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Jan 21 16

For Dan Summer

by merlin
His willingness and ability to see and argue all sides of any intellectual problem, and his perpetual, personal drive, was an example for my own work.  I will never live up to the example he set, but I will continue to strive for it.

His willingness and ability to see and argue all sides of any intellectual problem, and his perpetual, personal drive, was an example for my own work. I will never live up to the example he set, but I will continue to strive for it.

Jan 15 16

Prenuptial Agreements Versus Contracts in Geogia

by merlin

Statutorily, Georgia’s provisions governing prenuptial agreements appear to be fairly straightforward.  Georgia law forbids agreements made “in contemplation of divorce”, but an agreement that, instead, provides for the protection of the assets separately acquired by the parties prior to their union, that orders their affairs in a way that is logical as regards the property and interests that they acquire as a result of their marriage, is permitted by law.  The statutory provision that provides for such an agreement is Section 19-3-62, and it provides as follows:

“(a) As used in this article, the term “marriage articles” means any antenuptial agreement between the parties to a marriage contemplating a future settlement upon one spouse. Marriage articles, whether by parol or in writing, may be executed and enforced by a court of equity at the instance of the spouse at any time during the life of the other spouse, so long as the rights of third persons, purchasers, or creditors, in good faith and without notice, are not affected thereby.

(b) An agreement perfect in itself which needs no future conveyance to effect its purposes is an executed contract and does not come under the definition of marriage articles.”

This agreement can be executed at any time during the marriage, as provided expressly by Section 19-3-64:

“A spouse may voluntarily execute an agreement described in Code Section 19-3-62 or he may at any time during the marriage, either indirectly through trustees or directly to his spouse, convey any property to which he has title, subject to the rights of prior purchasers or creditors without notice. ”

Notice the fine distinction between something considered “marriage articles” and something that is instead considered an “executed contract”.  This distinction (an important one when the respective rights of the parties with or without the presence of the contract are very different, and it revolves around the importance of attestation, witnesses, and fairness) made an important difference in the case of Sullivan v. Sullivan, 684 S.E.2d 861 (Ga. 2009):

        Martin L. Fierman, Eatonton, for appellant.

        Jeremy Alexander Moulton, Conyers, for appellee.

        CARLEY, Presiding Justice.

        James E. Sullivan (Husband) and Sandra F. Sullivan (Wife) executed an antenuptial agreement and were married in 2001. The face of the agreement shows that a single individual witnessed it, signing it twice, once beside each party’s signature. Husband brought this divorce action in 2008, and Wife filed a motion for partial summary judgment, asserting that the antenuptial agreement is unenforceable. After an evidentiary hearing, the trial court entered an order denying that motion and declaring the antenuptial agreement to be enforceable. Wife appeals from the trial court’s order pursuant to our grant of her application for interlocutory appeal.

        Wife contends that the antenuptial agreement fails to satisfy the requirement of OCGA § 19-3-63 that “[e]very marriage contract in writing, made in contemplation of marriage, … must be attested by at least two witnesses.” This Court recently held that OCGA § 19-3-63 does not apply to prenuptial agreements settling alimony issues because such agreements are made in contemplation of divorce and, thus, are not considered “in contemplation of marriage.” Dove v. Dove, 285 Ga. 647, 680 S.E.2d 839 (2009). However, the antenuptial agreement in this case does not mention either divorce or alimony. See Anderson v. Anderson, 274 Ga. 224, 227(3), 552 S.E.2d 801 (2001). It was expressly “entered into in consideration of marriage….” Its stated purposes are “to make a fair and adequate provision for [Wife] taking into consideration the age of the parties, the fact that they have separate families and the fact that they have separate estates[,]” and “to define their respective rights in the property of the other, and to avoid such interests which, except for the operation of this Agreement, they might acquire in the property of the other as incidents of their marriage relationship.” The only substantive article of the antenuptial agreement provides that certain specified properties are not subject to division and that Husband does hereby waive and release all rights, claims, titles and interests, inchoate, or contingent in law and equity he might have by reason of marriage to property [which Wife] owned prior to their impending marriage or has a future interest in, other than property acquired jointly during the marriage. This waiver and release applies to claims that may have otherwise been made during the lifetime of [Wife] or after her death, should she die intestate.

        The same language is repeated in a corresponding waiver by Wife of her rights in Husband’s property.

        We have already held that a prenuptial agreement which, in substantially the same language present here, waives each spouse’s rights in the other’s property either before or after death is a “marriage contract” pursuant to OCGA § 19-3-62(b). Sieg v. Sieg, 265 Ga. 384, 385-386(2), 455 S.E.2d 830 (1995). In Dove v. Dove, supra at 648(3), 680 S.E.2d 839, we recognized that the prenuptial agreement in Sieg was “made in contemplation of marriage.” Therefore, the antenuptial agreement here necessarily constitutes a “marriage contract in writing, made in contemplation of marriage,” which “must be attested by at least two witnesses.” OCGA § 19-3-63.

        Husband argues that OCGA § 19-3-63 does not apply as between the signatories of a prenuptial agreement. He draws an analogy to the attestation requirement for deeds, which “`relates only to the recordability of the instrument, and a deed may be valid between the parties without attestation.’ [Cits.]” Bramblett v. Bramblett, 252 Ga. 21, 22(1), 310 S.E.2d 897 (1984). However, Georgia statutes specifically require attestation as provided by law before a deed or mortgage may be effectively recorded. OCGA §§ 44-2-14(a), 44-14-39; Gardner, Dexter & Co. v. Moore, Trimble & Co., 51 Ga. 268, 269 (1874). Neither OCGA § 19-3-63 nor any other section of Article 3, OCGA § 19-3-60 et seq., similarly links the attestation requirement to recordation of marriage contracts. In OCGA § 19-3-67, Article 3 separately provides for the recordation of marriage contracts and limits the effect of an unrecorded marriage contract to the parties thereto.  Reinhart v. Miller, 22 Ga. 402, 415(3) (1857). Unlike the statutory provisions with regard to deeds and mortgages, Article 3 does not in any manner imply that an unattested marriage contract is effective between the parties. Husband’s further reliance upon Vizard v. Moody, 119 Ga. 918, 921(4), 47 S.E. 348 (1904) is wholly without merit, as that case involved an acknowledgment before a notary, and such an acknowledgment unsurprisingly has not been executed by Wife and, moreover, would “not obviate the necessity of attestation by two witnesses….” 2 Daniel F. Hinkel, Pindar’s Ga. Real Estate Law and Procedure § 19-56, p. 356 (6th ed. 2004) (accurately explaining Vizard and identifying obiter dicta therein).

        Because the face of the antenuptial agreement at issue in this case shows that it was not signed by two witnesses and therefore violates OCGA § 19-3-63, the trial court erred in declaring it to be enforceable and in denying the motion for partial summary judgment filed by Wife.

        Judgment reversed.

        All the Justices concur.

Jan 6 16

Overview on The Executive Orders on Gun Control

by merlin

Because this issue has arisen in conversation among peers in society, it seemed prudent to say a quick word on what has and has not been done by the President of the USA with regard to recent executive action on gun control.  These seem as though they are very common-sense regulations, by and large, but some comment on them needs to be made so that people will not react irrationally to them.  The following is a synopsis (simply taking the headlines and eliminating the textual explanations, which may confuse readers) of the White House explanation of all of the executive actions taken:

  1. Keep guns out of the wrong hands through background checks.

Clarify that it doesn’t matter where you conduct your business—from a store, at gun shows, or over the Internet: If you’re in the business of selling firearms, you must get a license and conduct background checks. 

A person can be engaged in the business of dealing in firearms regardless of the location in which firearm transactions are conducted.

Quantity and frequency of sales are relevant indicators.

