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Motion for Reconsideration (Divorce/Discovery)

by merlin on May 9th, 2012
  • Sumo

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:

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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.

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