johnson v. Ware, 313 Ga.App. 774, 723 S.E.2d 18 (2012) (reversing in part and remanding where the order included an award of tuition outside the overall calculation of child support). While the court in this case made the required findings to support the nonspecific deviations that were granted, they were seemingly result oriented and based on incorrect facts.
Even though qualitative determinations of whether special circumstances exist to support deviations from the presumptive amount of child support are committed to the discretion of the court or jury (see Hamlin v. Ramey, 291 Ga.App. 222, 224–225(1), 661 S.E.2d 593 (2008)), quantitative calculations regarding the amount of the deviation require the child support worksheet to be populated with accurate facts and figures in order to determine the amount of the deviation. Once that amount is determined, the finder of fact must make findings and provide the reasons why the deviation is appropriate and in the best interest of the child. A deviation requires evidence that rebuts the presumptive amount of child support. See OCGA § 19–6–15(a)(10). As noted above, with respect to evidentiary issues, this court applies a clearly erroneous standard of review. Because the figures used in this case to “back out” the numbers to arrive at the pre-determined zero dollar child support obligation are unsupported by the evidence, we must reverse and remand the child support award. Upon remand, once factually accurate data is supplied to the child support worksheets to quantitatively support specific or nonspecific deviations, then the court, in its discretion, may make the required findings of fact, including how the best interest of the child who is the subject of the child support determination is served by the deviation, as required by OCGA § 9–6–15(c)(2)(E) and (i)(1) (B).
In a separate enumeration of error Appellant asserts the court erred in failing to take into consideration the effect of the tuition discounts in its grant of deviations for extraordinary educational expenses, as required by OCGA § 19–6–15(i)(2)(J)(i)(I), and also erred in its order that Appellant pay half, but no less than $22,000, of these tuition expenses for the older child. Remand of the case for correction of factual inaccuracies in the child support worksheets serves to address this enumeration of error.
4. Appellant asserts the trial court erred in failing to consider what she refers to as the “windfall” benefit to Appellee by requiring Appellant to pay half of the total costs of the older child’s education expenses, including boarding expenses, thus relieving Appellee of a portion of the cost of that child’s support. The order requires Appellant to pay no less than $22,000 annually for the older child’s private school tuition. It also requires Appellee to pay an amount equal to half of the younger child’s private day school tuition. Otherwise, the order states that “[n]either party shall pay child support to the other.” Nevertheless, the transcript of the hearing reflects the court acknowledged and intended the $22,000 payment to include living expenses. Private school or college boarding expenses include costs, such as food and lodging, which are by definition part of general child support. See Taylor v. Taylor, 228 Ga. 173(3), 184 S.E.2d 471 (1971) (holding it was error for the court to award board as part of the higher education expenses to be paid in addition to monthly support payments as this [293 Ga. 309]would necessarily include an amount for food and lodging and thus result in double payment of support); see also Marshall v. Marshall, 247 Ga. 598(3), 277 S.E.2d 662 (1981) (in a contempt proceeding, trial court did not err in interpreting an ambiguity in the child support decree so as not to require both child support and boarding expenses); Jenkins v. Jenkins, 233 Ga. 902(3), 214 S.E.2d 368 (1975) (child support award did not amount to a double payment of child support when the decree specifically stated college expenses were to be paid “in addition to” the payment for general support). Further, the evidence shows the parties agreed to pay half of each child’s private school tuition and no distinction was made between pure tuition costs and boarding costs. Also, the findings set forth in the child support worksheets demonstrate that the trial court recognized the older child’s boarding expenses were a part of and in addition to her total yearly living expenses.