A person who willfully engages in the business of dealing in firearms without the required license is subject to criminal prosecution and can be sentenced up to five years in prison and fined up to $250,000. Dealers are also subject to penalties for failing to conduct background checks before completing a sale.

  1. Make our communities safer from gun violence.

Require background checks for people trying to buy some of the most dangerous weapons and other items through a trust or corporation.

such as machine guns and sawed-off shotguns

ATF is finalizing a rule that makes clear that people will no longer be able to avoid background checks by buying NFA guns and other items through a trust or corporation.

  1. Increase mental health treatment and reporting to the background check system.

Ensure States are providing records to the background check system, and work cooperatively with jurisdictions to improve reporting.

Over the past three years, States have increased the number of records they make accessible by nearly 70 percent.

Make the background check system more efficient and effective. 

  • FBI will hire more than 230 additional NICS examiners and other staff members to assist with processing mandatory background checks. This new hiring will begin immediately and increase the existing workforce by 50 percent. This will reduce the strain on the NICS system and improve its ability to identify dangerous people who are prohibited from buying a gun before the transfer of a firearm is completed.
  • FBI has partnered with the U.S. Digital Service (USDS) to modernize NICS. Although NICS has been routinely upgraded since its launch in 1998, the FBI is committed to making the system more efficient and effective, so that as many background checks as possible are fully processed within the three-day period before a dealer can legally sell a gun even if a background check is not complete. The improvements envisioned by FBI and USDS include processing background checks 24 hours a day, 7 days a week to improve overall response time and improving notification of local authorities when certain prohibited persons unlawfully attempt to purchase a firearm.

The President’s budget for FY2017 will include funding for 200 new ATF agents and investigators

ATF is dedicating $4 million and additional personnel to enhance the National Integrated Ballistics Information Network (NIBIN). The NIBIN database includes ballistic evidence that can be used by analysts and investigators to link violent crimes across jurisdictions and to track down shooters who prey on our communities.

ATF has established an Internet Investigations Center (IIC) staffed with federal agents, legal counsel, and investigators to track illegal online firearms trafficking and to provide actionable intelligence to agents in the field.

This work has led to prosecutions against individuals or groups using the “dark net” to traffic guns to criminals or attempting to buy firearms illegally online.

Ensure that dealers notify law enforcement about the theft or loss of their guns.

Over the past five years, an average of 1,333 guns recovered in criminal investigations each year were traced back to a licensee that claimed it never received the gun even though it was never reported lost or stolen either. Today, ATF issued a final rule clarifying that the licensee shipping a gun is responsible for notifying law enforcement upon discovery that it was lost or stolen in transit.

Issue a memo directing every U.S. Attorney’s Office to renew domestic violence outreach efforts.

Increase Mental Health Treatment and Reporting to the Background Check System

Dedicate significant new resources to increase access to mental health care. 

the Administration is proposing a new $500 million investment to help engage individuals with serious mental illness in care, improve access to care by increasing service capacity and the behavioral health workforce, and ensure that behavioral health care systems work for everyone. This effort would increase access to mental health services to protect the health of children and communities, prevent suicide, and promote mental health as a top priority.

Include information from the Social Security Administration in the background check system about beneficiaries who are prohibited from possessing a firearm.

The rulemaking will also provide a mechanism for people to seek relief from the federal prohibition on possessing a firearm for reasons related to mental health.

Remove unnecessary legal barriers preventing States from reporting relevant information to the background check system.

the Department of Health and Human Services issued a final rule expressly permitting certain HIPAA covered entities to provide to the NICS limited demographic and other necessary information about [individuals who are prohibited by Federal law from possessing or receiving a gun for specific mental health reasons.]

  1. Shape the future of gun safety technology.

Issue a Presidential Memorandum directing the Department of Defense, Department of Justice, and Department of Homeland Security to take two important steps to promote smart gun technology.

Within 90 days, these agencies must prepare a report outlining a research-and-development strategy designed to expedite the real-world deployment of such technology [that would reduce the frequency of accidental discharge or unauthorized use of firearms, and improve the tracing of lost or stolen guns] for use in practice.

The Presidential Memorandum also directs the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety.

_________________________________________________________________

As you can see, these are generally positive actions to take, and both from a law enforcement perspective and from an individual freedom perspective, they are tools of order and Justice.  They are only mildly upsetting from a personal freedom perspective with respect to the establishment of a norm for smart gun technology (which would necessarily involve eliminating the anonymity of gun users) and greater communication between agencies on background checks and mental health issues, but this greater communication is actually a trend in an age of substantially increased communication, and may be regarded as relatively inevitable.  This does not seem like a bad cause for that increase, since it will happen no matter what.

As regards executive orders and their legal effect, a good source for their treatment in the jurisprudence is the April 2015 issue of the Yale Law Journal, in which an article by Erica Newland entitled “Executive Orders in Court” deals comprehensively with the subject.  That article also does a good job of pointing out the danger of executive orders when it comes to the dire warnings of the personal freedom crowd, when it mentions that executive orders traditionally affect the governed, but not those giving the orders.

This note is necessarily brief, but it will hopefully serve to allay some of the more irrational fears of those who operate under these orders.

Jan 2 16

Generally, the State Cannot Forcibly Seize Driver’s Blood

by merlin

In 2006, the Supreme Court of the United States decided Missouri v. McNeely, in which it ruled against the State’s decision to forcibly draw drivers’ blood for alcohol testing.  As has been famously asked, if the Fourth Amendment requires a warrant to search a dwelling, is a human body any less private?

The exigent circumstances that exist in such a case make it impractical for law enforcement to get a warrant before alcohol has left the bloodstream, in many cases, but the violation that a forced blood draw requires is in complete defiance of the spirit of the right to be free from unreasonable searches and seizures.  That is akin to being compelled to testify against oneself.

The Supreme Court of Georgia has recently decided the issue in light of the McNeely case, in Williams v. State, S14A1625 (decided March 27, 2015).  That case does not permit warrantless blood draws as a general rule, but instead makes it a case-by-case analysis.  It will be interesting to see what influence the case has on the Gwinnett County actions.  It appears to create a two-tier analysis, requiring exigent circumstances sufficient to obviate the warrant requirement, followed by a showing of actual consent to the blood draw.  If this analysis is incorrect, please comment on this.

HINES, Presiding Justice.

        Following a bench trial, John Cletus Williams was convicted of driving under the influence of drugs (“DUI”), OCGA § 40-6-391 (a) (2), and failure to maintain lane, OCGA § 40-6-48 (1).1He had moved unsuccessfully to suppress the results of a state-administered blood test2 on the basis that the test, obtained without a search warrant, violated his rights under the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution.3 His challenge is that Georgia’s implied consent statute, OCGA § 40-5-55,4 is unconstitutional as applied in his case because consent obtained solely under the statute does not amount to voluntary consent for purposes of the Fourth Amendment and the related provision of the State Constitution.5 For the reasons which follow, we vacate the judgments of the state court and remand the case to that court for reconsideration of Williams’s motion to suppress and any consequent proceedings.

        The transcript of the hearing of the motion to suppress and the immediately following bench trial reveal the following facts, which were either stipulated at trial or are not in dispute. On September 22, 2012, Williams was arrested by an officer of the Gwinnett County Police Department and charged with DUI and failure to maintain lane; the officer had “reasonable articulable suspicion” to stop Williams and probable cause to arrest him. Williams was placed in custody but was not advised of his Miranda6 rights. The officer read Williams the age-appropriate statutory implied consent notice7 and pursuant to it requested that Williams submit to blood and urine tests. The officer told Williams that it was “a yes or no question,” and Williams verbally responded “yes.” There was no other conversation about consent for the testing, i.e., the officer did not ask Williams “if [Williams] was willing to freely and voluntarily give a test.” The officer “read [Williams] the implied consent and that was pretty much the end of it.” It “was an ordinary DUI,” there “were no exigent circumstances,” and no search warrant was obtained. Williams was taken to a medical center where blood and urine samples were taken for the purpose of his criminal prosecution.

