The following is a redacted motion and integrated brief for the production of documents in a divorce suit. To be honest, the efficacy of this, if any, is uncertain. Much as with adoption law, this is an area with which I have little prior experience, and learning about it peacemeal has been a new experience. However, the document has been filed, and I present the fruits of my labor for commentary from my readers – I welcome your thoughts on the ideas presented (especially concerning the idea that concealed evidence of adultery can show a deceptive character). Please note that this is NOT a motion and brief in support of nonparty production, which research is unnecessary at this point, and inappropriate under the procedural rules, but is instead merely meant to support an Order for Service.
MOTION AND BRIEF IN SUPPORT OF REQUEST FOR
PRODUCTION OF DOCUMENTS FROM THIRD PARTY
COMES NOW Defendant XXXXX XXXXX, by and through undersigned counsel, and respectfully requests that this honorable Court Order service of his Request for Production of Documents from Nonparty on XXXXX XXXXX, and officer with the United States Army, and in support of said Discovery request provides the following brief of the issues:
In pursuing Discovery of this case, XXXXX XXXXX has been required to seek relevant and material information from XXXXX XXXXX, a non-party to the present action with whom Plaintiff XXXXX XXXXX is believed to be now or have been previously romantically involved with based on substantial text message activity between the two persons during a relevant time period and at least one admitted physical encounter in XXXXX, Georgia. This Brief is written to support the need for Production of Documents to be Ordered by the Court from said third party.
Relevant Factual Background
On XXXXX XX, 2012, XXXXX XXXXX filed her Complaint for Divorce against XXXXX XXXXX. There are two minor children in common to the parties, and various real property located in XXXXX and XXXXX, Georgia. XXXXX XXXXX seeks production of documents from XXXXX XXXXX, a person who was stationed near XXXXX, Georgia, at the same time as his own service at that location in the United States Army, and with whom his wife had an ongoing relationship. The degree of this relationship is guessed at but not known with particularity, and XXXXX XXXXX is in possession of a substantial text message history between the telephone number which she used but which was listed in his name and the telephone number known to be used by him, as well as at least one admitted romantic physical encounter in XXXXX, Georgia. It is believed by Defendant that certain aspects of the relationship between the two, pertinent to issues of child custody, division of marital assets, and post-divorce payment would be revealed in greater detail in the documentary evidence sought by Defendant. The evidence is believed to have direct bearing on issues of child custody and the moral example that would be set by Plaintiff for her daughters during her subsequent contact with them, in addition to the ongoing issues of alimony and attorney’s fees sought by both sides in this case.
ARGUMENT AND CITATION TO LEGAL AUTHORITY
“The public policy of this state favoring the institution of marriage…is the strongest public policy recognized by law.” Ghrist v. Fricks, 219 Ga.App. 415, 418, 465 S.E.2d 501 (Ga. Ct. App. 1995). The evidence sought by Defendant is relevant to concealed adultery maintained by Plaintiff with a non-party during the time Defendant served as an officer in the military and afterwards, and the extent of said relationship was unknown to him as a consequence of the deception of Plaintiff. This is material to the issue of alimony because it demonstrates that Plaintiff’s deception was of an immoral nature and contrary to the marital relationship, and it is material to a child custody determination because it shows evidence of her bad character concerning an issue that is inherently based on character, such as the rearing of children.
I. The right of a party to Discovery is intended to be liberally construed and wide latitude is granted to the parties to pursue avenues of potential evidence.
Section 9-11-26(b)(1) of the Official Code of Georgia states that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action”. The question then arises as to what evidence is relevant. The Court has already made some comment demonstrating its opinion regarding the evidence of adultery in the case, in that it appears evident that both parties have committed the act. Its reliance on the doctrine of unclean hands as a principle for barring this avenue of inquiry, however, is misplaced. O.C.G.A. Section 23-1-10 states that “[h]e who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action”. Dispositive on the issue is the matter in which equitable relief was pled by both parties in this case – divorce. The division of marital property itself is affected deeply by adultery, and a comparison of fault between the two parties readily reveals that it is appropriate for the Court to judge the immoral pattern of behavior maintained by Plaintiff against her in making the determination of such division.
Seen in this light, the evidence becomes relevant for purposes of both alimony determination and child custody decisions when the extent of the adultery of the parties is considered, since evidence is expected to reveal that Plaintiff not only maintained one clandestine and known adulterous affair, but may have maintained more than one such relationship. “Georgia law favors the admission of any relevant evidence, no matter how slight its probative value may be”. In re Estate of Love, 274 Ga.App. 316, 321-322(4), 618 S.E.2d 97 (Ga. Ct. App. 2005). This evidence casts light directly on her character and fidelity, and is therefore relevant to both her entitlement to support and maintenance and her fitness as a parent.
Discovery is an integral and necessary element of our civil practice; wide latitude is given to make complete discovery possible. International Harvester Co. v. Cunningham, 245 Ga.App. 736, 538 S.E.2d 82 (Ga. Ct. App. 2000). Indeed, under the Georgia Civil Practice Act there is no limitation upon the method of discovering relevant evidence except by order of trial court. O.C.G.A. § 9-11-1 et seq.; Brown Transport Corp. v. Truett, 174 Ga.App. 189, 329 S.E.2d 521 (Ga. Ct. App. 1985). In the case at bar, the evidence sought by Defendant sheds light directly on adultery committed by a woman married to one officer in the United States Army but engaged in a surreptitious affair with yet another officer in the United States Army. This evidence is not harassing; it is probative of issues relevant to entitlement to a portion of the marital estate and to the appropriate example to be set for the children of the marriage. While it is true that the trial court must balance plaintiff’s right of discovery against defendant’s right to privacy, the trial court has wide discretion in the entering of orders permitting or preventing the use of discovery which is “oppressive, unreasonable, unduly burdensome or expensive, harassing, harsh, insulting, annoying, embarrassing, incriminating or directed to wholly irrelevant and immaterial or privileged matters, or as to matter concerning which full information is already at hand.” Apple Inv. Properties, Inc. v. Watts, 220 Ga.App. 226, 469 S.E.2d 356 (Ga. Ct. App. 1996); cf. Sechler Family Partnership v. Prime Group, Inc., 255 Ga.App. 854, 567 S.E.2d 24 (Ga. Ct. App. 2002). The evidence which Defendant seeks is not readily available from any other source, but has been hinted at and implied in her secretive behavior and the discovery by Defendant of otherwise inadmissible or inconclusive evidence of her actions. Seeking confirmation of this evidence is, therefore, not done for purposes merely of harassment, insult, or annoyance. It is within the trial court’s sound legal discretion to determine the permissible extent of discovery, keeping in mind that the discovery procedure is to be construed liberally in favor of supplying a party with the facts. Tenet Healthcare Corporation v. Louisiana Forum Corporation, 273 Ga. 206, 538 S.E.2d 441 (Ga. 2000).
II. Evidence of a concealed adulterous relationship, including suggestive text messages and clandestine meetings, is evidence of a deceptive character and negatively impacts Plaintiff’s appropriateness as a parent.
An adulterous relationship has served as a factor justifying an award of child custody to the innocent party in recent Georgia legal history, although the guilty party also conducted their affair openly in front of the child in question. See generally LaFont v. Rouviere, 283 Ga. 60, 656 S.E.2d 522 (Ga. 2008). What makes that instance relevant to the present situation, in which there has been no evidence that the suspected affair was conducted openly, is that the best interests of the child standard was the touchstone upon which the Court based its decision, and the factor of adultery by itself was specially noted by the Court as a factor in favor of its decision against the adulterer. Id. Indeed, only a year later the Court decided Haskell v. Haskell, 286 Ga. 112, 686 S.E.2d 102 (Ga. 2009), in which an award of child custody was made to a party guilty of uncondoned adultery based on the application of the best interests of the child standard, due to the established close relationship of the child with her father, the guilty party, as well as the stability concerns that would be addressed by remaining with her father, including her continued use of the same therapist and other evidence related to a change of location that a contrary award would create. However, the adultery was evidence that the Court did not forbid, merely noting that delving into it might harm the child. Id. at 113. The case was similar to the case at bar because the Court found that the close relationship of the child with the party that was guilty of adultery outweighed the evidence against the party, given that they intended to remain in that geographical location and continue using the same therapist, but the other party wanted to depart from that location and had expressed difficulty with the therapist. Evidence of an adulterous relationship can have a strong effect on the emotions of a party especially where matters of child custody are concerned, as well as the relationship between the parties themselves, though it is only one factor to consider in evaluating the best interests of the child(ren).
It is the unique nature of adultery as a means to inflame the passions that makes evidence of such a relationship by Plaintiff directly relevant to the divorce action in the case at bar. In the 2003 case of Ricketts v. State, 276 Ga. 466, 579 S.E.2d 205, the failure of the Court to inform that adultery could be a sufficient provocation to reduce murder to manslaughter in a conviction because of its effect on natural passions was a point of contention that was used by the Appellant to attack his conviction. Indeed, adultery has traditionally been of sufficiently intense emotional weight in Georgia jurisprudence to reduce murder to manslaughter when it is pled in mitigation. The suggested Pattern Jury Instruction at issue in Shields v. State, 285 Ga. 372, 677 S.E.2d 100 (Ga. 2009) stated that “a violent, sudden impulse of passion created in the defendant’s mind by ongoing adultery or the recent discovery of past adultery on the part of the victim(s)” permits the jury “to consider whether or not the defendant is guilty of voluntary manslaughter…” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.10.13 (4th ed. 2007). This was a charge that permitted a reduction by the jury from the crime of murder.
The issue of adultery as an indication of bad character in and of itself has arisen in the immigration context as a potential bar to immigration, but what was ultimately decided by the Courts was that “what Congress is seeking to curtail is ‘extramarital intercourse which tends to destroy an existing marriage’”. In re Briedis, 238 F.Supp. 149, 152 (N.D.Ill. 1965). This is exactly the situation that would serve as an indication of the bad character that would destroy the right of a person to become an American citizen under that analysis, and the behavior of Plaintiff could be highly relevant through examination of the evidence that is believed to be held by her paramour. It is believed to shed light on how such behavior manifested itself, and therefore to reveal the kind of person who claims to be the best placement for the children.
It is not unmarried intercourse that Georgia law forbids, because it recognizes the fact that the best interests of the child can be served by the continuation of persons in the child’s life who are not married. See generally In re Goudeau, 305 Ga.App. 718, 700 S.E.2d 688 (Ga. Ct. App. 2010). Rather, it is when immoral and unethical behavior is introduced into the marital and child custody arena that it becomes relevant to the Court’s inquiry. Id. at 721 (referring to “cases involving illegal contracts, change of custody and visitation cases between divorced parents, and criminal statutes prohibiting sodomy, fornication, and adultery).
O.C.G.A. section 19-9-1(a)(1) expressly permits a trial court determining the child custody arrangement between parties following a divorce to “look into all the circumstances of the parties”. However, the adulterous behavior of Plaintiff, even if it was not conducted in front of the children of the parties but was instead conducted secretively, is a relevant circumstance for the Court to examine and for Defendant to obtain Discoverable evidence concerning. The discovery procedure is to be given a liberal construction in favor of supplying a party with the facts without reference to whether the facts sought are admissible upon the trial of the action. Sechler Family Partnership v. Prime Group, Inc., 255 Ga.App. 854, 567 S.E.2d 24 (Ga. Ct. App. 2002).
