CHIEF JUDGE QUILLAIN A. BALDWIN, credit to author of MURPHY V. MURPHY; Newnan, GA (Coweta County Superior Court)
IN THE SUPREME COURT STATE OF GEORGIA Case No. ___________
Nancy Michelle Murphy and Millard Farmer, Petitioners
vs.
John Harold Murphy, Respondent
Petition for Writ of Certiorari to the Court of Appeals of Georgia The Court of Appeals Decision is Case No. A14A1137
Millard Farmer Georgia Bar No. 255300
P.O. Box 1728 Atlanta, GA 30301-1728
(404) 688-8116 millardfarmer@millardfarmer.com
Counsel for Nancy Michelle Murphy and Millard Farmer
Petition for Writ of Certiorari
Questions Presented
Question One.
Whether the Court of Appeals, as did the trial court, without any evidence to support an indirect contempt conviction, could, by shifting the burden of proof and using an illegal standard of proof, affirm the trial court’s adjudication of Nancy Michelle Murphy of civil indirect contempt for violating the trial court’s August 23, 2013 Order directing that, “[e]ach party and the Children shall fully cooperate with the custody evaluator” that the guardian ad litem selected and the Court designated.
Question Two.
Whether the Court of Appeals and the trial court could, without violating the protections accorded Millard Farmer by the United States Constitution’s Due Process and Equal Protection provisions and the corresponding protections of the Georgia Constitution, the laws and Rules of Court of Georgia and the holdings of the appellate courts of Georgia, uphold the criminal indirect contempt conviction of Millard Farmer, adjudicate him in absentia, without evidence beyond a reasonable doubt, under the following fatal, legal infirmities with the criminal conviction:
1. When, in a case with two jointly participating lawyers, the charging document only identified the charged individual, as “defendant’s lawyer” [singular, with no further identity].
2. When the August 23, 2013 Order (R. V11 p. 2192) placed a restriction upon the “parties” discussing matters with the children except for implementing the August 23, 2014 Order or the final decree that was used as the basis of the criminal contempt conviction of Millard Farmer.
The restriction provided, in its entirety, as follows. Neither party shall discuss any of the issues, allegations or claims in this case with the Children, unless such discussions are necessary to implement the terms of this Order or the terms of the Final Decree.
3. When the restriction was written in the August 23, 2013 Order by the Prosecutors/Plaintiff’s attorneys and when they charged the alleged illegal conduct relating to this “don’t discuss” restriction in their September 27, 2013 Amended motion for contempt, (R. V14, p. 2781) they stated that the charge was that “Neither party shall discuss.”
This restriction applies only to the “Parties” and certainly cannot be used as the basis for a criminal conviction for anyone other than a “Party.” Millard Farmer was not a “Party.”
The “Parties” were identified sixteen (16) times in the August 23, 2013 Order, that clearly identified the parties to be only the parents. In another segment of the Order, where the lawyers were intended to be included, the lawyers were identified as the “Parties’ lawyers.”
There was no restraint placed upon Millard Farmer by the August 23, 2013 Order drafted and presented with an ex parte, hand delivered letter to Judge Baldwin by a Glover & Davis lawyer in order to have 2 the August 23, 2013 Order executed by Judge Baldwin with information never supported by oath or any other form of admissible evidence. (R. V11, p. 2214)
The August 23, 2013 Order, sought to be enforced with criminal contempt charges, resulted from the wealth of the Plaintiff and his current wife to engage in habitual, litigious efforts to capture Jack and Thomas from these Children’s mother with unnecessary, expensive to defend, schemes that only these wealthy litigants could afford to successfully litigate with their judge-shopped jurist.
4. When this criminal contempt action was based upon the August 23, 2013 Order that, in part, held and reaffirmed as follows:
On July 19, 2013, Plaintiff filed his Second Amended Complaint and requested this Court have a temporary hearing to determine whether circumstances exist which support a temporary change in the physical custody of the Children * * *
Pursuant to the terms of the Final Decree, Defendant was awarded physical custody of the Children. . . . The Final Decree specifies the parties have joint legal custody of the Children but it is silent as to which parent has “final decision making authority” on legal custody issues. * * *
Conclusions of Law
It would not be in the best interests of the Children for temporary custody to be changed.
Order
The physical custody of the Children shall not be changed at this time.
The parties shall continue to exercise the parenting time with the Children as detailed in the Final Decree.
5. When, albeit that Millard Farmer was not legally charged, noticed, or that the August 23, 2013 Order was not applicable to Millard Farmer and that Millard Farmer was convicted in absentia, without any admissible evidence showing that he was engaged in any type of discussion that was not a necessity to implement the terms of the August 23, 2013 Order, or the Final Decree.
6. When there was no evidence supporting the following finding of fact identifying Millard Farmer.
Based upon the Court’s review of two affidavits signed by the children and filed by Defendant on September 23, 2013 in support of her Response to Plaintiff’s Motion for Contempt, the Court further finds that Defendant and Millard Farmer, one of her lawyers, are discussing the issues, allegations, and claims in this case with the children and that such discussions are not necessary to implement the terms of the August Order.
The affidavits (R. V14, pp. 2761, 2768) do not in any manner provide evidence that even if discussions took place the discussions were not due to the professional obligation of the lawyer for Michelle Murphy in order to implement Michelle Murphy’s rights under the August 23, 2013 Order.
The court only found that defendant’s counsel, Millard Farmer, was found to be in contempt of the provision of the August Order prohibiting “parties” from discussing this case — that would be the professional obligation of an attorney in a case where the client was charged with criminal contempt, as was Michelle Murphy, who was charged with contempt.
The children had the 4 recorded statement that proved John Harold Murphy swore falsely (R. V14, p.2721) in the contempt charging papers. Millard Farmer was not convicted of anything relating to the final decree.
7. When the burden of proof was upon the Prosecutors/Plaintiff in this criminal case to prove beyond a reasonable doubt that the communications took place and thereafter that the communications were not necessary to implement the terms of the August 23, 2013 Order, and the prosecutors proved neither.
8. When the prosecutors did not even carry their burden of proving that there were communications about the case or the August 23, 2013 Order.
And they never presented any information that there was not a necessity to discuss the numerous changes relating to visitation in the August 23, 2013 Order that were necessary to implement that Order.
9. When the Court, failing to convict Millard Farmer of anything relating to the final decree, which eliminated the issues regarding the final decree, as this would be an acquittal of that criminal charge due the absence of a conviction of that charge.
The criminally charged violation segment of the August 23, 2913 Order follows:
Neither party shall discuss any of the issues, allegations or claims in this case with the children unless such claims are necessary were not to implement the terms of the [August 23, 3013] Order (R. V11, p. 2192)
5 Millard Farmer was criminally convicted of indirect criminal contempt as follows with language not contained in the Order alleged to be violated, supported or noticed in the criminal charging document, unsupported by evidence beyond a reasonable doubt.
Defendant’s counsel Millard Farmer is hereby found to be in contempt of the provisions of the August Order prohibiting Defendant or her attorneys from discussing this case or the issues raised herein with the Children.
Mr. Farmer further is found in to be in contempt of this Court because of Defendant’s failure to appear at the duly noticed contempt hearing on October13 Mr. Farmer shall be immediately incarcerated in the Coweta County, Georgia jail for a period of 20 days or until he pays One Thousand Dollars.(“$1,000) to the Court. (R. V17, p. 3628)
The prosecuting attorneys falsely stated above in the Order that they drafted and Judge Baldwin signed, “…the provisions of the August Order prohibiting Defendant or her attorneys…”
10. When the Order adjudicating Millard Farmer omits adjudication of the exempting part of the discussing restriction, i.e., unless such claims are necessary to implement the terms of this Order.
The segments of the criminal charging document that were used as the basis for the criminal conviction of Millard Farmer for indirect contempt of court are as follows.
7. The Order also provides the following: Neither party shall discuss any of the issues, allegations or claims in this case with the children, unless such claims are necessary to implement the terms of this Order, or 6 the terms of the Final Decree.
8. Since the entry of the Order, [August 23, 2013] the Children have made several comments to Plaintiff that clearly indicate Defendant and her lawyer have allowed the Children to read the hearing transcript from the August 13 hearing.
Furthermore, it is evident Defendant and her lawyer have discussed the issues and allegations in this case with the Children since the entry of the Order. (R. V14, p. 2781)
Question Three
Whether Judge Baldwin was disqualified from adjudicating any of the November 19, 2013 indirect contempt adjudications after January 1, 2013, when the Clerk of Coweta Superior Court, pursuant to the authority of Coweta Judicial Circuit’s long mandated, but only recently enacted, Uniform Superior Court Rule 3.1 case management plan, administratively assigned this case to Superior Court Judge Dennis Blackmon, as confirmed to the Clerk of the Court of Appeals of Georgia by letter (R. V7, p. 1435) that the Coweta Clerk entered into the record of this case, as also confirmed by Judge Blackmon, who, without adjudicating the pending not adjudicated disqualification motions against Judge Baldwin, illegally attempted to transfer the case back to Judge Baldwin (R. V8, p. 1670 and R. V7, p. 1503), as both judges had illegally failed to act upon and comply with the intent of USCR 25.3 and the constitutional Due Process and Equal Protection protections afforded the accused. See, Horn v. Shepherd, 294 Ga. 468, 470 (2014).