        The state court denied Williams’s motion to suppress his blood test,8 expressly rejecting the “reasoning” that statutory implied consent implicated Fourth Amendment concerns, and the contention that the statutory consent, in and of itself, was not a valid exception to the Fourth Amendment’s requirement of a search warrant. The state court’s analysis is flawed.

        A suspect’s right under the Fourth Amendment to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood, and the extraction of blood is a search within the meaning of the Georgia Constitution. Cooper v. State, 277 Ga. 282, 285 (III) (587 SE2d 605) (2003). In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions. State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984), citing Coolidge v. New Hampshire, 403 U.S. 443, 454-455 (91 SCt. 2022, 29 LE2d 564) (1971). Thus, a warrantless search is presumed to be invalid and the State has the burden of showing otherwise. State v. Slaughter, supra, citing Mincey v. Arizona, 437 U.S. 385, 390-391 (98 SCt 2408, 57 LE2d 290) (1978), and McDonald v. United States, 335 U.S. 451, 456 (69 SCt 191, 93 LEd 153) (1948).

        The first well-recognized exception to the warrant requirement in the context of a state-administered blood test is the presence of exigent circumstances. The United States Supreme Court in Schmerber v. California, 384 U.S. 757 (86 SCt 1826, 16 LE2d 908) (1966), addressed the Fourth Amendment implications of a warrantless blood draw in a DUI case. The Supreme Court stated it was to determine “whether the police were justified in requiring [the petitioner in that case] to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” 384 U.S. at 768. The Schmerber court acknowledged that “[w]hile early cases suggest[ed] that there is an unrestricted ‘right on the part of the government . . . to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime,'” the “mere fact of a lawful arrest” did not end the inquiry. Id. at 769. This was so because such suggestion was premised on the possibility of “more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused,” and because once there was a permitted weapons search of the arrested person it would be “both impractical and unnecessary” to achieve the purpose of the Fourth Amendment “to attempt to confine the search to those objects alone.” Id. However, the Court concluded that such considerations had “little applicability with respect to searches involving intrusions beyond the body’s surface,” and that “[t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Id. at 669, 670. Accordingly, “[i]n the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.” Id. at 770. The Court reasoned that inasmuch as “[s]earch warrants are ordinarily required for searches of dwellings,” there could not be a lesser requirement in the instance of “intrusions into the human body,” but noted this was so “absent an emergency.” Id. It then concluded that the officer in the case might reasonably have believed that there was an emergency, in the sense that the delay involved in obtaining a search warrant threatened the destruction of evidence, the threat and exigent circumstance being the diminishment of the concentration of alcohol in the blood shortly after the cessation of drinking as the body eliminates it from the system. Id. Also noting that in that case, time was taken to bring the accused to a hospital and to investigate the accident scene, the Court concluded there was no time to secure a warrant, and given the “special facts,” the blood draw “was an appropriate incident to petitioner’s arrest.” Id. at 771. Thus, Schmerber established the legal nexus between the transient and dissipating nature of an intoxicant in the human body and presence of an exigency for the purpose of securing a blood test without the necessity of a search warrant.

        This Court carried such nexus further in Strong v. State, 231 Ga. 514 (202 SE2d 428) (1973), when it determined that in the situation in which there is probable cause to arrest an individual for DUI, the “evanescent nature of alcohol in the blood,” in and of itself, necessitated that the defendant’s blood sample be extracted in order “to prevent a failure of justice from a certain disappearance of this evidence.” Id. at 518. In other words, the dissipation of the intoxicant in the body automatically, as a matter of law, provided the exigency for a warrantless blood test incident to the arrest. However, prior to the bench trial and the denial of the motion to suppress in Williams’s case, the United States Supreme Court issued its decision in Missouri v. McNeely, 569 U. S. ___ (133 SCt 1552, 185 LE2d 696) (2013), in which it rejected a per se rule that the natural metabolization of alcohol in a person’s bloodstream constitutes an exigency justifying an exception to the Fourth Amendment’s search warrant requirement for nonconsensual blood testing in all DUI cases. 569 U. S. ___ (133 SCt at 1556). Instead, it concluded that,

while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

Id. at 1563. Thus, to the extent that Strong v. State holds otherwise, it is hereby overruled. In the present case, there is no dispute that there were no exigent circumstances. Consequently, the analysis in this case must then focus on the voluntary consent exception to the warrant requirement because it is well settled in the context of a DUI blood draw that a valid consent to a search eliminates the need for either probable cause or a search warrant. Cooper v. State, supra at 291 (VI), citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (93 SCt. 2041, 36 LE2d 854) (1973).

        As noted, it is uncontroverted that Williams submitted to the blood test after the police officer read him the implied consent notice for suspects age 21 or over. However, in Cooper v. State, supra, this Court plainly distinguished compliance with the implied consent statute from the constitutional question of whether a suspect gave actual consent for the state-administered testing. We emphasized such remaining question in regard to the validity of the consent, confirming that “[w]hen relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” Cooper v. State, supra at 291 (VI), citing, inter alia, Bumper v. North Carolina, 391 U.S. 543 (88 SCt 1788, 20 LE2d 797) (1968).9 And, it can certainly be argued that the need for

Page 10

the State to demonstrate actual consent for the purpose of exception to the warrant requirement and its constitutional implications is reinforced by the analysis of the United States Supreme Court in McNeely.

        The facts of McNeely did not lend themselves to the Supreme Court expressly addressing the issue of a suspect’s consent to the testing of bodily fluids as satisfying Fourth Amendment concerns because the defendant in that case refused to consent to a blood test, McNeely, 569 U. S. ___ (133 SCt at 1557); however, a plurality of the Court was plainly rejecting a per se rule for sustaining an exception to the Fourth Amendment’s requirement of a search warrant in favor of a case-by-case assessment based on the totality of the circumstances, albeit in the narrow context of exigency. Id. at 1563. Nevertheless, sister states have considered statutory implied consent as an exception to the Fourth Amendment’s warrant requirement in the wake of McNeely, and have reached varying conclusions as to whether McNeely governs that issue; but, what the cases seem to indicate is that mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant. See, e.g., People v. Harris, — Cal.Rptr.3d —-, 2015 WL 708606 (Cal.App. 4 Dist., 2015); Weems v. State, 434 S.W.3d 655 (Tex. App., 2014); State v. Padley, 354 Wis.2d 545 (849 NW2d 867) (Wis.App.,2014); State v. Moore, 354 Or. 493(318 P3d 1133) (Or.,2013); State v. Brooks, 838 N.W.2d 563 (Minn.,2013). See also, Cooper v. State, supra at 291 (VI).

        As the Wisconsin Court of Appeals aptly observed in Padley,

“Implied consent” is not an intuitive or plainly descriptive term with respect to how the implied consent law works. . . [it may be] a source of confusion. . . . the term “implied consent” [may be] used inappropriately to refer to the consent a driver gives to a blood draw at the time a law enforcement officer requires that driver to decide whether to give consent. However, actual consent to a blood draw is not “implied consent,” but rather a possible result of requiring the driver to choose whether to consent under the implied consent law.

State v. Padley at 564.

        In considering Williams’s motion to suppress, the state court failed to address whether Williams gave actual consent to the procuring and testing of his blood, which would require the determination of the voluntariness of the consent under the totality of the circumstances. Consequently, the judgments of the state court are vacated and the case is remanded to that court for proceedings consistent with this opinion.

        Judgments vacated and case remanded with direction. All the Justices concur.

