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Redacted Summary Judgment Theories of Recovery

by merlin on January 11th, 2018
  • Sumo

As I stated yesterday, the redacted theories for my motion for summary judgment are included in this post.  Keep in mind that many of the more subjective aspects of such a situation (child custody) are dispensed with entirely by the documentary proof.  They are not amenable to concepts of intention, being automatic mechanisms.

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Statement of Theory of Recovery #1

            The document entitled Petition for Modification of Custody/Visitation and Application for Citation of Contempt (hereinafter referred to as the “Petition”) first requests modification of the custody and visitation rights of Respondent XXXXX XXXXX; the absence of grounds for modification of custody due to the absence of any material change in the relevant circumstances of the parties or the child is dealt with below:

  1. Legal standards

“A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award.”  Helm v. Graham, 249 Ga.App. 126, 129 (Ga. Ct. App. 2001)(remarriage insufficient change to justify physical custody transfer, quoting Martin v. Greco, 225 Ga.App. 752, 753(1) (1997)).   More recently, the Court of Appeals has explicitly defined what is necessary to justify that transfer, requiring that the moving party show both a sufficiently material change in conditions since entry of the prior order, as well as an adverse effect on the child.  Jones v. Kimes, 287 Ga. App. 526, 528 (2007).  It was reaffirmed in the 2015 case of Jackson v. Sanders, when the trial court was forbidden from modifying child custody when it did not find a material change in circumstances or harm to the child’s welfare.  333 Ga.App. 544 (Ga. Ct. App. 2015).

To meet the requirements of a “material change in conditions” that are to be considered by the Court in making any c

hange in custody or visitation, the Official Code of Georgia provides factors for judicial consideration in Section 19-9-3(a)(3).  They are as follows:

“(A) The love, affection, bonding, and emotional ties existing between each parent and the child;

(B) The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;

(C) The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;

(D) Each parent’s knowledge and familiarity of the child and the child’s needs;

(E) The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;

(F) The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;

G) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(H) The stability of the family unit of each of the parents and the presence or absence of each parent’s support systems within the community to benefit the child;

(I) The mental and physical health of each parent;

(J) Each parent’s involvement, or lack thereof, in the child’s educational, social, and extracurricular activities;

(K) Each parent’s employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;

(L) The home, school, and community record and history of the child, as well as any health or educational special needs of the child;

(M) Each parent’s past performance and relative abilities for future performance of parenting responsibilities;

(N) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;

(O) Any recommendation by a court appointed custody evaluator or guardian ad litem;

(P) Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and

(Q) Any evidence of substance abuse by either parent.”

  1. Pertinent Admissions by Plaintiff

Nothing has happened to justify modification of physical custody, especially not in the short period of time that has passed since the divorce of the parties.  Further, the only changes that Petitioner describes in her Petition fail to even imply any adverse effect on the child.  The complete list of factors that Petitioner relies upon to meet the standard of eliminating Respondent’s rights to physical custody are set out by her in Paragraph 7 of the Petition, but they fail to withstand the items which she has legally admitted in this lawsuit by not responding to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period.  The relevant responses are as follows:

  • No medically-qualified physician has diagnosed Respondent’s health as “deteriorating”, nor is there a diagnosis of this (meaning that nothing has changed except her hearsay opinion);>
  • No written diagnosis says Respondent has “irrational” outbursts of anger (meaning that nothing has changed except her hearsay opinion);
  • Respondent has resided at his mother’s residence since he stopped residing in the marital residence (which he left prior to the divorce of the parties, meaning nothing has changed);
  • Petitioner has never witnessed any violent altercation between Respondent and his girlfriend, nor is there any kind of written or Court-Ordered agreement between the parties calling for introductions prior to meeting to the child (meaning that nothing has changed except her hearsay opinion);
  • The child experienced diaper rash prior to the separation of the parties (meaning that nothing has changed);
  • Petitioner did not check for “child-proof” facilities at homes that the child of the parties visited before the temporary hearing in this case (meaning that nothing has changed);
  • There have been no facts produced by Petitioner that indicate any harm to the health, safety, or welfare of the child of the parties (meaning that nothing has changed)
  1. Analysis

In other words, and as shown by examination of the admissions made above, Petitioner XXXXX XXXXX XXXXX has shown no material changes to the relevant child custody factors since the most recent judicial determination was made that justify changing that custodial arrangement, and her Petition’s first allegation should be dismissed with prejudice.  There are no allegations she has made that can be used to support the relief requested by her Petition.

