2011.08.14 COURT OF APPEALS BRIEF

8/4/2019 2011.08.14 COURT OF APPEALS BRIEF

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N C AA A

A M. ,

Appellant, CA NMB:

v. AA9

MCA . ,

Appellee.

BRIEF OF APPELLANT

CM N Appellant efendant below, and files this brief on appeal.

A N

AC

lisa owe, Appellant and Michael owe, Appellee were married on August , 994. uring

their marriage they had two children: achary, born May 7,99 and van, born uly 9, 997. he

parties were divorced by order of the uperior Court of Coweta County, Civil Action No. 99--447

on April 9, (-3) which incorporated an Agreement dated April , (-7). An

Amended inal ecree was filed May 8, . (-) Appellant, lisa owe, was granted ole

Custody of the parties minor children.56XEVHTXHQWO\LQ6XSHULRU&RXUWRI&RZHWD&RXQW\

&LYLO$FWLRQ1RY0V/RZHfiledD etition for FKLOGVXSSRUWDQGPRWLRQIRUFRQWHPSW

2Q$XJXVWDQRUGHUZDVHQWHUHGILQGLQJ$SSOOHH0LFKDHO/RZHLQFRQWHPSWRIFRXUW

DQGRUGHUHGWRKLPWREHJLQSD\LQJ0V/RZHFKLOGVXSSRUWIRUWKHLUFKLOGUHQ5

DQXDU\0LFKDHO/RZHILOHGIRU0RGLILFDWLRQRI&XVWRG\DQG6XSSRUWLQ&RZHWD

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requested and received an ex parte emergency order granting him temporary emergency custody of

the minor children. pon review or the ex parte relief at the emergency hearing, Chief udge

illiam . ee, r. vacated said ex parte order, stating that the ex parte relief was improvidently

granted. Ms. owe was restored to the sole custodian of the minor children with Michael owe

having visitation rights.

Appelllee's Modification of Child Custody and Child upport case was pending from DQ

Xntil it was dismissed on ecember 9, 8 for lack of prosecution by udge /HH5

March 4, 8during the pendency of the Coweta uperior court case. Appellee,0LFKDHO

owe filed Dsecond, simultaneous, Complaint for Change of Custody in the aulding

uperior Court, Civil ile No. 8-C-4- (-) tating under oath that there were no pending

proceedings (-9)DQGWKDWYHQXHZDVSURSHULQWKHDXOGLQJ&RXUW5WLVDIDFWWKDWDWWKH

time the aulding Case was filed, Appellee's first modification IRUFXVWRG\caseLQ&RZHWDZDV

pending$SSHOOHHVDWWRUQH\DFQRZOHGJHGWKLVZKHQDVHGE\D&RZHWDXGJH (-7 line 3)

epeating his ill-fated tactics from the Coweta 4--3 case, Mr. owe initiated this

aulding case (8-C-4-) E\REWDLQLQJan ex parte emergency order 5changing

the sole custody of the minor children from lisa owe to Mr. owe. he aulding uperior Court,

udge ames sborne, presiding, issued an emergency ex parte order making a written findingRQ

0DUFKWKDW0V/RZHKDVOHIWWKH6WDWHRI*HRUJLD5RQO\WHQGD\VSULRURQ

HEUXDU\5DQGWKDWZDUUDQWHGDQHPHUJHQF\FKDQJHRIFXVWRG\

he ex parte hearing was not transcribed or otherwise recorded and is not part of the trial

record. here were no affidavits from teachers, police, AC, doctors any other person qualified

to evaluate and testify to emergency conditions affecting the welfare of minor children as part of the


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3

trial record. The only sworn testimony offered was that of Mr. owe by and through his verified

complaint (age 3) and proffered by his attorney of record, Martin . albuena. Mr. owe

testified that a mere ten days before the filing of this action, lisa owe had moved to Tennessee.

(5 ) nder oath, Mr. owe claimed to have been awarded joint legal and joint physical

custody of the Children. ( .) Mr. albuenas pleadings promise a true and correct copyRIWKH

unexecuted inal rder is attached as xhibit . 5The Clerk of the aulding uperior Court

initiated a diligent search to determine whether said xhibit was ever filed as asserted by Mr.

albuena. The August 9, 011 rder from the Clerk of this onorable Court, and a part of this

appellate record, confirms that xhibit was not filed with the Complaint.