In the case at bar, questions may already be asked of a parent who feels that it is appropriate to place children in the same home as a man accused of violently removing them from Defendant’s care and custody, and their familiar home environment, who stands accused of both Assault and Battery and Child Cruelty for his actions in the presence of the children. Though he is accused of such actions and has not been convicted for his behavior, his criminal history is replete with violent incidents of a similar nature, and Plaintiff has affirmatively acted in condemnation of Defendant for pursuing his prosecution. The present location of the children has been condemned by the therapist for the children, and her attitude regarding this incident is another manifestation of the inappropriate behavior that Defendant believes will be illustrated through the text message and electronic chat information now in the possession of the nonparty from whom Discovery is sought.
III. Even circumstantial evidence of a clandestine adulterous relationship demonstrates that it is inappropriate for Plaintiff to have any alimony or property settlement from her marriage to Defendant.
A petition for discovery, to be maintainable, should show that facts sought to be discovered can legitimately be used in a suit pending. Lucas v. Neidlinger, 210 Ga. 557, 81 S.E.2d 825 (Ga. 1954)(referencing previous Code provision § 38-1101). In the case at bar, the issues that are expected to be further elucidated and established as true are relevant to the issue of alimony entitlement demanded by Plaintiff, and show that this demanded relief is inappropriate. It is important that they be revealed, and it is more than likely that these messages and texts demonstrating the secret romantic and adulterous relationship of Plaintiff exist though they are entirely in the possession of a nonparty to this action. However, his sworn production of these documents, and the admissions of a party that they represent, are entirely admissible as evidence in the Counterclaim brought against XXXXX XXXXX by XXXXX XXXXX. Defendant was unable to obtain this evidence before a temporary hearing was held, but should not be foreclosed from pursuing this avenue of inquiry for the final hearing before the Court.
Despite Plaintiff’s apparent views to the contrary, “[a]n equitable division of marital property does not necessarily mean an equal division”, and the evidence that Defendant seeks shows that equitable relief should fairly serve to deny her an equal division. Wood v. Wood, 283 Ga. 8, 10, 655 S.E.2d 611 (Ga. 2008). In this case, the provision of temporary relief should not divest Defendant of the right to demonstrate, through valid and admissible proof, that he is entitled to such relief following the divorce itself.
“A provision for temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce; it takes into account the peculiar necessities of the spouse at that time and provides the means by which that spouse may contest the issues in the divorce action.” Langley v. Langley, 279 Ga. 374, 375, 613 S.E.2d 614 (Ga. 2004). The Court has already denied Defendant temporary alimony in favor of some fifty-fifty division of the debts of the parties, but it is because of the surreptitious nature of Plaintiff’s behavior that the evidence of her adultery was not readily available. It is necessary that this evidence be brought to light to curtail her ability to walk away from her marriage to Defendant with no harm from her misdeeds. She has prayed in this case for equitable division, but “where equitable division of property is in issue, the conduct of the parties…during the marriage…is relevant and admissible.” Wood at 11 (quoting Peters v. Peters, 248 Ga. 490, 491-492(2), 283 S.E.2d 454 (1981)).
CONCLUSION
The documentary evidence believed by Defendant XXXXX XXXXX concerning the adulterous behavior of Plaintiff XXXXX XXXXX during the course of their marriage, unavailable from other sources but believed to be in the possession of nonparty XXXXX XXXXX, is both admissible and directly relevant to issues that require an accurate portrait of the character of Plaintiff. Issues such as child custody, alimony, and equitable division of marital property all focus in large part on the respective character of the parties with regard to the example set by them for their children, the manner in which they treated their spouse both in their presence and behind their back, and their respective entitlement to the fruits of their marital union are all issues that may be better understood by the trier of fact in assessing their marriage by reference to the text and chat messages believed by Defendant to be in the possession of XXXXX XXXXX. For this reason, though he is a nonparty to this action and an officer in the United States Army, Discovery should be permitted and service should be Ordered by the Court.
WHEREFORE, Defendant XXXXX XXXXX requests the following relief:
a) That an Order issue from this Court authorizing service of a Request to Produce upon XXXXX XXXXX, an officer in the United States Army stationed at Fort XXXXX in XXXXX County; and
b) For such other and further relief as the Court in its discretion deems fit to grant.
How depressing! It was only when redacting this document that I discovered the errors I made in preparing it. Though they should be obvious to the intended audience (I have revised it accordingly for presentation here), I hate it when a carefully-researched document looks hastily or sloppily done. Quality, not quantity, right?
I do not know if this document will succeed or not, but I stand by the research it relates:
_______________________________________________________________________________
MOTION FOR RECONSIDERATION
COMES NOW Defendant XXXX, by and through undersigned counsel, and makes and files this, his Motion for Reconsideration, with good reason respectfully requesting that this Court revisit its verbally-announced decision at the Temporary Hearing heard on the XXXX day of XXXX, 2012, specifically on the issues of contempt for disregard of the mandatory Parenting Seminar for the parties as it impacts the current child custody arrangements, and the related temporary alimony and temporary attorney’s fees, as well as the verbal decree of the Court with regard to the Interrogatory responses and objections already made by Defendant, and in support thereof states the following:
1.
It is established law that a judge may modify an Order entered within the same term of Court. However, the terms of Court of the Superior Court of XXXX are established by O.C.G.A. § 15-6-3, and a new term commenced under that Code Section on May 7, 2012. The Court may deviate or differentiate in the terms of an Order verbally-issued but not yet committed to signed writing and filed. See generally Beard v. Beard, 285 Ga. 675, 681 S.E.2d 138 (Ga. 2009).
2.
At the temporary hearing on this issue, the presiding judge Ordered that the minor children of the parties be placed in the marital residence and that the parties themselves rotate in and out of the marital residence on an alternating schedule. This placement of the children was directed by the judge following careful consideration of the testimony of an expert witness on Child Therapy presented by Defendant, and represents her stated beliefs and the findings that she has made on the best interests of the children in question. Rule 11 of the Domestic Relations Action Standing Order for the XXXX Judicial Circuit, which indisputably governs this case, requires that “[t]he Plaintiff…complete the [mandatory Parenting] seminar within 31 days of filing the Complaint”. This issue was raised by counsel for Defendant at the Temporary Hearing in this matter, and counsel for Plaintiff affirmatively and falsely stated that the requirement did not have to be met until the time when a final decree of divorce was entered. The objection by Defendant to this was not ruled on by the Court.
3.
In addition, Rule 4 of the Internal Operating Procedures of the XXXX Judicial Circuit requires that parties complete an approved Parenting Seminar “within 31 days of filing the Complaint”. Uniform Superior Court Rule 24.8(E) states “[u]nless waived, the failure to successfully complete the seminar shall be cause for appropriate action by the assigned judge, including but not limited to, withholding the final decree of divorce, attachment for contempt and award of attorneys’ fees and costs”. Defendant XXXX completed the parenting seminar before the temporary hearing in this case, but Plaintiff XXXX, who served the Complaint in this matter, has never completed this seminar and her counsel falsely informed the Court that she did not have to accomplish this. For reasons that are unclear, this statement was unchallenged by the Court even though it was patently false and an objection was made by counsel for Defendant. This has yet to be remedied as of the date of this Motion, and Plaintiff has yet to attend this seminar despite having happily taken up residence around the minor children. This matter must be addressed before the suggested rotation of parents and the child custody arrangement of the Court continues, as required by the Rules of this Circuit and the Uniform Superior Court Rules.
4.
When XXXX sought a divorce from XXXX, she was the primary wage-earner of the household. On XXXX, she had given him check number XXXX for $ XXXX (XXXX Dollars), drawn off her separate bank account at XXXX Bank, to pay for certain utility payments of both parties which were then due, including their mortgage payments. However, XXXX immediately thereafter issued a “stop payment” directive on the check, and informed Defendant that her actions were taken as retribution for the criminal proceedings that had arisen against her stepfather in a separate matter arising from his violent actions against Defendant. Defendant XXXX is employed primarily as a real estate agent, and is unable to meet the financial obligations of the parties on his own, without the financial assistance of Plaintiff. He has since obtained additional employment at a far lower pay rate than that received by Plaintiff XXXX, but he paid the joint bills of the parties for approximately one month before any payment was assumed by Plaintiff. He should not be punished financially for his efforts to pay her bills after she moved out and injured him maliciously, and it has handicapped his own efforts to provide an equivalent legal response to this action.
5.
OCGA § 19-6-3(a) states in pertinent part that “[w]henever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case.” Expenses of litigation are a permitted part of said Order, and they are hereby requested, as well. These expenses have been requested of the Court, but its verbal Order (and the written draft of this Order by counsel for Plaintiff) deny this relief. The actions of Plaintiff and her counsel to financially defraud Defendant of the money needed to properly litigate this matter, and their behavior with regard to child custody issues and the civil conduct expected of adults involved in divorce actions justify Defendant’s request for temporary alimony. The Court has heard ample evidence demonstrating the significant financial disparity between the parties.
6.
Section 19-6-3(c) states that the merits of the case are not at issue at a hearing on temporary alimony, but that the judge “may inquire into the cause and circumstances of the separation rendering the alimony necessary “. The circumstances which have been established in this case show that Defendant has been saddled with the entirety of the not-insubstantial debt of the parties as a consequence of Plaintiff’s actions, and reconsideration of this issue in light of her decided responsibility for this financial handicap is requested. The purpose behind an award of temporary alimony in a divorce matter “is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce”. Robinson v. Robinson, 287 Ga. 842 at 847, 700 S.E.2d 548 (Ga. 2010). The “domestic crisis” in the case at bar is entirely the creation of Plaintiff, and appears to be causing harm disproportionately to Defendant.
7.
In the case at bar, attorney’s fees have been requested by counsel for Defendant under the provisions of OCGA § 19-6-2, which does not require finding by the Court of the approximate value of legal abilities in the community and the relative complexity of the case, as determined by the wisdom and discretion of the judge. “The purpose of an award of attorney fees pursuant to § 19-6-2 is to “ensure effective representation of both spouses so that all issues can be fully and fairly resolved.”” Moon v. Moon, 277 Ga. 375, 377, 589 S.E.2d 76 (Ga. 2003).
Attorney’s fees have also been requested by counsel for Defendant under the provisions of OCGA § 9-15-14, for actions taken by the other party in bad faith, which does require findings made by the Court. “The damages authorized by § 9-15-14 “are intended not merely to punish or deter litigation abuses but also to recompense litigants who are forced to expend their resources in contending with [abusive litigation].”” Id. (quoting Ferguson v. City of Doraville, 186 Ga.App. 430, 440 (on MFR), 367 S.E.2d 551 (1988)(overruled on other grounds)). Significant evidence was heard by this Court in the form of testimony regarding the behavior of Plaintiff related in the above paragraphs, which “set the stage” for this action for divorce between the parties, and this request is supported by the evidence. In addition, the rotation of parents verbally directed by the Court has begun, and Plaintiff has assumed occupancy of the marital residence without completing the mandated Parenting Seminar or first obtaining a waiver from the Court and only upon the affirmative misrepresentation of her counsel. The Court previously verbally stated that it would withhold its judgment on the matter of attorney’s fees, but they are necessary in the case at bar to permit the parties to litigate their dispute fully, and the conduct of Plaintiff has more than justified their imposition as sanction for her bad faith action
8.