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Statement of Theory of Recovery #2

            The document entitled Petition for Modification of Custody/Visitation and Application for Citation of Contempt (hereinafter referred to as the “Petition”) also requested the issuance of a citation for contempt against Respondent because of his alleged failure to provide health insurance for the child of the parties, as he was obligated to do under the Final Judgment between the parties. 

The allegations that Respondent is in contempt of the Order of the Court can be answered thoroughly and fail to withstand Petitioner’s legal admissions in this lawsuit, made by failing to respond to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period.  The relevant responses are as follows:

  1. Legal standards

OCGA § 15-1-4(a)(3) sets out the particular category of contemptuous behavior that Respondent is alleged to have committed, defining it as “[d]isobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”.  Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court.”  In re Hadaway, 290 Ga.App. 453, 457 (Ga. Ct. App. 2008)(quoting Barlow v. State, 237 Ga.App. 152, 157(3)(Ga. Ct. App. 1999)).  However, for contempt to be punishable, it must be committed willfully.  Id.; Thomas v. Dept. of Human Resources, 228 Ga.App. 518, 519 (Ga. Ct. App.1997). See also, generally, Herrin v. Herrin, 287 Ga. 427 (Ga. 2010). 

  1. Pertinent Admissions by Plaintiff

Addressing the absence of willfulness necessary to find that Respondent is in contempt of his obligation:

  • Petitioner refused to provide Respondent with copies of the child’s birth certificate or Social Security card;
  1. Analysis

If Petitioner was in the marital residence and was in possession of the birth certificate of the child and the Social Security card for the child, both of which were necessary to obtain the insurance that the Court Ordered that Respondent provide for the child, then it stands to reason that he was unable to comply with the Order if he requested it and was denied.  It is unjust and improper to punish a person for failing to fulfill a condition that they are prevented from fulfilling, and the admission of Petitioner above make it clear that she was actively preventing him from fulfilling that condition.

The Hadaway case is particularly informative on this point, and appears to have escaped opposing counsel’s attention; the conviction for contempt of a putative adoptive father and his counsel   was reversed by the Court of Appeals in that case when it was revealed that it was based not on their contempt of the Court’s Order but instead on the biological mother’s actions that caused violation of the Order of the Court, similarly to the present situation.

On a related note, and as an epilogue, upon the fulfillment of the Request for Production of Documents and Things made by counsel for Respondent in this matter, the Social Security card and Birth Certificate of the child were provided, and said contempt has now been rendered moot by means of a pending application for insurance.  The insurance is through CHAMPVA, and became effective on or about XXXXX XX.  A copy of a letter confirming the insured status of the child is attached hereto and incorporated as if restated herein as Exhibit “A1”.  The attached document is hereby incorporated and added to the document as Exhibit “A1”.

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Statement of Theory of Recovery #3

            In his Answer to Petition for Modification of Custody/Visitation and to Application for Citation of Contempt, and Counterclaim for Attorney’s Fees and Expenses, and his Amendment and Supplement to Counterclaim, Respondent has made a counterclaim against Petitioner regarding the erroneous child support imbalance made in this case, alleging fraud in the inducement.  Specifically, Respondent has noted the proof of this fraud.  In the Child Support Worksheet of the parties, a certain amount is described as the presumptive amount that Petitioner should be paying each month in support, which obligation is affirmed in the Final Judgment that binds the parties in this case, a copy of which is attached hereto and incorporated herein as Exhibit “B” to this motion.  That Final Judgment expressly states that “[t]he CHILD SUPPORT WORKSHEET filed XXXXX XX, 20XX is attached and incorporated herein by reference and made a part of this Final Judgment and Decree”, and a copy of the Child Support Worksheet is attached hereto and incorporated herein as Exhibit “C”.  Her monthly gross income is listed thereon as $XXX, and Respondent’s income is listed as $XXX.  Their respective child support obligations are listed as $XXX and $XXX twice each month.  However, with no explanation or excuse, Petitioner is not required to pay any child support under the terms of Exhibit “B”.

