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Redacted Reconsideration Brief for a Divorce Appeal

by merlin on June 27th, 2013
  • Sumo

As is my practice, once a document that has been carefully researched for accuracy is filed and served, a redacted version is posted here for review of either a path to achievement or a roadmap of failure.

 

BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION

 This brief supports a Motion for Reconsideration filed for Appellant XXXXX XXXXX, further identifying the material statutes and the guiding principles of law that are implicated by an improperly-decided case heard before the Superior Court of XXXXX County, case number XXXXX, in which divorce was erroneously granted on October 1, 2012, misleadingly dated by the presiding judge as September 28, 2012.

“[A]ppellate courts are courts for the correction of errors of law committed in the trial court”.  Pfeiffer v. Department of Transportation, 275 Ga. 827, 829, 573 S.E.2d 389 (Ga. 2002).  The compelling reason why it is imperative that this Court set aside this divorce comes from the sudden and unexpected manner in which the Court decided to enter its Order without abiding by the well-established judicial principles underlying due process of law and providing for both notice and certainty, deciding on an ex parte basis to improperly and unlawfully foreclose XXXXX XXXXX’s negotiated position on the highly material issue of child visitation and to instead adopt wholly a position advanced by Appellee but not agreed to by Appellant, and the effect that the allowed disregard of the trial court for the protections and requirements of contract law would have on any and all settlement agreements, especially in the area of divorce, in future cases throughout Georgia.  The facts and argument provided here lend unquestionable support to the merit of the appeal sought by XXXXX XXXXX from the judgment of the Court below and insist that the Supreme Court revisit its decision to decline to hear this appeal.  A copy of the Order of the Supreme Court of Georgia dismissing the discretionary appeal of XXXXX XXXXX as improvidently granted, which Order this brief in support of reconsideration is directed to, is attached hereto and incorporated herein as Exhibit “A1”.

ISSUES RAISED

  1. Can the parties to a divorce negotiate matters further after a settlement and decree has been formally entered and the matter closed?
  2. What is the practical effect of the elimination of the requirement of party consent to the terms of a divorce settlement agreement?

 

SHORT ANSWERS

  1. Once approved by the Court, a settlement agreement becomes the judgment of the Court and it conclusively binds the parties, even if they are unhappy with the results; the only way an entered settlement agreement can be altered between the parties is by mutually-agreed-to deviation, and the documents displayed to the Court by counsel for Appellee, including the resisted efforts of Appellant to retrieve his daughter from the psychiatric hospital where the changed visitation had allowed her mother to involuntarily place her, demonstrate the futility of negotiation with a party that has acted unilaterally against the other party to a divorce.
  2. A trial court cannot issue a summary disposition without notice in any case when there is active party involvement, and it is unlawful and unconstitutional for them to do so because it ignores the basic promises of due process of law; elimination of the requirement of party consent to the terms of a negotiated settlement agreement removes the settlement agreement from the long-established guidelines of contract law and eliminates certainty and predictability as to the result, as well as the ability of private parties to efficiently dispose of their cases in every area of civil law that involves the potential of settlement.

 

ARGUMENT AND CITATION TO LEGAL AUTHORITY

          Procedure matters, and neglecting the right of a father to care for his daughters in favor of only his former spouse’s convenience is a foreign concept to American law.  When the trial court in the case now under consideration decided to impose a wife’s unilateral and non-negotiated views about child visitation on her husband without first verifying that the two were in agreement on all material points, arbitrariness was given a free pass at the expense of reliable norms that govern society and empower every person involved in the divorce process in Georgia.  “The principle purpose of procedural law is to protect against arbitrary actions”, and the basic guarantees of due process demand no less.  David W. Neubauer, Judicial Process 40 (Harcourt Brace & Company 1997).