As to the issue of the responses and objections made by Defendant, the Court made a verbal Order at the Temporary Hearing on XXXX that Defendant must answer all Interrogatories fully. Nothing further was specified, nor was the propriety or applicability of the individual objections made ruled upon, and this blanket Order is manifestly inappropriate. The Interrogatories objected to are varied, and responses were given by Defendant to most of them without qualification even when objected to. O.C.G.A. § 9-11-26(b)(3) requires a showing by party seeking Discovery of “substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means”. Wherever items have been objected to by Defendant and no information has been given, it was in reliance on this Code Section and other applicable Code Sections. Defendant will gladly provide information directed by the Court to individual items of valid Discovery but the scope and breadth of the items that Plaintiff has requested indicate instead that they are simply unwilling to look at the Domestic Relations Financial Affidavit or to take note of the testimony of expert witnesses in child therapy or to seek instruction on basic Parenting strategies.
RE-POST (3/14/12)
This is the basic standard for adultery evidence in Georgia. It is good to remind readers (and, by extension, myself) of this standard, and I am re-posting it for that reason. It gets overlooked often by people who choose to know “who” but not “what”, where legal process is concerned.
The basic test for the use of an allegation of adultery in a marriage situation in Georgia comes from the 1962 decision in Johnson v. Johnson, 218 Ga. 28, 126 S.E.2d 229, and can be summed up as proof of two things:
1. There needs to be a showing of an “adulterous disposition” (for example, a past proven incident of adultery that was condoned); and
2. There needs to be reasonable opportunity to commit adultery.
Since adultery is the kind of thing that generally has to be shown by circumstantial evidence, an allegation is presumed true unless it is rebutted, and these two things, if shown to the satisfaction of the trier of fact, will support that allegation. The case follows:
[218 Ga. 30] Miller, Martin, Hitching Tipton & Lenihan, Chattanooga, Tenn., Frank M. Gleason, Rossville, for plaintiff in error.
Van Cleave, Hatfield & Parker, J. W. Van Cleave, W. A. McClure, McClure & McClure, Chattanooga, Tenn., for defendant in error.
Syllabus Opinion by the Court
[218 Ga. 28] DUCKWORTH, Chief Justice.
1. Adultery may be proved by circumstantial evidence, but such evidence must infer as a necessary conclusion that adultery was committed. But if such evidence is fairly susceptible of two interpretations, one consistent with innocence and the other with guilt, it is not sufficient to prove adultery. Divorce and Separation, 17 Am.Jur. p. 552, § 432; Weaver v. State, 74 Ga. 376; Starke v. State, 97 Ga. 193, 23 S.E. 832; Thompson v. State, 61 Ga.App. 624, 7 S.E.2d 189. And there must be both (1) an opportunity and (2) an adulterous disposition in order for adultery to be inferred from circumstantial evidence. Divorce and Separation, supra, p. 552, § 433.
[218 Ga. 29] 2. The evidence here before the court on interlocutory hearing to determine temporary alimony disclosed that the petitioner’s wife on a certain date left her home on Lookout Mountain in Walker County, Georgia, supposedly to visit friends near Atlanta, Georgia, but, instead, clandestinely met a certain man at a motel in Kentucky where they had adjoining rooms for several days and nights, were seen together at restaurants, driving together in automobiles and at the motel, entering and leaving each other’s rooms and spending the nights together in her room with the lights off and a number of hours during the day; and thereafter she made certain admissions of wrongdoing to others and that she hoped her friends, her husband and her son would forgive her; and this evidence was uncontradicted although Code Ann., § 38-1606 (Ga.L.1951, pp. 596, 597) makes a person charged with adultery ‘competent to testify as to his or her innocence of such charge.’ Thus, the wife having within her the power, opportunity to testify and deny, if true, the charge of adultery, a presumption arises under Code § 38-119 that the charge was well-founded. Definite proof of adultery was shown such that it excludes every reasonable hypothesis save that of adultery, which the lower court could not ignore. See Code § 30-205; Williams v. Williams, 114 Ga. 772, 40 S.E. 782; Johnson v. State, 119 Ga. 446, 46 S.E. 634; Harrison v. Odum, 148 Ga. 489, 496, 96 S.E. 1038; Hudson v. Hudson, 189 Ga. 410, 411, 5 S.E.2d 912.
3. While the answer and cross-action of the wife contained allegations of denial and condonation, the evidence fails to show condonation of the cause of separation which the uncontradicted evidence discloses was the adultery of the wife, and even though there was conflicting testimony as to the cruelty of the husband, alleged as a ground of divorce in the cross-action, it follows that the court abused its discretion in awarding temporary alimony to the wife. Code, § 30-205; Davis v. Davis, 134 Ga. 804, 68 S.E. 594, 30 L.R.A.,N.S., 73; Grant v. Grant, 184 Ga. 339(2), 191 S.E. 98;Bulloch v. Bulloch, 188 Ga. 699, 700, 4 S.E.2d 630; Hudson v. Hudson, 189 Ga. 410, 411, 5 S.E.2d 912; Livingston v. Livingston, 211 Ga. 420, 86 S.E.2d 288; Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115.
4. Examination of the grounds of the demurrer to the answer [218 Ga. 30] fails to disclose any error in the court’s ruling sustaining some, but overruling other, grounds thereof. It is well settled that a defendant’s pleas and answer may contain as many several matters as the defendant thinks necessary for his defense and no part of the answer shall be stricken out or rejected on account that it may be contradictory to other portions of the answer. Code, Ch. 81-3, as amended.
5. The bill of exceptions fails to point out that the suppression of the depositions was harmful, since the evidence to be supplied by them is unknown to this court and the same might well be merely cumulative evidence or have no bearing on the issues. Thus, whether or not the depositions should have been returned by registered mail instead of certified mail, the assignment of error is without merit. However, the statute (Code § 38-2501) should be strictly construed, and even though the protection given to certified mail may be sufficient, the Legislature having called for return by ‘registered mail’, it could not possibly have meant certified mail which has since been created (Pub.L. 86-682, Sept. 2, 1960, 74 Stat. 680; Title 39, Ch. 81, §§ 5001, 5012).
6. Whether or not the objection to the question propounded to the witness on cross-examination that the ground of the cross action for divorce here was similar to the grounds in three other divorces of the husband would require the production of the highest and best evidence was well taken, the answer elicited was that the witness did not know, which shows no harmful error, and this assignment of error is without merit.
7. For the reasons stated in headnotes 2 and 3 above, the
Judgment is reversed.
All the Justices concur.
In Georgia, the earlier Civil Code previously required that responses to Requests to Admit, a Discovery tool in Civil practice, had to be sworn and under oath. In fact, the Courts had expressly decided that submitting unsworn responses had the same legal effect as making no answer at all (in essence, the Request is deemed to be admitted). However, this is no longer the law.
A response to a Request to Admit does not need to be under oath. The following is the 1979 Court of Appeals case of Cable Masters, Inc. v. Shaw, 151 Ga.App. 153, 259 S.E.2d 157:
[151 Ga.App. 154] R. Joseph Costanzo, Jr., Atlanta, for appellant.
Oscar N. Persons, Jay D. Bennett, Atlanta, for appellee.
[151 Ga.App. 153] BANKE, Judge.
The problem presented by this appeal is identical to the one considered by this court recently in the case of Hilton Hotels Corp. v. Withrow Travel etc., Inc., 150 Ga.App. 435, 258 S.E.2d 59. The trial court granted summary judgment to the appellee because
Page 158
the appellant’s responses to certain requests for admissions were unsworn. Held :
The trial court’s order, rendered some months before our decision in the Hilton Hotels case, supra, relied onBurge v. High, 147 Ga.App. 267, 248 S.E.2d 546 (1978). However, Hilton Hotels reversed Burge and held, in accordance with Code Ann. § 81A-136 (Ga.L.1966, pp. 609, 648, as amended through Ga.L.1972, pp. 510, 528), that responses to requests for admission need not be under oath. The responses in this case were thus properly made. [151 Ga.App. 154] Since they present material issues of fact for resolution at the trial level, the grant of summary judgment was in error.
Judgment reversed.
McMURRAY, P. J., and UNDERWOOD, J., concur.
The other issue which often arises for persons conducting civil litigation on their own is the legality of having an attorney respond to the Requests to Admit, instead of the party themselves giving the answers. Again, reference may be made to a case deciding this very issue, via the 1979 (a busy year for the Court as concerns Discovery issues) Court of Appeals case of Avco Financial Services Leasing Co. v. Mullins, 152 Ga.App. 120, 262 S.E.2d 266, the Court upheld this practice.
|
[152 Ga.App. 121] Sam Johnson, Jonesboro, for appellant. Robert L. Collins, Jr., Calhoun, for appellee. [152 Ga.App. 120] BIRDSONG, Judge. This case is before us based upon the grant of an interlocutory appeal. Appellant Avco Financial Services Leasing Co. has urged two grounds as the basis of its motion. The first argues that it was error for the trial court to consider certain admissions filed in response to a request for admissions because the admissions were [152 Ga.App. 121] signed by counsel for the appellee Mullins rather than by Mullins himself. This argument is not meritorious inasmuch as admissions may be signed by either the party or his counsel. Hilton Hotels Corp. v. Withrow Travel Service, 150 Ga.App. 435, 258 S.E.2d 59. The second ground urged by Avco is that it was error for the trial court to deny Avco’s motion for summary judgment. In his fifth defensive answer, Mullins asserted the defense of fraud in that Avco was aware of a change in law that would render the leased equipment obsolete, failed to inform Mullins of that change, and in effect “unloaded” obsolete equipment on Mullins. This asserted defense of fraud has not been pierced in any way by Avco by its own amended pleadings or affidavits. It was not error for the trial court to deny Avco’s motion for summary judgment where issues of fact remain for determination. Saunders v. Vikers, 116 Ga.App. 733, 734, 158 S.E.2d 324; Scales v. Peevey, 103 Ga.App. 42, 46, 118 S.E.2d 193. In view of the foregoing, it is concluded that the grant by this court of the interlocutory appeal was improvident. The appeal is dismissed and the case returned to the trial court for disposition. Appeal dismissed. QUILLIAN, P. J., and SMITH, J., concur. |
Nonparty Discovery in Georgia
This is not a topic that I had directly confronted before, but it is something that has been peripherally present in many cases in the past. However, it is very advantageous to pursue in a case at the time so I post more about it here for anyone who confronts this issue themselves.