Judge Baldwin is further disqualified, based upon the unadjudicated disqualification motions pending against him at the time that he adjudicated the contempt motions (R.V14, p. 2941) and for his personal bias against Millard Farmer, Larry King, Michelle Murphy and “defendant’s lawyer” (singular, not otherwise identified). (R. V10, pp.1913, 1918, 1927, R. V12, p. 2327; R. V14, pp.2732-2733, 2812, 2898, 2905, 2929; R. V16, pp. 3377, 3379; R.V17, pp. 3652, 3654; Tr. Oct 13, 2013, pp. 17-18, passim)
The following unadjudicated motions to disqualify Judge Baldwin were pending and not referred to an independent judge for adjudication as mandated by Uniform Superior Court Rule 3.1 at the time that Larry King identified his plea to the personal jurisdiction of Judge Baldwin and was placed in custody for identifying the disqualification motions in the packed courtroom awaiting the calendar call.
State v. Hargis 294 Ga. 818 doctrine Record Cite June 13, 2012 No USCR 3.1 case management plan confirmed by Clerk of Court (R. V3, p.437)
July 2, 2012
Order appointing Elizabeth F. Harwell as Guardian ad Litem at the request of Elizabeth Griffis, disq. Co-Sponsor with Glover&Davis (R. V3, 503) August 19,2013 not allowing evidence, on granting GAL illegal authority to modify custody without Ct, approval and for modification of full Court Standing Order to allow Plaintiff to remove children from jurisdiction of Court. (R. V10 p.1914)
August 28, 2013
Judge Baldwin’s threat to put Michelle Murphy in jail if she doesn’t physically force children to visit their father (R. V11 p.2195)
Sept. 13, 2013 for continuously violation of USCR 25.3 mandate to cease to act upon the merits of the matter” (R. V12 p.2321)
8 Judge Baldwin denied numerous requests for certificates for immediate review.
The illegal standard that Judge Baldwin maintained for disregarding his disqualification, as stated many time was as follows.
So the — on the motion to recuse, I’ll just right now tell you, I find that that motion was not timely filed. I have been in this case for over a year.
One of the things you have to have is showing that — that has to be filed within — I forget what it is — so many days after you find out who the judge is, stating what the causes are.
I’ve been in this thing for over a year. You have already tried to recuse me one time, and the Court of Appeals did not uphold your efforts to recuse me, and so my finding is, is it was not timely filed, and that you had already been denied a motion to recuse once before.
And I don’t believe you can continue, as you go through a case, every time you don’t like some order that the judge has given, that you can try to recuse, and recuse, and recuse him. So that’s my ruling on that. Tr. Oct 3, 2013, p. 39, line 18 – p. 40, line 9
Question Four
Whether the trial court, acting as the trier of fact and the law, used an illegal and unconstitutional standard of law in adjudicating the pending Motions to disqualify him, to proceed at both the contempt hearing and in adjudicating each of the contempts. (Tr. Oct 3, 2013, p. 5, l. 23 – p. 6, l. 18)
Question Five
Whether the court erred in holding Michelle Murphy in contempt for not cooperating, within the time provided by the Court, with the expert witness, Nancy McGarrah, the custody evaluator, who presented an illegal condition for Michelle Murphy to perform in order to “cooperate” by requiring that Michelle 9 Murphy execute this psychologist’s contract (R. V17 p.3627), when, even if Michelle Murphy violated any directive of the custody evaluator, it placed an illegal condition upon Michelle Murphy that would have subjected Michelle Murphy to additional expensive litigation for relief from the following, illegal conditions: Michelle Murphy was required to execute a contract that is void against the public policy of the State of Georgia, in that:
(a) the contract which Michelle Murphy was ordered to sign in order to be released from jail required Michelle Murphy to grant the psychologist expert witness full immunity from liability (R. V17, p. 3785), (see, OCGA § 13-8-2 (a)(1); Unami v. Roshan, 290 Ga. App. 317 (2008); (see also, fraud issues pending before this Court in Hoard v. Beveridge, S15D0360); not just immunity from liability provided by statute that exempts immunity to a custody evaluator resulting from her bad faith;
(b) the contract required that Michelle Murphy become financially liable for fees that she cannot afford, as it requires that she pay expensive fees to obtain discovery and production, testimony at trial, or be deprived of this expert witnesses’ evidence that could be necessary to her defense of the expert witness psychologist’s findings or for use by her as evidence against the plaintiff;
(c) the contract provides that the psychologist be paid 18% interest for late payments of fees (R. V16, p. 3461);
(d) unless Michelle Murphy executed the contract, the psychologist would not inform her counsel of the method to be used for the “custody evaluation,” and would not provide other information about the scope 10 of the investigation of John Harold Murphy and Renee L. Haugerud that would be conducted before rendering an opinion to the Court;
(e) unless Michelle Murphy executed the contract, the expert witness psychologist stated that she would not talk to Michelle Murphy’s counsel or Michelle Murphy;
(f) Michelle Murphy would have been subjected to a psychologist who was selected by the guardian ad litem, who was exposed by Michelle Murphy’s counsel for converting to her personal use trust funds provided to her in the case, in violation of USCR 24.9 (8)(g) and exposed for engaging in other illegal conduct that was similar to some of the illegal conduct of John Harold Murphy (R. V12, p. 2326); and,
(g) the Order appointing the expert witness psychologist stated that “[a]t the final hearing in this case, the Court shall decide whether to allocate the costs of this evaluation between the parties” (R. V11, p. 2192) that could subject Michelle Murphy to having no assets to provide for her children, as the modification of custody litigation has been used to divest Michelle Murphy of her assets with costs a hair stylist cannot afford.
Question Six
Whether the Court erred in failing to grant the motion to dismiss the charges of contempt (Tr. Oct 13, p. 113) as requested by Larry King.
The charges did not set forth a cause of action against Millard Farmer or Michelle Murphy relating to the charged conduct, as Judge Baldwin did not have personal jurisdiction of the case with the numerous motions to disqualify him pending that he had not 11 adjudicated, or forwarded to another jurist for adjudicating.
The charges against Millard Farmer were an abuse of the criminal process designed to weaken the legal representation of Michelle Murphy and thereby also create unnecessary legal cost to Michelle Murphy that these lawyers knew their hand selected jurist would never award to Michelle Murphy, as this jurist has actively participated in attempting to drain the personal assets of Michelle Murphy and made threats that he would not provide her attorney fees. (R. V16, pp. 3648, 3652) In re Crane, 253 Ga. 667 (1985)
Question Seven
Whether the Court erred in adjudicating attorney fees against Michelle Murphy in an attempted criminal contempt case against her and her attorney under OCGA § 19-9-3, without specificity of the basis for the amount, or consideration of the disparity of the financial assets of the parties.
The award of the attorney fees was as follows. (R. V17, p. 3627) Findings of Fact In addition to the $6,400 Plaintiff previously paid in connection with the custody evaluation, Plaintiff also has incurred substantial and unnecessary attorney’s fees in seeking to compel Defendant’s compliance with the August Order and in bringing Defendant’s contempt to the Court’s attention.
Conclusions of Law
Defendant Michelle Murphy shall pay the amount of $5,000 to Plaintiff John Murphy within 30 days of the date of this Order.
This amount is awarded pursuant of OCGA 19-9-3 and is based on, inter alia the attorney’s fees Plaintiff incurred in seeking to compel Defendant’s compliance with the August Order an in bringing Defendant’s contempt to the Court’s attention. 12 (R. V17, p. 3628)
Additional Reasons in Support of Granting the Petition upon the Questions Presented, i.e., Enumerations of Error
The grant of the Writ is of great concern and importance to the public required to be subjected to examination by expert witnesses who require full immunity from prosecution as a condition of their service, and to lawyers whose reputations are affected by criminal convictions resulting from an abuse of the criminal process by opposing parties and lawyers seeking criminal convictions and financial assets from the opposing counsel and party after selecting a judge, trier of fact, in a court without a mandated case management plan.
The “custody evaluator” scheme in no more than the “expert witness” scheme once used in medical malpractice case well-funded medical groups obtained legislative and judicial branch protection. is no such protection for the litigant with less financial resources in a domestic relations case. The choice is, as it was for Michelle Murphy, take it or go to jail and lose by that choice.
Introduction
This Mother, with sole physical custody of two children, initially with the father’s absence from the family and thereafter by the incorporation of an Settlement Agreement into a 2006 Divorce Decree has successfully raised Jack and Thomas since the children were physically abandoned by their father when they were toddlers, Jack Murphy, age 16, and Thomas Murphy, who will be 14 on January 1, 2015, are legally and constitutionally deserving of due 13 process rights that this hair stylist can afford.
There have been a barrage of financial attacks upon Michelle Murphy and her counsel, as they have sought to obtain a constitutional forum in which the issues relating to Jack and Thomas can be resolved.
This fair and equitable forum has not included that of the current jurist, who was obtained by counsel for the Plaintiff’s judge shopping.
Michelle Murphy obtained counsel without any judicial political connection, as her lawyers had earlier successfully assisted her in recovering for a part of the malpractice by her divorce lawyer that prevented a fair distribution of the marriage assets of the Plaintiff, long before he married his current wife, who is an enormously wealthy hedge fund operator. (R. V14, p. 2925)
The divorce proceeding, under the absence of a Uniform Superior Court Rule 3.1 mandated case management plan, shifted Michelle Murphy’s case among five (5) judges, with each picking up a fresh file upon their selection, as judge shopping is prevalent in such a system. (R. V14, p. 2927)
The absence of a Rule 3.1 case management plan is extremely detrimental to the litigant who does not have a lawyer with judicial political associations.