Again, upon review of the emergency ex parte order issued by the aulding uperior Court,

udge ames sborne, presiding, found the emergency change of custody unwarranted and returned

the sole custody of minor children to your Appellant, lisa M. owe. udge sborne allowed Mr.

owe to resume his visitation, ordering, AT, the visitation schedule previously followed by

the parties shall continue once the father is released from jail. (44) Attorney awn Ballard

DWWHQGHGWKH emergency custody hearing but WKDWZDV$SSHOODQWVILUVWDQGODVWWLPHVHHLQJKHUVKH

QHYHUfiled any responsive pleadings or an entry of appearance.7 7KHrder returning

WKHPLQRUFhildren to lisa owes custodyZDVDVVXPHGILQDO RQ April 9, 008. (44)

This case lay dormant for next 30 months, with the exception of Mr. albuenas Motion or

ithdrawal f Counsel for nonpayment of attorneys fees. Mr. owe had written Mr. albuena

a 3000 bad check (49) Mr. albuenasPRWLRQZDVJUDQWHGE\-XGJH2VERUQHRQ$XJXVW

008. 5 :LWKRXWDQDWWRUQH\DQGDUHORFDWLRQWR6DYDQQDK*$U/RZHGLGQRW

prosecute the case no discovery was conducted and , the aulding Mediation Center refused to


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4

schedule mediation, ILQDQFLDOGRFXPHQWVQHYHUILOHGbut no final disposition form was completed.

ometime before April 1 , 010, Mr. albuena and Mr. owe resolved their fee disputeth

and renewed their legal activity. nstead of pursuing this aulding custody modification, they filed

a new action titled Motion to et Aside in Coweta uperior Court and assigned Civil Action ile

Number 101084. (3) Mr. owe again availed himself of and submitted himself to Coweta

uperior Courts jurisdiction and venue by this new Motion to et Aside. aid motion requested

the Coweta uperior Court to set asideWKHILQDORUGHU GLVPLVVLQJWKHRGLILFDWLRQ

RI&XVWRG\FDVHArmed with lots of equity but lacking supporting statutory or case law, Mr.

owe and DQGKLVDWWRUQH\could not overcome that they were 1 months late to reinstate there case.

As such, their Motionwas summarily dismissed by udge ack irby. ()7

Two months after filing the Coweta Motion to et Aside and before it was summarily

dismissed, Mr. albuena officially reinvolved himself in Mr. owes aulding modification of

custody action, filing an ntry of Appearance on uly , 010 () and a ule Nisi for uly 1,

010, a mere 1 days later. The ule Nisi did not state the purpose of the requested hearing. (

). The day after filing his entry of appearance and certificate of service and mailing it to Ms.

owe (5), Mr. albuena filed with the Clerk of aulding uperior Court two affidavits

titled Minor Child lection executed by the parties two minor children stating that they desired

to live with their father in lorida. The children had executed the affidavits on uly 3, 010 before

Martin . albuena, Notary ublic. 5These swearings and execution of affidavits were

completed during one of their fathers visitation periods. espite having possession of these

notarized Minor Child lections before he mailed his ntry of Appearance to Ms. owe, he never

sent a copy of these affidavits to lisa owe.7urther, after a thorough search at the direction


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of the Clerk of this onorable Court, the Clerk of aulding uperior Court was unable to find any

filing of a certificate of service by Mr. albuena showing he had provided these Minor Child

lections to Ms. owe.

n uly 1, 010, Ms. owe filed her first responsive pleadings in 08C114 with the

Clerk of Court. They included the following pleadings

1. Notice to Court of Another Court aving urisdiction over Child Custody Matters ursuant to

.C..A. 199, raud, erjury and equest for ule 1 anctions ()

. Motion for ismissal of laintiffs Current equest for a Temporary earing (4)

3. laintiffs ailure to Comply with eorgia niform ules of uperior Court (5 4)

uling on the Appellants pleadings, aulding uperior Court, udge ames sborne, presiding,

issued a Temporary rder dated August 10, 010.5 At aragraph the Court wrote

Before the temporary hearing commenced, efendant objected to the Courts jurisdiction based

on improper venue. The Court finds that efendant had an attorney representing her previously in

this case and that her attorney made an appearance in the case and participated in an emergency

hearing, in which efendant prevailed, without raising any objection to venue. The Court further

finds that in the two and half years that this case has been pending, efendant has not filed any

responsive pleading raising an objection to venue. Based on these factual findings, the Court finds

that efendant has waived any objection to venue that she might have had. (88)

n November , 010, Ms. owe filed her Motion for econsideration of hether this

Court as urisdiction. (10) As part of her motion she attached a copy of atch v.

atch, 8 a. App. 83 (00), a case decided by this onorable Court, with similar facts, and the

current controlling law of eorgia in custody jurisdiction and venue matters.