It is important to note that the only Discovery provision of the Georgia Code that allows Discovery steps taken against nonparties is Section 9-11-34 (inspection of documents and land). Subsection (c) provides explicitly at subsection (1) that “[t]his Code section shall also be applicable with respect to discovery against persons, firms, or corporations who are not parties, in which event a copy of the request shall be served upon all parties of record; or, upon notice, the party desiring such discovery may proceed by taking the deposition of the person, firm, or corporation on oral examination or upon written questions under Code Section 9-11-30 or 9-11-31. The nonparty or any party may file an objection as provided in subsection (b) of this Code section. If the party desiring such discovery moves for an order under subsection (a) of Code Section 9-11-37 to compel discovery, he or she shall make a showing of good cause to support his or her motion. The party making a request under this Code section shall, upon request from any other party to the action, make all reasonable efforts to cause all information produced in response to the nonparty request to be made available to all parties. A reasonable document copying charge may be required.”
Subsection (2) explicitly makes the section applicable to “practitioners of the healing arts”. Having looked further into this, this is a common sense idea to get medical records, which is pretty necessary in many cases (especially automobile accidents and medical malpractice cases, among others). Subsection (3) is a protection against liability for the facilities or “practitioners of the healing arts” that disclose these records.
Note, though, that the two other very common Discovery tools used – Requests to Admit and Interrogatories – are only applicable against other parties in an action. They don’t appear to have an explicit statutory applicability to nonparties (although there is presumably a way to obtain this Discovery, as well, by express direction of the Court to the nonparty).
Georgia Step-Parent Adoption
A question on Avvo.com, a web service that I use that rates attorneys in different practice and geographical areas, made me consider the issue of adoption by step-parents. This is something I have done in the past, but it isn’t something that people seem to widely understand. Georgia law contains an implied nod to public policy behind adoption actions by spouses only, by the way, as I have learned through experience. However, the Georgia Code expressly provides for adoption of one spouse’s child by the new/other spouse, at Code Section 19-8-6. That Section provides as follows:
(a) Except as otherwise authorized in this chapter:
(1) A child whose legal father and legal mother are both living but are not still married to each other may be adopted by the spouse of either parent only when the other parent voluntarily and in writing surrenders all of his rights to the child to that spouse for the purpose of enabling that spouse to adopt the child and the other parent consents to the adoption and, where there is any guardian of that child, each such guardian has voluntarily and in writing surrendered to such spouse all of his rights to the child for purposes of such adoption; or
(2) A child who has only one parent still living may be adopted by the spouse of that parent only if that parent consents to the adoption and, where there is any guardian of that child, each such guardian has voluntarily and in writing surrendered to such spouse all of his rights to the child for the purpose of such adoption.
(b) In the case of a child 14 years of age or older, the written consent of the child to his adoption must be given and acknowledged in the presence of the court.
(c) The surrender specified in this Code section shall be executed, following the birth of the child, in the presence of a notary. A copy shall be delivered to the individual signing the surrender at the time of the execution thereof.
(d) A person signing a surrender pursuant to this Code section shall have the right to withdraw the surrender as provided in subsection (b) of Code Section 19-8-9.
(e) (1) The surrender by a parent or guardian specified in subsection (a) of this Code section shall meet the requirements of subsection (e) of Code Section 19-8-26.
(2) The biological father who is not the legal father of a child may surrender all his rights to the child for purposes of an adoption pursuant to this Code section. That surrender shall meet the requirements of subsection (d) of Code Section 19-8-26.
(f) A surrender of rights shall be acknowledged by the person who surrenders those rights by also signing an acknowledgment meeting the requirements of subsection (g) of Code Section 19-8-26.
(g) Whenever the legal mother surrenders her parental rights or consents to the adoption of her child by her spouse pursuant to this Code section, she shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26.
(h) Whenever rights are surrendered pursuant to this Code section, the representative of each petitioner shall execute an affidavit meeting the requirements of subsection (k) of Code Section 19-8-26.
(i) A surrender or consent pursuant to this Code section may be given by any parent or biological father who is not the legal father of the child sought to be adopted irrespective of whether such parent or biological father has arrived at the age of majority. The surrender given by any such minor shall be binding upon him as if the individual were in all respects sui juris.
(j) The parental consent by the spouse of a stepparent seeking to adopt a child of that spouse and required by subsection (a) of this Code section shall be as provided in subsection (l) of Code Section 19-8-26.
Notice that this Code Section requires that the other parent voluntarily provide their written consent to the adoption. The Section does not provide for this consent to be obtained any other way. However, I have provided the2004 case of McCurry v. Harding, 270 Ga. App. 416, to illustrate the ability of the Court to address this situation. Abandonment (under a legal definition) of a child for more than a year permits the Court to terminate the parental rights of the missing father or mother, and the remaining parent (the person seeking to have their spouse file for adoption of their child) must execute an affidavit that complies with the Code Section and sets out the facts needed by the Court to terminate the absent spouse’s parental rights. What make this case especially interesting is that it acknowledges that adoptions must be strictly construed, but that the absence of some of the paperwork can be overlooked by the Court in pursuing the best interests of the child. This is a difficult law to apply, and it is a good reason to always have the services of an experienced attorney when pursuing this route.
270 Ga. App. 416
McCURRY
v.
HARDING.
No. A04A1451.
Court of Appeals of Georgia.
November 12, 2004.
[606 S.E.2d 640]
Anthony M. Zezima, Atlanta, for appellant.
Key, McCain & Gordy, R. Michael Key, Virginia L. Zachry, La Grange, for appellee.
BARNES, Judge.
This is an appeal from the grant of a stepparent adoption. The trial court entered a decree allowing Wesley Harding to adopt the three natural children of Christopher
[606 S.E.2d 641]
McCurry. In granting the petition for adoption the trial court found that McCurry had failed to communicate with or support the three minor children for a period of at least one year, terminated his parental rights, and held that theadoption was in the best interest of the children. McCurry appeals, contending that the adoption petition did not comply with Georgia statutory law, and that the trial court erred in terminating his parental rights, in finding that hisconsent was not a prerequisite to the adoption petition, in finding that the adoption was in the best interest of the children, and in ruling on a finding that was based on perjured testimony. Upon review, we discern no error and affirm.
The evidence shows that McCurry and his wife were divorced on February 11, 1999, while living in Alabama. The wife was awarded custody of the three minor children, and McCurry was ordered to pay 91.08 in child support per week. The wife testified that on several occasions McCurry refused to abide by the terms of the divorce decree by not returning the children promptly after visitations and by not paying the court-ordered child support. She also expressed concern about the children’s safety when they were with McCurry, and testified that McCurry would drive around with the three-year-old in his lap, rather than in a car seat. She also said that on one occasion after visiting McCurry, the oldest daughter was upset, had an undisclosed medical problem, and refused to go back. The mother filed a petition for suspension of visitation in October 2000.
Shortly thereafter a hearing was held on the motion, and also on a petition from the Department of Human Resources about McCurry’s nonpayment of child support. McCurry did not attend the hearing. The lower court suspended McCurry’s visitation until “he presents himself in Court to answer the allegation relative to the request for suspension of visitation and to present to the Court good cause for his failure to pay child support in a timely fashion.” Another hearing [270 Ga. App. 417] was rescheduled for November 2000. McCurry once again did not appear, and the court issued an arrest warrant for him.
The mother and Harding married in May 2000. From October 2000 until September 2003, the mother did not have an address for McCurry. She testified that McCurry would not give her his address, but that she knew he had moved to Tennessee and lived in Chattanooga. Between October 2000 and September 2003, when the adoptionpetition was filed, McCurry did not voluntarily provide any child support to the children. As of the date of the hearing on the adoption petition, McCurry was in arrears over 22,000 for the nonpayment of child support.
”[I]n matters of adoption the superior court has a very broad discretion which will not be controlled by the appellate courts except in cases of plain abuse.” (Citation and punctuation omitted.) Bateman v. Futch, 232 Ga.App. 271, 274(2), 501 S.E.2d 615 (1998).
1. (a) McCurry argues that the adoption petition did not comply with Georgia statutory law. He contends that the petition originated under the provisions of OCGA § 19-8-6(a)(1)1, because “the biological parents of the children were married, and then divorced, but are still living,” and thus, the mother was required to include an affidavit with the adoption petition that complied with the requirements of OCGA § 19-8-26. He asserts that because the mother did not attach the affidavit, the adoption was invalid.
Harding contends that the petition was not filed under OCGA § 19-8-6, but rather was filed in accord with OCGA §§ 19-8-13(a)(7) and 19-8-10(b), which provide that parental rights need not be surrendered before anadoption petition is filed if the court determines the children have been abandoned by
[606 S.E.2d 642]
that parent. Thus, he argues, the affidavit required by OCGA § 19-8-6 was “unnecessary and irrelevant.”
OCGA § 19-8-6 controls stepparent adoptions. Spires v. Tarleton, 225 Ga.App. 117, 483 S.E.2d 337 (1997). And, contrary to Harding’s contention otherwise, under OCGA § 19-8-6(g), “[w]henever the legal mother … consents to the adoption of her child by her spouse pursuant to this Code section, she shall execute an affidavit meeting [270 Ga. App. 418] the requirements of subsection (h) of Code Section 19-8-26.” Subparagraphs (h)(1)(G) and (H) of OCGA § 19-8-26 state that the affidavit shall describe, among other things, whether the father lived with the children, whether he contributed to their support, and all financial assistance he provided.
As a general rule, the failure to attach or explain the absence of a statutorily mandated document when the petition is filed requires reversal because the adoption statutes should be strictly construed and meticulously followed. However, this rule has exceptions. We have held that an adoption will not be set aside because of technical flaws in the petition under certain circumstances. For example, if, under the particular facts of the case, the missing document or portion thereof is shown to be immaterial, we will not upset an otherwise valid … adoption. The purpose of the mother’s affidavit, as stated on the form itself, is to gather information to be used by the [court] in notifying and determining the rights of the father. It does not purport to protect or otherwise affect the rights of the mother. In this case, the father’s identity was known. Paternity was never disputed. The father voluntarily participated in the adoptionproceeding, [and] received proper notice of the petition….
(Citation and punctuation omitted.) Mabou v. Eller, 232 Ga.App. 635, 638(2)(c), 502 S.E.2d 760 (1998). Compare Spires v. Tarleton, supra, 225 Ga.App. 117, 483 S.E.2d 337.
We find that under the facts of this case, as in Mabou, “the mother’s affidavit was immaterial and any defect in the petition due to its absence was harmless.” Mabou v. Eller, supra, 232 Ga.App. at 638, 502 S.E.2d 760. The facts before us are unlike the “unique set of circumstances” we found in Coleman v. Grimes, 250 Ga.App. 880-881, 553 S.E.2d 185 (2001), in which we reversed the termination of a father’s parental rights and decree ofadoption. In that case, the mother’s affidavit contained “knowingly false statements purporting to address the material issues of [the father's] lack of parental involvement,” and thus the affidavit did not substantially comply with the requirements of OCGA §§ 19-8-6(g) and 19-8-26(h) so as to sustain a judgment terminating the father’sparental rights based on it. (Emphasis in original.) Id. at 891(2), 553 S.E.2d 185. The termination and adoption in that case were set aside for additional reasons, none of which apply to this case.