Attempting to correct this illegal system has been detrimental to Michelle Murphy, as her lawyers’ only strength was to provide Michelle Murphy and her children statutory and constitutional protections that resulted in a liability to this family, as John Harold Murphy engaged the politically connected Glover & Davis law firm at the suggestion of 14 Judge Louis Jack Kirby, another Coweta Judicial Circuit Judge. (RV10, p. 1919)
Once the judge-shopped judge was in place, the house of cards begins to tumble with the judge’s selection of the guardian ad litem, who selects the custody evaluator experts favorable to the lawyer who so successfully judge shopped.
The representation of John Harold Murphy, once the case began with a designated appellate panel, expanded his representation from the three Glover & Davis lawyers to the assistance of the must larger, Kilpatrick Townsend & Stockton LLP, law firm with its cadre of corporate lawyers, whose briefs before the Court of Appeals panel frequently cite to Christopher J. McFadden, et al., Georgia Appellate Practice.
This petition, with only reliance upon the law and constitutional protections, seeks this Court’s protection that has offered the only glimmer of legal respite for unconstitutional and illegal treatment of Michelle Murphy and the disabling of her counsel.
The underlying modification of custody action was initiated after Michelle Murphy and the Children chose not to succumb to the threat of John Harold Murphy to be subjected to a modification action if the family did not move from Newnan, GA to Chattanooga, TN in order to live near the Lookout Mountain mansion of Renee L. Haugerud, an extremely wealthy hedge fund operator now married to John Harold Murphy and wanted the children. (R. V10, p. 1919)
15 In this case, the Superior Court of Coweta County never implemented a mandated case management plan until after sustained challenges by Michelle Murphy’s counsel (R. V2, p. 310, R. V17, p. 3649) and until this day, Chief Judge Baldwin has not complied with the mandates of Superior Court Rule 25 et seq. (Recusal) and particularly by not complying with Rule 25 (3.l) of presenting his disqualifying motions to another jurist.
Judge Baldwin will not allow another jurist to review any of the numerous disqualification motions that enumerate his disqualifying conduct within the required five (5) day of the conduct occurring.
Judge Baldwin’s unconstitutional application of the law, often expressed as expressed to Larry King at the beginning of the day that these contempt matters were adjudicated, is as follows.
Question Presented One (E of E One)
The Court of Appeals, as did the trial court, without any evidence in support of Michelle Murphy being held in civil contempt, ordered her to pay John Harold Murphy $5,000 in attorney fees under OCGA §19-9-3 “based on inter alia, the attorney’s fees Plaintiff incurred in seeking to compel Defendant’s compliance with the August Order and in bringing Defendant’s contempt to the Court’s attention” (R. V17, p. 3637) without these lawyers bringing supporting testimony, for what amounts to a failed, illegal attempt to have Michelle Murphy held in criminal contempt for visitation issuesthat even the Court would not accept (R. V17, p. 3627).
16 Michelle Murphy was ordered to pay $5,000 to learn of the treatment of her lawyer, Larry King, for offering to call Judge Baldwin’s attention to legal documents and for not making Michelle Murphy come to Court, and to further learn that her other lawyer, at that time, would be criminally convicted, in absentia, and fined for no legal reason and for no practical reason but to diminish the legal representation of Michelle Murphy and the best interest of Jack and Thomas.
Malicious abuse of the criminal process, an actionable tort, is one of the detrimental results of judge shopping that occurs when the protections of the Uniform Superior Court Rules are not allowed to protect the politically and financially weak in our society.
During the attempt at the hearing to have Michelle Murphy held in indirect civil contempt, in absentia, Judge Baldwin, on several occasions warned the Glover & Davis lawyer that he had not presented any admissible evidence to support that Michelle Murphy had not complied with the August Order relating to the expert witness, custody evaluator.
On one occasion, Judge Baldwin warned the Glover & Davis lawyer as follows. (Tr. Oct 3, 2013 p. 56, l. 8)
THE COURT: You know, let me tell y’all, I want — One of the problems in this case is, is really to get in the information y’all want to get in, we really need the evaluator, and we really need the driver.
You know, I’ll let him [John Harold Murphy] go so far as trying to tell things, but a lot of this stuff you just can’t get in because it’s hearsay, and 17 I just — you know, I don’t understand why those folks are not here. I understand the evaluator may cost money and may, you know, have other things to do, but, shoot, I think — you know, I think we need to get them here.
On the other occasion, Judge Baldwin had held Larry King in direct contempt and ordered him held in custody until he paid a $1000 for attempting to notice the Court of a plea to the personal jurisdiction of Judge Baldwin.
The affidavit of Larry King in support of the Response to the Amended Motion for Contempt, which the Court of Appeals used at another segment of its opinion, states as follows (R. V14, p. 2910):
17. During John Harold Murphy’s testimony, Judge Baldwin stated that he wished to talk to counsel in chambers. The court reporter did not proceed to chambers, or take down the communications that occurred in chambers.
17.1 As counsel walked down the hallway with Judge Baldwin to his chambers, he stated, “I did not want to embarrass anyone out there, but I can’t do anything about the failure to cooperate with the evaluator unless I hear from her.” (meaning the Custody Evaluator).
The Glover and Davis lawyer did not present the custody evaluator or anyone who fulfilled the burden of proof. Judge Baldwin finally reasoned as follows:
The Court: Okay. It appears to me that just like the situation in a woman getting up and saying, “He hasn’t paid my child support,” it’s necessary for that guy to be in court and refute what was being said. And, of course, his – the plaintiff’s testimony, I believe is sufficient to 18 show that she’s not cooperating with this deal. Tr. Oct 3, 2013, p. 110.
Judge Baldwin did not make the legal distinction that it was not failure to cooperate with John Harold Murphy that was at issue. Judge Baldwin issued the following Order, prepared by the Glover & Davis lawyers. (R. V17, p. 3627)
Defendant Michelle Murphy is hereby found to be in contempt of the custody evaluation provision of this Court’s August Order. Defendant shall be immediately incarcerated in the Coweta County, Georgia jail until she complies with the August Order by signing the document previously submitted to her by Dr. Nancy McGarrah’s office.
The reasoning of the Court of Appeals for upholding the contempt conviction of Michelle Murphy is equally fallacious as that of Judge Baldwin. The Court of Appeals opined as follows.
And, in a response to the amended motion for contempt which she filed on October 22, 2013, [that was not due or filed until after the October 3, 2013 hearing] Nancy Michelle Murphy expressly defied the August 23 order and declared herself justified in refusing to sign the documents that were a prerequisite to the custody evaluation.
The trial court was therefore authorized to conclude that she had not signed those documents. See OCGA § 24-8-821 (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”). Murphy v. Murphy, 2014 Ga. App. LEXIS 760, 18-19 (Ga. Ct. App. Nov. 17, 2014)
19 Counsel for Michelle Murphy was entitled to offer a defense to the criminal contempt conviction that the Glover & Davis lawyer sought, which Judge Baldwin did not impose, and was entitled to present alternative defenses in a brief, as any litigant is entitled to present in any civil case.
The information that the Court of Appeals claims supported the infirm, indirect civil contempt adjudication was as follows, in Michelle Murphy’s response to the contempt motion prepared by counsel, beginning at R. V16, p. 3459:
The Conduct of Judge Baldwin on October 3, 2013 is a Part of the Pattern of Obstruction of Justice in the Case
There was a motion to disqualify Elizabeth “Lisa” F. Harwell (V3 p. 549) that Judge Baldwin denied in a one sentence Order. (V12 p. 2318)
Elizabeth “Lisa” F. Harwell, the guardian ad litem, who is presently still serving, after being caught converting funds, has obtained counsel who has moved to prevent her deposition and inspection of subpoenaed documents, in part, relating to her conversion of trust funds to her personal use.
This conduct by counsel for the guardian ad litem prevents further documentation of Elizabeth “Lisa” F. Harwell’s conversion of trust funds and her other illegal conduct that motivates her retaliation against Michelle Murphy and her counsel.
The conduct of the guardian ad litem is relevant, as she alone selected a “custody evaluator” to continue the economic assault upon the meager income of Michelle Murphy.
The contract that the “custody evaluator” requires Michelle Murphy to execute is void as against public policy when the party is ordered by a 20 Court to obtain the services of the “custody evaluator,” as the contract requires Michelle Murphy to waive not just the OCGA § 19-9-3 (a)(7) statutory immunity provided to the “custody evaluator,” but, additionally, to release the “custody evaluator” from all liability (Contract p. 9 XVII IMMUNITY; V15 p. 3318).
The “custody evaluator” has communicated that she will not begin the evaluation until all the parties sign the contract, (V15, p. 3322) which requires Michelle Murphy to be responsible for a large amount of money subject to 18% interest for past due payments, which depletion of funds from this family would affect the best interests of the children.
Michelle Murphy is a hair stylist against whom John Murphy and his now spouse, a hedge fund operator, have engaged over six lawyers to economically bully Michelle Murphy into surrendering the children to John Murphy for the sole reason that they can provide the children better economic benefits than Michelle Murphy.
The Glover & Davis lawyers illegally and unconstitutionally prepared documents to have Michelle held in criminal contempt and civil contempt, without a subpoena or rule nisi to obtain either her presence or the presence of the designated custody evaluator, Nancy McGarrah, that they failed to support with any evidence.
The trial court illegally required Michelle Murphy to pay attorney fees based upon OCGA §19-9-3 for what was no more than the failure of these prosecuting lawyers to properly notice and prepare their case, if they had one and were not just waiting for a judge-shopped gratuity (R. V17, p. 3627).
In keeping with the Court of Appeals’ conduct of attempting to supply evidence from the response to the motion, the 21 affidavit of Larry King is again relevant on the absence of notice issue and on the issue of the bias of Judge Baldwin. Larry King swore as a part of the Response as follows. (R. V14, p. 2907)
14. In response to the calendar call I was prepared to make my announcement in the following order
14.1 I wanted to provide Judge Baldwin of the dates of the pending disqualification motions that were awaiting a ruling by him and that Uniform Superior Court Rule 25 required Judge Baldwin to cease acting on the matter until he ruled upon the disqualification motions.
