Skip to content

Redacted Motion Argument (Supersedeas Relief – State Supreme Court)

by merlin on April 23rd, 2013
  • Sumo

This is a redacted Argument section from a Motion done in the Supreme Court of Georgia.  I have no guidance except theory, in this situation, because I know that things can be done, but have never tried to do some of them myself.  This is either a chronicle of my failure, or a roadmap to succeed.  Either way, comments on the logic of this Motion are welcome!

QUESTION PRESENTED

  • Can the Supreme Court stay the inferior and parallel proceedings related to and arising from the divorce matter now pending before it on appeal?

SHORT ANSWER

  • The Supreme Court is empowered by the legal authority of Section 5-6-46 of the Georgia Code to stay any and all parallel proceedings that arise from the same subject matter as the case pending before it, to prevent the matter at hand from becoming moot.  This necessarily includes those collateral proceedings pending in other Courts, including the federal court in question, which are attempting to regulate responsibility for matters still undecided by the appeal granted in the case at bar, as well as those matters that draw resources from the ability of the parties to fully litigate the issues being decided.  The Supreme Court of Georgia’s stay of supersedeas acts to stop the parallel and inferior proceedings until it has decided those questions that relate directly to the subjects of the litigation before it, but also extends to matters that directly affect the abilities of the parties to litigate their rights in this Court, such as the lawsuit by Appellant against XXXXX XXXXX in case number XXXX CV XXXXX.

 

ARGUMENT AND CITATION TO LEGAL AUTHORITY

I.                  Supersedeas Applies to Stay all Parallel and Collateral Actions to Prevent a Case from Becoming Moot Before the Question Pending Before the Court is Heard and Decided.

“Notwithstanding the trial court’s best intentions, we expected the court to comply with our mandate of supersedeas in both letter and spirit.”  In re B.A.S., 254 Ga.App. 430, 444, 563 S.E.2d 141 (Ga. Ct. App. 2002).   That is not what has been done in this case, and the disregard of the Court below for the important stay created by law in this matter together with the multiplicity of collateral cases in collateral courts being pressed against Appellant contravene not just the letter of the stay of the Court but its spirit, as well.  Rule 9 of the Rules of the Supreme Court of Georgia states in pertinent part that “[t]he Court may issue supersedeas or other orders whenever deemed necessary.”  “Supersedeas”, according to The Law Dictionary (Featuring Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed.), “…has come to be used as a designation of the effect of any proceeding or act in a cause which, of its own force, causes a suspension or stay of proceedings”.  http://thelawdictionary.org/supersedeas/.  Further, according to Section 5-6-46(a) of the Official Code of Georgia, “[i]n civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant”.  There is no question in the case now pending before this Court that all of the required steps to create the enactment of automatic supersedeas were done, as statutorily-required, but there is also no question that supersedeas has been completely disregarded by several courts and by XXXXX XXXXX, resulting in an amazing level of financial and legal punishment and difficulty to XXXXX XXXXX in trying to preserve the existing status quo of the parties pending adjudication of the underlying conflict by this Court.

 A.   At the point that a Notice of Appeal was filed in response to a granted Discretionary Appeal, there Could be no Legal Action Taken on the Matters that the Divorce Decree and Contract and Agreement Affected.