(b) McCurry also argues that the adoption petition was defective because forms containing background information on the children were not attached to the petition as required by OCGA § 19-8-13(a)(4)(G). McCurry does not argue that incorrect forms were filed, but [270 Ga. App. 419] argues that background forms were not filed, an argument clearly belied by the evidence. Our review of the record discloses that a form entitled “Background Information for Non-State Agency Child” was completed for each child and attached to the petition. Thus, this argument is meritless.
2. McCurry argues that the trial court erred in finding that his consent was not required for the adoptionpetition. While he is correct that stepparent adoptions are brought under OCGA § 19-8-6, contrary to his assertion, his consent is not required.
OCGA § 19-8-6(a)(1) provides for a stepparent adoption in which the natural parent consents, but the statute notes that the provision applies “except as otherwise authorized” in the adoption statute. A stepparent adoption is otherwise authorized under OCGA § 19-8-10(b), without the natural parent’s surrender,
if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed … [t]o communicate or to make a bona fide attempt to communicate with that child in a[606 S.E.2d 643]
meaningful, supportive, parental manner; or [significantly failed] to provide for the care and support of that child as required by law or judicial decree.
Accordingly, under this Code section, if the trial court found that McCurry failed to communicate with or provide for the care and support of his children for one year or longer, then McCurry’s consent was not required. In this case, the trial court made such a finding of fact, and further found that McCurry had abandoned his children under the laws of the State of Georgia. The court then made the conclusion of law that, because McCurry unjustifiably failed to communicate with or support his children for a period longer than one year before Harding filed the petition, McCurry’s parental rights were terminated. Therefore, the trial court did not err in approving theadoption without McCurry’s consent.
3. McCurry argues that the termination of his parental rights violated due process because he had no notice that the court hearing was for that purpose. First, McCurry waived that argument by failing to raise it in the trial court. In the Interest of B.A.S., 254 Ga.App. 430, 434(2), 563 S.E.2d 141 (2002).
Second, the record established that McCurry had notice that his parental rights might be terminated. He was personally served with the adoption petition. The summons attached to the petition stated that if McCurry failed to answer the petition that judgment by default would be entered against him, granting Harding’s petition for adoption. The petition stated that McCurry’s surrender of rights was not [270 Ga. App. 420] a prerequisite for filing because he had failed to communicate with or support his children for more than three years before the petition was filed. McCurry filed an answer to the petition, denying those allegations. Finally, in opening statements before the hearing Harding stated that the evidence would show that the court may terminate McCurry’s parental rights, and McCurry asked that the court deny the petition and allow him “to continue with his parental rights.”
Even if McCurry had not waived his right to argue a due process violation, the evidence showed he had ample notice that his parental rights were under consideration at the adoption hearing. “The grant of an adoptioneffectually relieves the natural parents of all parental rights and terminates all legal relationships between the adopted child and his natural parents.” (Punctuation and footnote omitted.) Hall v. Coleman, 264 Ga.App. 650, 654(2), 592 S.E.2d 120 (2003). Therefore, we find no error.
4. McCurry next contends that the trial court erred in finding that the adoption was in the best interest of the children. The test on appeal is that “[i]f there is any evidence to support the trial court’s finding that the adoption is in the child’s best interest, such finding will be affirmed.” (Citations omitted.) Bateman v. Futch, supra, 232 Ga.App. at 274(2), 501 S.E.2d 615. In this area the court has very broad discretion. Id.
Here, the evidence showed that adoption was in the children’s best interest. The children referred to Harding as “Dad,” and have a close, loving relationship with him. Moreover, the oldest daughter consented to the adoption, and the youngest child, who is six, had last seen McCurry when she was three. In the three years that McCurry failed to support his children, Harding has worked two jobs and provided for their needs, including health insurance, and other financial support.
Although McCurry argues that there is no evidence that he harmed his children, there is also no evidence he made any attempts to contact or support his children for three years before Harding filed the adoption petition. McCurry’s mother testified that the children’s mother prevented McCurry from seeing the children, yet McCurry also did not appear for two court hearings regarding his failure to pay child support, which would have given him an opportunity to address his concerns about visitation.
We reiterate that the trial court has very broad discretion in this area, and as there was evidence supporting the court’s finding regarding the child’s best interest, we discern no abuse of discretion.
[606 S.E.2d 644]
5. McCurry last enumerates as error that the trial court based its ruling on a perjured factual finding. McCurry argues that his ex-wife lied when she testified that no child support payments had been made from October 2000 until the petition was filed, and maintains that [270 Ga. App. 421] documentary evidence shows otherwise. Specifically, he argues that, contrary to the mother’s testimony, the court-ordered payment summary from the Child Support Division of the State of Alabama shows that he made several support payments before the adoptionpetition was filed.
A review of the record reveals that the trial court conducted a full and complete hearing on the petition. The court heard testimony from the children’s mother, McCurry, and McCurry’s mother regarding the timing of the support payments. McCurry had the opportunity to address any alleged false testimony by cross-examining the children’s mother about discrepancies between her testimony and the payment summary. He did not do so. Further, this exhibit, which McCurry later reviewed during his testimony, was not put into evidence at the hearing but was retained by counsel.
Although McCurry subsequently submitted with his motion to set aside the adoption a document from the Alabama Department of Human Resources, Child Support Division of Chambers County, which appears to describe his child support payments, we are unable to ascertain the months the payments were made. That being so, the document does not substantiate McCurry’s claims of perjury.
Moreover, pretermitting whether the mother had, in fact, received support payments during the month before Harding filed the adoption petition, it is undisputed that from 2000 to some period in September 2003, McCurry made no support payments for his children. At the hearing, McCurry testified that he made a support payment on September 2, 2003, two payments on September 22, 2003, five payments in October 2003, and had since maintained his child support payments. The adoption petition was filed on September 24, 2003. This reflects only three support payments in the three years before Harding filed the petition.
As we have previously held, “[i]n determining whether `significant’ steps have been taken with regard to support and communication, `sporadic and de minimis’ efforts do not require the court to find that there have been significant steps.” (Citations omitted.) In re J.S.J., 18,0 Ga.App. 873(3), 350 S.E.2d 843 (1986).
Accordingly, we find no merit in McCurry’s claim that the trial court’s ruling was based on perjured testimony. Thus, clear and convincing evidence supported the trial court’s finding that McCurry had failed significantly to provide child support for the year before the adoption petition was filed, and its finding that the adoption is in the best interest of the children. Accord Curde v. Matson, 190 Ga.App. 782, 380 S.E.2d 71 (1989).
Judgment affirmed.
BLACKBURN, P.J., and MIKELL, J., concur.
[270 Ga. App. 422]
——–
Notes:
1. ”Except as otherwise authorized in this chapter: [a] child whose legal father and legal mother are both living but are not still married to each other may be adopted by the spouse of either parent only when the other parent voluntarily and in writing surrenders all of his rightsto the child to that spouse for the purpose of enabling that spouse to adopt the child and the other parent consents to the adoption and, where there is any guardian of that child, each such guardian has voluntarily and in writing surrendered to such spouse all of his rights to the child for purposes of such adoption.”
REPOST – 1/4/12 and 1/5/12
DISCLAIMER: I am aware of the formatting errors in this post. I have combined an earlier two-part post because of a relevant question on this topic posted earlier today on Avvo.com, and I would like to address the necessary actions a person must take to Surrender their parental rights. The post itself concerned step-parent adoptions, which is another action entirely, but this is associated with that.
The Code section dealing with Adoptions (Chapter 8 of Title 19) on Domestic Relations contains four specific sections on surrendering parental rights. Specifically, these are Section 19-8-4 (surrender of parental rights generally), Section 19-8-5 (surrender for adoption by third party), Section 19-8-6 (surrender for stepparent adoptions), and Section 19-8-7 (surrender for relative adoptions). Each of these Code sections impose slightly different requirements. It is true that adoption laws are to be strictly construed, but it is also true that a slight variation won’t be fatal to an adoption.
Code Section 19-8-4, addressing surrenders of rights in nonspecialized situations, says specifically at subsection (g) that “[w]henever the legal mother surrenders her parental rights pursuant to this Code section, she shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26″.
A quick reference to the Code Section mentioned, and subsection (h), specifically, lists the requirements for the Surrender of Rights that the legal mother has to executecute. It requires that the Affidavit “set forth:
(A) Her name;
(B) Her relationship to the child;
(C) Her age;
(D) Her marital status;
(E) The identity and last known address of any spouse or former spouse;
(F) The identity, last known address, and relationship to the mother of the biological father of her child, provided that the mother shall have the right not to disclose the name and address of the biological father of her child should she so desire;
(G) Whether or not the biological father of the child has lived with the child, contributed to its support, provided for the mother’s support or medical care during her pregnancy or during her hospitalization for the birth of the child, or made an attempt to legitimate the child; and
(H) All financial assistance received by or promised her either directly or indirectly, from whatever source, in connection with her pregnancy, the birth of the child, or the placement or arranging for the placement of the child for adoption (including the date, amount or value, description, payor, and payee), provided that financial assistance provided directly by the mother’s husband, mother, father, sister, brother, aunt, uncle, grandfather, or grandmother need not be detailed and instead the mother need only state the nature of the assistance received;”
The Code Section goes on to list the form for a Surrender of Rights. It inquires into the Native American or military heritage of the father, his address information as best as can be determined by the mother, and other information, and it must be notarized. A sterilized version of the surrender of rights form that I have used in the past is below. This form has not been checked against the statutory language provided in the current Code section, so it is only accurate as of 2007.
-BIOLOGICAL MOTHER’S AFFIDAVIT-
NOTICE TO BIOLOGICAL MOTHER:
This is an important legal document which deals with your child’s right to have its father’s rights properly determined. If you decline to disclose the name and address of the biological father of your child, understand that you may be required to appear in court to explain your refusal and that your name may be used in connection with the publication of notice to the biological father. Understand that you are providing this affidavit under oath and that the information provided will be held in strict confidence and will be used only in connection with the adoption of your child.
STATE OF GEORGIA
COUNTY OF XXXXX
Personally appeared before me, the undersigned officer duly authorized to administer oaths, _______________________________, who, after having been sworn, deposes and says as follows:
That my name is XXXXXX.
That I am the mother of a male child born XXXXXXXX in the State of _______________________, County of ____________________________ on September X, XXXX;
That I am ______ years of age, having been born in the State of __________________________, County of ___________________ on ____________. That my social security account number is ________________.
That my marital status at the time of the conception of my child was (check the status and complete the appropriate information):
( ) Divorced; the name of my previous spouse is _____________________________; we were married in the State of ______________________, County of ____________________, on ____________________; his last known address is __________________________________________________; divorce granted in the State of _________________________, County of ____________________, on _______________________.
( ) Legally married; the name of my spouse was ________________________________; we were married in the State of _______________________, County of ____________________________ on __________________; and his last known address is ________________________________.
That my name and marital status at the time of the birth of my child was (check the status and complete the appropriate information):
Name: ______________________________
() Single, never having been married.