  1. Legal standards

In deciding on the fairness of a support obligation for the minor child, it must be remembered “that the primary consideration of the trial court in deciding custody matters must be directed to the best interests of the child involved, that all other rights are secondary, and that any determination of the best interests of the child must be made on a case-by-case basis”.  Haskell v. Haskell, 286 Ga. 112, 113 (Ga. 2009).  In fact, there are rules that govern whether a party can deviate from the monthly child support guidelines provided, and they require documentation.  “Where a deviation is determined to apply and the factfinder deviates from the presumptive amount of child support, the order must explain the reasons for the deviation, provide the amount of child support that would have been required if no deviation had been applied, and state how application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the children for whom support is being determined will be served by the deviation.”  Jackson v. Irvin, 316 Ga.App. 560, 561 (Ga. App., 2012)(explaining the provisions of OCGA §§ 19–6–15(c)(2)(E) and (i)(1)(B).  “In addition, the order must include a finding that states how the court’s or jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support. Id. at 561-562, explaining OCGA § 19–6–15(c)(2)(E)(iii).

Looking at this situation from a two-dimensional, transactional viewpoint, it must be remembered that “[s]ettlement agreements in divorce cases are construed in the same manner as all other contractual agreements.”  Steele v. Steele, 298 Ga. 548, 549 (Ga. 2016)(quoting Buckner v. Buckner, 294 Ga. 705, 708(1)(Ga. 2014).  Under the laws of contractual agreements, which are the same laws that govern this particular agreement, “[e]ssential terms of a contract include the subject matter and purpose of the contract, the identity of the parties, and the consideration” (emphasis supplied).  Id. (quoting John K. Larkins, Jr., Ga. Contracts: Law and Litigation § 5:1 (2d ed.) (database updated Sept. 2015)).

  1. Pertinent Admissions by Plaintiff

By failing to respond to Respondent’s First Continuing Requests to Admit within an even remotely reasonable time period, Petitioner has made certain legally-binding admissions.  The unjustifiable absence of a child support obligation on Petitioner is established by the following relevant admissions:

  • Petitioner has never paid child support to Respondent even though the child support worksheets indicate that she should be paying $XXX per month, and there are no large medical debts or large tax burdens that justify her nonpayment;
  • Respondent has paid at least $XXX in child support to XXXXX XXXXX XXXXX or for her since the date of her divorce from Respondent
  • The child of the parties resides in each of their care, custody, or control for approximately equal amounts of time.
  • XXXXX XXXXX XXXXX was represented by XXXXX XXXXX during her divorce from Respondent;
  • Respondent was unrepresented during XXXXX XXXXX XXXXX’s divorce from him;
  • Respondent was not present in Court for a final hearing on XXXXX XXXXX XXXXX’s divorce from him
  1. Analysis

Nothing in the Final Judgment and Decree in this case, or any accompanying documents, indicates malice on the part of Petitioner that somehow enabled her to remove her own child support obligations while insisting on those of her ex-husband, but it is suspicious that the same attorney represented her then, meticulously executed several documents that all repeated the same absence of any obligation on her part but completely ignored the mandatory provisions of OCGA § 19-6-15, obtained the signature of the trial judge in the absence of any mandatory factual findings justifying the deviations that were made on Petitioner’s behalf, and then made grandiose claims against Respondent to actually increase his obligations and reduce his rights while still failing to include any of the required provisions of law.  Though Respondent has accused them of violating the express rules of the contract that binds the parties by means of committing fraud in the inducement to get him to agree with their actions, including suborning the trial judge’s assistance in violating mandatory rules to the material and familial harm of Respondent, an unrepresented party, this error is unquestionably present, and it requires immediate correction.  Regardless of the presence of fraud in the inducement, the payment obligation of Petitioner must be fully imposed and the imbalance addressed.