The following documents relating to the disqualification of Judge A. Quillian Baldwin, Jr. are pending and awaiting a ruling by Judge Baldwin or an independent judge assigned to hear the motions.
These disqualification motions are summarily identified as follows.
July 2, 2012
Consolidated Motions for Disqualification of Judge A. Quillian Baldwin, Jr. Monday,
August 19, 2013
Consolidated Motions for Disqualification of Judge A. Quillian Baldwin, Jr., Constitutional Challenges to Uniform Superior Court Rule 25 et seq. and for Other Uses as Allowed by Law August 28, 2013:
Amendment to Monday, August 19, 2013
Consolidated Motions for Disqualification of Judge A. Quillian Baldwin, Jr.,
Initiated with this Judge’s “I’ll Put You in Jail” Threats that Motivated John Murphy to Sic the Deputy Sheriff of Coweta County on the Mother of the Children whom She Raised Since John Murphy Abandoned the Family.
Friday, September 13, 2013
Addendum to Wednesday, August 28, 2013 22
Amendment to the Monday, August 19, 2013
Consolidated Motions for Disqualification of Judge A. Quillian Baldwin, Jr.
14.2 After informing Judge Baldwin of the pending disqualification motions, I wanted to advise the Court that the required personal service and a Rule Nisi, had not been given and that the matter was not before the Court.
14.3 I wanted to advise the Court that it had no jurisdiction, as the Amended Motion for Contempt attempted to add what could be one of two parties, identified as the “lawyer” for Nancy Michelle Murphy.
The adding of one of possible two new parties to the motion for contempt was a violation of the rights of the newly added party but was additionally prejudicial to Nancy Michelle Murphy, as such conduct is detrimental to Michelle Murphy to have Judge Baldwin allowing the Glover & Davis lawyers attacking her lawyer.
14.4 I wanted to advise the Court that the August 23, 2013 Order was on appeal and that any contempt of that Order was superseded by the appeal.
14.5 Additionally, I wanted to advise the Court that the September 27, 2013 motion was not noticed nor ripe for hearing on October 3, 2013.
15. At some point during my monotone announcement of the above statements of what I felt to be an initial consideration, Judge Baldwin stated something like, “I hold you in contempt. I am tired of all this stuff you all are doing. I order you incarcerated until you pay $1000.00 attorney fees as a purge.”
It was in this judicial environment that Larry King attempted to defend Michelle 23 Murphy, Millard Farmer, himself and “defendant’s lawyer.” (R. V14, p. 2942)
The conviction of Michelle Murphy should not stand, as the trier of fact expressed his bias to her counsel for presenting constitutional and statutory defenses. “All parties before the court have the right to an impartial judicial officer.” Stephens v. Stephens, 249 Ga. 700, 702 (292 SE2d 689) (1982).
The issue of judicial disqualification can rise to a constitutional level since “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. 133, 136 (75 SC 623, 99 LE 942) (1955). See also Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (129 SC 2252, 173 LE2d 1208) (2009).
Judicial integrity is “a state interest of the highest order” because the power and prerogative of a court to resolve disputes rests upon the respect accorded by citizens to a court’s judgments which, in turn, depends upon the issuing court’s absolute probity. Id. at 889.
“If the public lacks confidence in the impartiality of judges, or worse, refuses to comply with judicial decisions voluntarily, the notion that ‘we are a government of laws’ would necessarily collapse.” Dmitry Bam, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 B.Y.U. L. Rev. 943, 968.
It is vital to the functioning of the courts that the public believe in the absolute integrity and impartiality of its judges [see Smith v. Guest Pond Club, 277 Ga. 143, 146 (586 SE2d 623) (2003)], and judicial recusal serves as a linchpin for the underlying proposition that a court should be fair and impartial. 2011 B.Y.U. L. Rev., supra, at 949. n 1
24 The commitments of Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 (2012) are of no moment to Michelle Murphy, Millard Farmer and her children if she is retroactively shielded from the protections until the expiration of the illegal conduct of a judge and a person to whom the judge has illegally delegated his authority.
The law books, Uniform Superior Court Rules and Constitutional protections toppled like a house of cards once Judge Baldwin was judge-shopped and initially made no pretense of fairness, by, over strong objection, signing without reading the appointment of the guardian ad litem who had co-sponsored with the Glover & Davis lawyer the night before, a judicial fundraiser attended by Judge Baldwin. (R. V14, p. 2722)
The Order illegally delegated authority to the guardian ad litem to temporarily change custody of the children without approval of the Court, which Elizabeth Harwell attempted to use. (R. V16, p, 3371; R. V10, p. 2012)
Question Presented Two (E of E Two)
The August 23, 2013 Order, criminally adjudicating Millard Farmer, and the charging document were each prepared by Taylor Drake of Glover & Davis PA and signed with express consent for Taylor Drake by Michael Warner.
The August 23, 2013 Order and the charging document were also approved as to form by Elizabeth “Lisa” F. Harwell, the guardian ad litem.
The Glover & Davis lawyers and the Kilpatrick Townsend & Stockton LLP lawyers for John Harold Murphy sought upholding of the criminal conviction of Millard Farmer in the Court of Appeals.
25 It is relevant to understand that each of the documents that used the criminal process to financially and otherwise diminish the ability of Michelle Murphy were initiated, prepared and attempted to be enforced by the lawyers attempting to deprive Jack and Thomas of their lives with their mother while enriching themselves with an enormous amount of attorney fees and depleting the financial resources of Michelle Murphy.
There is no way to gently state that, with the assistance of Judge Baldwin, these lawyers and the guardian ad litem, who is a lawyer, have been compensated to maliciously abuse the criminal process by having Millard Farmer criminally convicted and immediately incarcerated until he pays $1,000, or expends many times over that to be relieved of the criminal conviction that the Court of Appeals has upheld, at their insistence.
The Order was apparently hastily drafted on Friday, August 23, 2013 by an inexperienced drafter, if it was intended to pass muster for a criminal conviction.
The Order was drafted to accommodate the social schedule of John Harold Murphy and Renee L. Haugerud as a priority to Thomas’s football jamboree that he had planned to attend if the visitation, alternating weekend schedule, had not been changed with the August 23, 2013 Order. (R. V14, p. 2770)
Within five (5) days of obtaining the August 23, 2014 Order, the lawyers for John Harold Murphy filed a contempt action against Michelle Murphy based in part upon a false swearing by John Harold Murphy, evidence of which one of the children had 26 recorded after the child was informed that John Harold Murphy was no longer going to allow accommodation of the children’s local obligations and visitation as they desired. (R. V14, p. 2765)
Anyone with teenaged children realizes that children that age do not hang around the house and visit with their parents, nor do they wish to sit in an expensive hotel room at some resort; instead, the children, as their mother well knew, wished to be with own social group around their school friends, as compensation for accomplishing their school work and behaving during the week.
It is an unrealistic person and judge who yelled at Michelle Murphy as follows about the children not wishing to visit with John Harold Murphy, who made no attempt to participate with the children’s activities, but instead sent a chauffeur to pick up the children on their visitation weekends. Tr. Aug. 13, 2013, p. 259, lines 1 –15
[The Court] . . . I’m going to say that they have got to both go to visitations when they go.
I am ordering you to make them go.I don’t care whether they jump up and down, scream and holler, lock themselves in their room. Whatever they do, you have got to make them go. Do you understand that?
MS. MURPHY: Yes.
THE COURT: And that’s going to be in the order. And I don’t -want you to — I don’t know how to say it any plainer than this, now. And this same thing is going to go for Mr. Murphy. If you don’t do what I tell you to do– and I’m telling you to see that they go; I’m not giving them the option and I’m telling them they’ve got to go. But if you don’t do that, I’ll put you in jail.And I’m not kidding with you.
Okay?
27 Attempting to treat the children as commodities resulted in exposure of judicial misconduct that even illegal contempt Orders cannot suppress. On the day that Judge Baldwin adjudicated his contempt convictions from the bench, Larry King, one of the lawyers for Michelle Murphy who has now retired and is no longer in the case, was greeted by Judge Baldwin with a boisterous, “You are in contempt” as Larry King, in a crowded courtroom, attempted to announce his presence and to explain his plea to the personal jurisdiction of Judge Baldwin. (Tr. Oct 3, 2013, p. 7)
Larry King was immediately taken into custody by the Deputy Sheriff and required to pay $1,000 in cash, as Judge Baldwin would not accept his check before he was loosened from the Deputy Sheriff. (R. V14, p. 2942)
Later that morning, Judge Baldwin informed Larry King that he had been mad when he held him in contempt and would refund his money. (Tr. Oct 3, 2013, p. 19)
At the end of the day, Judge Baldwin again summarily announced that he was finding Larry King in contempt for not having Michelle Murphy present in Court and again took his $1,000. (Tr. Oct 3, 2013, p. 112)
The Court of Appeals resolved the contempt of the lawyers’ “failure” to have Michelle Murphy present by overturning the conviction of both Larry King and Millard Farmer after an expensive appellate process that still left the contempt convictions of Millard Farmer and Michelle Murphy and required Michelle Murphy to pay John Harold Murphy’s attorney fees illegally based upon OCGA §19-9-3 for 28 the Glover & Davis lawyers’ illegal attempt to present evidence on alleged contempts.