When litigation necessarily goes directly to the subject of a question not yet decided by the Supreme Court of Georgia but which it has chosen to hear argument concerning, its decision to hear that argument automatically creates a stay on any and all proceedings affecting the question.  “The filing of an application for discretionary review acts as a supersedeas and has the effect of depriving the trial court of jurisdiction to modify or alter its judgment.  City of Homerville v.Touchton, 286 Ga. 237, 239, 647 S.E.2d 50 (Ga. 2007)(quoting Department of Human Resources v. Holland, 236 Ga.App. 273, 274511 S.E.2d 628 (1999); motion to recuse judge after the fact was moot because trial court could not rule on question after application for appeal filed).  The question revolves around the nature of the disputed subject-matter – the responsible party for that disputed subject-matter necessarily being unresolved while the divorce in question is unresolved, since the bills were carried under the names of both parties – and the stage of litigation, this being a matter presently under granted application for appeal by the Supreme Court of the State of Georgia and therefore having no final, resolved judgment.  Where “ultimate responsibility” for the issues between the parties is not yet resolved, filing a notice of appeal in a discretionary application for appeal deprives the trial court of jurisdiction to take any further action with regard to those particular issues.  See O.C.G.A. § 5-6-46(a); Avren v. Garten, 289 Ga. 186, 192, 710 S.E.2d 130 (Ga. 2011)(special master’s fees could not be Ordered by the trial court while case was pending before the Supreme Court after filing a notice of appeal not yet granted in a discretionary application).  In an interlocutory appeal, it is necessary for Appellant to obtain an Order of supersedeas to preserve the jurisdiction of the Supreme Court over the matter and the status quo of the parties; in a discretionary application, there is direct statutory authority that creates that stay without further need for a specially-requested Order.  See Georgia 400 Indus. Park, Inc. v. Department of Transp., 274 Ga.App. 153, 156, 616 S.E.2d 903 (Ga. Ct. App. 2005)(denial of motion to set aside required aggrieved party to affirmatively seek equitable relief to preserve status quo pending appeal of condemnation).

 

B. The Grant of a Discretionary Appeal by the Supreme Court of Georgia Effected a Halt BOTH to inferior proceedings in the same court AND to Collateral Proceedings in Federal Bankruptcy Court.

All of the collateral matters pending during the appeal granted by the Supreme Court of Georgia in the above-styled case deal with the res of the divorce between the parties, and therefore deal with their ownership of the property and their rights and responsibilities concerning payment for the property or income derived from the property.  This includes the Chapter 7 Bankruptcy Petition filed by XXXXX XXXXX, the child custody disputes between the parties as they concern the proper exchange of their children, the foreclosure suit brought against the marital residence as a direct consequence of XXXXX XXXXX’s refusal to contribute to the payments due on it despite her financial ability to do so, the dispute involving the property owned by the couple and rented for profit in XXXXX, Georgia, and even the lawsuit brought by Appellant XXXXX XXXXX against XXXXX XXXXX and defended by her insurer, XXXXX Automobile Insurance, pending in the Superior Court of XXXXX County.

It is well-established that supersedeas prevents further action from being taken toward the subject-matter of a case pending the appeal of a final judgment.  The power of the Court concerning collateral matters is no less inflexible.  There is absolute precedent for the action urged by Appellant XXXXX XXXXX to be taken by the Court in this case, as shown by the case of Huffman v. Murphy, 284 Ga.App. 822, 645 S.E.2d 23 (Ga. Ct. App. 2007).  In that case, the President of a corporation declared bankruptcy despite the existence of a TRO staying just such an action.  The trial Court found him to be in willful civil contempt, assessing merited civil sanctions for his knowing, deceptive actions.  The situation dealt with by the Court in the Huffman case is no less pressing than the situation the Court now faces because of XXXXX XXXXX’s actions, guided by and urged by her counsel in the case at bar on behalf of the law firm that employs him, and the Court should similarly find both XXXXX XXXXX and her attorney in civil contempt.  The difference between the 2007 Huffman case and the case which now presents itself before the Court is that the trial court has purposefully ignored the dictates of Section 5-6-46(a) of the Georgia Code and has entered contempt instead against Appellant and his counsel, apparently for daring to interfere with Appellee’s willful contempt.  This makes the request of injunctive relief from this Court absolutely necessary, because it not only will not be granted by the trial court but has been acted against already.