——–

Footnotes:

        1. Williams was given two consecutive misdemeanor sentences.

        2. The motion also requested the suppression of “in-custody questioning.”

        3. The motion to suppress also alleged violation of the Fifth Amendment to the United States Constitution, but this ground was later withdrawn.

        4. OCGA § 40-5-55 provides in relevant part:

(a) The State of Georgia considers that any person who drives or is in actual physical control of any moving vehicle in violation of any provision of Code Section 40-6-391 constitutes a direct and immediate threat to the welfare and safety of the general public. Therefore, any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities. The test or tests shall be administered 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. The test or tests shall be administered as soon as possible to any person who operates a motor vehicle upon the highways or elsewhere throughout this state who is involved in any traffic accident resulting in serious injuries or fatalities. Subject to Code Section 40-6-392, the requesting law enforcement officer shall designate which of the test or tests shall be administered, provided a blood test with drug screen may be administered to any person operating a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities.

        5. Ga. Const. of 1983, Art. I, Sec. I, Par. XIII contains the same language as the guarantee in the Fourth Amendment to the United States Constitution that there is, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This Court has held that Paragraph XIII is applied in accord with the Fourth Amendment in the context of such guarantee. Brown v. State, 293 Ga. 787, 791 (n.6) (750 SE2d 148) (2013).

        6. Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966),

        7. The applicable implied consent notice for suspects age 21 or over is found in OCGA § 40-5-67.1 (b) (2), and states:

“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?”

        8. Neither Williams’s constitutional challenge in his motion to suppress or his arguments on appeal address his given urine sample, but only the blood test and its results.

        9. In Cornwell v. State, 283 Ga. 247 (657 SE2d 195) (2008), this Court stated that inasmuch as there was probable cause for Cornwell’s arrest for DUI and the State had complied with statutory implied consent requirements, Cornwell could not complain that the state-administered urine test for the presence of alcohol and drugs violated his State and Federal Constitutional rights to be free from unreasonable searches and seizures; therefore, his motion to suppress was properly denied. Id. at 249 (2). However, such statement was in direct response to Cornwell’s argument that the implied consent statute was unconstitutionally applied to him because it permitted warrantless compelled testing of his bodily fluids without proof of the existence of exigent circumstances. Our determination, in no manner, intended to blur the distinction between implied consent and actual consent for the purpose of Fourth Amendment analysis.

Dec 31 15

Conviction for Uncorroborated Victim Molestation Testimony

by merlin

In Georgia, the statute governing child molestation does not require corroborating testimony for a conviction.  Conversely, the statute governing statutory rape expressly prohibits a conviction on the unsupported testimony of the victim.  The cases seem to all involve persons charged with both offenses for good measure, because they can be convicted of one or the other by the evidence.  This is worth paying close attention to, and the following cases explore the dynamic between these two laws well.  The first case presented explains why the corroboration for child molestation is unnecessary, using the applicable evidence statute (OCGA 24-3-16, known as the Child Hearsay Statute).  The case that follows it explores the interrelationship of the two separate crimes.

The first case presented for consideration is Vickers v. State, decided in 1999 by the Georgia Court of Appeals and codified at 241 Ga.App. 452:

William A. O’Dell, for appellant.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

A Floyd County jury convicted defendant of two counts of child molestation for sexual acts1 directed at J.B., his stepdaughter. He was sentenced to 20 years confinement to serve 15 years, the remainder probated as to the first count, and to 20 years confinement on the second count to be served on probation consecutively. He now appeals, contending the evidence was insufficient to support his convictions because J.B.’s testimony was uncorroborated under the Child Hearsay Statute, OCGA § 24-3-16,2 as not supported by sufficient indicia of reliability. Held:

The evidence shows that in June 1997, a school counselor reported to the Department of Family & Children Services (DFACS) that 13-year-old J.B. had revealed that the defendant, her stepfather, gave her cigarettes on the condition she kiss him—a single cigarette for a kiss on the cheek, a package of cigarettes for a french kiss. J.B. also indicated that defendant supplied her alcohol and allowed her to drive in exchange for kisses. At trial, J.B. pertinently testified that defendant began these things when she was twelve, that within a year defendant began touching her breasts and vagina, while “shaking and breathing hard,” and on one occasion, failing in an attempt to have sexual intercourse with her after she had taken a shower. This testimony was consistent with that of Sergeant Terri Davis of the Floyd County Police Department who testified that upon interviewing J.B. before trial, J.B. spoke of similar events. The State’s attorney played an audio tape of such interview at trial, without objection, following J.B.’s testimony. Therein, among other things, J.B. corroborated her mother’s testimony insofar as her mother testified that upon confronting defendant with his actions, he admitted having oral sex with J.B., explaining that he loved her.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard ofJackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Conflicts in the testimony of witnesses, including the State’s witnesses, [are] a matter[s] of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Turner v. State, 223 Ga.App. 448, 449(1)(a), 477 S.E.2d 847. The testimony of a victim of child molestation or aggravated child molestation need not be corroborated. Id. at 449(1)(b), 477 S.E.2d 847; Toles v. State, 202 Ga.App. 815(1), 415 S.E.2d 531; Saunders v. State, 195 Ga.App. 810-811(1), 395 S.E.2d 53; Fitzgerald v. State, 193 Ga.App. 76(2), 386 S.E.2d 914. Nevertheless, J.B.’s testimony was here corroborated by defendant’s admission of oral sex with J.B. to her mother. Even had this not been so, J.B.’s testimony standing alone would have been sufficient under the standard of Jackson v. Virginia, 443 U.S.307, 99 S.Ct. 2781, supra, to authorize the jury to have found the essential elements of the crimes in the case sub judice. Turner v. State, 223 Ga.App. at 449(1)(b), 477 S.E.2d 847, supra; Dent v. State, 220 Ga. App. 147(1), 469 S.E.2d 311. Inasmuch as this is the case, we need not address the sufficiency of the evidence under the Child Hearsay Statute, though we nonetheless conclude upon our review of the record that such evidence was properly admitted. Medina v. State, 234 Ga.App. 13, 14 (1)(a), 505 S.E.2d 558 (statutory requirement for finding that child/victim’s statement supported by sufficient indicia of reliability satisfied “`if after both parties have rested, the record contains evidence which would support such a finding.’… Gregg v. State, 201 Ga.App. 238, 239(3)(a), 411 S.E.2d 65 (1991)”). See also James v. State, 270 Ga. 675, 676(3), 513 S.E.2d 207 (a prior consistent statement, here the audio tape, is admissible where a witness’ credibility is in issue, “and that witness is present at trial, under oath, and subject3 to cross-examination…. Edwards v. State, 255 Ga. 149(2), 335 S.E.2d 869 (1985)”).

Judgment affirmed.

JOHNSON, C.J., and PHIPPS, J., concur.

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Notes:

1. The first of the counts of which defendant was convicted charged him with touching and fondling J.B.’s breasts and vagina; the second charged defendant with attempting to place his penis in J.B.’s vagina for the purpose of engaging in sexual intercourse.

2. OCGA § 24-3-16 provides that

[a] statement by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

3. Though J.B. had left the stand at the time the audio tape was played, defendant’s right to a thorough and sifting cross-examination left her subject to recall for cross-examination. Martin v. State, 151 Ga.App. 9, 17(8), 258 S.E.2d 711.

——–

The second case is Maynard v. State, 290 Ga.App. 403 (Ga. Ct. App. 2008), which goes further into how a person can be found not guilty of the one crime but still be convicted for the other (they are not dependant on each other):

Christopher A. Townley, Rossville, for Appellant.

Herbert E. Franklin Jr., Dist. Atty., Christopher Allen Arnt, Asst. Dist. Atty., for Appellee.