It is this protection against arbitrary behavior that governs the give-and-take necessary to create a binding contract on parties to an agreement.  “[N]o contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means that there is no agreement to be enforced.” Kreimer v. Kreimer, 274 Ga. Reports 359, 363, 552 S.E.2d 826 (Ga. 2001)(quoting Moss v. Moss, 265 Ga. 802, 803, 463 S.E.2d 9 (1995)).  The danger realized by the actions of the trial court demonstrate the harm of a contrary approach, and the decision of the appellate courts to refuse any appeal – thereby lending its support to an action contrary to all legal principles by means of its refusal to overturn the action – casts doubt and uncertainty on every aspect of final adjudication involving the decision of private parties, when a confirmed outcome that mutually benefits the parties may be overturned based on unknown and unpredictable factors.  At a time when Courts’ resources are strained beyond the breaking point, streamlining the system is necessary; however, that streamlining cannot come at the expense of fundamental rights, and the right to due process of law is essential to American liberty and the validity of the justice system as a means of dispute resolution.

More broadly, the decision of the Court abandons the certainty provided by Georgia contract law’s applicability to divorce settlements.  This is not a method of simplifying court procedures, that will increase their ability to end conflict between divorcing parties; rather, it has the potential to imbalance the rights of private parties in the organization of their fundamental domestic tranquility by removing their own ability to predict any outcome and instead placing that power with the trial judge, and with whichever lawyer he chooses to favor.

 I.                  Once approved by the Court, a settlement agreement becomes the judgment of the Court and it conclusively binds the parties.

Further negotiation by one party when it is refused by the other is not permitted after a judgment has been entered.  Section 5-6-34 of the Official Code of Georgia defines an appealable judgment as one that has become final, and no action may be taken in enforcement of a civil judgment until ten (10) days after its entry, according to Section 9-11-62.  Section 9-11-58 of the Official Code of Georgia states that “[t]he filing with the clerk of a judgment, signed by the judge, with the fully completed civil case disposition form constitutes the entry of the judgment, and, unless the court otherwise directs, no judgment shall be effective for any purpose until the entry of the same”.  At the point that the judgment has been entered, the rules it puts forward govern the actions of the parties until that judgment is altered, and “settlement agreements in divorce cases must be construed in the same manner and under the same rules as all other contractual agreements.”  Greene v. Greene, 306 Ga.App. 296, 701 S.E.2d 911 (Ga. Ct. App. 2010). The judgment has no teeth if it isn’t abided by, and the failure of a party to uphold their obligations is something that the other party, prior to this decision by the Court upholding the actions of the trial court, could seek enforcement of by means of the police power of the State.  If one party wants to see that agreement changed and the other party is not amenable to any change, there is nothing to negotiate about, and the appeal unsuccessfully brought by Appellant in a companion matter to this case, application number XXXXX, showed exactly what the results of the efforts at negotiation of any unfair and unjust effects from the Court’s ruling would be, since they were harshly condemned and summarily ignored, and sanctions were even awarded for daring to question the actions of the Court.  John F. Kennedy famously said that “[y]ou cannot negotiate with people who say what’s mine is mine and what’s yours is mine.”

A.    The formalities of contract law and the certainties it provides are the guidelines for binding settlement agreements in civil cases, such as divorce.

An agreement between two people, endorsed by the Court, provides certainty.  Georgia law defines a contract at Section 13-3-1 of the Official Code of Georgia as “an agreement between two or more parties for the doing or not doing of some specified thing” (emphasis supplied).  Therefore, the requirement of specifics and certainty are not only stated expressly but are the very basis for agreement between two parties.  If there is a material discrepancy in the understanding of two parties, there is no contract.  “[N]o contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means that there is no agreement to be enforced.” Kreimer v. Kreimer, 274 Ga. Reports 359 (Ga. 2001)(a divorce case involving a discrepancy in understanding of the effect of a settlement agreement was remedied by overturning the divorce based on that settlement agreement).  When an issue as fundamental as where and when children will live with the parents that care for them is freely disregarded – to the extent that a parent has one of the children institutionalized and medicated for her anger over the unexpected and unanticipated change in the parenting arrangement and one parent seeks an emergency directive to change that custodial arrangement to reflect the prior arrangement – then a material condition is implicated, and a failure to reach consensus through mutual agreement means that there is no agreement to be enforced.  The communication between the parties via text message when the sudden disappearance of the child in question was discovered is attached hereto and incorporated herein as Exhibit “A2” to demonstrate the real-world effects of this arbitrary change.