One of the justifications and findings in support of granting the nonspecific deviation in favor of Appellee for the younger child was the finding that the presumptive amount (which would result in Appellee paying over $400 monthly in child support to Appellant) would be unjust or inappropriate because “[Appellee non-custodial parent] is paying for expenses of older child which are in addition to the half of her tuition.” The corresponding finding in support of granting a nonspecific deviation in favor of Appellant for the older child was the finding that the presumptive amount would be unjust or inappropriate because “[Appellant non-custodial parent] is paying tuition for younger child.” Of course, Appellant is also paying expenses in addition to tuition for the younger child, since the final order eliminated Appellee’s child support obligations to that child except for half of tuition (even though that amount was not reflected in the child support worksheet), but that factor was not noted in the findings. In addition, though not noted on the child support worksheet, Appellant is paying for a portion of the older child’s general support since she is paying half her boarding fees. The issue of whether the final award, in effect, improperly fails to consider the benefit that accrues to Appellee as a result of requiring Appellant to pay what amounts to child support for that portion of the older child’s general support incurred during the months she lives at boarding school further illustrates the deficiencies in the child support worksheets that the court prepared in this case. As noted, the facts appear to have been fashioned in a manner to arrive at an order that appears to have been pre-determined by the trial court. Appellant complains that this results in the parent earning just over 42% of the parties’ combined income is required to bear over 58% of the total child support expenses for the two children. We do not hold that such an [293 Ga. 310]apportionment is erroneous as a matter of law. In fact, deviations may be awarded when the presumptive amount would be unjust or inappropriate considering the relative ability of each parent and in order to arrive at a child support determination that is in the best interest of the child. See OCGA § 19–6–15(c)(2)(E) and (i)(1)(B). The deviations must be based, however, on accurate facts to guide the calculations set out in the child support guidelines and worksheet and, as set forth above, that does not appear to have occurred in this case.
Moreover, the deviations must be in the best interest of the child. Appellant shows that the younger child in this case is adversely impacted by the trial court’s decision not to require Appellee to contribute to that child’s support beyond paying half her tuition, whereas Appellant is effectively paying for half of the older child’s general support, in addition to half of her tuition, during the school year, thus leaving Appellant with fewer resources to support the younger child. That consideration is not reflected in either child support worksheet. The benefit that accrues to Appellee for this contribution to the older child’s general support is also not reflected in the worksheets. At the hearing, the trial court noted that these parents have elected to spend a greater portion of their combined resources on the higher education of the older child. This election, however, does not appear to justify the judge’s apparently pre-determined decision to relieve Appellee of any duty to support the younger child beyond paying half of her tuition. The cumulative effect of these material inaccuracies and inconsistencies requires us to find the court abused its discretion in arriving at the final order of child support in this case. Upon remand, the trial court is directed to apply accurate facts and figures to the case so the calculations of the child support worksheets are accurate and any deviations granted are properly supported by findings based upon these facts.
5. Finally, the court erred by finding in its final order that “the parties have agreed and determined that deviations from [the presumptive child support amounts reflected on the child support worksheets] are appropriate as shown on the Worksheets.” The transcript and record reflect that the parties did not submit child support worksheets that had been jointly agreed upon, that the court prepared the worksheets that were incorporated into the final order, and that once those had been provided to the parties subsequent to the hearing at which the court announced its ruling, Appellant objected to the worksheets and the proposed order. Prior to the entry of the final order, Appellant filed a motion for reconsideration to which she attached proposed alternative worksheets for each child. Although the motion was denied, its filing shows that the parties did not agree [293 Ga. 311]to the deviations set forth in the final order. Thus, that finding in the final order is reversed. Upon remand, the trial court is required to enter a new final order revised in accordance with this opinion and based upon newly prepared child support worksheets.
Judgment affirmed in part and reversed in part, and case remanded with direction.
All the Justices concur.
1. Appellant initially filed her petition in the Superior Court of Houston County under the Uniform Child Custody Jurisdiction and Enforcement Act and, after the trial court ruled it had jurisdiction, she amended her petition asking the trial court also to enter a child support order under UIFSA.
2. As more fully set forth below, the younger child lived with Appellant/Mother in Georgia. The older child lived with Appellee/Father in Alaska.