          The ruling of the Superior Court of XXXXX County in the post-judgment proceedings that arose just before the initial creditors’ meeting in the case at bar, at which the XXXXX Judge sitting for XXXXX XXXXX XXXXX XXXXX declared that his Decree was valid and gave XXXXX XXXXX complete freedom from any and all debts that arose prior to the date of his suspended decree, is directly responsible for her decision to proceed and the encouragement from an authority-figure that condoned her actions.  In the Huffman case, the TRO had not been reduced to writing and filed with the Clerk of Court, required by Section 9-11-58(a) for a judgment to become final, prior to filing a Petition for Discharge with the United States Bankruptcy Court.  In the case at bar, the appeal had already arisen, and the discretionary application for appeal was granted on reconsideration, meaning the case was still pending even though XXXXX XXXXX sought to discharge all of her debts through bankruptcy.  It is not as though she had carte blanche to discharge those debts before the Court had made some final disposition of the divorce before it, whether the motion for reconsideration were granted or otherwise.  In a civil proceeding following a final judgment in a case rather than an interlocutory Order, it is the notice of appeal itself, rather than the grant or denial of the appeal, that serves as supersedeas and deprives the lesser courts or the parties themselves from actively usurping the jurisdiction of the court.  “Georgia law is clear that the filing of the notice of appeal operates as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.”  Metropolitan Atlanta Rapid Transit Authority v. Doe, 292 Ga.App. 532, 539, 664 S.E.2d 893 (Ga. Ct. App. 2008)(trial court could not alter or amend judgment to include interest while appellate court had authority).  The matter of supersedeas from a final judgment pending notice of appeal versus supersedeas from an interlocutory order pending acceptance of an application for appeal has also been decided resolutely against the efforts of XXXXX XXXXX and her counsel, as erroneously pronounced by the presiding XXXXX XXXXX judge in this case.  See generally Georgia 400 Indus. Park, Inc. v. Department of Transp., 274 Ga.App. 153, 616 S.E.2d 903 (Ga. Ct. App. 2005)(“The burden rests upon the appellant [s] to obtain such order as will protect [their] rights and preserve the status quo during the pendency of the appeal.” (quoting Clarke v. City of Atlanta, 231 Ga. 84, 84-85, 200 S.E.2d 264 (1973) and speaking expressly in terms of an interlocutory Order and not a final Order).

The precedent for the chilling effect of an appeal of this decree and its suspension of the disposition of any and all of the marital debts of the parties is, despite the actions of the Court below, well-established.  In In re Murphy, 473 B.R. 197 (Bankr. E.D. Mich. 2011), the Court excluded attorney’s fees incurred in enforcing contempt of a divorce decree from classification as a “domestic support obligation” because the debtor was not liable and could not ever be liable for the attorney’s fees of his spouse.  However, only last year in Wisconsin, the Bankruptcy Court stated that “[a] strict interpretation of § 523(a)(5) is not in accord with its purpose, which is to protect ex-spouses and their children.”  In re Hying, 477 B.R. 731, 735, 67 Collier Bankr.Cas.2d 154 (E.D. Wis. 2012)(quoting In re Papi, 427 B.R. 457 (Bankr.N.D.Ill.2010)).  In that case, the Court further clarified the Bankruptcy Abuse Prevention and Consumer Protection Act applies to “all debts owed to the spouse, former spouse, or child”, rendering them “nondischargeable regardless of whether the debtor had ability to pay the debt and regardless of whether the discharge to a debtor outweighs the detriment to the former spouse or child.”  Id.  It stated bluntly that “[i]f the debts were incurred in the course of a divorce proceeding, they are nondischargeable. “ Id. (reiterating approval of In re Tarone,434 B.R. 41, 48 (Bankr.E.D.N.Y.2010)).  The refusal of the Court to give deference to the ability of the debtor to pay is directly at odds with the apparent intent of the Court below, and its concern for XXXXX XXXXX has an equally callous effect on XXXXX XXXXX since forgiving her debt because of her lack of ability saddles him with all of his own as well as all of her forgiven debt, in the face of an equally-crippled ability to earn income to offset them.  Bankruptcy should not simply wipe her slate clean, and legally it cannot do so while the debts are still a part of the suspended marital estate.