() Separated, but not legally divorced; the name of my spouse was _________________________; his last known address is ____________________________________________________________; we were married in the State of __________________________ County of ___________________________ on ____________________; we have been separated since ___________________________; we last had sexual relations on ______________________.
() Divorced; the name of my former spouse is _____________________________; we were married in the State of ______________________, County of ____________________, on ____________________; his last known address is __________________________________________________; divorce granted in the State of _________________________, County of ____________________, on _______________________. () Legally Married; the name of my spouse (was) (is) ___; we were married in the State of ___, County of ___ on _____ on _____; and his last known address is ___.
( ) Married through common-law relationship prior to January 1, 1997; the name of my spouse was ________________________________; his last known address is ___________________________________________________; our relationship began in the State of ___________________________, County of ________________________ on ______________________.
( ) Widowed; the name of my deceased spouse was ______________________________; we were married in the State of ___________________________, County of ________________________ on ______________________, and he died on ______________ in the County of ______________________, State of ___________________________.
That the name of the biological father of my child is (complete appropriate response):
Known to me and is ___________________________________;
That the last known address of the biological father of my child is (complete appropriate response):
Unknown to me because __________________________________________________________________.
That, to the best of my knowledge, I am not of American Indian heritage.
That to the best of my knowledge, the biological father is not of American Indian heritage.
That the date of birth of the biological father was ______________________ (or is not known to me).
That the biological father is not on active duty in a branch of the United States armed forces
That the biological father of my child, whether or not identified herein (strike each inappropriate phrase):
(Was) (Was not) married to me at the time this child was conceived;
(Was) (Was not) married to me at any time during my pregnancy with this child;
(Was) (Was not) married to me at the time that this child was born;
(Did) (Did not) marry me after the child was born and recognize the child as his own;
(Has) (Has not) been determined to be the child’s father by a final paternity order of a court;
(Has) (Has not) legitimated the child by a final court order;
(Has) (Has not) lived with the child;
(Has) (Has not) contributed to its support;
(Has) (Has not) provided for my support during my pregnancy or hospitalization for the birth of the child;
(Has) (Has not) provided for my medical care during my pregnancy or hospitalization for the birth of the child; and (Has) (Has not) made any attempt to legitimate the child.
That I have received or been promised the following financial assistance, either directly or indirectly, from whatever source, in connection with my pregnancy, the birth of my child, and its placement for adoption: ____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.
That I recognize that if I knowingly and willfully make a false statement in this affidavit, I will be guilty of the crime of false swearing.
The Surrender of Rights also has to be acknowledged by the mother, to assure future reviewing Courts that she voluntarily chose to do this, and that she knew what she was doing.
A Surrender of Parental Rights is not the only step required by the Code Section for a biological mother to execute to give up custody of her child. Under Section 19-8-4(g) of the Official Code of Georgia, the biological mother must also execute an Acknowledgment of her surrender, to provide a higher level of awareness to her of the serious and powerful effect of her actions. That Code subsection provides as follows:
“(g) Whenever the legal mother surrenders her parental rights pursuant to this Code section, she shall execute an affidavit meeting the requirements of subsection (h) of Code Section 19-8-26.”
As you see, that Code Section sends the reader/practitioner to a different Code section for reference, directing that the person execute an acknowledgment of their surrender.
The following is the affidavit required by that Code subsection.
ACKNOWLEDGEMENT OF SURRENDER OF RIGHTS
By execution of this paragraph, the undersigned expressly acknowledges:
(A) That I have read the accompanying SURRENDER OF RIGHTS/FINALRELEASE FOR ADOPTION relating to said minor child born XXXXXXXXXX, a (fe)male on XXXX XX, XXXX;
(B) That I understand that this is a full, final, and complete surrender, release, and termination of all of my rights to the child;
(C) That I have the unconditional right to revoke the surrender by giving written notice, delivered in person or mailed by registered mail or statutory overnight delivery, to ( insert name and address of each person or entity to whom surrender is made ) not later than ten days from the date of the surrender and that after such ten-day period I shall have no right to revoke the surrender;
(D) That the ten days shall be counted consecutively beginning with the day immediately following the date the surrender is executed; however, if the tenth day falls on a Saturday, Sunday, or legal holiday then the last day on which the surrender may be withdrawn shall be the next day that is not a Saturday, Sunday, or legal holiday;
(E) That I have read the accompanying surrender and received a copy thereof;
(F) That any and all questions regarding the effect of said surrender and its provisions have been satisfactorily explained to me;
(G) That I have been afforded an opportunity to consult with counsel of my choice prior to execution of the surrender; and
(H) That the surrender of my rights has been knowingly, intentionally, freely, and voluntarily made by me.
Witness my hand and seal this XXth day of XXXXXX, 2012.
It must be signed, witnessed, and notarized.
The formatting on this entry does not appear to be correct. For that, I apologize. I also have no idea whether the idea behind this is sound, as I cannot find a “wheel” to reinvent, but this has been filed in a case, and I present the redacted version for the law it contains!
BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
COMES NOW Petitioner XXXXX, by and through undersigned counsel, having sought and obtained a reclassification of status from the Sexual Offender Registration Review Board (hereinafter referred to as “the Board”) pursuant to the current classification scheme, and respectfully moves this Court to grant summary judgment to him based on the pleadings, evidence, and all other pertinent facts given supporting his removal from the Sex Offender Registry, pursuant to the power and discretion of this Court under Section 42-1-19 of the Official Code of Georgia to do so. This Brief is intended to more fully detail the matters contained in the Voluntary Withdrawal of Hearing and Motion for Summary Judgment submitted in this matter.
Procedural History
XXXXX pled guilty under a negotiated plea to two counts of Child Molestation on XXXXX, 1998, in case number XXXXX. These pleas were made under the decision of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1969), with the express understanding that Petitioner would not admit to the charges, but would plead guilty and accept the negotiated sentence nonetheless, and were made following a jury trial of Petitioner which resulted in a hung jury. This is very relevant to the exercise of discretion prayed for by Petitioner – though his case was argued before a jury, no jury has ever found him guilty of any crime. As part of the negotiated disposition of these charges, the State entered a disposition of nolle prosequi to two counts of Aggravated Child Molestation. A copy of the sentence sheets for the four Counts brought against him, two of which were disposed of by entry of nolle prosequi by the State, is attached to the Voluntary Withdrawal of Hearing, Motion for Summary Judgment, and Supporting Brief as Exhibit “A”. Though the State sought to prove through the contentions of the parents of the alleged victims that there was sufficient evidence to prosecute Petitioner for these crimes, XXXXX, gave testimony which tended to exonerate Petitioner. She passed away before this proceeding was brought, and no copy of the transcript or her testimony is available. However, a copy of the Affidavit of XXXXX, the attorneys that represented Petitioner during his trial and subsequent plea, is attached to the Voluntary Withdrawal of Hearing, Motion for Summary Judgment, and Supporting Brief as Exhibit “B”. Unfortunately, the guilty plea entered into by him to these charges required that he be included for all purposes on the Sex Offender Registry maintained by the Board, on behalf of the State, and this has greatly impacted his ability to move to a different area or to obtain gainful employment despite his ability and his willingness to function as a full member of society.
As a condition of the sentence to which he pled, Petitioner was required to serve 8 years and 6 months on probation, following a period of incarceration. He finished his incarceration, his probation, and all special conditions of his probated sentence for the Child Molestation charges which required his registration pursuant to OCGA § 42-1-12. Petitioner meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of OCGA § 17-10-6.2. He has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor any prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16. He did not use a deadly weapon, nor did he offensively use any object, device, or instrument during the alleged commission of the offense. The court found no evidence of a relevant similar transaction. The alleged victims did not suffer any intentional physical harm during the alleged commission of the offense. The alleged offense did not involve the transportation of the victims. Lastly, the victims were never physically restrained in any way during the alleged offense.
Petitioner has been re-classified by the Board to ensure that his record meets the conditions recommended for removal from the registration provisions. He has been “classified by the Board as a Level I risk assessment classification”. A copy of the letter stating this classification is attached to the Voluntary Withdrawal of Hearing, Motion for Summary Judgment, and Supporting Brief as Exhibit “C”.
Issues Presented
- Does Petitioner meet the standards for removal from the Sex Offender Registry outlined in O.C.G.A. § 42-1-19?
- Are the purposes of identification of a sexual threat served by the inclusion of Petitioner on the Sex Offender Registry?
- Is there good cause to remove Petitioner from the Sex Offender Registry using the power granted to the Court in O.C.G.A. § 42-1-19?
Short Answer
O.C.G.A. § 42-1-19 provides a method for the Court to permit an adjudicated sex offender to be released from the registry under certain conditions. He or she must have completed all prison, parole, supervised release, and probation for the offense which required registration and must also meet the requirements of subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2. In addition, it is required that either ten years have passed since the person completed all of the terms and conditions of their sentence, or that they were classified by the Board as a Level I risk. The statute lets the Court Order any assessment to be done by the Board if it has not been done otherwise, and this has occurred. Petitioner meets all of the requirements for removal from the Sex Offender Registry and his situation, therefore, represents an appropriate exercise of the power of the Court on his behalf.
Inclusion on the Sex Offender Registry after Petitioner has completed all requirements of his sentence and probation and has not shown any tendency toward pedophilia or other sex-oriented criminal act does not serve the purposes of rehabilitation. It instead acts as a continuing punishment. Petitioner has not shown any tendency to violate the identification purposes of the Registry, and there is good cause to remove him from its registration requirements, as intended by the enactment of O.C.G.A. Section 42-1-19.
Argument and Citation to Legal Authority
“[R]egistration as a sex offender…is a “drastic measure”…with severe ramifications for a convicted criminal”. Taylor v. State, 304 Ga.App. 878, 698 S.E.2d 385, 388 (Ga. Ct. App. 2010). Petitioner XXXXX was never convicted by a jury of his peers, but instead entered a plea of guilty to two counts of child molestation after the State voluntarily entered a disposition of Nolle Prosequi to two harsher counts of Aggravated Child Molestation. Rather than again enduring the grueling experience of trial, as threatened by the State, Petitioner instead entered a guilty plea under an earlier implementation of North Carolina v. Alford, 400 U.S. 25 (1969), knowingly choosing to accept punishment and agreeing to the allegations of the State without admitting his guilt. In light of the community’s sense of outrage over the sensationalism of the charges, this was an action that can be sympathized with, though it has caused repercussions in Petitioner’s life that he did not anticipate at the time he entered his plea. “The voluntariness and intelligence of an Alford plea is judged by the same standard as a routine guilty plea: whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Skinner v. State, 297 Ga.App. 828, 831, 678 S.E.2d 526 (Ga. Ct. App. 2009). After completing every requirement of the sentence which was imposed upon him, and having received all required psychological testing and completed any Ordered therapy, the black mark of a convicted sex offender still restricts his ability to fully engage in society. It limits the work he is allowed to do, and it limits the places where he is allowed to live. He has been rehabilitated under the laws of the State of Georgia, but “[a]n individual who falls within the ambit of the registry is subject to lifetime registration and to the public dissemination of his name and other information identifying him as a registered sex offender.” Kansas v. Hendricks, 521 U.S. 346, 389, 117 S.Ct. 2072 (1997)(upholding the statutory scheme of Kansas for registration of sex offenders). He has met the conditions for removal from the Sex Offender Registry and its identification provisions are only punitive in his situation. He has shown that it is appropriate for this Court to exempt him from the requirements of the Sex Offender Registry.