3. The petition in O’Quinn was brought under the Uniform Reciprocal Enforcement of Support Act, which was replaced, with respect to proceedings filed on or after January 1, 1998, by the Uniform Interstate Family Support Act (Georgia Code Title 19, Ch. 11, Art. 3). See OCGA § 9–11–40.1.
4. Neither does the worksheet for the older child.
5. Appellee acknowledges the final order should be amended to correct this factual error.
The best way to evaluate a law is by looking to the uses made of it, and the current status of Georgia’s “Grandparent Visitation” statute (found in Section 19-7-3 of the Georgia Code) has been updated since my earlier post to include parental rights derived by adoption, and to reflect that inclusion accordingly. The following case is Hudgins v. Harding, 313 Ga.App. 613, 722 S.E.2d 355 (2012), and it concerns this (common sense) distinction. Note that the fundamental rule of an existing custodial relationship in conflict is obeyed. Notice also that the parties were acting pro se, and there are some pretty serious rules involved in appellate procedure, which I and other practitioners have become familiar with by bitter experience. If Hudgins had sought the assistance of an appellate attorney for this case, then the appellate experience might have been substantially smoother for them.
I do not advise anybody to try this kind of thing unrepresented, ever, especially when child custody rights are on the line, because grandparent rights are a difficult legal area to navigate and their loss is devastating. The case is below:
Bessie Hudgins, pro se.
Richard Hudgins, pro se.
Barbara Ann Harding, pro se.MILLER, Judge.
Bessie Hudgins files this pro se appeal from an order denying her petition for grandparents’ visitation rights with minor child, K.H., pursuant to Georgia’s Grandparent Visitation Statute, OCGA § 19–7–3. For the following reasons, we reverse the trial court’s order and remand this case with direction.
Barbara Harding and Christopher McCurry are the natural parents of three minor children. See McCurry v. Harding, 270 Ga.App. 416, 606 S.E.2d 639 (2004). Harding and McCurry divorced in February 1999, and Harding was awarded sole custody of their three minor children. Id. Harding was remarried in May 2000 to Wesley Harding. Id. at 417, 606 S.E.2d 639. In 2003, the trial court granted Wesley Harding’s petition to adopt the three minor children, which this Court affirmed in Id. at 416–417, 421(5), 606 S.E.2d 639. “In granting the petition for adoption the trial court found that McCurry had failed to communicate with or support the three minor children for a period of at least one year, terminated his parental rights, and held that the adoption was in the best interest of the children.” Id. at 416, 606 S.E.2d 639. Hudgins, the biological paternal grandmother of the minor children, subsequently filed a grandparents’ petition for visitation rights with the children pursuant to OCGA § 19–7–3. The trial court denied Hudgins’s petition with respect to the youngest child, K.H., from which ruling Hudgins now appeals.
As an initial matter, Hudgins’s brief on appeal fails to comply with the rules of this Court. See Georgia Court of Appeals Rule 25. Significantly, Hudgins sets forth no arguments and no citation to legal authority, instead posing three “issues” before the Court. See Georgia Court of Appeals Rule 25(a)(3).
Briefs that do not conform to the rules regarding enumerations of error, structure of briefs, argument, or citation of authorities, as [Hudgins’s] fails to do, are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this [C]ourt in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown. Nevertheless, we will address [Hudgins’s] arguments, insofar as we are able to ascertain them from her brief.
(Citation and punctuation omitted.) Morman–Johnson v. Hathaway, 312 Ga.App. 300, 301, 718 S.E.2d 132 (2011).
Hudgins challenges the basis of the trial court’s authority in denying her visitation petition with respect to K.H. The trial court concluded that Hudgins was not entitled to seek visitation rights in light of Wesley Harding’s adoption of K.H. We disagree.
