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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$SSOOHH0LFKDHO/RZHLQFRQWHPSWRIFRXUW
DQGRUGHUHGWRKLPWREHJLQSD\LQJ0V/RZHFKLOGVXSSRUWIRUWKHLUFKLOGUHQ5
DQXDU\0LFKDHO/RZHILOHGIRU0RGLILFDWLRQRI&XVWRG\DQG6XSSRUWLQ&RZHWD
6XSHULRU&RXUW&LYLO$FWLRQLWKRXWDQHYLGHQWLDU\KHDULQJ0LFKDHO/RZH
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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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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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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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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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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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..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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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
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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