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n November , 010, aulding uperior Court, udge ames sborne, presiding, conducted

a hearing regarding the custody of the minor children of the parties. Based upon the childrens

elections, the Court ordered that the children could move to lorida with Mr. owe as their

permanent primary legal and physical custodian.5

n November 1, 010, trying to prompt and urge a communication between aulding and

Coweta uperior Courts as required by .C..A. 194(d), your Appellant filed her emand

for Abatement of roceedings ue to ack of urisdiction and Notification of nquiry of urisdiction

in Coweta uperior Court.(13) This pleading informed aulding uperior Court that she had

brought this jurisdictional and venue matter to the attention of the Coweta uperior Court, udge

uillian Baldwin, presiding. Ms. owe attached a copy of the pleading she filed with Coweta

uperior Court titled, Amended etition for Contempt and Notification of mproper surpation of

ersonal and ubject Matter urisdiction by a Court ithout urisdiction. (1) Ms. owe

specifically requested that aulding uperior Court notify and communicate with Coweta uperior

Court pursuant to .C..A. 19. rerequisites for termination of exclusive, continuing

jurisdiction. (13)

The Court denied Ms. owes Motion for econsideration and such denial was made a part

of its inal rder (143) filed with the Clerk on anuary , 011.

n anuary , 011, udge Baldwin conducted an inquiry as to the Coweta uperior Courts

continuing and exclusive jurisdiction at a hearing with the parties and Mr. albuena present and

participating without objection. A copy of the Coweta transcript was filed with the Clerk of the

aulding uperior Court, and made part of the record, without objection, ( 19198)


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Though it is usually considered bad form to include portions of a transcript in an appellate brief,

udge Baldwin succinctly framed this venue and jurisdiction issue by his crossexamination of

Appellant lisa owe and Mr. albuena at this hearing.

10 Ms. owe n the meantime we're going to court for custody in

11 aulding County. have screamed. Not screamed. have

1 filed a jurisdictional issue, and my first pleading with

13 the court did not even know that that case was still

14 alive because when got the children back

1 T CT et me stop you for just a second.

1 ou're getting me confused. et me ask you a couple of

1 questions.

18 here do you live now?

19 M. live in Newnan, eorgia.

0 T CT ou live in Newnan?

1 M. es, sir.

T CT here did y'all get divorced?

3 M. ere.

4 T CT n Coweta County?

M. es, sir.

1 T CT here are the children?

M. The children are now with Mike in lorida.

3 T CT ow did they get to Mike, to be with Mike


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4 in lorida?

M. Because they was granted custody in

aulding County where Martin albuena is also a judge in

aulding County. And feel like was home cooked there

8 to be honest with you.

9 T CT But this is a contempt action, right,

10 today?

11 M. ight. n the jurisdiction issues would

1 just like for the Court to enter again a declaratory

13 judgment stating that you never released. They're bound

14 to it. ven if they get temporary emergency jurisdiction,

1 they're supposed to get a relief from this Court within 90

1 days according to OCGA 19-9-64.

1 T CT And where were you living when y'all,

18 when the thing happened in aulding County giving him

19 custody?

0 M. ere in Coweta County.

1 T CT here had the boys been living? Are they

boys?

3 M. es.

4 M. ABNA Two boys.

T CT here are they living?


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1 M. They are living in lorida because he gave

them

3 T CT No, 'm talking about when you had the

4 case in aulding County, where had they been living?

M. ith me in Coweta and in Tennessee.

Tennessee and we moved back to Coweta.

T CT ow long when the case was filed in

8 aulding County, where were they living?

9 M. e had moved about two weeks we were in

10 Tennessee.

11 T CT ou had been in Tennessee for about two

1 weeks?

13 M. Correct.

14 T CT hy was it filed in aulding County? ad

1 you been living there?

1 M. No, sir. Mr. owe, Mike owe had lived in

1 aulding County. 'm not sure if it was a court they were

18 familiar with or what.

19 T CT The boys lived with him in aulding

0 County?

1 M. No, sir.

T CT et me read this petition for contempt


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3 and answer real quick. Maybe that will help me since

4 you're not a lawyer.

M. ABNA There's an amended petition for

1 contempt.