Generally, the adoption of a minor child extinguishes any visitation rights of the child’s former grandparents—OCGA § 19–8–19(a)(1) provides that a decree of adoption has the effect of severing all former relationships of the adopted child. The Grandparent Visitation Statute, codified in OCGA § 19–7–3(b), however, sets forth a limited exception to OCGA § 19–8–19(a)(1). See Lightfoot v. Hollins, 308 Ga.App. 538, 540, 707 S.E.2d 491 (2011). Specifically, OCGA § 19–7–3(b) entitles a grandparent of a minor child to seek visitation rights “whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent, notwithstanding the provisions of [OCGA § ] 19–8–19. This subsection shall not authorize an original action where the parents of the minor child are not separated and the child is living with both of the parents.”
Notwithstanding the current language of OCGA § 19–7–3(b), the trial court found that the instant case was controlled by Echols v. Smith, 207 Ga.App. 317, 427 S.E.2d 820 (1993), and Campbell v. Holcomb, 193 Ga.App. 474, 388 S.E.2d 65 (1989), and concluded that paternal grandparents of a minor child are not entitled to visitation rights after the child is adopted by a stepparent when he or she is not a blood relative of the child. The trial court’s findings, however, were erroneous. Notably, at the time when Echols and Campbell were decided, OCGA § 19–7–3(b) entitled grandparents to seek visitation rights of an adopted child only where the adoption was by a blood relative of the child. OCGA § 19–7–3(b) (1992). Based upon this previous version of the statute, the paternal grandparents in Campbell and Echols were not entitled to visitation rights because the minor children had been adopted by stepfathers who were not blood relatives of the children. See Echols, supra, 207 Ga.App. at 317–318, 427 S.E.2d 820; Campbell, supra, 193 Ga.App. at 474–475, 388 S.E.2d 65.
Several months after the Echols decision, however, the Georgia General Assembly amended OCGA § 19–7–3(b). See Ga. L.1993, p. 456, § 1. As set forth above, OCGA § 19–7–3(b) now entitles a grandparent of a minor child to seek visitation rights “whenever there has been an adoption in which the adopted child has been adopted by the child’s blood relative or by a stepparent [.]” (Punctuation omitted; emphasis supplied.) Thus, the statutory amendment vested grandparents with the right to intervene and petition for visitation following a minor child’s adoption by either a blood relative or a stepparent. See OCGA § 19–7–3(b). It was improper for the trial court to deny Hudgins’s petition based on an obsolete version and interpretation of the Grandparent Visitation Statute.
We nevertheless note that OCGA § 19–7–3(b) further provides that a grandparent’s original action for visitation rights is not authorized “where the parents of the minor child are not separated and the child is living with both parents.” We recently interpreted the term “parents” as used in this last sentence of current OCGA § 19–7–3(b) to include both “biological” or “natural parents,” as well as adoptive parents. See Bailey v. Kunz, 307 Ga.App. 710, 712–713, 706 S.E.2d 98 (2011), aff’d sub nom. Kunz v. Bailey, 290 Ga. 361, 720 S.E.2d 634 (2012). Based on this interpretation of OCGA § 19–7–3(b), the paternal grandparents in Bailey were not authorized to seek visitation of a minor child adopted by his stepfather on the ground that the child lived together with his stepfather and his biological mother. Id.
Here, like the minor child in Bailey, K.H. was adopted by her stepfather, Wesley Harding, making him K.H.’s legal parent under OCGA § 19–8–19(a)(2). This fact alone, however, did not automatically preclude Hudgins from seeking visitation rights with K.H., see OCGA § 19–7–3(b), and the trial court erred by dismissing Hudgins’s petition on such ground. To determine whether Hudgins’s petition was authorized under OCGA § 19–7–3(b), the trial court was required to make additional findings of fact concerning whether Barbara and Wesley Harding were separated and whether K.H. was living with both of them. The trial court failed to make any such findings, and the record evidence is unclear as to this issue.1 Therefore, we must reverse the trial court’s order and remand this case for the trial court to reconsider Hudgins’s petition for visitation rights with K.H. in light of the appropriate factual findings and the correct legal analysis.2
Judgment reversed and case remanded with direction.