More pertinent for the relief that is requested right now, the Court issued the guideline to federal courts considering the issue in question (the final disposition of debts and assets of a disputed marital estate) by warning that “a bankruptcy court should be cautious when making any ruling that would in effect overturn a state court decision as the bankruptcy courts were never intended to serve as an avenue through which litigants could collaterally attack the validity of a state court judgment.”  Id.  That situation perfectly describes the situation in the case at bar, and the Court’s intervention in the end-run efforts of XXXXX XXXXX to collaterally attack the appealed divorce decree by declaring bankruptcy and seeking the same relief in a different forum is absolutely necessary.  As the Eastern District of Wisconsin Bankruptcy Court observed in the 1998 decision of In re Tadisch, “[a] bankruptcy court should not place itself in a position of second-guessing a decision by a domestic relations court.” 220 B.R. 371, 376.  The Northern District of Georgia has put itself in just such a position, and this Court is requested to issue a stay directing that Court to refrain from pronouncing on the issues until they are resolved properly.

The question turns on the nature of the assets themselves, and the items that XXXXX XXXXX is trying to discharge are assets and liabilities that she is jointly financially responsible for with Appellant XXXXX XXXXX, including the large list of debts that she was named on in the divorce proceedings, as well as subjects of current lawsuits.  Specifically, the current suits that involve her as a Defendant are the foreclosure suit pending in case number XXCVXXX before the Superior Court of XXXXX County, a foreclosure suit brought by XXXXX XXXXX Property Owners Association, Inc., concerning payment and covenant obligations that she is trying to have discharged in the bankruptcy action described above but the ownership responsibility of which has not been determined conclusively by this Court despite its status as a part of the marital estate owned outright by the parties to this appeal, the foreclosure suit involving the marital residence itself pending in case number XXCVXXXX after XXXXX XXXXX stopped making any payments without justification, but presumably due to the actions of the Superior Court prospective discharge of her debt liability, now appealed, that commenced her complete refusal to acknowledge liability for debt on the lease, and also XXXXX XXXXX’s pending auto negligence suit against XXXXX XXXXX in case number XXXXCVXXXX.  The last case involves the vehicle XXXXX XXXXX drives, and is actively being defended by counsel employed by the insurer of the Defendant, requiring resources for its prosecution that Appellant simply does not have without any assistance from Appellee, as she was required to do by the interlocutory Order in this case.

This last case is included in this list of matters that must necessarily be included in the grant of supersedeas directly from this Court because the very purpose for which a stay of supersedeas exists is to prevent the issues on which the Court is to decide from becoming moot; preservation of the status quo of the parties is impossible if the res of their dispute is dissipated by other, collateral lawsuits pecking away at the property that the Court is asked to pronounce its decision on.  See generally Jenkins v. Smith, 308 Ga.App. 762, 709 S.E.2d 23 (Ga. Ct. App. 2011)(failure of school superintendant to seek further injunctive relief after end of stay and before termination hearing sought to be enjoined rendered relief moot; stay is injunctive relief that requires a specific Order to have the same effect as supersedeas).  The essence of the relief sought by Appellant XXXXX XXXXX may be stated by a quote from Recycle and Recover, Inc. v. Georgia Bd. of Natural Resources, 266 Ga. 253, 255, 466 S.E.2d 197 (Ga. 1996), for “practical purposes the existence of a right depends on the availability of an effective remedy to enforce it.” (Emphasis supplied.)(quoting  2 Sutherland Stat. Const. § 41.09, p. 399 (5th ed. 1993)).

 

 II.               An Order of Supersedeas Can be Issued by the Court Even Though Such Affirmative Relief is Not Generally Required Because it is Provided for by Statute.