The point in describing the criminal action of Judge Baldwin against Larry King is to identify the depth of the vindictive hostility of Judge Baldwin to both of the lawyers representing Michelle Murphy.
The prosecutors of the criminal contempt actions knew that they only need ask and Judge Baldwin would allow them to prepare and obtain the retaliatory criminal conviction against Millard Farmer, who Judge Baldwin accurately knew, brought the disqualification motions and other actions against him, in order to obtain a judge that on appellate review could obtain Mayor & Aldermen of Savannah v. Batson-Cook Co., 310 Ga App. 878 (2011) approval.
Counsel opposing Michelle Murphy were not naïve in expecting that the Glover & Davis lawyers could obtain the criminal conviction from Judge Baldwin that would please their paymasters.
They knew that with Judge Baldwin, they could draft a criminal conviction Order on which they stood a good chance of obtaining treatment accorded them in Mayor & Aldermen of Savannah v. Batson Cook Co., 310 Ga App. 878 (2011) with the Kilpatrick Townsend & Stockton LLP name on the appellate brief. The lawyers who initialized and attempted to enforce the criminal contempt action against Millard Farmer have adequate legal training in interpreting contracts, and even without criminal prosecuting experience understand the meaning of the charges that they used to obtain a criminal conviction.
29 The term “Defendant’s lawyer” (singular, without further identity) in a case involving two lawyers, both of whom were known personally by the prosecuting individuals, with neither lawyer served a rule nisi or subpoena, that was used to obtain the conviction of Millard Farmer, fails muster for a charging document and procedure seeking the option of obtaining a criminal conviction of either lawyer in the case.
These lawyers knew that “party” as they used the word in the August 23, 2013 Order did not mean Millard Farmer or Larry King.
The supporting argument and authority for Questions 3, 4, 5, 6 and 7 is contained in the question presented or in other argument, or authority, as we have reached that thirty (30) page red light. Request for Relief Nancy Michelle Murphy requests that the petition be granted.
Respectfully submitted,
/Millard Farmer Millard Farmer
Georgia Bar No. 255300
P.O. Box 1728
Atlanta, GA 30301-1728
(404) 688-8116
millardfarmer@millardfarmer.com
Counsel for Nancy Michelle Murphy and Millard Farmer
30 SECOND DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.
NOTICE:
Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
November 17, 2014
In the Court of Appeals of Georgia
A14A1137. MURPHY v. MURPHY.
MCFADDEN, Judge.
Although this is our third opinion in this custody modification action, we are still not presented with a final order on the petition to modify. Instead we are presented with a series of rulings holding appellant Nancy Michelle Murphy and her attorneys, Millard Farmer and Larry King, in contempt of court. Farmer has been held in contempt of an earlier order that prohibited the parties from discussing the case with their children.
As Farmer signed a brief to which he exhibited affidavits of the children echoing their mother’s anger at John Murphy, there is sufficient evidence to support that ruling; and we find that Farmer received sufficient notice and opportunity to be heard before he was held in contempt.
Nancy Michelle Murphy has been held in contempt of another provision of that order which Appendix 1, Page 1 of 19 Opinion of Court of Appeals required her to cooperate with a custody evaluator.
Any insufficiency of the evidence presented on that charge at the contempt hearing was supplied by her own brief in opposition to the motion for contempt. In that brief she announced that she deemed herself to be entitled to defy the provision directing her to cooperate with the evaluator. And again we find sufficient notice and opportunity to be heard.
Finally Farmer and King have been held in contempt for failure to have Nancy Michelle Murphy present at the contempt hearing. But as she was not under subpoena and had not been ordered to appear in person, she was entitled to appear through counsel; so that ruling must be reversed. We therefore affirm the trial court’s contempt order in part and reverse it in part.
1. Prior appeals.
Nancy Michelle Murphy and John Murphy were divorced in 2006. They have two children, born in November 1998 and January 2001.
In April 2012, John Murphy filed this action, seeking to modify the child custody provisions of the divorce decree. Nancy Michelle Murphy has repeatedly moved to recuse the trial court judge.
Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21) (2013), her first appeal in this case, was a direct appeal from an interlocutory order denying one of her motions to 2 Appendix 1, Page 2 of 19 Opinion of Court of Appeals recuse.
We dismissed on the basis the order was not appealable as a collateral order and was not appealable under the version of OC
GA § 5-6-34 (a) (11) adopted in 2013, which authorizes direct appeals from “judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.”
Our Supreme Court granted Nancy Michelle Murphy’s petition for certiorari to address whether we erred when we concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applied retroactively.
In Murphy v. Murphy, 295 Ga. 376 (761 SE2d 53) (2014), the Supreme Court ruled that the amendment did not apply retroactively but nonetheless affirmed the dismissal of Nancy Michelle Murphy’s appeal on the ground that, “even under the prior version of OCGA § 5-6-34 (a) (11), there was no right of direct appeal from the recusal order at issue.” Id. at 379.
In the meantime, on August 23, 2013, the trial court entered an order that, among other things, denied John Murphy’s motion to temporarily change physical custody of the children, directed the parties not to discuss the case with the children, ordered a custody evaluation, and directed the parties to cooperate with the custody evaluator. In Nancy Michelle Murphy’s second appeal to our court, Murphy v. Murphy, __ Ga. App. __ (759 SE2d 909) (2014), we affirmed that order.
We imposed a frivolous appeal penalty against Nancy Michelle Murphy’s counsel, finding that the appeal was frivolous and dilatory and rife with violations of Court of Appeals Rule 10, which forbids oral or written personal remarks that are discourteous or disparaging to any judge, opposing counsel, or any court.
2. Facts underlying the present appeal.
Six days after the August 23, 2013 order was entered, John Murphy filed a motion seeking to hold Nancy Michelle Murphy in contempt for violating its visitation provisions.
In response Nancy Michelle Murphy filed affidavits from the children, testifying that the motion for contempt had been read to them in the presence of their mother, that their mother had not interfered with their father’s visitation as alleged in the motion for contempt, and that they were extremely angry at their father for not telling the truth to the court.
John Murphy then amended his motion for contempt. He alleged that Nancy Michelle Murphy and “her lawyer” were in contempt of the order’s provision prohibiting the parties from discussing the case with the children.
He also alleged that Nancy Michelle Murphy was violating the requirement of the August 23 order that she cooperate with the custody evaluator in that she had refused to complete the paperwork the custody evaluator required before beginning the evaluation.
The trial court conducted a hearing on the contempt motion on October 3, 2013. Nancy Michelle Murphy and Farmer did not appear, but King did appear on behalf of Nancy Michelle Murphy.
After hearing testimony from John Murphy and the driver hired to transport the children from Nancy Michelle Murphy’s residence to John Murphy’s residence, the trial court found Nancy Michelle Murphy, Farmer, and King to be in contempt.
The trial court found Farmer to be in contempt for discussing the case with the children in violation of the August 23 order.
It found Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order.
And it found King and Farmer to be in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing. Nancy Michelle Murphy, Farmer, and King filed an application for discretionary appeal of the contempt order. We granted the application, and this latest appeal followed.
We first address John Murphy’s motion to dismiss the appeal, then turn to the deficiencies in the appellants’ brief, and finally, address the merits of the challenges to the contempt order.
3. Motion to dismiss the appeal. 5 Appendix 1, Page 5 of 19 Opinion of Court of Appeals
Because this is an appeal from a contempt order, the appellants were not required to follow the interlocutory appeal procedure. OCGA § 5-6-34 (a) (2); Massey v. Massey, 294 Ga. 163, 164-165 (2) (751 SE2d 330) (2013) (citations omitted); see also OCGA § 5-6-34 (a) (11) (making “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders” immediately appealable); OCGA § 5-6-37 (“Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.”).
Because they filed an application for discretionary appeal, we have jurisdiction regardless of whether or not they were entitled to follow the direct appeal procedure. OCGA § 5-6-35 (j). So we do not decide if they were so entitled, and we deny John Murphy’s motion to dismiss the appeal.
4. Deficiencies in the appellants’ brief.
As a threshold matter, we address the deficiencies in the appellants’ brief. The Appellate Practice Act, at OCGA § 5-6-40, provides that enumerations of error are to be concise and “shall set out separately each error relied upon.” “It is desirable that each enumeration be explicit, precise, intelligible, unambiguous, unmistakable, and unequivocal.” MacDonald v. MacDonald, 156 Ga. App. 565, 569 (1) (d) (275 SE2d 142) (1980) (physical precedent).
Our rules direct that, “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Court of Appeals Rule 25 (c) (1).
As to each enumeration of error, an appellant is to specify how the error was preserved and to state concisely the applicable standard of review. Court of Appeals Rule 25 (a). Briefs and enumerations of errors that do not conform to those requirements hinder our ability to determine the basis and substance of an appellant’s appeal. Williams v. State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012).
Appellants’ brief does not conform to those requirements.
Their brief and enumerations of error is rambling and difficult to follow; several enumerations contain multiple allegations of error.
These deficiencies are illustrated by enumeration of error four, which is set out in the margin.
1 1 “Whether the court erred in holding Michelle Murphy in contempt for not cooperating, within the time provided by the Court, with the custody evaluator, who presented an illegal condition for Michelle Murphy to perform in order to “cooperate” by requiring that Michelle Murphy execute the psychologist’s contract. (V17 p.3627)
The contempt adjudication was not supported with proof beyond a reasonable doubt of Michelle Murphy’s violation of the Order.
If proven beyond a reasonable doubt that Michelle Murphy violated any directive of the custody evaluator, the directive placed an illegal condition upon Michelle Murphy that is being appealed.