ELLINGTON, C.J. and DOYLE, P.J., concur.
1. For example, while the record suggests that Barbara and Wesley Harding resided together at the same address, it also indicates that Barbara Harding and K.H. relocated to a another, separate residence.
2. Given our holding, we need not address the additional issues presented by Hudgins on appeal.
Yesterday, I watched and took notes on this Avvo webinar, and I share those notes with other aspiring blogging attorneys:
Ethical Blogging for Lawyers
October 8, 2015; Avvo Webinar
Moderator: Josh King (Avvo – email@example.com; maintains “Socially Awkward” blog)
- Why blog?
- Is your blog “attorney advertising” forbidden by the Rules?
- Avoiding copyright infringement
Different forms of Legal Blogs:
- Sometimes the posts focus specifically on the area (physical, topical, etc.) of law
- Sometimes the posts focus instead on tangential aspects of law (stress relief methods, etc.)
- Big law firms typically maintain important updates on niche areas that get followed; may have several different authors
- Legal humor; often sarcastic, and entertaining views on things of note that happen
“feedly” – a free Reader for blogs you follow; condenses the updates (CHECK THIS OUT) – also look at “Google Alerts”
Key: READ OTHER BLOGS OFTEN! This keeps you up-to-date, and gives inspiration for topics
- Lexblog ($$$)
- Google (Bloggr) and Tumblr (free, but not good for lawyers, because they may go under)
- WordPress (free – I use it and like using it); TypePad (also free; also recommended for attorneys to use)
Blogs as “Attorney Advertising”
- Don’t discuss:
- Results obtained
- Comparison to Other Attorneys
- Testimonials or client reviews (???)
- Statements that imply the ability to get results
- Real-Time, economic solicitation
- You STILL have First Amendment Rights!!!!
- Lawyer speech CAN be regulated, BUT State carries burden in showing that its regulation of free speech meets intermediate scrutiny (commercial speech = “that which does no more than propose a commercial transaction”); Is it in advertising format? Does it reference a specific product? Does it have an economic motive? Even if so, full protection still applies if non-commercial speech is inextricably intertwined
Central Hudson Gas & Electric Co. v. Public Service Commission (1981)
Hunter v. VA State Bar: Opinion does a good job of analyzing the above factors to determine that it WAS, in fact, HIS commercial speech (he was advertising) – the blog was a sub-page on his website (like mine)
Danger is crossing over from being a blog to being solely advertising!
- Remember: Blogging SHOULD NOT be about marketing, only. The writer is trying to get their EXPERTISE and methodology out there, NOT a marketing focus (this is incidental, and should only EVER be incidental)
What about using the author’s real identity versus using a pen-name?
- No ethical prohibition against it, and using a ghost-writer is okay to help out, but there is a substantial danger if you did not actually produce the content (ethical complications, and it defeats the purpose of lawyer-improvement by writing that blog)
Defamation and Third-Party Comments
I have comments turned on, but nobody uses them – WordPress scrubs the spam (and no other comments, apparently), via Akismet.
- With WordPress, people can be listed as “trusted”; can comment at will
- 47 USC § 230- Piece of Communications Decency Act that survived finding of unconstitutionality; meant that author and ISP is not viewed as responsible for a person’s defamatory comments (unless material hand in the comment, too);
- Pre-empts State law, and commonly known as CSA 230
- What about defamation?
- Truth is an absolute defense;
- Opinion is USUALLY a defense;
- Cannot be a statement that you just don’t like, but needs to be something misrepresented as the truth
- “Single publication date” provides a defense – SOL runs from first publication
Unmasking Anonymous Commentors
You don’t get it automatically just because you subpoena it; going to have to meet the balancing test for need to get it and First Amendment rights of the commenter.
