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Redacted Motion/Brief for Nonparty Production

by merlin on May 18th, 2012
  • Sumo

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.



            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.


            “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)).


            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.

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