Traditionally, supersedeas was not an automatic right for a party on appeal.  “The Civil Practice Act [Citation omitted] provides that an interlocutory injunction shall not be stayed during the pendency of an appeal unless a stay is ordered by the court. Therefore, to stop the holding of a meeting or a conference that has been ordered by the trial court, a supersedeas must be obtained from the trial court or from an appellate court in the event the trial court refuses to grant a supersedeas. Without such a supersedeas, the meeting or conference must be conducted as ordered. And once the ordered meeting or conference is held, complaint about its being erroneously ordered becomes moot.”  Padgett v. Cowart, 232 Ga. 633, 634, 208 S.E.2d 455 (Ga. 1974)(dispute between two factions of church congregation moot because appealed mandated meeting occurred).  However, the current Official Code of Georgia dispenses with the danger of mootness from inaction by a party while an appeal is pending by means of the explicit terms of Section 5-6-46(a), which states that the notice of appeal itself serves as supersedeas.

In the case at bar, Appellant seeks a particular kind of post-judgment relief which is necessary to preserve the Court’s jurisdiction.  It is well-established that a litigant must demonstrate both legal error and injury thereby to entitle him to post-judgment relief.  See generally Norris v. Sikes, 102 Ga. App. 609, 610, 117 S.E.2d 214, 215-16 (Ga. Ct. App. 1960).  Both of these elements, necessary for the grant of a new trial or a grant of a judgment notwithstanding the verdict, are present in this case and their aggravation is in imminent danger of occurring.  This is manifest by the dissipation of the resources of the marital estate that both Appellee and the collateral-suit parties are seeking, despite the pending divorce matter.

Contrary to the assertion of the trial court on the issue of child custody in one of the Orders presently being appealed to this Court, a matter which is also included by request in this plea for an Order of supersedeas from the Supreme Court of Georgia, the issue in question did not become moot on the happening of one abusive event, but is instead a question of the respective rights of the parties to make such cataclysmic custody decisions in the face of a statutory stay.  “[T]he term “moot” must be narrowly construed to exclude from mootness those matters in which there is “[i]ntrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers….”  Collins v. Lombard Corp., 270 Ga. 120, 121-122, 508 S.E.2d 653 (Ga. 1998)(excellent discussion of the test for mootness).  The matters described above must be stayed to prevent them from becoming moot before their propriety may be settled or overturned by this Court.

 

CONCLUSION

 “[T]he spirit of our law is against depriving a party who has duly entered an appeal, of the benefits thereof, … , where that failure has not been induced or sanctioned by the appellant.”  American Legion Post 69 v. Undercofler, 108 Ga.App. 521, 522, 133 S.E.2d 418 (Ga. Ct. App. 1963)(see generally Holt v. Edmondson, 31 Ga. 357 (Ga. 1860)).  In the case now before the Court, several different cases have come together at the same time to destroy a party seeking divorce from his spouse, and the trial court has willfully ignored and violated the sacred duty placed on them by the provisions of Section 5-6-46(a) of the Official Code of Georgia regarding the effect of a validly-appealed final judgment, seeking to add insult to injury thereby and actually affecting that injury through matters of financial impropriety and child custody.  “The purpose of an interlocutory injunction is to preserve the status quo pending a final adjudication of the case.”  Univ. Health Svcs. v. Long, 274 Ga. 829  (Ga. 2002).  As has been repeated for decades by this Court, the interlocutory injunction is a device to keep the parties from hurting each other while the case is under adjudication.  Price v. Empire Land Co., 218 Ga. 80, 85126 S.E.2d 626 (Ga. 1962).  The Appellate Practice Act makes plain at Section 5-6-46 that a valid notice of appeal and payment of all costs in the trial court shall act as supersedeas, and have this effect in the case.  The stay and injunctive relief requested from this Court is absolutely necessary to preserve the status quo of the parties pending the requested and granted appellate review of this case.

          Respectfully submitted, this 19th day of April, 2013.

                                                          /s/ Merlinus Monroe_____________

Merlinus Goodman Monroe, LLC       Georgia Bar No. 516401

Attorney At-Law                                         Counsel for Applicant

Post Office Box 2686                                   Telephone:        (678) 450-9743

117½ Bradford Street, Suite 9               Facsimile:          (678) 828-5789

Gainesville, Georgia 30503                       merlin@merlinusmonroe.com

 

 

 

 

From → appellate

Comments are closed.