- Got to avoid disclosing client confidence (Don’t run afoul of anything that would be embarrassing to the client)
- Cannot go too far; person involved with the parties might be able to recognize the individuals involved (in other words, make the blog even more vague)
Can’t just re-post entire other blog post; attribution back to the original post is NOT ENOUGH (sterilize FB, too?)
Government Documents: Generally always free of copyright; obey a takedown notice, though.
Go to copyright.gov ($105, take advantage of the “safe harbor” copyright provisions).
As Is my custom, when I have filed a motion in a case, I put a redacted copy online for others to use (as a guide or a warning, I am unsure until the outcome is completed). Either way, circumstances required that this motion be filed. I am irritated with myself, though, because – in redacting it – I have discovered several grammatical mistakes that I did not catch when I edited it previously. I need a second set of eyes whose grammatical abilities I trust.
MOTION TO REMOVE GUARDIAN AD LITEM OR TO REPLACE GUARDIAN AD LITEM FOR CAUSE
COMES NOW Defendant XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Motion to Remove Guardian Ad Litem or to Replace Guardian Ad Litem For Cause, because the fundamental conflict between the Guardian Ad Litem’s duty to represent the children of the parties to this divorce, as well as XXX duty to assist the Court and the parties in reaching a decision regarding child custody, visitation and child-related issues, as these duties are defined by Uniform Superior Court Rule 24.9(3), and XXX stated unwillingness to accept any reasonable payment arrangement with Defendant, render XXX necessarily biased against Defendant and only acting on behalf of Plaintiff, contrary to XXX duties, and in support thereof states the following:
The parties to this action have discussed a new visitation and custody arrangement with each other, and have resolved the fundamental disagreement between the two by discussion. It is Defendant’s belief that the current educational setting of the older child – the XXXXX public school system – is the best educational setting for the child at present, and the parties have agreed to a custodial and visitation arrangement that reflects this. They are otherwise in agreement as to the remaining aspects of the divorce action between them.
The fundamental guidelines for a Guardian Ad Litem in Georgia, appointed by a judge in a domestic matter, are set out in Rule 24.9(3) of the Uniform Rules for Superior Courts. That rule unambiguously states that “[t]he GAL shall represent the best interests of the child.” It goes on to state in the same subsection that this designated officer of the court “shall assist the court and the parties in reaching a decision regarding child custody, visitation and child-related issues.” On XXXXX XX, 2015, Defendant respectfully moved this Court to appoint a suitable Guardian Ad Litem to address the evident need of the children of the parties to be protected from blatant manipulation in the ongoing divorce action. If the recent agreement of the parties is rejected by the Court, then this need has become substantially greater. It is the single fundamentally strongest issue between the parties themselves.
Defendant is afraid that the late beginning of the Guardian Ad Litem and position XXX has taken with regard to the parties’ financial abilities has already poisoned XXX against him, and that XXX has therefore already failed spectacularly in her fulfillment of the duties which XXX is appointed to complete. XXX was appointed on XXXXX XX, 2015, but was not present at the hearing on XXXXX XX, 2015, and apparently did not even know about it. XXX has sent the following e-mail communications to Defendant, indicating to him – whether this is truly the case or otherwise – that XXX will not act to protect the children or investigate the issues unless XXX is promptly paid for XXX work. XXX justification for this apparently biased behavior is the Court’s Order appointing XXX, and XXX has said that XXX refuses to work until XXX retainer set by Order is paid in full. This is contrary to the verbal statements made by the trial judge at the hearing on XXXXX XX and to the timeliness of the completion of this divorce. On XXXXX XX, 2015, XXX made the following statements by e-mail to counsel for Defendant, which summarize the argument made here accurately:
- the Guardian does not need to begin until both parties have paid the retainer.
- I’m not sure what might have given you the impression that Judge XXXXX was surprised that a guardian was not starting until the full retainer was paid
- I do not do payment plans of any kind in my practice.