T CT saw that in there. t will take me a

3 minute or two.

4 M. May step out and get some water?

T CT es.

(hort pause.)

T CT Mr. albuena, what have you got to say

8 about this?

9 M. ABNA udge, the overwhelming number of

10 these issues that Ms. owe has raised in her petition and

11 the amended petition have already been decided by other

1 judges, and there are court orders to that effect. have

13 them all here for you.

14 All of the jurisdictional issues that Ms. owe raises

1 about what happened in aulding County, she raised all of

1 those numerous times in aulding County, and the judge

1 determined that she had waived those because she didn't

18 bring them properly when she was represented by an

19 attorney there. The judge issued a fine on her in this


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0 case.

1 T CT et me ask you this about that f there

was a previously pending suit concerning the same matter

3 in Coweta County, there's no way for it to be valid in

4 aulding.

M. ABNA hat had happened in the Coweta County

1 case was that case was filed in 001. t was tried to a

final hearing in April of 00. udge Byron mith.

3 T CT ait just a minute. don't want you to

4 say a word. (peaking to Ms. owe.)

M. ABNA udge Byron mith heard that as a

special set, issued a ruling from the bench. The lawyers

took down their notes and never entered an order.

8 Mr. owe's attorney prepared an order. ent it to Ms.

9 owe's attorney. They couldn't get together on the

10 language. t never got submitted to the Court. udge

11 mith issued a ruling, but it never got entered. But the

1 case was done except for an order being signed.

13 T CT t was still pending?

14 M. ABNA Theoretically, yes.

1 T CT till pending, so no case about the same

1 subject matter in aulding County was valid.


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1 M. ABNA udge, she raised that issue, and the

18 Court up there denied them.

19 T CT can't help it. That doesn't make the

0 Court right.

1 M. ABNA understand it, but think her

relief is in aulding County to appeal that judgment, not

3 to come here and try to collaterally attack the aulding

4 County judge's decision in Coweta County.

T CT t looks like that's what y'all are

1 doing.

M. ABNA ow are we doing that, udge?

3 T CT n aulding County by filing the thing in

4 aulding County.

M. ABNA No, udge. hen we filed the case in

aulding County, we said that order is not signed, udge,

but that's the order that they're living under. e

8 weren't (sic) we were (sic) trying to change the order

9 of udge mith. e weren't trying to go behind him. e

10 were trying to say, that's the order and the case is done.

11 he's left the tate. e lives in aulding County, and

1 we're filing it in aulding County because that's where he

13 lives.


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13

14 T CT ow can you file it in aulding County

1 where he lives? ow does that give you jurisdiction?

1 may be wrong about all this, but don't think you can do

1 that.

18 ou can do that in a divorce if she moves out of

19 state and the person is a resident of the state and meets

0 all the other requirements. ou can file it in the same

1 county that the plaintiff lives in if she doesn't live in

the tate of eorgia.

3 f she lives in the tate of eorgia, then he's got

4 to file it in the county where she's living andor he's

got to file it in the county where she's living in the

1 other state. r if it's a contempt action it has to be

filed and it's in the tate of eorgia, it has to be filed

3 in the county which originally issued the order.

4 M. ABNA udge, think that's a venue issue.

enue can be waived. he raised that issue in aulding

County, and the judge found that she had waived venue and

that's why he could proceed in aulding County. he

8 raised that issue three or four different times and lost

9 every time.

10 T CT don't care. don't agree with that.


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11 ho was the judge?

1 M. ABNA ames sborne.

13 T CT kay.

14 M. ABNA But the issue you're bringing is a

1 venue question; and venue can be waived, regardless of

1 where, in any kind of case.

1 T CT t can be waived, but it's got to be

18 specifically waived. The thing about it is is if a case

19 was pending here, no case in any other case in the tate

0 of eorgia is valid if there's a case pending here.

1 don't think she can waive that. f it's pending here, she

can't come to court and say, well, give up any rights

3 've got under that case. t's pending there. e'll let

4 y'all decide it here.

id she do that?

1 M. ABNA udge, she raised all those arguments,

and the judge in

3 T CT No. asked you a specific question.

4 id she come in court and say, 'll forget about

what's going on in Coweta County, let's do it here; is

that what she did?

r did she say there's a case pending in Coweta


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8 County, and you don't have jurisdiction?

9 M. ABNA he was represented by an attorney

10 when the case started in aulding County, and the attorney

11 didn't make any objection as to venue. They let the case

1 in aulding County go on.