B.   A Change in the material terms of an existing contractual arrangement is a novation, and the certainty of contract is voided by its unilateral imposition.

“Under Georgia law, a change in the nature or terms of a contract is considered a novation and discharges the guarantor in the absence of the latter’s consent.”  Thomas-Sears v. Morris, 278 Ga.App. 152, 154, 628 S.E.2d 241 (Ga. 2006)(discussing § 10-7-21 on contracts for sureties, but which principle is applicable to all Georgia contracts in general).  A novation is only defined indirectly in Georgia contract law, in section 13-4-5 of the Official Code of Georgia, where it states that “[a] simple contract regarding the same matter and based on no new consideration does not destroy another simple contract between the same parties; but, if new parties are introduced so as to change the person to whom the obligation is due, the original contract is at an end.”  The principle of novation applies not just to surety contracts, but to all contracts, as expressly stated by Acree v. Kay, 188 Ga. 83, 4 S.E.2d 820 (Ga. 1939), and this rule is still valid today.  By deciding to eliminate the consent of Appellant to the settlement contract change, Appellee substituted the Court itself as a party to the contract, since Appellant never gave his consent to the radically different contract terms.  No matter what, under binding and existing precedent from this Court for almost a century, the decision of Appellee to suddenly remove the requirement of Appellant’s consent to one of the key issues upon which the contract was based removes the efficacy of that contract.  The contract itself even went so far as to falsely recite his review and consent to its terms, and page 7 of 10 of that document is attached hereto and incorporated herein as Exhibit “A3” to show the fact of the empty recitation.

Morris made it clear that a change must be material for a new contract to constitute a novation.  Pulling a page from the Negotiable Instruments law, which by long-standing practice is a tool for the interpretation of contracts and is therefore a valid method of interpreting settlement agreements, as in this case, “if the legal import and effect of the instrument is in fact changed, it does not matter how trivial the change may be, or whether it may be beneficial or detrimental to the party sought to be charged on the contract, as where it changes the evidence or mode of proof’ * * * ‘without the consent of the maker, is material and constitutes an alteration.’”  Roberson v. First National Bank of Atlanta, 99 Ga.App. 156, 161, 107 S.E.2d 669 (Ga. Ct. App. 1959)(change in terms of contract apparent on face of document is material).  The effect of the instrument was changed, certainly, and the change was apparent on its face, as so aptly demonstrated by counsel for Appellee when he demonstrated to the Court the one substantial difference between the two versions submitted.  In demonstrating for the Court how remarkably similar the two versions of the document were but for the difference in visitation provisions and property storage, and insisting that they did not illustrate the actual “meeting of the minds” that is required for an enforceable agreement to be made, with reference to the transcript provided as Exhibit “G” from the Application for Appeal showing that an announcement was made regarding the existence only of some agreement as to issues of child visitation, but not the details of that visitation required by law for contractual certainty, counsel for Appellee successfully proved that there was no “agreement” as required by law.

If the Court declines to hear the instant appeal, thereby approving the actions of the trial court, it completely and radically alters the applicable legal standards necessary for every divorce settlement in Georgia.  It enables Courts to approve divorces without inquiring into the legal sufficiency of the custody, visitation, property division, and other aspects of agreements between them, and it calls into question every single divorce decree entered into through oral announcement of the parties without any direct inquiry into the written substance of that agreement.  Conversely, it permits the judgment of the Court or the endorsement of the parties to be a flexible thing.  Both of these outcomes are contrary to every legal standard that is written, void the certainty of law and the legal process, and are directly the result of the decision of this Court.

 II.               Justice cannot permit a Court to unilaterally take away the right of a party to control their voluntary contractual agreements without giving them adequate notice beforehand.