BARNES, Chief Judge.

Keith Maynard appeals from the denial of his motion to dismiss on double jeopardy grounds. For reasons that follow, we affirm.

Maynard was indicted in 2003 for statutory rape, child molestation, and two counts of aggravated child molestation relating to his alleged sexual relationship with a fifteen-year-old girl. A married police officer at the time, 31-year-old Maynard met the victim while working with a group of young people interested in law enforcement. According to the victim, she began spending time with Maynard and his family, and they eventually became involved sexually.

Following a trial, the jury found Maynard guilty of one count of aggravated child molestation and child molestation, but not guilty of the other aggravated child molestation charge and statutory rape. Maynard subsequently appealed his convictions for aggravated child molestation and child molestation. Although this Court found the evidence sufficient to sustain the convictions, we reversed based on two evidentiary errors. See Maynard v. State, 282 Ga.App. 598, 639 S.E.2d 389 (2006).

On remand, Maynard filed a plea of former jeopardy as to the child molestation charge. That count alleged that he committed child molestation by engaging in sexual intercourse with the victim. Noting that the jury had found him not guilty of statutory rape, he argued that double jeopardy barred the State from retrying him on any allegation involving sexual intercourse.1 The trial court disagreed and denied his motion to dismiss. We find no error.

“The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” (Citation omitted.) Jenkins v. State, 259 Ga.App. 47, 49(2), 576 S.E.2d 300 (2002). Thus, a defendant may not be retried for an offense following a reversal based on insufficient evidence. Id. But if a reversal results from trial error, rather than evidentiary insufficiency, the defendant generally may be tried again. Id.

In Maynard’s original appeal, we explicitly found the evidence sufficient to support the jury’s verdict as to child molestation. See Maynard, supra, 282 Ga.App. at 599(1), 639 S.E.2d 389. Nevertheless, Maynard argues that double jeopardy prohibits the State from retrying him for this offense.

1. Maynard contends that his conduct in allegedly engaging in sexual intercourse with the victim can only be charged as statutory rape, for which he has already been acquitted. We disagree.

A person commits statutory rape “when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” OCGA § 16-6-3(a). In contrast, child molestation results when a person “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

Undoubtedly, an adult who has sexual intercourse with a child falls within the parameters of the child molestation statute. See OCGA § 16-6-4(a). Maynard argues, however, that because statutory rape specifically prohibits sexual intercourse with a minor, that offense prevails over the more general child molestation statute and must be used exclusively to prosecute the conduct. In essence, Maynard seeks to remove sexual intercourse from the type of conduct that can be prosecuted as child molestation. To support this claim, he points to our rules of statutory construction, particularly that a specific statute prevails over a general statute. See Vines v. State, 269 Ga. 438, 440, 499 S.E.2d 630 (1998) (sexually explicit telephone call to minor is insufficient “contact” to constitute child molestation).

The cardinal rule of statutory construction, however, “is to glean the intent of the legislature.” (Citation and punctuation omitted.) Goldberg v. State, 282 Ga. 542, 544, 651 S.E.2d 667 (2007) (general recidivist sentencing provision supplements, rather than conflicts with, the specific recidivist provision relating to habitual burglars). And we find nothing in the statutory language that supports Maynard’s argument. Neither statute at issue here specifically prohibits the State from prosecuting Maynard as a child molester. Simply put, the legislature has expressed no intention to place sexual intercourse exclusively within the statutory rape provision in cases such as this. Compare Dixon v. State, 278 Ga. 4, 5-6(1)(a), 596 S.E.2d 147 (2004)(because legislature determined that sexual conduct between teenagers constituted only misdemeanor statutory rape, State could not prosecute such conduct as felony child molestation).

2. Maynard also argues that allowing a retrial on child molestation would violate due process, given the legislature’s “clear intention” to prosecute sexual intercourse only as statutory rape. As discussed above, however, we find no such intent in the applicable statutes.

To further support his due process argument, Maynard cites us to language in the statutory rape provision that exempts from prosecution sexual intercourse with a minor spouse. See OCGA § 16-6-3(a). According to Maynard, if “the State is allowed to prosecute for child molestation the sexual intercourse with a minor under 16, the State would be able to prosecute a defendant even if the sexual relations were with his lawful spouse.” Ultimately, he argues that we cannot construe the child molestation statute to include persons “not otherwise within [the] reach” of the criminal law.

As an initial matter, Maynard does not argue that he falls within the spousal exemption or point to any evidence that he and the victim were married. Moreover, to commit child molestation, a defendant must engage in an immoral and indecent act. See OCGA § 16-6-4(a). We fail to see how private, consensual intercourse with one’s lawful spouse could constitute an immoral or indecent act sufficient to sustain a child molestation conviction. Compare Grimsley v. State, 233 Ga.App. 781, 784(1), 505 S.E.2d 522 (1998) (by engaging in intercourse in front of children, a married couple’s “consenting sexual activity … was transformed from acceptable and protected marital conduct into an immoral and indecent act within the meaning of OCGA § 16-6-4(a)”). Including sexual intercourse within the child molestation statute, therefore, will not criminalize conduct otherwise deemed lawful by the statutory rape provision.

3. Finally, Maynard argues that by finding him not guilty of statutory rape, the jury acquitted him of having sexual intercourse with the victim, precluding a retrial on this conduct. Again, we disagree.

It is axiomatic that double jeopardy “protects against a second prosecution for the same offense after acquittal.” (Citation and punctuation omitted.) State v. Lambert, 276 Ga.App. 668, 669, 624 S.E.2d 174 (2005). A defendant’s conduct, however, “may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution … under the other.” (Punctuation and footnote omitted.) Drinkard v. Walker, 281 Ga. 211, 215, 636 S.E.2d 530 (2006). Such is the case here. Among other things, statutory rape demands corroboration of the victim’s testimony, while child molestation does not. See OCGA § 16-6-3(a); Redman v. State, 281 Ga.App. 605(1), 636 S.E.2d 680 (2006). Child molestation, on the other hand, requires a finding that the conduct was undertaken to arouse or satisfy the sexual desires of the defendant or victim. OCGA § 16-6-4(a). Given the differences between these offenses, the statutory rape acquittal does not prevent Maynard’s prosecution for child molestation.

Furthermore, in acquitting Maynard of statutory rape, jurors did not necessarily conclude that no sexual intercourse occurred. They may have believed the victim’s testimony regarding the relationship, but found insufficient corroboration to sustain a statutory rape conviction. Because corroboration is not required for child molestation, the jury logically could have found — and in fact did find — Maynard guilty of molesting the victim by having sex with her, despite its not guilty verdict on statutory rape. See Lambert, 276 Ga.App. at 671, 624 S.E.2d 174 (acquittal on felony murder charge does not necessarily mean that jury could not find defendant guilty of underlying felony); see also Collins v. State, 266 Ga.App. 871, 875(2), 601 S.E.2d 111 (2004) (“A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury’s decision to convict on certain counts and acquit on other counts.”) (footnote omitted).

Although the same conduct formed the basis for the statutory rape and child molestation charges, double jeopardy does not preclude the State from prosecuting Maynard on both.2  Accordingly, the trial court properly denied Maynard’s motion to dismiss. See Shah v. State, 288 Ga.App. 788, 788-789, 655 S.E.2d 347 (2007) (on appeal from the denial of double jeopardy motion, we must consider “whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion”) (punctuation and footnote omitted).

Judgment affirmed.

SMITH, P.J., and MILLER, J., concur.

—————

Notes:

1. Maynard did not seek dismissal of the aggravated child molestation charge, which involved allegations of oral sodomy, rather than sexual intercourse.