13 o no, she didn't say, well, give up my rights. o

14 she didn't object to aulding County venue. he went

1 forward in aulding County.

1 T CT ou just said she raised all those

1 issues.

18 M. ABNA After her lawyer withdrew or wasn't

19 representing her down the road, Ms. owe raised those

0 objections on her own, and two years later; and the Court

1 found that she had waived them by that point.

T CT That's incorrect or something.

3 M. ABNA And she

4 T CT t's unfortunate that she didn't keep the

lawyer, and it's unfortunate if that happened that wasn't

1 appealed because that's just incorrect. That's just an

incorrect ruling.

3 There's no way for him to issue an order in that

4 county if the same case was pending in Coweta County.


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hat could have happened is he could have said, well,

y'all go get that one in Coweta County dismissed and come

forward. And if you were the lawyer in both of them,

8 that's what you should have done.

9 But there's no way that order he signed was valid.

10 o anyway, go on and tell me what else y'all have got to

11 say.

1 M. ABNA The lawyers in the 004 case that were

13 here, udge, neither one of those have ever represented

14 them again.

1 T CT 'm sorry they've never represented them

1 again.

1 M. ABNA But what 'm saying is

18 T CT But what 'm telling you is none of that

19 changes. The one big fact here that there was a case

0 pending in this court that hadn't been dismissed and you

1 cannot do the same thing in another county when that

hadn't been dismissed. There's just no way to do it.

3 That judge up there couldn't dismiss this case.

4 M. ABNA Correct.

T CT ou can't do that.

1 M. ABNA 'm not arguing with that, udge.


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1

think it's a venue question. think her relief is in

3 aulding County or with the Court of Appeals. The relief

4 for that issue is not here.

T CT ell, the fact of the matter is is she

can file her case here against him for contempt.

M. ABNA Absolutely.

8 T CT And that case doesn't have any bearing on

9 this. e's obviously in contempt of some things that were

10 ordered in this Court which he never complied with.

Ms. owe filed her Motion to et Aside, Motion for New Trial and enewal of equest for

ule 1 anctions Based pon Continuing raud Committed by Attorney Martin albuena.5

A hearing was conducted to consider said motions on April , 011. Ms. owes Motions were

denied. (5)

PRESERVATION OF ERROR

our Appellant has preserved her allegations of error by an through the following pleadings

1) Notice to Court of Another Court aving urisdiction ver Child Custody Matters ursuant to

.C..A. 199, raud, erjury and equest for ule 1 anctions (age ) (iled uly 14,

010) (efendants irst esponsive leading)

) Motion for econsideration of hether This Court has urisdiction ver this Custody Matter

(10108) (iled November , 010)

3) emand for Abatement of roceedings ue to ack of urisdiction and Notification of nquiry

of urisdiction in Coweta uperior Court (1313)(iled November 1, 010)


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) Motion to et Aside, Motion for New Trial, and enewal of equest for ule 1 anctions Based

pon the Continuing raud Committed by Attorney Martin . albuena (Tage 118) (iled

ebruary 4, 011)

AT T

NMATN

urisdictional tatement Appellant shows that jurisdiction is properly in this Court, rather than the

upreme Court, because this is an appeal from a final judgment in a domestic relations case

pursuant to .C..A. 3(a)().

1. hether the aulding uperior Court can assume jurisdiction over the parties and their

minor children when there was a pending change of custody action in Coweta uperior Court at the

time the aulding uperior Court case was filed and hence, whether the inal rder dated anuary

, 011 is void for lack of jurisdiction.

. hether the aulding uperior Court erred by finding that the Appellant consented to the

jurisdiction of the aulding uperior Court by making an appearance at an emergency hearing, where

her children were taken from her custody in an ex parte emergency hearing based upon solely upon

the false swearing of the Appellant, and the aulding uperior Court returned custody of the children

to Appellant at said emergency hearing, at a time when there was a pending custody action in Coweta

uperior Court, and hence, whether the inal rder dated anuary , 011 is void for lack of

jurisdiction.

4) Transcripts of April 6, 2011 Hearing (R-271-289)


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3. hether the aulding uperior Court erred by finding that Appellants first responsive

pleadings, that specifically objected to the exercise of continued jurisdiction over the custody matters

of the children, were untimely filed, and hence, whether the inal rder dated anuary , 011 is

void for lack of jurisdiction.