            The child support obligation of Petitioner, amounting to a monthly payment of $XXX to Respondent or on his behalf twice monthly, should be imposed immediately.  Nothing excuses this.  Further, Petitioner has baldly admitted that she is now at least $XXX richer, and one month behind in making required payments for child support.  Therefore, she should be required by the Court to pay an additional $XX to Respondent, as required by law.

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Statement of Theory of Recovery #4

            Both Petitioner and Respondent have requested the imposition of Attorney’s Fees and costs and expenses of litigation in this case on the other side, in accordance with the provisions of OCGA § 19-6-2.

    1. Legal standards

Attorney’s fees are specifically provided for in an action for modification of child support in OCGA § 19-6-2(a).  Those fees are entirely in the discretion of the Court, but there is a condition on the exercise of that discretion in subsection (a)(1).  It says “…except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party” (emphasis supplied).

  1. Pertinent Admissions by Plaintiff

Certain legal admissions made by Petitioner in this lawsuit by virtue of her failure to timely respond to Respondent’s First Continuing Requests to Admit shed light on the competing requests of the parties for the legal fees they have incurred to be reimbursed by the other side, highlighting the unreasonableness of the demands made by Petitioner in this case.  The relevant responses are as follows:

 

  • XXXXX XXXXX XXXXX was represented by XXXXX XXXXX during her divorce from Respondent;

 

 

  • Respondent was unrepresented during XXXXX XXXXX XXXXX’s divorce from him (Respondent was in an inferior bargaining position immediately);

 

 

  • Respondent was not present in Court for a final hearing on XXXXX XXXXX XXXXX.s divorce from him (Respondent had no chance to be asked about the fairness of his settlement by the Court);

 

 

  • There have been no facts produced by Petitioner that indicate any harm to the health, safety, or welfare of the child of the parties (meaning that nothing has changed)

 

  1. Analysis

The Divorce Settlement Agreement that binds the parties includes language that says the parties had the opportunity to consult with counsel, reciting under Paragraph 22 (“Voluntariness”) that “[t]hey have sought and obtained legal advice independently of each other and have been fully advised of their respective legal rights.”  However, as the legally-binding admission above, supplemented by the factual, black and white evidence contained in the respective Child Support obligations of the parties, makes clear, this is not so. 

The purpose behind an award of attorney’s fees under § 19-6-2 is to place the parties in as even a position as possible; however, Exhibit “C” plainly shows that Petitioner has a higher income than Respondent.  Her monthly gross income is listed on that document as $XXX, and Respondent’s income is listed as $XXX.  Their respective child support obligations are listed as $XXX and $XXX each month, but this amount was somehow not included for both parties on the final Divorce Settlement Agreement; Petitioner, represented by the exact same attorney that represents her now, somehow avoided any child support obligation at all.

The obligation to support a child is a right that belongs to the child, and may not be contracted away by the parent.  Jones v. Jones, 280 Ga; 712, 714 (Ga. 2006).  However, according to the document prepared and presented solely by Petitioner and her counsel, with little more input from Respondent than his initials, that is exactly what was done; now they are demanding even more, and with less reason.  If their arguments as to Respondent’s Post-Traumatic Stress Disorder carry any weight at all, they acted maliciously and knowingly to the detriment of the child, and financial parity demands that the Court deny the relief they seek and grant attorney’s fees, costs, and expenses of litigation to Respondent.  The time spent by counsel for Respondent is attached hereto and incorporated herein as Exhibit “D”, and the total cost of representation that Respondent was forced to obtain to vindicate his parental rights in this case is $XXXXX.

 

 

 

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