The failure of Courts to inquire into the sufficiency of settlement conditions can create a very real potential for abuse, especially when the pleadings in a divorce case, examined by a reviewing court, show that the abuse is likely occurring.  In Mathes v. Mathes, 267 Ga. 845, the Court said that “[i]n a divorce action, a settlement agreement, “if accepted by the court, becomes the judgment of the court itself and therefore the court has the discretion to approve or reject the agreement, in whole or in part.””  The danger arises when the power to examine the propriety of the settlement terms is left unexamined by a reviewing court, and the mere statement that an “agreement” has been reached by the parties, but not the specifics of that agreement, is insufficient to ensure that the rights of the parties are actually protected.  This case may be easily and readily distinguished from the outcome in Gravely v. Gravely, 278 Ga. 897, 899(2), 608 S.E.2d 225 (Ga. 2005), which affirmed the directive that “it is within the trial court’s discretion to decide whether to approve such [a settlement] agreement [incorporated into a decree of divorce] in whole or in part, or refuse to approve it as a whole” (citing Guthrie v. Guthrie, 277 Ga. 700, 701(1), 594 S.E.2d 356 (Ga. 2004)).  What makes the Gravely decision entirely different from the Court’s decision not to hear the instant appeal, and let the judgment stand as rendered, is that the Court then clarified this by saying “its decision thereafter to incorporate the settlement agreement into the divorce decree reflects that the trial court “reviewed the settlement agreement and found its contents to be within the bounds of the law.”  Id. (emphasis supplied).  The transcript and the argument of the parties shows that this review never occurred in the case at bar, but the trial court still went ahead and entered and enforced its decree of divorce and the settlement agreement that was never agreed to by both parties.

The failure of the trial court to either appoint a Guardian Ad Litem to look into the protection of the minor children involved under the parties’ allegedly negotiated disposition or to inquire into the specifics of the agreement itself when an agreement was believed to have been reached led to abuse of the fundamental rights of parties and to an appeal.  The Supreme Court’s decision not to review the decision of the trial court only serves to reinforce this behavior and to strip away the necessity of these safeguards.

 III.           eliminating the requirement that a party to a divorce settlement consent to all terms practically results in prolonged litigation for the “loser” and greatly increased court expense in search of justice.

Taking away the requirement of notice of entry of an Order ending a case robs the parties of certainty as to the results and comfort about the fairness used to reach those results.  Without ensuring that parties have an opportunity to reach an agreement that acknowledges their objections, they will be required to pursue a multiplicity of separate, piecemeal actions to achieve a resolution of their grievances.  This will logically increase the burdens on Courts, instead of streamlining the legal system.  “A fundamental requirement of due process in any proceeding which is to be accorded finality is notice that is reasonably calculated to inform interested parties of an impending hearing and afford them an opportunity to present their objections.”  Cormier v. Cormier, 280 Ga. 693, 694, 631 S.E.2d 663 (Ga. 2006)(quoting Wright v. Wright, 270 Ga. 229, 230, 509 S.E.2d 902 (Ga. 1998)).

 A.   Refusing the Appeal will create substantial post-judgment litigation for parties to divorce in the future.

While summary disposition without party involvement may be a cost-saving measure in the immediate short term, it achieves its savings at the expense of the rights and safety of the persons whose lives are negatively affected, and the stack of documents waved at the Court by counsel for Appellee at oral argument was a visible demonstration of the amount of post-judgment litigation that the removal of these safeguards creates.  Counsel for Appellee blatantly lied to the Court when he said to Chief Justice Hunstein that the parties never tried to “work this out” after Appellants’ objection (at 11:25 of the oral argument), and he lied to Justice Melton that he “didn’t know until right now that that’s what this was over” and that he “always thought this was over money” (at 11:27 of the oral argument), but this dispute becomes a question of money when the terms of the agreement between the parties have been suddenly removed from them without any notice and certainty is ignored.  “The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.”  Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (Ga. 2006)(emphasis supplied; quoting Kaufmann v. Kaufmann, 246 Ga. 266, 269(3), 271 S.E.2d 175 (1980)).  When the decree was entered, the trial court never discussed the specifics of their agreement, and announced to the Court that they had, in fact, reached agreement on all issues without detailing at any point what those specific agreements were.  The parties were plainly under the impression that they had an agreement as to all issues; counsel for Appellee even pointed out to the Court that the document submitted by Appellant contained entire portions that that were plainly the same document as that adopted ex parte by the trial court with that one very notable exception.  The difference which he demonstrated then and there for the Court, highlighted on the computer screens in front of them, showed that there was no “meeting of the minds” as to the version suddenly and unexpectedly approved by the trial court, since that condition was not the same in the two documents, even though they had reached agreement as to essentially every other issue between them.  Their failure to agree to that term meant that there was no contract between them, and there was no evidence that they had decided to submit the dispute to the Court’s discretion; in fact, the transcript of the final hearing submitted as Exhibit “G” to the Application for Appeal showed that they instead were still negotiating the final form of the agreement prior to its approval by the Court.