In order to accomplish what Judge Baldwin ordered, Michelle Murphy would have had to be As to some of the issues that appellants attempt to raise, these deficiencies constitute abandonment.
Appellants do not address each enumeration of error in the argument section of their brief, and their arguments in that section do not follow the order of the enumeration of errors.
And many of the alleged errors referenced in the enumeration of errors, are not supported with arguments, citations to the record, or citations of authority.
Court of Appeals Rule 25 (c) (2) provides, “Any enumeration of error which is not supported in the brief by citation of authority or argument may subjected to the following, illegal conditions: Michelle Murphy would have been required to execute a contract that is void against the public policy of the State of Georgia, in that:
(a) the contract that requires Michelle Murphy to grant the psychologist full immunity from liability, not just the immunity from liability provided by statute that exempts immunity to the psychologist resulting from her bad faith;
(b) the contract requires that Michelle Murphy become financially liable for fees that she cannot afford, as it requires that she pay expensive fees to obtain discovery and production, testimony at trial, or be deprived of this evidence that could be necessary to her defense of the psychologist’s findings or for use by her as evidence against the plaintiff;
c) the contract provides that the psychologist be paid 18% interest for late payments of fees;
(d) unless Michelle Murphy executed the contract, the psychologist would not inform her counsel of the method to be used for the “custody evaluation,” and would not provide other information about the scope of the investigation of John Harold Murphy and Renee L. Haugerud that would be conducted before rendering an opinion to the Court;
(e) unless Michelle Murphy executed the contract, the psychologist stated that she would not talk to counsel for Michelle Murphy or Michelle Murphy; and,
(f) Michelle Murphy would have been subjected to a psychologist who was selected by the guardian ad litem, who was exposed by counsel for Michelle Murphy for converting to her personal use trust funds provided to her in the case, in violation of USCR 24.9 (8)(g).”
Appendix 1, Page 8 of 19 Opinion of Court of Appeals be deemed abandoned.” See also Court of Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).
In spite of these deficiencies, we will review the claims of error that we are authorized to reach to the extent that we can ascertain the appellants’ arguments, Williams, 318 Ga. App. at 744-745, and to the extent they have not abandoned them.
5. Claim that trial judge is disqualified.
The appellants argue that the Honorable A. Quillian Baldwin, Jr. was disqualified from adjudicating the contempt motion for two reasons:
because another judge’s transfer of the case to Judge Baldwin was illegal,
and because unadjudicated disqualification motions were pending against Judge Baldwin at the time that he decided the contempt motion.
However, the appellants have cited no authority for the
Finally as noted above, our previous opinion rebuked appellants for repeated violations of Court of Appeals Rule 10 which provides, “Personal remarks, whether oral or written, which are discourteous or disparaging to any judge, opposing counsel, or any court, are strictly forbidden.” Murphy v. Murphy, __ Ga. App. __, __ (4) (759 SE2d 909) (2014).
Their present brief is only somewhat better. It includes, for example, repeated unsupported and irrelevant assertions that a particular witness has substance abuse problems.
We again rebuke appellants. This lack of professionalism does less than nothing to advance their cause. 9 Appendix 1, Page 9 of 19 Opinion of Court of Appeals proposition that the transfer of the case to Judge Baldwin was illegal.
On the contrary, Uniform Superior Court Rule 3.3 authorizes “an assigned judge [to] transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge.” And there are no unadjudicated disqualification motions.
Judge Baldwin orally denied all such motions before hearing the contempt motion. See Uniform Superior Court Rule 25.1 (“In no event shall the motion [for disqualification] be allowed to delay the trial or proceeding.”).
The appellants argue that Judge Baldwin was deprived of jurisdiction to consider the contempt motion because the August 23 order was currently on appeal and subject to supersedeas.
Under OCGA § 5-6-34 (e), however, when a party appeals an order granting nonmonetary relief in a child custody case, the order stands until reversed or modified by the reviewing court unless the trial court states otherwise in its judgment or order.
The trial court did not state otherwise in the August 23 order, so that order stood and remained enforceable through contempt proceedings notwithstanding the pending appeal. See Walker v. Walker, 239 Ga. 175, 176 (236 SE2d 263) (1977) (custody award that is not subject to supersedeas is enforceable through contempt; decided before July 1, 2011 effective date of OCGA § 5-6-34 (e)).
6. Contempt citations. 10 Appendix 1, Page 10 of 19 Opinion of Court of Appeals
Having addressed these preliminary matters, we now turn to the trial court’s order finding Farmer to be in contempt for discussing the case with the children in violation of the August 23 order, finding Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order, and finding both attorneys to be in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing.
(a) Violation of the prohibition of discussing this case with the children.
The trial court held attorney Farmer in contempt after finding that he was “discussing the issues, allegations, and claims in this case with the children and that such discussions are not necessary to implement the terms of the August Order.”
The appellants argue that this judgment of contempt must be reversed because Farmer did not receive adequate notice and because the evidence does not support it.
(i) Notice.
The appellants argue that the trial court erred in finding that they had sufficient notice of the contempt allegations against them and the hearing on the contempt. We conclude that the notice was reasonable.
Whether or not a party is entitled to notice of the charges of contempt and a hearing on those charges depends on the type of contempt he is charged with.
“Acts 11 Appendix 1, Page 11 of 19 Opinion of Court of Appeals of contempt are either direct, meaning they are committed within the sensory perception of the judge, or they are indirect, meaning they occur outside the sensory perception of the judge.” In re Shook, 254 Ga. App. 706, 707 (563 SE2d 435) (2002) (citation and punctuation omitted).
When a party is charged with committing direct contempt, no advanced notice is required and due process is satisfied “by simply giving [the party charged] an opportunity to speak on her own behalf.” Johnson v. State, 258 Ga. App. 33, 36 (2) (b) (572 SE2d 669) (2002) (citation omitted).
When a party is charged with committing indirect contempt, the party is “entitled, among other things, to reasonable notice of the charges, to counsel of his own choosing, and to the opportunity to call witnesses.” Ramirez v. State, 279 Ga. 13, 16 (3) (608 SE2d 645) (2005).
Farmer was charged with indirect contempt and therefore was entitled to reasonable notice of the allegations against him. “[T]he notice must be reasonably calculated to inform persons of the charges against them and their opportunity for a hearing at a specific time and place to present their objections.” Hedquist v. Hedquist, 275 Ga. 188, 189 (563 SE2d 854) (2002) (citation omitted). The notice here met those requirements.
12 Appendix 1, Page 12 of 19 Opinion of Court of Appeals Appellants were adequately informed of the charges.
The amended motion for contempt sufficiently specified the allegedly contumacious conduct.
It sought to hold counsel in contempt for discussing the issues in the case with the parties’ children.
The appellants argue that referring to “Defendant’s lawyer” instead of “Millard Farmer” rendered the motion insufficient.
They cite no supporting authority for that argument, and we reject it.
Appellants were adequately notified of their opportunity to be heard at a specific time and place.
On September 12, 2014, counsel for John Murphy served upon counsel for Nancy Michelle Murphy a “Notice of Hearing” that specified the date, time, and location of a hearing before the trial court “in order for [the trial court] to consider the relief requested in Plaintiff’s Motion for Contempt filed in the above captioned matter on August 29, 2013.”
Counsel served that “Notice of Hearing” by United States mail and by email. Additionally the trial court issued a calendar to counsel for the parties, confirming that a hearing was scheduled for October 3, 2013.
The appellants do not deny receiving the notice of hearing or the calendar. Counsel for John Murphy served the amended motion for contempt upon counsel for Nancy Michelle Murphy on September 27, 2013, six days before the scheduled hearing. Under these facts, we find that the trial court did not err in concluding that the
13 Appendix 1, Page 13 of 19 Opinion of Court of Appeals appellants received reasonable, sufficient notice. See Gibson v. Gibson, 234 Ga. 528, 529-530 (3) (216 SE2d 824) (1975) (notice less than five days before hearing, which appellant did not dispute receiving, was reasonable). Compare Hedquist, 275 Ga. at 190 (notice of hearing that did not specify that trial court would hear the contempt motions at pretrial conference was inadequate).
(ii) Sufficiency of the evidence.
Farmer argues that the contempt must be reversed because the evidence does not support the finding of contempt. Our standard of review is dictated by the nature of the contempt, whether criminal or civil. In re Waitz, 255 Ga. App. 841, 842 (567 SE2d 87) (2002).
The trial court sentenced Farmer to “be incarcerated in the Coweta County, Georgia jail for a period of 20 days or until he pa[id] One Thousand Dollars ($1,000.00) to the Court.” Because he was sentenced to imprisonment for a specified, unconditional period, Farmer’s contempt was criminal. See In the Interest of J. D., 316 Ga. App. 19, 21 (1) (728 SE2d 698) (2012) (“If the contemnor is imprisoned for a specified unconditional period . . . the purpose is punishment and thus the contempt is criminal.”) (citation, footnote, and punctuation omitted).
“On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier 14 Appendix 1, Page 14 of 19 Opinion of Court of Appeals of fact could have found the essential elements of the crime beyond a reasonable doubt.” In re Waitz, 255 Ga. App. at 842 (citation and punctuation omitted).
After viewing the evidence in the light most favorable to the prosecution, we conclude that the trial court could have found the essential elements of the crime beyond a reasonable doubt.
Farmer signed the brief to which the affidavits reflecting the children’s knowledge of the case were attached. Also attached to that brief is an affidavit of Farmer himself, notarized on the same day by the notary who notarized the children’s affidavits.
To the extent Farmer argues that he cannot be held in contempt for violating a provision directed at the parties rather than himself, his argument is unavailing.