- I. Petitioner meets the conditions outlined by O.C.G.A. Section 42-1-19 for consideration for removal from the Sex Offender Registry.
The requirements of Section 42-1-19 of the Official Code of Georgia are detailed and do not permit a Court to exercise discretion on the issue until preliminary threshold matters have been properly addressed. In the case at bar, these initial requirements have been met, and the statutory requirements that let a Court show leniency and seek an offender’s rehabilitation are present. O.C.G.A. Section 42-1-19 was enacted in 2010, though a more limited method was provided for release from the Sex Offender Registry in the previous version of Section 42-1-12. The requirements of the statute under which this Petition has been brought are found in subsection (a)(4), which first mandates that a petitioner complete all prison, parole, supervised release, and probation required as punishment for the offense which prompted the registration, as well as meeting the criteria of Code Sections 17-10-6.2(c)(1)(A) through (c)(1)(F).
These subsections state that consideration of a petition requires that the petitioner not have any prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor can he have any prior conviction for any similar offense under other corresponding state, territorial, or federal laws. The statute requires that he did not use “a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury” during the commission of the offense, nor could the person seeking release from the Sex Offender Registry have put the alleged victims through any intentional physical harm or have transported or restrained them. Additionally, the court must not have found any similar transaction evidence. In Petitioner’s case, these conditions were all present in his plea.
Under the new statutory scheme, even if the person seeking to be released from the Sex Offender Registry’s inclusion requirements and its restrictions on residency and employment has met the other conditions, at least ten years need to have passed since they completed all prison, parole, supervised release, and probation requirements for the offense. However, in the alternative, they can still meet the requirements for consideration for release if the Board has classified them as being a “Level I Sexual Offender”. O.C.G.A. Section 42-1-12(a)(12) defines a Level I Sexual Offender as a person with “a low sex offense risk and low recidivism risk for future sexual offenses”. In Petitioner’s case, he was sentenced before this classification system went into effect, and the statute allows his reclassification upon Order of the Court. This has been done, and he has been reclassified as a Level I Sexual Offender by the Board, his classification now fulfilling the statutory requirement and demonstrating that his request should be granted by the Court.
- II. The Identification Purpose of the Registry is Not Served by its Punitive Effects on Petitioner.
“Nothing on the face of the statute suggests that the legislature sought to create anything other than a civil…scheme designed to protect the public from harm.” Hendricks, 521 U.S. at 361. The Sex Offender Registry in Georgia has been repeatedly found not to be a punitive measure in and of itself, but instead to be an identification scheme for the protection of the public. “In enacting the 2006 version of the statute that sets out the sexual offender registry, the General Assembly declared that registration of sexual offenders was necessary to protect the public, described the sexual offender registry as a “requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public[,]” and observed that “[t]he designation of a person as a sexual offender . . . [is] simply a regulatory mechanism and status resulting from the conviction of certain crimes.”” Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485, 490 (Ga. 2008); Ga. L.2006, p. 379, § 1. This analysis has been upheld in the cases that have discussed this issue, for common sense reasons that are intended to protect the general public.
“[T]he enactments of the General Assembly are the clearest and best evidence of a society’s evolving standards of decency and of how contemporary society views a particular punishment.” Humphrey v. Wilson, 282 Ga. 520, 534, 652 S.E.2d 501 (Ga. 2007)(Carley, J., concurring, referencing Johnson v. State, 276 Ga. 57, 62(5), 573 S.E.2d 362 (2002)). The Court declined to extend the ruling of Humphrey retroactively in 2009, when it decided Ward v. State, 299 Ga.App. 826, 683 S.E.2d 894 (Ga. Ct. App. 2009), but only by affirmatively stating again that a statute such as the First Offender sentencing provisions would not extend retroactively. Their pronouncement did not affect the disproportionality finding of the Humphrey decision, and these disproportional effects are evident in the case at bar.
The risk of recidivism posed by sex offenders is “frightening and high.” Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485, 493 (Ga. 2008)(Chief Justice Sears, concurring in part and dissenting in part). The legislature’s findings are consistent with the concerns they have expressed about the high rate of recidivism among convicted sex offenders and their dangerousness as a class, but the classification system of the statutory scheme addresses this concern. An individual doesn’t necessarily share the disadvantage of the class as a whole, and Petitioner has shown that he does not share the threat of the class.
“The State’s determination to legislate with respect to convicted sex offenders as a class, rather than require individual determination of their dangerousness, does not render the Act punitive.” Smith v. Doe, 538 U.S. 84, 87, 123 S.Ct. 1140 (2002)(discussing the constitutionality of the sex offender registration schemes in Alaska and Connecticut). Facts that indicate a sexual offense, even when the charges themselves are not sexual in nature, may justify an offender’s placement on the Sex Offender Registry. See generally Morrell v. State, 297 Ga. App. 592, 677 S.E.2d 771 (Ga. Ct. App. 2009); Finnicum v. State, 296 Ga.App. 86, 673 S.E.2d 604 (Ga. Ct. App. 2009).
The identification purposes of the Sex Offender Registry are not always served by the registration of every offender, given the effects of such a mark of notoriety. “[E]ven assuming, arguendo, that the substantiality of the public purpose advanced by a regulation is still pertinent to a takings challenge…we cannot overlook the significant, adverse economic impact of OCGA § 42-1-15 on appellant, the physical ouster that it effects or its elimination of any investment-backed expectations in appellant’s residence.” Mann v. Georgia Department of Corrections, 282 Ga. 754, 653 S.E.2d 740, 745 (Ga. Ct. App. 2007)(disregarding a takings argument by Appellant but noting the adverse economic impact of Georgia’s sex offender laws).
The harm the Registry can cause is not found in its otherwise noble intention to legislate for public safety, or even in its provisions as applied as a solely registration-based statute, but in its practical effects on a registrant like Petitioner. Even Justice Clarence Thomas, in his concurrence to the decision in Doe, though he has often historically been opposed to leniency in sentencing provisions and ultimately endorsed the judgment of the Court in upholding the Kansas sex offender registration scheme, noted that “[t]he publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism.” Doe at 99 (emphasis supplied). He noted that the decision of the Court of Appeals had found that ““the procedures employed under the Alaska statute are likely to make [respondents] completely unemployable” because “employers will not want to risk loss of business when the public learns that they have hired sex offenders.”” Id. at 100 (emphasis in original). “The fact that the Act uses past crimes as the touchstone, probably sweeping a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law’s stated civil aims, there is room for serious argument that the ultimate purpose is to revisit past crimes, not prevent future ones.” Doe at 109 (concurrence of Justice Souter).
This pervasive stigma was also pointed out in detail by Justice Souter in his separate concurrence with the judgment, since he termed it “naïve to look no further, given pervasive attitudes toward sex offenders”. Id. at 108-109 (concurrence of Justice Souter). “[T]here can be no doubt that the “[w]idespread public access” to this personal and constantly updated information has a severe stigmatizing effect.” Id. at 111-112 (partial concurrence of Justice Stevens). “Selection makes a statement, one that affects common reputation and sometime carries harsher consequences, such as exclusion from jobs or housing, harassment, and physical harm.” Id. at 109 (concurrence of Justice Souter). “[The] Act…exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism.” Doe at 115 (dissent of Justices Ginsberg and Breyer). This “aggressive public notification” referred to by the Justices is the same “aggressive public notification” that is used in Georgia. Every County’s Clerk’s Office, many other public locations of prominence, and widespread Internet listings display the information of not just conviction but conviction and inclusion on the Sex Offender Registry to everyone who cares to look. This is punishment above and beyond the punishment otherwise justifiably inflicted for most other non-sexual crimes by the Courts, and is a stigma that negatively affects all meaningful social interaction by an otherwise-rehabilitated citizen.
The Sex Offender Registry statutory scheme is not applied consistently in every case; it has been applied differently over the past decade to different persons. When a person who is otherwise qualified for registration has travelled in interstate commerce prior to the effective date of the federal equivalent of the Registration statutes (called SORNA), the provisions that criminalize their actions do not always apply to render their behavior punishable. See generally United States v. Beasley, 636 F.3d 1327 (3d Cir. 2011). In the Grovenstein case, the Court declined to subject a young man to the punishment of inclusion on the Sex Offender Registry for receiving oral sex from a minor. See generally Grovenstein v. State, 282 Ga.App. 109, 637 S.E.2d 821 (Ga. Ct. App. 2006). The Court found a valid legal principle for the lack of inclusion of an 18 year-old for an action voluntarily undertaken by a 14 year-old, but the sympathy of the Court with his individual situation was evident throughout the opinion. Id. The current statutory scheme that Section 42-1-19 demonstrates allows for an objective evaluation of the recidivism risk that the law’s earlier incarnation lacked, and transforms a general rule of sex offender recidivism into an intelligent case-by-case and individualized analysis.
Given the fact that no jury ever found Petitioner guilty of any crime in the case at bar, coupled with the lifelong punishment that inclusion on the Registry certainly exacts on persons included in its ambit, the punishment in this case is disproportionate. “[I]n order to determine if a sentence is grossly disproportionate, a court must first examine the “gravity of the offense compared to the harshness of the penalty” and determine whether a threshold inference of gross disproportionality is raised.” Humphrey at 525 (referring to the test used by United States Supreme Court Justice Kennedy in his concurrence to Harmelin v. Michigan, 501 U.S. 957, 996-1009, 111 S.Ct. 2680 (1991)).
The punishment imposed by the Registry on Petitioner’s individual case, in light of the many mitigating circumstances under which he entered his guilty plea and the previous failure of a jury to enter any verdict against him, is inherently unfair in his situation and constitutes excessive punishment that is disproportionate to his guilt, because the punishment continues long after his completion of the negotiated sentence. “[T]here is no denying that registrants face extensive restrictions on where they can live, work, and volunteer.” Doe at 389. The inherently cruel nature of this continuing punishment has long been forbidden by the laws of the United States in situations such as his; “[t]he Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.”” Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485, 488 (Ga. 2008)(quoting Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001 (1983)).
A quick examination of the proportionality of the statutory scheme, as applied to the punishment of Petitioner, shows that this is especially cruel. Again, no matter how appropriate or fair the statutory process may generally be, it is unusually harsh when applied to the situation that Petitioner finds himself occupying, since no jury ever found him guilty and he never admitted his guilt to the charges. He is not denying that the statutory scheme of the Sex Offender Registry is intended to serve a noble and necessary purpose, but he is asserting that, based on objective facts, it is egregiously unfair when it is applied to his individual situation. “Under the Eighth Amendment to the United States Constitution and under Art. I, Sec. I, Par. XVII to the Georgia Constitution, a sentence is cruel and unusual if it `”is grossly out of proportion to the severity of the crime.”’ Humphrey at 524-525 (finding disproportionality when a minimum ten year sentence for consensual oral sex with an underage victim was disproportionate punishment). He needs the mercy of this Court, and it is empowered by the statute to grant that mercy.