4. hether the aulding uperior Court had a duty communicate with the Coweta uperior

Court regarding the concurrent exercise of jurisdiction over the same parties and same subject matter

pursuant to .C..A.194(d).

. hether the aulding uperior Court had a duty to investigate that allegations of fraud

and perjury that are found on the face of the Appellants pleadings, and dismiss said action or refer

said allegations of perjury and violations of to the tate Bar of eorgia or to the local istrict

Attorney as required by udicial Canon 3(b)(.),

AT T

TANA

The tandard of eview for all of the numerations of rror is a de novo review as the evidence is

uncontroverted . igdon v. tate, 0 a. App. 1, 0 ..d 903 (004); (Because the evidence

is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de

novo review of the trial court's application of the law to the undisputed facts.); ougherty County

v. ebb, a. 44, 4, 30 ..d 4 (198); Autowners ns. Co. v. Crawford, 40 a.

App. 48, 0, ..d 118 (1999); Moore v. ood Associates, nc., 10 a. App. 80, 81, 43


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0

..d 83 (1993).

ARGUMENT AND CITATION OF AUTHORITIES

numerations of rror 1, , 3, and 4 pertaining to the urisdiction and enue ssues

The trial court found that Ms. owe had waived her right to contest the exercise and venue

by aulding uperior Court at an emergency hearing. The trial court erred as such a finding is

contrary to the rationale and holding of atch v. atch, 8 a. App. 83 (00). Analyzing

whether Ms. atch had waived her issues of proper jurisdiction and venue, the atch Court noted

that CA 199 (a) except as provided in CA 1994, a court of this state which has

made a child custody determination consistent with CA 1991 or 1993 has exclusive,

continuing jurisdiction); see pchurch v. mith, 81 a. 8 (3 d 10)(00); ish v. ish,

a. App. 4 (9 d 4)(004), d at ___. t is undisputed that Coweta uperior Court

presided over the parties ivorce with Minor Children and determined that lisa owe was the

proper parent for legal and physical custody of the minor children. urther, Mr. owe availed

himself of Coweta uperior Courts jurisdiction by filing a modification of custody action in Coweta

043. At the time Mr. owe and his attorney of record, Martin . albuena filed the current

aulding modification of custody action, Mr. owes Coweta 043 was still pending. ncredibly,

while this aulding custody action was pending, Mr. owe and his attorney of record, Martin .

albuena filed another custody action (Coweta uperior ile Action Number 10803) requesting

the Coweta Court to revisit the issues of 043.


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1

The aulding trial court found that because Ms. owe was represented by an attorney, made

an appearance and participated in an emergency hearing, in which lisa prevailed, she waived her

right to object to aulding CountyYHQXH7 $ppellant shows that each and every

eorgia court has the jurisdiction to exercise jurisdiction in any matter where a child is in danger

pursuant to .C..A. 1994. .C..A. 1994(a) states A court of this state has temporary

emergency jurisdiction if the child is present in this state and the child has been abandoned or it is

necessary in an emergency to protect the child because the child or a sibling or parent of the child

is subjected to or threatened with mistreatment or abuse. owever, this exercise of emergency

jurisdiction should not be construed to allow the usurpation of a another Courts continuing and

exclusive jurisdiction. This onorable Court in Taylor v. Curl, 98 a App 4 (009) stated the

following eorgia's child custody laws limit the ability of a parent to terminate the continuing

jurisdiction of the court that made an initial child custody determination. uch limitations serve, in

part, to prevent a noncustodial parent from seeking to modify custody determinations in his or her

home jurisdiction without regard to where the child and custodial parent have the closest

connections. owever, one exception to this general rule is found in CA 1994, which

provides courts with temporary emergency jurisdiction over child custody cases.

Mr. owe alleged in his aulding Complaint for Change of Custody that efendants

actions in moving and denying laintiff access to the Children, her stability issues and her neglect

of the Childrens educational needs have created an emergency situation this in the Childrens best


22/28

interests, warrants an immediate ex parte change of custody. ithout this immediate ex parte

change of custody, an eminent and substantial threat to the health, safety and wellbeing exists.