The violation of a court’s order by one who was not a party to the proceedings can be punished as a contempt if the contemnor had actual notice of the order and is in privity with, aided and abetted, or acted in concert with the named party in acts constituting a violation of the order. The Bootery v. Cumberland Creek Props., 271 Ga. 271, 272 (2) (517 SE2d 68) (1999). It is undisputed that Farmer had actual notice of the order and acted as Nancy Michelle Murphy’s representative when obtaining the affidavits from the children.
(b) Failure to cooperate with the custody evaluator. 15 Appendix 1, Page 15 of 19 Opinion of Court of Appeals The trial court held Nancy Michelle Murphy in contempt after finding that she had not cooperated with the custody evaluator. The appellants argue that this judgment of contempt must be reversed because Nancy Michelle Murphy did not receive adequate notice and because the evidence does not support it.
(i) Notice.
Nancy Michelle Murphy was entitled to reasonable notice related to the allegations of indirect contempt for violating the August 23, 2013 court order.
For the reasons discussed in Division 6 (a) (1), supra, we conclude that she received such notice.
(ii) Sufficiency of the evidence.
The trial court sentenced Nancy Michelle Murphy to incarceration “until she compli[ed] with the August Order by signing the documents previously submitted to her by [the custody evaluator’s] office.”
This was a civil contempt. See In the Interest of J. D., 316 Ga. App. at 21-22 (1) (“If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.”) (citations omitted).
In civil contempt appeals, if there is any evidence from which the trial court could have concluded that its order had been violated, we are without 16 Appendix 1, Page 16 of 19 Opinion of Court of Appeals power to disturb the judgment absent an abuse of discretion.” In re Waitz, 255 Ga. App. at 842 (citation omitted).
We hold that some evidence supported the conclusion that Nancy Michelle Murphy violated the August 23 order by refusing to cooperate with the custody evaluator. The August 23 order set an October 15, 2013 deadline for completion of the custody evaluation. John Murphy testified that he had done everything the custody evaluator required in order to begin the evaluation, yet the evaluation had not proceeded.
It is not disputed that as of November 19, 2013, the date of the trial court’s contempt order, that evaluation had not occurred.
And, in a response to the amended motion for contempt which she filed on October 22, 2013, Nancy Michelle Murphy expressly defied the August 23 order and declared herself justified in refusing to sign the documents that were a prerequisite to the custody evaluation.
The trial court was therefore authorized to conclude that she had not signed those documents. See OCGA § 24-8-821 (“Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.”).
This is sufficient evidence to authorize the trial court to conclude that Nancy Michelle Murphy violated the August 23 order by refusing to cooperate with the 17 Appendix 1, Page 17 of 19 Opinion of Court of Appeals custody evaluator. See Edwards v. Edwards, 254 Ga. App. 849, 854 (563 SE2d 888) (2002) (a person who simply ignores a court order that she believes is erroneous “does so at [her] own peril and must assume the risk of being held in contempt”) (citation and punctuation omitted).
(c) Nancy Michelle Murphy’s failure to appear at the hearing. We agree with the appellants that the trial court erred in holding Farmer and King in contempt because of Nancy Michelle Murphy’s failure to appear at the contempt hearing.
Absent a properly served subpoena or court order requiring a party to appear in person, a party may choose not to be present at the trial of the case and to be represented solely by counsel.
This rule accords with the long-established principle that there is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person. In re Estate of Coutermarsh, 325 Ga. App. 288, 290 (1) (752 SE2d 448) (2013) (citations and punctuation omitted). See also Masonry Standards v. UPS Truck Leasing, 257 Ga. 743, 743-744 (363 SE2d 553) (1988) (trial court erred in sanctioning defendant for failing to appear in person at trial).
John Murphy has pointed to nothing that required Nancy Michelle Murphy to appear in person at the 18 Appendix 1, Page 18 of 19 Opinion of Court of Appeals contempt hearing.
And because Nancy Michelle Murphy was not required to appear in person, Farmer and King could not be held in contempt for her failure to appear. Judgment affirmed in part and reversed in part.
Doyle, P. J., and Boggs, J., concur. 19 Appendix 1, Pagge 19 of 19 Opinion of Court of Appeals Court of Appeals of the State of Georgia Clerk’s Office, Atlanta, December 04, 2014.
I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
, Clerk.
Court of Appeals of Georgia.
MURPHY v. MURPHY.
No. A13A0206.
Decided: July 12, 2013
Nancy Michelle Murphy appeals an interlocutory order denying her motion to recuse the trial court judge in this change-of-custody case. Because we lack jurisdiction, we dismiss the appeal.
Nancy Murphy and John Murphy were divorced in 2006. In 2012, John Murphy filed this action, seeking to modify the child custody provisions of the parties’ divorce decree.
The case was assigned to Judge A. Quillian Baldwin, Jr. Nancy Murphy moved to disqualify Judge Baldwin. Judge Baldwin denied the motion, and Nancy Murphy filed a notice of appeal. The case remains pending below.
“This [c]ourt has a duty to inquire into its jurisdiction to entertain each appeal.” (Citation omitted.) Hammonds v. Parks, 319 Ga.App. 792, 793(2), 735 S.E.2d 801 (2012). Under the version of OCGA § 5–6–34(a)(11) in effect when Nancy Murphy filed her notice of appeal, a party could file a direct appeal from “[a]ll judgments or orders in child custody cases including, but not limited to, awarding or refusing to change child custody․” See generally Collins v. Davis, 318 Ga.App. 265, 268–269 & n. 17(1), 733 S.E.2d 798 (2012) (holding that clear and unambiguous language of former OCGA § 5–6–34(a)(11) authorized direct appeal of any order in proceeding in which child’s legal custody, physical custody or visitation was an issue, and noting that it was for legislature to narrow scope of this right of direct appeal).
Such orders were no longer subject to the interlocutory appeal procedures of OCGA § 5–6–34(b) or the discretionary appeal procedures of OCGA § 5–6–35(a)(2). See Taylor v. Curl, 298 Ga.App. 45, 679 S.E.2d 80 (2009).
Effective May 6, 2013, however, the legislature amended OCGA § 5–6–34(a)(11) to provide that a party can file a direct appeal from “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody․” SB 204 §§ 1, 2 (2013).
The uncodified preamble to the amendment states that its purpose is “to limit the scope of judgments or orders in child custody cases which are subject to direct appeal.”
And although laws that affect substantive rights apply prospectively only, procedural laws, which prescribe the methods of enforcement of rights, duties, and obligations, apply retroactively. Nathans v. Diamond, 282 Ga. 804, 808–809(2), 654 S.E.2d 121 (2007). “[W]here a statute governs only procedure of the courts ․ it is to be given retroactive effect absent an expressed contrary intention.” Polito v. Holland, 258 Ga. 54, 55(2), 365 S.E.2d 273 (1988).
Nancy Murphy filed her notice of appeal from the order denying her motion to recuse. That order does not award, refuse to change, or modify child custody.
Consequently, the order is not appealable under OCGA § 5–6–34(a)(11), we lack jurisdiction, and the appeal must be dismissed. See Stevens v. State, 292 Ga. 218, 734 S.E.2d 743 (2012) (dismissing direct appeals from trial court’s denial of the defendants’ motions to dismiss the indictment due to an alleged constitutional speedy trial violation because eight days before, the Supreme Court had determined that such orders were no longer directly appealable but had to follow the interlocutory application procedures).
To the extent that Nancy Murphy argues that we have jurisdiction over her appeal because orders denying motions to recuse are directly appealable under the collateral order doctrine, we disagree.
The Georgia Supreme Court has held that a party who wants to appeal a pretrial ruling on a recusal motion has the option to seek an interlocutory appeal or to appeal directly after an adverse final judgment See White v. Lumpkin, 272 Ga. 398, 529 S.E.2d 879 (2000); Chandler v. Davis, 269 Ga. 727, 728, 504 S.E.2d 440 (1998).
We, too, have held that the appeal of an interlocutory order denying a motion to recuse “requires compliance with the interlocutory appeal provisions of OCGA § 5–6–34(b).” (Citation omitted.) Ellis v. Stanford, 256 Ga.App. 294, 295(2), 568 S.E.2d 157 (2002). See also Rolleston v. Glynn County Bd. of Tax Assessors, 213 Ga.App. 552, 553, 445 S.E.2d 345 (1994); In re Booker, 186 Ga.App. 614, 367 S.E.2d 850 (1988).
In fact, the interlocutory appeal provision of OCGA § 5–6–34(b) explicitly provides that:
Where the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment if application is made thereto within ten days after such certificate is granted.(Emphasis supplied.)
Nonetheless, in Braddy v. State, 316 Ga.App. 292, 729 S.E.2d 461 (2012), without acknowledging the prior cases or the language of OCGA § 5–6–34(b), we held that an order denying a motion to recuse met the requirements for application of the collateral order doctrine because the ruling concern[ed] a matter wholly unrelated to the basic issues to be decided in the [underlying] case.
Whether the trial judge could properly preside over the case would be unresolved if review had to await final judgment.
Finally, the order resolve[d] the matter completely and nothing remain[ed] in the underlying case to affect it.Id. at 293(1), 729 S.E.2d 461.
This holding misapplied the collateral order doctrine and directly conflicted with OCGA § 5–6–34(b)‘s explicit inclusion of “the denial of a defendant’s motion to recuse in a criminal case” in the category of orders needing a certificate of immediate review, thereby rendering the provision meaningless.
In Scroggins v. Edmondson, 250 Ga. 430, 431–432(1)(c), 297 S.E.2d 469 (1982), our Supreme Court adopted the test from Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), for determining whether an order falls within the collateral order doctrine.