- III. Petitioner is an appropriate candidate for removal from the registrations, residency, and employment restrictions imposed by the Sex Offender Registry.
“A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and the rehabilitative goals of probation”. Grovenstein at 111. In Petitioner’s case, the Court imposed conditions of probation that were reasonably tailored to address any danger that Petitioner might present if there was validity to the charges. These conditions included a polygraph test, sex offender evaluation and rehabilitative therapy, and even an evaluation for chemical castration; he was not required to be chemically castrated, and he completed all therapy requirements of his probation for a sexual offense. However, the Sex Offender Registry has proven long-term retributive societal effects, and continued inclusion of Petitioner on it is disproportionate punishment for the facts of his individual situation. An analysis of disproportionality is appropriate in his case. “[A] defendant may challenge a mandatory, noncapital sentence as grossly disproportionate to the crime committed.” State v. Oliver, 2012 WL 1058249 at 12 (IA March 30, 2012)(quoting Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 2707 (1991)(Kennedy, J., concurring)(Reporter citation unavailable).
The Court in Humphrey v. Wilson found that the increase in punishment for adult offenders found guilty of the crimes of child molestation and aggravated child molestation in the 2006 Amendment to O.C.G.A. Section 16-6-4 from ten years to life and five to twenty-five years to life, respectively, was significantly greater than the punishment under the prior statutory scheme. 282 Ga. 520, 529-530 (Ga. 2007). Petitioner was tried for the crimes for which he stood accused and the trial did not yield a conviction. Rather than face renewed pre-trial punishment for an unknown, additional period of time – to be followed only by an avowed re-indictment – he entered a plea of guilty to two counts of child molestation, after the State entered a nolle prosequi to both counts of Aggravated Child Molestation brought against him, and voluntarily chose the certainty of the offered sentence and the significant conditions placed on him by the Court to ensure that he was no longer any danger to society. His actions were his established legal right under the interpretation of Alford that the Court used. It was this guilty plea, made based on an idea of a definite sentence as opposed to indeterminate punishment but not based on his intention to admit any sexual activity against minors of the same gender, that resulted in his entry on the Sex Offender Registry. This has caused him the difficulties he has experienced but did not fully comprehend when he entered his guilty plea, and it is that registry which he qualifies now for release from, seeking to fulfill the potential that the special conditions of probation placed upon him over a decade ago tried successfully to ensure.
A case recently decided by the Supreme Court of Iowa sheds light on the proper analysis for this Court by virtue of the significant difference between the conduct of the Appellant in that matter and Petitioner in the case at bar. In Oliver, cited above, the conviction of Appellant to a life sentence for recidivist statutory rape was unsuccessfully challenged as a disproportionate sentence. Much like Georgia’s statutory scheme, the goal of the statute at issue in that case was both rehabilitative and retributive, and the Court quoted Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 2028, 176 L.Ed.2d 825, 843 (2010), when it used the idea that “the heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender” as a basis for its analysis. Oliver at 3. The Oliver case further stated that this idea sought “retribution of the moral imbalance caused by the offense.” Id. However, Oliver concerned a recidivist. This case does not involve any finding of similar transaction evidence, nor has any similar conduct been repeated.
“[N]ational consensus seems to support, rather than oppose, the imposition of harsh sentences, including life without parole, for recidivist sex offenders.” Id. at 9. However, it has been more than established that Petitioner is not a recidivist; even his original sentence did not result from a jury conviction but instead resulted from the entry of a plea of guilty to reduced charges after a jury could not return a guilty verdict against him, and voluntarily given by him under threat of re-indictment after a long and exhausting trial had ended. In fact, the special conditions of his probation were specifically tailored to minimize any possibility of his recidivism, and he has fulfilled those conditions and been determined not to present that risk by the Sex Offender Registration Review Board.
Continued inclusion on the Registry carries incredible danger to Petitioner if he should fail to abide by its regulations on any annual occasion. “Failure of a registrant to comply with the requirements of the statute constitutes a felony offense.” Taylor v. State, 304 Ga.App. 878, 698 S.E.2d 385, 388-389 (Ga. Ct. App. 2010). Previously, release from the Sex Offender Registry under the earlier statutory scheme, O.C.G.A. Section 42-1-12, required that ten years had elapsed since the person sentenced had been released from all probation, parole, or incarceration. In re White, 702 S.E.2d 694, 306 Ga.App. 365 (Ga. Ct. App. 2010)(time measurement under the statute does not begin to run until release from probation itself). However, the statutory scheme has been changed under the 2010 enactment of O.C.G.A. Section 42-1-19, the section under which the current petition has been brought, to instead require merely that the person petitioning for release from the registry requirements have completed those requirements. O.C.G.A. § 42-1-19(a)(1). Petitioner has completed all of the requirements of the statutory scheme that qualify him for removal from the registration provisions of the statutory scheme, and his behavior has actually shown that he is appropriate for this removal.
It has been found often that “[t]he risk of recidivism posed by sex offenders is “frightening and high”.” Doe at 103. In fact, in the Doe decision, the concurring decision of Justice Thomas specifically upheld the Alaska and Connecticut sex offender registry schemes because the length of time for inclusion on the registry was “reasonably related to the danger of recidivism”. Id. at 102. However, this danger has been shown to be minimized in the case at bar, since Exhibit “C” shows that Petitioner has been specifically classified as a Level 1 offender, representing a low risk for sexual re-offense.
Conclusion
XXXXX has fulfilled every condition that is necessary as a threshold consideration for his removal from Georgia ‘s Sex Offender Registry. He has completed every punitive condition and every prophylactic condition imposed on him from his guilty plea in 1XXXXX that would reduce the possibility that he would ever commit a new sexual offense. Though his initial guilty plea was entered before the classification system used by the current statutory scheme went into effect, he has obtained a new evaluation as required by O.C.G.A. Section 42-1-19 that lists him as being a Level 1 offender. This evaluation was only recently completed by the Sexual Offender Registry Review Board, and an analysis completed by them over a decade after his entry of a guilty plea to reduced charges that a jury could not find him guilty of shows that the purposes of the Sex Offender Registry are not needed for the protection of society in his situation. He is a qualified and fitting candidate for release from any punitive restrictions of the Registry, including its requirements for registration, and its restrictions on residency and employment.
The goal of identification is no longer needed in Petitioner’s situation, and the result of his continued inclusion is only continued punishment. He was never convicted for any crime by any jury, and he has been forced to suffer the incredible economic hardships caused by inclusion on the Sex Offender Registry for over a decade, together with its social stigma and the economic disadvantages that the stigma carries with it despite his willingness to work. He has satisfied of all of the conditions of probation imposed upon him, and he is no threat for any recidivist conduct. This has been determined by both his initial psychological evaluation and his subsequent re-classification by the Sex Offender Registration Review Board. Having extracted its punishment from him, the law is empowered to show mercy in his situation.
Relevance in Evidence
There are certain formalities necessary for evidence before a Court of law. The rules of evidence require that certain formalities be met, to ensure the evidence is something the Court can validly consider, and this includes affidavits!!!
An affidavit is often used when a party is unavailable to provide their testimony firsthand, under oath – which the law requires – but this doesn’t mean that evidence introduced through an affidavit gets some kind of “free pass”. ”Unavailability” has a specific legal connotation, and it doesn’t mean that the person couldn’t get to Court that day because they had to work!
If nothing else, an affidavit has to be made under oath, and this involves the party swearing to the personal knowledge of the matter attested to, under penalty of perjury (perjuring oneself under oath, by the way, is punishable by fines, by incarceration, and/or evidentiary sanctions). The basic rule is that evidence must be relevant.
The term is defined in the Georgia Code, at Section 24-4-401, as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” The Code goes on to state at Section 24-4-402 that “[a]ll relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending.” That section specifically says that “[e]vidence which is not relevant shall not be admissible.”
The test for relevance is set out in simple terms at Section 24-4-403. It says that “[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Under the Federal Rules, this is applicable a standard for affidavits as it is for testimony, and the things that the affidavit describes are as objectionable as if they were introduced in testimony. This is why an affidavit must be executed with formalities attached – sworn to, under oath, and on penalty of perjury. Otherwise, it lacks the crucial indica of reliability that show it to be the kind of credible evidence the Court can consider.
In divorce situations, the issue of the character of the parties is especially significant, as when custody of children is at issue. The evidence proferred by the parties, especially by means of affidavits, tends to be oriented directly toward the character of the opposing party. I make a deviation to Chapter 2 of the Title on Evidence in the Official Code to discuss this. Section 24-2-2 says that the ”general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” I have added the Italics in this statement, since (as I mentioned) the character of the parties is implicated when custody of children is involved.
This rule of evidence has a parallel in Section 24-4-404, which states at subsection (a) that “[e]vidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasion”. Though the rest of the Code section specifically concerns issues of prosecution and victims, the rule of evidence applies as concerns character evidence. The use of specific instances involving character is discussed in the following section, 24-4-405, which talks about a specific behavior on a particular instance as shedding light into the habit of the person where character is essential to the action (such as when the custody of children is at issue). That section reads as follows:
“(a) In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.
(b) In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct. The character of the accused, including specific instances of the accused’s conduct, shall also be admissible in a presentencing hearing subject to the provisions of Code Section 17-10-2.
(c) On cross-examination, inquiry shall be allowable into relevant specific instances of conduct.”
This is, of course, only the statutes that discuss the topic itself. The actual practices of the local Court might be at odds with these rules, and the cases elaborate on the actual application of them. Further, in domestic matters there is leeway often given to unrepresented parties, since they often don’t understand the intricacies of legal practice (though this general idea is, thankfully, fading from common use).
The admissibility of testimony by a person deemed (by the Court) to be an “expert” in Georgia in non-medical malpractice situations is determined by Section 24-7-702(a)-(b) of the Official Code. That Section provides as follows:
(a) Except as provided in Code Section 22-1-14 and in subsection (g) of this Code section, the provisions of this Code section shall apply in all civil proceedings. The opinion of a witness qualified as an expert under this Code section may be given on the facts as proved by other witnesses.
(b) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if:
(1) The testimony is based upon sufficient facts or data;
(2) The testimony is the product of reliable principles and methods; and
(3) The witness has applied the principles and methods reliably to the facts of the case which have been or will be admitted into evidence before the trier of fact.
…
(d) Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16.
(e) An affiant shall meet the requirements of this Code section in order to be deemed qualified to testify as an expert by means of the affidavit required under Code Section 9-11-9.1.
(f) It is the intent of the legislature that, in all civil proceedings, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); General Electric Co. v. Joiner, 522 U.S. 136 (1997); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.
The basic test of admissibility of “expert testimony” is found in subsection (b), and I have placed the particular issues that require some additional action or are topics for debate in italics. I have also omitted (c) entirely, because that subsection deals with expert testimony in medical malpractice actions, and is an entirely separate area of litigation unto itself! The important subsection to meet the test of expertise needed for factually-persuasive opinion testimony in most civil actions is subsection (b).