2. Given the posture of this case, and particularly the prior statutory rape acquittal, we need not consider whether a defendant under these facts could be convicted and sentenced for both statutory rape and child molestation. See, e.g., OCGA § 16-1-7(a)(2) (an accused whose conduct constitutes more than one crime may be prosecuted for each crime, but may not be convicted of more than one if “[t]he crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct”).

—————

Dec 14 15

Re-Post (6/1/15 on Parental Drug Use)

by merlin

In 2012, the Georgia Court of Appeals decided In re H.S., 648 S.E.2d 143, 285 Ga. App. 839 (Ga. App., 2007).  An interesting result from that case was the notation that the father’s use of marijuana was NOT held against him by the Court because the needs of the child were met, otherwise.  That issue, alone, was not enough to actually result in a necessary finding to terminate parental custody rights – “some misconduct … “resulting in the abuse or neglect of the child or … what is tantamount to physical or mental incapability to care for the child.”” In re R.L., 743 S.E.2d 502, 504, 321 Ga.App. 837 (2013)(quoting In the Interest of R.M., 276 Ga.App. at 715, 624 S.E.2d 182 (2005)).

In other words,, the cases have followed a consistent pattern: the juvenile court may decide that the parent’s drug use has been a factor supporting deprivation, but the drug use STANDING ALONE (all other factors being inconsistent with child deprivation, such that the educational, nutritional, health and support needs of the child are being met, the parent is actively seeking treatment and/or the substance use by itself does not contribute to their deprivation in any material or appreciable way, etc.) is NOT viewed by the appellate courts as a sufficient reason to sever the parent-child relationship.  Again – the custodial relationship can be destroyed at the juvenile court level, but the Court of Appeals consistently seems to reverse the decision if that is the deciding factor.  What happens, though, when the drug use is something like methamphetamine, and there were physical altercations between the mother and father?  The law is THE LAW.

For that, the most recent case on point would appear to be In the Interest of G.R.B., 769 S.E.2d 119, 330 Ga.App. 693 (Ga. Ct. App. 2015).  This case did not appear in some search engines, and it was found through other search methods, but it raises some issues that have dramatic repercussions in this area of law but which are consistent with the rulings that the Court has been making regarding when severance or even interference with the parent-child custodial relationship is appropriate.  The document which is posted here for review comes from the following link:

http://www.gaccchildlaw.org/Case_Summary_February2015.pdf

It was summarized excellently by students of the Barton Child Law and Policy Center at the Emory University School of Law.

” Decided February 12, 2015

 Opinion: Dillard

• Concurring Opinions: McFadden, Ray

• Dissenting Opinion: McMillan, Andrews

Posture: Father appeals from the juvenile court’s order finding G.R.B. deprived and awarding permanent legal custody to the child’s maternal grandparents.

Issue(s): Was the evidence sufficient to support the juvenile court’s finding of deprivation?

Holding: Reversed. The juvenile court lacked clear and convincing evidence to support a finding of deprivation.

Facts: Six months after G.R.B. was born, his father filed a petition for legitimation and custody in the Superior Court. One month later, the child’s maternal grandparents filed a motion to intervene and a complaint for grandparent custody and visitation in the same court. They simultaneously filed an emergency private deprivation petition in the Juvenile Court of Whitfield County, as a result of which they received temporary custody of G.R.B. Weeks later, the grandparents filed a verified private deprivation petition seeking custody, and a guardian ad litem was appointed for the child. On August 19, 2013, all proceeding were consolidated and transferred to the juvenile court, which granted the father’s legitimation petition. In the same order, the court also found that the mother had a significant mental health history, the relationship between the mother and father was unstable and involved domestic violence in the child’s presence, the grandparents had provided a significant amount of daily care for G.R.B., and both parents were gainfully employed and capable of providing adequate housing and income to support the child. Concerned about the domestic violence and mother’s adherence to her medication regimen, the court continued the case for three months, returned the child to his parents’ custody and directed DFCS to open a family preservation case to ensure the parents completed a parenting class, enrolled in a marriage/relationship class, and completed an anger-management course. Following a December hearing, the case was continued for another three-month period due to the occurrence of another incident of domestic violence that resulted in the mother’s arrest. A February hearing was held in response to a recent physical altercation between the father and the mother’s then boyfriend and to a request by DFCS that the father submit to drug testing. The court ordered the drug testing and for the child to remain in the grandparents’ custody. Shortly thereafter, the child’s paternal grandparents filed their own motion to intervene, seeking a finding of deprivation and custody or, in the alternative, visitation.  

In April, the juvenile court conducted its final hearing issuing a “final order on all pending matters” finding that the child’s mother had consented to the child’s placement in the grandparents’ custody, and that the father had completed the required classes but had engaged in a physical altercation in the mother’s presence while under the influence of drugs and alcohol and brandishing a weapon. The court further found that the father admitted a history of methamphetamine use but had started treatment, and that the parents had a unstable relationship involving domestic violence. Based on these findings, which were bolstered by the recommendation of the guardian ad litem and testimony from the DFCS case manager, the court found the child “would be in danger of harm if placed with the father” and ordered that permanent legal custody be placed with the maternal grandparents with parental visitation rights and support obligations.

Reasoning: On appeal from a deprivation order, the court views the evidence “in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation.”

Of note in the present case, the court found no evidence that the father was under the influence of methamphetamine during the altercation with the mother’s boyfriend, nor that the child was harmed in any way by the altercation since he was not present. The court also noted that the father never used meth in the child’s presence, had begun treatment, and had passed recent drug tests. The parents had no plans to get back together, and the father maintained adequate housing, gainful employment, and was able to meet G.R.B.’s needs while in his care. Although DFCS declined to make a placement recommendation on the record, the case manager did testify that the agency had “no concerns” about G.R.B.’s well being while in his father’s care, and that he had completed all classes and programs required by his case plan. In light of this evidence, the juvenile court lacked clear and convincing evidence by which to find G.R.B. presently deprived as to his father. “

That final paragraph in the summary is what is most important in these facts; again, the case involved a history of methamphetamine use and domestic violence.  The case makes clear that a finding must be of PRESENT deprivation, and that a history of such use is not sufficient, standing alone.

Food for thought, and an important step forward for Georgia, where the opposite belief seems to be prevalent and fathers and mothers get threatened often in a divorce situation with termination of their custodial rights by the other parent because of their past drug histories.

Dec 6 15

Divorce Decree Property Awards and Creditor’s Liens

by merlin

Sorry to burst your bubble, but a creditor’s lien on property that a former spouse was holding that is then awarded to the other spouse as part of the divorce will still have that creditor’s lien on it.  The key lesson to take from the following case, Schofield v. Fearon, 169 Ga.App. 924 (Ga. Ct. App. 1984), is to always check to make sure the settlement agreement portion of a divorce decree addresses lingering debt on property.  As this case makes clear, unless fraud or other imperfection taints the claim, it will have to be honored.

Taylor W. Jones, C. Cyrus Malone III, Timothy R. Brennan, Atlanta, for appellant (case no. 66895).

Bruce H. Beerman, Allie S. Edwards, Jerry B. Blackstock, Karen D. Wildau, Kenneth A. Shapiro, Atlanta, for appellees.

Bruce H. Beerman, Allie S. Edwards, Atlanta, for appellant (case no. 66896).

Kenneth A. Shapiro, Jerry B. Blackstock, Karen D. Wildau, Taylor W. Jones, C. Cyrus Malone III, Atlanta, for appellees.

        POPE, Judge.