(Tage 11, aragraph 1) Based on Mr. owes allegations of an emergency situation involving

the health, safety and welfare of the minor children, the aulding uperior Court saw reason to issue

an ex parte order transferring custody of minor children to Mr. owe. Ms. owe was ordered by a

competent uperior Court of eorgia to attend an emergency custody hearing so that the Court could

determine if the minor children needed protection. he complied with the aulding Courts direction

to attend the hearing. bviously, the allegations of danger to the children were determined by Court

to be unfounded as the aulding uperior Court immediately returned the minor children to lisas

custody upon review. (rder at T age 44). At the point in time that the aulding uperior Court

determined that no emergency circumstances existed, its temporary emergency powers ceased and

the continuing and exclusive jurisdiction returned to Coweta County t is also obvious that when the

children were returned to Ms. owes custody, Mr. owe all but abandoned this case. Mr. owe

wrote Mr. albuena a bad check for his attorneys fees and Mr. albuena withdrew from his

representation of Mr. owe in this case. Mr. owe chose not to hire another attorney, proceedpro

se, or otherwise, prosecute this case. lisa owe had prevailed again against Mr. owes unfounded

accusations made at an ex parte hearing.

Because the Appellee opted to initiate this aulding modification of custody case with

allegations of requiring immediate and emergency action, Ms. owe did not have the statutorily


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3

prescribe amount of time, thirty (30) days, to respond to Mr. owes complaint. Before the usual

thirty days had expired she had been vindicated and her minor children returned to her custody. n

an incredible case of homecooking, the aulding Court stated in its Temporary rder dated

August 10, 010 the following The Court further finds that in the two and a half years that this case

has been pending, efendant has not filed any responsive pleading raising an objection to venue.

Based on these factual findings, the Court finds that the efendant has waived any objection to

venue she might have had. ( 88) f course, Mr. albuena drafted the Temporary rder (

91) without providing a copy of a draft to Ms. owe for review. ithout shame, Mr. albuena

presented such a finding for udge sbornes signature when it was, in fact, Mr. albuena that had

been absent and withdrawn from the case for the two and half years due to the bad check

incident and nonpayment of his attorneys fees.

our Appellant shows that though aulding uperior Court could exercise emergency

jurisdiction over any matter involving the safety of a minor child, such jurisdiction is not exclusive

and continuing. hen, after more than two years, Mr. albuena had the Court issue a ule Nisi,

lisa owe filed her first responsive pleadings. n these first responsive pleadings she challenged

the jurisdiction and venue of the aulding uperior Court and informed the aulding Court that

Coweta uperior Court had continuing and exclusive jurisdiction over the custody matters of the

parties minor children. . n Bonner v. Bonner, a. 4 (000) the Court held

A efendant waives the defenses of improper venue and lack of jurisdiction of the person by failing


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4

to raise such defenses by motion or through responsive pleadings. ub judice, Appellant did both,

and did so before and throughout the course of this action. Clearly and without question, Appellant

properly and timely raised her defense to jurisdiction and venue. There is no question that Appellant

is a resident of Coweta County, that the parties were divorced by the Coweta uperior Court, that

Coweta uperior Court has never relinquished its jurisdiction over the parties or their minor children

and that the Appellee and his attorney, Martin . albuena, continually avail themselves of the

jurisdiction of the Coweta uperior Court. As contemplated by .C..A. 9111(h)(1), the

Appellant clearly raised the issue of the defense of jurisdiction and venue in her first responsive

pleading and continued to object to the exercise of aulding uperior Courts jurisdiction over her

and her minor children

our Appellant in her November 1, 010 emand for Abatement of roceedings ue to

ack of urisdiction and Notification of nquiry of urisdiction in Coweta uperior Court

specifically requested and implored that this Court follow .C..A 199 and notify Coweta

uperior Court of this subsequently filed case in an attempt to resolve jurisdictional issues. ee

13)

CA 199 (d) A court of this state which has been asked to make a child custody

determination under this Code section, upon being informed that a child custody proceeding has

been commenced in, or a child custody determination has been made by, a court of a state having

jurisdiction under Code ections 1991through 1993, shall immediately communicate with


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the other court. A court of this state which is exercising jurisdiction pursuant to Code ections19

91 through 1993, upon being informed that a child custody proceeding has been commenced

in, or a child custody determination has been made by, a court of another state under a statute

similar to this Code section, shall immediately communicate with the court of that state to resolve

the emergency, protect the safety of the parties and the child, and determine a period for the

duration of the temporary order.

The aulding uperior Court committed reversible error by refusing to communicate with the

Coweta uperior Court as required by .C..A.199(d).

numeration of rror pertaining to Courts uty to nvestigate Allegations of raud and erjury

ithout question, Mr. owe and Mr. albuena knew that the proper court for litigating these

child custody matters was Coweta uperior Court This jurisdictional mess was created by Mr.

owe and his attorney, Mr. albuena by disregarding the most basic tenets of eorgia civil

procedure and eorgia statutes enacted to protect parties and their minor children from such abuses

within the system. By disregarding these statutes of protection, the Appellee wrongfully and

unnecessarily engaged the powers of aulding uperior Court.