On the day before that message, XXXXX XX, 2015, XXX had already confirmed in an e-mail addressed to both parties that XXX had received payment from Plaintiff but not from Defendant (which inability to make payment, Defendant has already explained to the Court but which inability to make such payment is apparently unacceptable to the Guardian Ad Litem). By stating that “[i]f one party does not send a check, I will not be able to begin”, prefacing XXX statement with the payment by Plaintiff already, XXX confirmed in Defendant’s mind that XXX actions are only benefiting Plaintiff and are necessarily prejudiced against Defendant, since the existing status quo necessarily favors Plaintiff and forces Defendant to suffer extreme financial punishment if he also wishes to exercise his custody and visitation rights.
XXX has stated that XXX won’t even begin until Defendant, who is already suffering financially by Plaintiff’s actions in changing the school of the older child (thereby forcing Defendant and the younger child to spend roughly three to four hours in the car each schoolday that the older child stays with him) to pay even more or the Guardian Ad Litem will not even begin to perform XXX duties. All of the testimony and all of the evidence entered in this case, with the exception of Plaintiff’s own self-serving testimony, has indicated to Defendant that Plaintiff has financial ability and that the Guardian Ad Litem does not care about emotion or support for the children but only about which party can spend more. The actions of the Guardian Ad Litem only continue this trend, apparently, and this perception – whether accurate or not – requires that Defendant immediately agree to terms or that the Guardian Ad Litem be replaced if these terms are rejected by the Court.
Though it centered on a custody dispute between the rights of biological parents and an aunt, the 1981 Georgia Supreme Court case of Carvalho v. Lewis, 247 Ga. 94, 274 S.E.2d 471, addressed the basic rule of child custody that mere financial superiority is not the basic rule for finding the best interests of a child. That case said that “[a] finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent.” Carvalho at p. 95.
Again, a case involving a dispute between a third party and a parent provides an excellent analysis of what factors must be considered in determining those best interests, in Clark v. Wade, 273 Ga. 587, 598-599, 544 S.E.2d 99 (Ga. 2001):
In considering the issues of harm and custody, trial courts should consider a variety of factors that go beyond the parent’s biological connection or present fitness to encompass the child’s own needs. These factors should include:
(1) who are the past and present caretakers of the child;
(2) with whom has the child formed psychological bonds and how strong are those bonds;
(3) have the competing parties evidenced interest in, and contact with, the child over time; and
(4) does the child have unique medical or psychological needs that one party is better able to meet.
Though the strategy followed in this action at every step by Plaintiff has shown that XXX is willing to freely disregard these rules, it seems to Defendant as though the Guardian Ad Litem has also decided to ignore the needs of the children in favor of acting in a mercenary manner in favor Plaintiff in this dispute.
WHEREFORE, Defendant requests the following relief from this Honorable Court:
- That the terms agreed-to by the parties for the resolution of this dispute be accepted by the Court, and that the Guardian Ad Litem not continue with this matter at all, having never begun to fulfill XXX duties initially;
- That the Guardian Ad Litem appointed to represent the children in this matter, who has apparently not even begun work on this case even though it has already progressed substantially, be replaced with a Guardian Ad Litem who is not prejudiced against Defendant because of his poverty or his beliefs regarding XXX own prejudices, in the alternative;
- That the Court, if it rejects the negotiated settlement of the parties, make provision in its Order to allow for an appointed Guardian Ad Litem to accept a reasonable and affordable payment plan, reflecting the fact that material position should not be the sole deciding factor in determining the best interests of the child;
- If the Court should reject the agreement of the parties, that it reconsider the evidence that has been submitted to-date in this case, and the testimony the Court has listened to, and re-evaluate its decision to not require Plaintiff to pay the costs of the Guardian Ad Litem that XXX actions have required the appointment of; and
- For such other and further relief as the Court in its discretion deems fit to grant.
Respectfully submitted, this XX day of XXXXX, 2015.