        Appellees Helen M. Fearon and Edward G. Hitt brought this action for declaratory judgment against appellant Ruthanna Schofield. Appellees sought the imposition of a “valid judicial lien superior in priority to any interest [Schofield] may have” in certain real property awarded to her pursuant to a final judgment and decree of divorce. Schofield answered the complaint and filed a third-party action against appellant Bruce W. Callner, Schofield’s attorney in the divorce proceedings. The third-party complaint alleged negligence and/or breach of contract and sought recovery of “any and all sums required to pay off or satisfy any lien found to be existing in favor of [appellees]….” Both Schofield and Callner appeal from an order of final judgment entered by the trial court granting appellees’ motion for summary judgment and denying Schofield’s motion for judgment on the pleadings. It appears from the record on appeal that the third-party action is still pending below.

        The sequence of events leading to the instant declaratory judgment action was as follows. On September 3, 1978 appellees Fearon and Hitt filed a lawsuit in the State Court of DeKalb County against Garvin A. Aycock, III, who at the time was the husband of appellant Schofield. On November 21, 1978 Aycock entered into an Agreement and Covenant Not to Execute Judgment (hereinafter, the “Agreement”) with appellees whereby Aycock agreed to the entry of a judgment (hereinafter, the “Consent

Judgment”) against himself in the above-mentioned lawsuit. Pursuant to the terms of the Agreement, appellees agreed not to record the Consent Judgment or execute on said judgment in consideration of the agreement of Aycock to make certain payments to appellees in satisfaction of the Consent Judgment. In the event of any default on the Agreement, however, appellees were entitled to immediately record the Consent Judgment on the General Execution Docket or like record of any court in this state or elsewhere and exercise any remedy afforded them. On January 16, 1980, pursuant to the terms of the Agreement, the Consent Judgment (in the amount of $28,674 plus costs and interest) was signed by a judge of the State Court of DeKalb County and consented to by both Aycock and his attorney.

        On August 15, 1980 Schofield filed a divorce action against Aycock. She was represented therein by appellant Callner. In connection with the divorce action, Schofield filed a lis pendens on certain real property (hereinafter, the “subject property”) titled in her husband, Aycock, located at 1234 Bellair Drive, N.E., Atlanta, DeKalb County, Georgia. Thereafter, Aycock defaulted on the Agreement. On December 12, 1980, as a result of Aycock’s default on the Agreement and pursuant to the terms of the Agreement, appellees entered the Consent Judgment on the General Execution Docket in DeKalb County. On February 5, 1982 a final judgment and decree was entered in the divorce action. Pursuant to that judgment, Aycock’s titled interest in the subject property was awarded to Schofield. There appears no dispute in the record here that title to the subject property was in Aycock’s name at all relevant times, i.e., at the time appellees obtained the Consent Judgment, at the time Schofield filed her divorce action and lis pendens, at the time appellees recorded their Consent Judgment, and at the time the final judgment and decree was entered in the divorce proceeding.

  1. Appellants first contend that because Schofield’s lis pendens notice was filed before the Consent Judgment was recorded, appellees could not acquire an interest in the subject property so as to frustrate the full legal effect of the final judgment and decree of divorce. See generally Tinsley v. Rice, 105 Ga. 285, 31 S.E. 174 (1898). Although the arguments made by appellants in support of this contention are persuasively presented, there is compelling authority contrary to their position.

        Our Supreme Court in Carithers v. Venable, 52 Ga. 389(2) (1874), held: “It is going very far to construe the divorce laws so as to tie up the property of the husband from sale by him, or from debts contracted by him after the separation. This is, however, … the provision of the Code. But the husband is, by the same section of the Code, authorized to sell, bona fide, in payment of pre-existent debts: [OCGA § 19-5-7 (Code Ann. § 30-112)]. Our opinion is, that a bona fide creditor may also sue his debt to judgment, and if he gets a lien before the property is set apart to the wife by the final judgment, the lien is good–she takes subject to it. This, as it seems to us, is fair, and in harmony with the provisions of the Code. Debts existing at the time of the separation have a high equity, and if they be reduced to judgment before the rights of the wife are fixed by a judgment, they ought, we think, under the general rules of our law, giving preference to the oldest judgment, to be first paid. To say that the lien of the wife retroacts to the date of the separation, so as to take away a right then existing in creditors, to sue and get a lien, is unjust to the creditor, who contracted with no such view. We are, therefore, of opinion that … a good judgment [of] superior date would give it preference to the judgment in favor of the wife.” Id. at 394. The facts in the case at bar are not significantly different from those in Carithers v. Venable, supra, and although the Code has been modified considerably since 1874, the law which provided the basis for the holding in Carithers is essentially the same today. Therefore, appellants’ first contention provides no ground for reversal.

  1. Appellants also contend that summary judgment in favor of appellees was incorrect because a genuine issue of material fact exists as to whether Aycock had title to the subject property against which appellees’ lien could attach. Schofield admitted in her answer that Aycock “held a titled interest in the [subject] property” prior to the entry of the final judgment and decree of divorce. Pursuant to the terms of the final judgment in the divorce action, title to the subject property was “restored into the name of [Schofield].” This was based upon the jury verdict which made the award “in lieu of alimony.” Callner averred in his affidavit that Schofield had claimed that Aycock’s fraudulent representations had induced her to transfer the subject property to Aycock and that because of this alleged fraud, the transfer to Aycock was invalid. See generally OCGA § 23-2-60 (Code Ann. § 37-309).

        Assuming arguendo that Schofield has set forth sufficient averments of fraud in this case as to the circumstances of her deed to Aycock of the subject property (see generally OCGA § 9-11-9(b) (Code Ann. § 81A-109)), there is neither an allegation nor any evidence of record that appellees were involved in or in any manner aware of Aycock’s alleged fraudulent behavior until after their judgment had become a valid lien upon the subject property. Under these circumstances, appellees were not affected by Aycock’s alleged misconduct and their lien upon the subject property was not vitiated thereby. See Hadden v. Larned, 87 Ga. 634(8), 13 S.E. 806 (1891); 8 EGL Deeds, § 106, p. 401 (1978 Rev.); see also Barron v. First Nat. Bank &c., 182 Ga. 796(1), 186 S.E. 847 (1936); Simmons Hardware Co. v. Timmons, 180 Ga. 531(3), 179 S.E. 726 (1935).

        For the reasons set forth herein, the trial court did not err in granting appellees’ motion for summary judgment and in denying appellant Schofield’s motion for judgment on the pleadings.

        Judgment affirmed.

        QUILLIAN, P.J., and SOGNIER, J., concur.

Nov 22 15

Re-Post (1/15/15 on DUI Arrests and Temporary Driving Permits)

by merlin

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.

ADDRESS:

Street City State ZIP Code

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

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

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

Signature of officer:

APPROVED FOR PAYMENT:

Comptroller

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

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

____________________________________________________

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

(1) Extension of 30 day temporary driving permit:

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

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

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

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

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

 (2) Extension of 180 day temporary driving permit.

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

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

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

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

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

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

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

Nov 18 15

Documented Efforts to Collect Attorney’s Fees (Part 7)

by merlin

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.

        Judgment reversed.

        MILLER, C.J., and BARNES, J., concur.

—————

Notes:

1. They also asserted claims against Maghari, but those claims are not at issue here.

 

Nov 17 15

Redacted Supplemental Brief (Contempt – Child Custody and Divorce)

by merlin

In keeping with my tradition, I have filed and served this so (it being a matter of public record now) it may be redacted to remove identifying marks and shared with my readers.  Again, if you have an argument with any point made, please raise it and defend your argument!

SUPPLEMENTAL BRIEF IN SUPPORT OF

DEFENDANT’S MOTION FOR CONTEMPT

 

COMES NOW Defendant XXXXX XXXXX, by and through undersigned counsel, and makes and files this, his Supplemental Brief in Support of Defendant’s Motion for Contempt, adding to his earlier pleading by including the necessary legal references to show that the Court is empowered to make the summary adjudication requested, and in support thereof states the following:

ISSUES PRESENTED

  1. By not making payment immediately upon the issuance of an Order by the trial judge that payment be made instanter to the Guardian Ad Litem, should Defendant be held in contempt?
  2. Even though the trial judge has stated that in practice the parties may avoid completing the Seminar for Divorcing Parents until the final hearing, may the parties’ children be placed with Plaintiff when she has not completed it?
  3. Can Plaintiff be held in contempt and penalized for her action without a hearing to determine willfulness?