Mr. owe made the following false statements in his verified complaint in aulding Civil

Action ile Number 08C114

a. Although Coweta County previously granted the arties divorce and heard the modification

case, none of the arties currently reside in Coweta County, and it has no interest in the case. (T


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age8, aragraph )

b. laintiff is not aware of any pending proceeding other than this action concerning the custody

of the children. (Tage 9, aragraph 8(b))

c. As a result of the 00 (Coweta) modification action, the arties share joint legal and joint

physical custody of the Children. (Tage , aragraph ).

As an officer of the Court, Mr. albuena knew that Mr. owes abovereferenced verified

assertions were false and misleading to the aulding uperior Court. Mr. albuena knew that

Coweta uperior Court was the Court of continuing and exclusive jurisdiction as he referenced

Cowetas prior rulings and orders in aragraph 4 of his Complaint for Change of Custody in

aulding County. n aragraph of his Complaint for Change of Custody in aulding County, Mr.

albuena prepared the following pleading for his client to verify under oath and asserted the

following ubsequent to their divorce, laintiff filed a etition for Modification of Child Custody

and Child upport in Coweta County, eorgia in Civil Action ile No. 043. The Court held a

inal earing on April 1, 00. A proposed inal rder was prepared but never executed. A true

and correct copy of the unexecuted inal rder is attached hereto as xhibit . As a result of the

00 Modification action, the arties share joint legal and joint physical custody of the Children.

(Tage , aragraph .) Conveniently, Mr. albuenas xhibit was never attached to the

Complaint or filed with the Clerk of Court. nterestingly, the proposed inal rder that was never

executed by Coweta uperior Court granting Mr. owe something more than his visitation rights


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was never made a part of the aulding Clerks record. The only valid custody order in existence

after all of Mr. owes modification of custody actions is the Amended inal ivorce ecree issued

by Coweta County in 000.

our Appellant continually requested that aulding uperior Court, udge sborne,

presiding, conduct an inquiry into these false and misleading statement made under oath by Mr.

owe and suborned by Mr. albuena. aulding uperior Court refused to conduct such an inquiry.

Conversely, Coweta uperior Court conducted a hearing and inquiry as to the basis for auldingss

usurpation of Coweta uperior Courts jurisdiction. The fraud is readily evident on the face of the

verified complaint. urther, udge Baldwin could elicit no good reason from Mr. albuena why

aulding should retain jurisdiction over this matter. t is clear that Mr. albuena was forum

shopping for Mr. owe.

This onorable Court has recognized that a certain degree of homecooking exists in the

eorgia legal system. Taylor v. Curl, 98 a App 4 (009), citing ordon v. ordon, 18 a.

App. 100, 103 (33 d 33) (198) (noting that custodial parent "may have been the victim of

some 'home cooking'" by [4] a court of the jurisdiction in which the noncustodial parent resided).

After informing udge uillian Baldwin that she had lost custody of her children to Mr. owe who

now lives in lorida, and testifying that she felt like was home cooked there to be honest with

you. (T9) udge Baldwin chastised Mr. albuena for bringing this action in aulding County

rather than Coweta County.


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8

The fraud, perjury, and misleading statements and proffering of nonexistent custody orders

granting Mr. owe shared custody is clear, evident, and uncontroverted on the face of the verified

complaint. uring udge Baldwins crossexamination of Mr. albuena, Mr. albuena could offer

no valid reason, and much less, case law or eorgia statutes supporting his actions of filing this case

in aulding County. t is clear Mr. albuena was forum shopping for a Mr. owe in hopes of

serving Ms. owe a heaping plate of home cooking. from his powerbase of aulding County.

aulding uperior Court, udge sborne, presiding, has a duty under eorgia udicial Canon

3(d)()s to identify perjury and other unethical conduct committed by attorneys in their Court and

take appropriate action. The trial court erred in not investigating or hearing evidence on these

matters of fraud.

_________________________________

Elisa M. Lowe

Appellant

Pro Se

279 Crossroad Estates Drive

Newnan, GA 30265

(404) 704-7058

This 15 day of August, 2011

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2011.08.14 COURT OF APPEALS BRIEF

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