B.   By refusing to grant the appeal of this matter, the Court ignores the necessity of safeguards for settlement of cases.

No matter what else may be minimally-required for a fair and just disposition of a dispute, there needs to be legal notice given to the parties directly-concerned.  Since at least the 1927 case of Millis v. Millis, 165 Ga. 233, 140 S.E. 503, a divorce procured by a party to achieve a unilateral result without the other party’s contribution to its outcome has been such fraud as will entitle a party to have it set aside; in today’s legal climate, it is especially important that this basic rule of required notice not be set aside in favor of convenience.

There are mechanisms provided by the existing legal structure to eliminate discrepancies and forge the kind of lasting and strong arrangement for the benefit of the children of a divorce that the Court spoke of; these include the appointment of a Guardian Ad Litem to represent the interests of the children affected by the divorce.  Uniform Superior Court Rule 24.9(8)(d) states that the Guardian Ad Litem appointed by the Court to represent the best interests of the children involved in a divorce case must be presented with a settlement agreement reached by the parties, but no person fulfilling this role was appointed by the Court after counsel for Appellee objected to the appointment, and the judge himself then took over this role.  This meant that the trial judge himself was under a duty to see that the best interests of the child were satisfied by the sudden reversal of the child visitation provisions but the actual result, waved in front of the Court at the hearing by counsel for Appellee, was that the child was locked in a psychiatric facility when she acted out against her mother following the unlawful actions in question.  This is actual, demonstrable harm that resulted from the removal of a basic contractual prerogative from the divorce process, and it is not a harm that should be institutionalized by the Court.

Even in the absence of a Court-appointed and qualified Guardian Ad Litem, the Court is still required to provide an important protection to Orders entered by it in the form of findings of fact justifying the entry of its Orders.  It is important to note that these findings of fact did not exist, or were drafted exclusively by counsel for Appellee, without any unbiased findings by the Court itself.  This ex parte nature of the final decree, which factually demonstrated the incredible danger that this kind of action poses for those who dare to risk the sanctity of their familial relations on a theoretically neutral but realistically biased arbiter, can be easily distinguished from similar ex parte situations in the past..  In Fuller v. Fuller, 621 SE 2d 419 (Ga. 2005), a party complained about the entry of a divorce decree following the ex parte conversation of the Court with counsel for the other party.  However, there were specific findings of fact made that the Court used as a basis for justification of the disposition it approved; in the case at bar, there was simply an announcement of an “agreement” reached, and a note by the trial judge that the parties had stated they had reached “agreement” on the record.  There were no specifics discussed as to what the agreement entailed concerning the child visitation provisions, among others, and the Court’s subsequent actions showed that it did not even view its decree as binding when it chose to excuse the alimony obligation it had imposed on the wife since it hadn’t been paid, and to impose contempt fines on the husband and on his counsel for questioning its actions.  This is plainly contrary to every norm of justice and certainty that the legal system is designed to provide.

 

CONCLUSION

          The decision of the Supreme Court that appeal of the underlying judgment of divorce in this case was improvidently granted, thereby affirming the action of the trial court to enter divorce in the complete absence of any of the protections of due process and the uncontradicted evidence of the failure of the trial court to inquire into the details of the agreement reached, shown to have substantial post-judgment effects increasing litigation and increasing the animosity of the parties to a divorce, should be reconsidered immediately.  Failure to remedy this action by setting aside the decree in question has the realized danger of removing certainty from the judgments of the court, and the effect of destroying the authority of parties to negotiate for their own divorce settlements and bring closure to their private disputes.   More broadly, failure by the Court to reverse the decision of the Court below removes the abilities of private parties to contract for dispute resolution by eliminating the applicability of contract-law standards on settlement agreements, and resigning parties to the potentially arbitrary results of a trial judge’s unbound discretion.

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