 SHORT ANSWERS

  1. Defendant’s good faith effort to comply with the instanter Order of the trial judge shows the lack of willfulness in his actions, and a finding of contempt against him is inappropriate.
  2. Plaintiff may not be permitted by local unwritten custom to avoid completing the Seminar for Divorcing Parents until the end of the divorce action, and she certainly may not exercise any child custody without completing that requirement.
  3. Plaintiff may be held in contempt and penalized because her contempt was completed after the conclusion of 31 days following the service of the divorce Complaint, so willfulness has been proven by continuing it unabated.

ARGUMENT AND CITATION TO LEGAL AUTHORITY

  1. Without a finding of willfulness and no opportunity to speak on his own behalf, Defendant cannot be found in contempt of the Order of the Court to pay money that he did not have.

Defendant is not in contempt yet, because he has shown the effort to comply with the Order of the Court as soon as he was able to.  As demonstrated by Exhibit “A”, attached to the Motion submitted by Defendant in this situation, he has made effort to pay as soon as money became available to him to make payment.  Plaintiff’s motion, therefore, is both spitefully bullying and premature.  “When a party is charged with committing direct contempt, … due process is satisfied “by simply giving [the party charged] an opportunity to speak on her own behalf.” Johnson v. State, 258 Ga. App. 33, 36 (2) (b) (572 SE2d 669) (2002) (citation omitted). When a party is charged with committing indirect contempt, the party is “entitled, among other things, to reasonable notice of the charges, to counsel of his own choosing, and to the opportunity to call witnesses.” Ramirez v. State, 279 Ga. 13, 16 (3) (608 SE2d 645) (2005).  In this situation, the contempt committed was out of the presence of the Court itself, and was therefore indirect contempt.  No opportunity has been afforded to Defendant to obtain “reasonable notice of the charges, … counsel of his own choosing, and … the opportunity to call witnesses”.  Id.

Of course, an argument may be made that this situation involves a written Order that has been disobeyed by seeking a few days to gain the ability to comply with its terms, and that the due process concerns that are described above are, therefore, satisfied.  However, “[i]n order to establish criminal contempt for violation of a court order, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully.”  In the Interest of J.D., 316 Ga. App. 19, 23, 728 S.E.2d 698, 702 (Ga. Ct. App. 2012).  Willfulness, however, requires a very specific showing that is entirely lacking in this case.  To show the act was done without the reasonable excuses that mitigate it, “there must be proof beyond a reasonable doubt that the alleged contemnor had the ability to comply with the court order: It is essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.”  Id.  The facts have shown that there was no such ability in Defendant; more importantly, they showed that he acted to correct that situation for the sake of his children as quickly as he could.  This is not the case with Plaintiff.

2.       An Order in a domestic matter must be in writing, or it cannot and should not legally be enforced on the parties.

For every case that might be brought before the appellate courts, and for every matter decided by a trial court in a matter in dispute, there needs to be an Order.  The Order that Defendant states that Plaintiff has not complied with, and that the Court has verbally indicated does not require her compliance, is the completion of a required seminar for divorcing parents.

When this issue was raised by Defendant, the Court orally informed counsel that it was understood locally that the parties did not need to complete the seminar until the final hearing.  However, nothing indicates that this is either appropriate or legally-enforceable.  “[B]efore an appeal may be made, the judgment appealed from must be in writing, and not verbal.”  Crolley v. State, 182 Ga. App. 2, 3, 354 S.E.2d 864, (Ga. Ct. App. 1987) (citing to Merrill v. State, 128 Ga.App. 403, 404, 196 S.E.2d 876 (Ga. Ct. App. 1973)).  It is impossible for a party to appeal an unwritten Order.

The parties in a divorce case in the XXXXX-XXXXX Judicial Circuit are required by the written Orders that bind litigants to complete the Seminar for Divorcing Parents, and they have a certain time to do so or they are necessarily in violation of the Orders of the Court.  This is not a secret standard, but is found instead in several places.  USCR 24.8 requires that the seminar be established by each Judicial Circuit, but the Circuit itself establishes the particulars.  “The seminar must be completed within 31 days of service of the original complaint upon the defendant and the certificate must be presented to the judge at the time of the parties’ court appearance.” XXXXX County Administrative Order 11-01(4), XXXXX XX, 2010.    Defendant has completed this seminar, and his certificate of completion is on file with the Clerk’s Office.  A copy of said certificate of completion is attached to the motion which this brief supplements as Exhibit “A”.

The severity of Plaintiff’s failure to attend the seminar, as manifested through direct harm to the case itself by the improper use of the parties’ minor children as tools for advantage against Defendant, should properly be subject to appeal under Section 5-6-34 of the Official Code of Georgia.  That section establishes certain matters as subject to the direct appeal procedure, stating at subsection (a)(11) that the procedure encompasses “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody or holding or declining to hold persons in contempt of such child custody judgment or orders”.  The verbal permission that the Court has given Plaintiff to disregard this mandatory rule to the severe and irreparable detriment of Defendant has stripped Defendant of the opportunity to properly appeal this matter and thereby obtain relief.

  1. There is no need for a hearing on the issue of contempt; Plaintiff cannot provide any justification or defense for actions that have extended for several months.

Because Plaintiff did not complete the seminar even as of the date of this motion, several months after the parties were required to have finished the seminar, she is in contempt and no excuse can be offered for this act.  She has submitted her Domestic Relations Financial Affidavit in this case, and the Court has heard testimony relating to her gross income.  It is more than enough to absorb the cost of a required seminar that even Defendant attended, nor has she applied for any waiver for poverty.  Worse still, she continues to exercise custody over the children of the parties, often at substantial disadvantage to Defendant and as mere “tools” to gain a petty “edge” in her dispute with him contrary to the lessons taught in the Seminar she has foregone, and her punishment is lacking.  This is exactly the kind of behavior that contempt powers exist to curtail.

Section 15-1-4(a) of the Official Code of Georgia permits Courts to address certain acts of contempt through attachment of summary punishment.  Among the punishable acts under that Code section are “(3) Disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”.  “It is well-established that courts possess an inherent ‘power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.’”  United States v. Neal, 101 F.3d 993, 996 (4th Cir. 1996); citing International Union, UMWA v. Bagwell, 512 U.S. 821, —-, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994)).  “A contempt fine is considered civil and remedial if it either coerces [Plaintiff] into compliance with a court order or compensates [Defendant] for losses sustained.”  International Union, UMWA at 2553.

This Court is empowered to find that Plaintiff’s continuing failure to follow the written rules of this domestic action constituted indirect contempt of its written Orders, and that no defense is available since only remedy and redress may be had now that the time limits have significantly passed.  The actions of Plaintiff have caused substantial loss to Defendant, both in the form of misery by taking his children from him and in the form of direct financial loss, as he struggled to spend enough money to keep himself involved in his children’s lives.

CONCLUSION

The knowing and voluntary actions of Plaintiff were actionable civil contempt, and they continue unremedied.  Her refusal to gain the instruction provided by the Seminar for Divorcing Parents has resulted in direct harm to the children of the parties, and the verbal permission apparently given by the Court is no legal permission at all, depriving Defendant of the right to appeal the action and therefore, necessarily, invalid.  The sanctions for this behavior requested by counsel for Defendant are appropriate and should be imposed to redress this perversion of justice.