Under that test, the collateral order doctrine applies if the order
(1) completely and conclusively decides the issue on appeal such that nothing in the underlying action can affect it;
(2) resolves an issue that is substantially separate from the basic issues in the complaint; and
(3) might result in the loss of an important right if review had to await final judgment, making the order effectively unreviewable on appeal. See Scroggins, 250 Ga. at 432(1), 297 S.E.2d 469(c).
Braddy misapplied the “effectively unreviewable” prong of the test.In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the United States Supreme Court stressed the stringency of the “effectively unreviewable” prong of the Cohen test:
“To be appealable as a final collateral order, the challenged order must constitute a complete, formal, and, in the trial court, final rejection, of a claimed right where denial of immediate review would render impossible any review whatsoever.” (Emphasis supplied; citations and punctuation omitted.) Id. at 376.
In Braddy, we held that this prong was satisfied because “[w]hether the trial judge could properly preside over the case would be unresolved if review had to await final judgment.” Braddy, 316 Ga.App. at 293(1), 729 S.E.2d 461.
But orders denying motions to recuse may be reviewed and relief afforded after the entry of final judgment. In Johnson v. State, 278 Ga. 344, 349(3), 602 S.E.2d 623 (2004), for example, the Supreme Court reversed a defendant’s convictions for felony murder and related crimes because the trial court should have granted her motion to recuse. In Gillis v. City of Waycross, 247 Ga.App. 119, 122, 543 S.E.2d 423 (2000), an appeal of a final judgment entered after a three-day trial, we remanded the case so that a different judge could consider the plaintiffs’ motion to recuse.
Because review after entry of final judgment of orders denying motions to recuse can protect parties’ interests adequately, such orders are not appealable as collateral orders.
And to hold otherwise ignores the explicit language of OCGA § 5–6–34(b). We therefore overrule Braddy, 316 Ga.App. at 292, 729 S.E.2d 461.
Other courts that have considered the issue generally have held that the collateral order exception to the final judgment rule does not encompass an order denying a motion to recuse because the parties’ interests can be protected adequately in an appeal from a final judgment. See, e.g., In re Martinez–Catala, 129 F.3d 213, 217(II) (1st Cir.1997); In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 960–961(I) (5th Cir.1980); State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905 (Neb.2005); State v. Forte, 150 Vt. 654, 553 A.2d 564, 565 (Vt.1988); Kreig v. Krieg, 743 A.2d 509, 511 & n. 4 (Pa.Super.1999).
In other words, because recusal questions are fully reviewable on appeal from a final judgment, the collateral order doctrine does not apply.
Appeal dismissed.
McFADDEN, Judge.PHIPPS, C.J., ANDREWS, P.J., BARNES, P.J., ELLINGTON, P.J., DOYLE, P.J., MILLER, DILLARD, BOGGS, RAY, BRANCH and McMILLIAN, JJ., concur.
– See more at: http://caselaw.findlaw.com/ga-court-of-appeals/1638666.html#sthash.3tJZiiOs.dpuf
IN THE SUPERIOR COURT OF TROUP COUNTY STATE OF GEORGIA
Nancy Michelle Murphy,
Plaintiff,
vs.
Civil Action No. 15-CV0109
Nan Freeman and Freeman Reporting, Inc., Defendants [Only two Defendants remaining after Fulton Superior Court transfer] The Summary Judgment should be Denied and the Demand for a Jury Trial by twelve persons should be Granted Nancy Michelle Murphy’s Response to the Uniform Superior Court Rule 6.5 Theories of Recovery and Statement of Material Facts of Nan Freeman and Freeman Reporting, Inc.
This case involves Nan Freeman, who is an official court reporter engaging in illegal conduct. Nancy Michelle Murphy (or “Michelle Murphy”) responds here to the Uniform Superior Court Rule 6.5, purported Theory of Recovery and purported Statement of Material Facts of Nan Freeman and Freeman Reporting, Inc. (or, “Nan Freeman,” collectively or individually).
A substantial portion of Nan Freeman’s Uniform Superior Court Rule 6.5 purported Statement of Material Facts reflects the vindictiveness of those opposing Michelle Murphy for exposing the illegal conduct of Judge Baldwin and those, such as Nan Freeman, who attempted to conceal the illegal conduct of Judge Baldwin.
This is to state that Nan Freeman is assisted by persons attempting to support the illegal conduct of Judge Baldwin, who have either benefited from the conduct of Judge Baldwin, or who seek to obtain future benefit derived from supporting Judge Baldwin and/or financial benefits derived from John Harold Murphy and Renee L. Haugerud.
The information contained in the March 14, 2014 Motion to Disqualify Nan Freeman in Murphy v. Murphy, in the Superior Court of Coweta County, Civil Action No. 12V-413 (or, “Murphy v. Murphy”) is incorporated and made a part of this introduction, as Attachment 7.
Nan Freeman’s Motion for Summary Judgment attempts to demean Michelle Murphy and to use the tactics of John Harold Murphy and Judge Baldwin in an attempt to defend Nan Freeman’s illegal conduct and the illegal conduct of Judge Baldwin in not adhering to the Uniform Superior Court Rule 3.1 mandated case management plan.
Nan Freeman’s Motion for Summary Judgment identifies, as much as anything, the bias of Nan Freeman and that the illegal conduct of Nan Freeman was not that of an innocent court reporter who made a few errors, but that of a person engaging in a pattern of illegal conduct allowing her to obtain illegal compensation and job security by protecting the conduct of Judge Baldwin, whose judicial authority should have been vacated by the regulatory authorities.
The e-mails copied and exchanged among those working in Judge Baldwin’s office and Nan Freeman using either the nickname, “Nanny” or “Nan” do not depict Nan Freeman as an independent, unbiased official court report covering matters relating to Judge Baldwin.
These exchanges, produced in discovery after the deposition of Nan Freeman, are attached to the Affidavit of Kenneth Gordon as “Exhibit D,” and are incorporated here.
When Judge Baldwin eventually recused himself after twenty or more attempts by Michelle Murphy to disqualify him by all legal means, Judge Baldwin obtained a position for Nan Freeman, as an official court reporter with the newly appointed Coweta Judicial Circuit Superior Court Judge W. Travis Sakrison, the son-in-law of Congressman Lynn Westmoreland.
The recusal Orders of the judges in the Coweta Judicial Circuit in Murphy v. Murphy and the replacement judge are included as Attachment 8.
No separate response is required to the Theory of Recovery of Nan Freeman and Freeman Reporting, Inc. (or, “Nan Freeman”, collectively or individually )
The response of Michelle Murphy to Nan Freeman’s purported Statement of Rule 6.5 Facts Memorandum of Law is incorporated in the Introduction to the Response to Nan Freeman’s Theory of Recovery.
Just as a heads up — counsel for Nan Freeman filed her motion for summary judgment before Michelle Murphy’s First Amended Complaint was filed and therefore Nan Freeman’s issues in her current motion for summary have become stale and mostly legally immaterial before the allotted time for Michelle Murphy to respond.
An official court reporter, as was and is Nan Freeman, cannot legally design a template, as she did around 1996, and use it in each of her official court reporting’s contractual fulfilments until she is caught producing illegal transcripts with that template in 2014 and then creditably urge the defense of “mistake” — the law burdens Nan Freeman, as a condition of qualifying and being compensated, as an official court reporter, both to learn and to comply with the legally permissible fees and the legal requirements for the preparation of transcripts pursuant to the Fee Schedule mandated by the Judicial Council of Georgia and OCGA § 15-14- 5.
Returning compensation which was illegally taken does not absolve one of the consequences of violating the law. Nan Freeman held a position of trust that required both her competence and integrity that she breached to the detriment of Michelle Murphy, that consumed Michelle Murphy’s financial resources and created an enhanced level of prejudice against Michelle Murphy’s effort to obtain custody of J. M. and T. M., her children.
It is relevant to understand that Judge Baldwin was the exclusive trier of fact in Murphy v. Murphy.
Michelle Murphy could not obtain a jury trial in that case The fees and the conditions upon which an official court reporter in the State of Georgia can obtain compensation is mandated by the Judicial Council of Georgia.
Nan Freeman was required by law to charge only the Judicial Council of Georgia authorized fees to persons who wished, or were required, to purchase transcripts from her in her capacity as an official court reporter for the Coweta Judicial Circuit.
The fees follow that were allowable for Nan Freeman to charge for legally prepared transcripts in the Superior Court of Coweta County case of Murphy v Murphy.
Nan Freeman did not comply with the certificate requirements, which were legally imposed upon her by the OCGA § 15-14-5, Duty to transcribe statute — Nan Freeman used an abbreviated, incomplete version of the required certificate. OCGA § 15-14-5. Duty to transcribe; certificate.
It shall be the duty of each court reporter to transcribe the evidence and other proceedings of which he has taken notes as provided by law whenever requested so to do by counsel for any party to such case and upon being paid the legal fees for such transcripts.
The reporter, upon delivering the transcript to such counsel, shall affix thereto a certificate signed by him reciting that the transcript is true, complete, and correct.
Subject only to the right of the trial judge to change or require the correction of the transcript, the transcript so certified shall be presumed to be true, complete, and correct. emphasis supplied
Nan Freeman, as a part and parcel of her habitual violations of the laws of Georgia, did not provide Michelle Murphy’s transcripts with an OCGA § 5-14-5 required certificate containing the certification that the transcript is “true, complete and correct” as required by OCGA § 5-14-5 — — The transcripts provided and paid for by Michelle Murphy were not true, complete or correct. Nan Freeman has never provided to Michelle Murphy, or other litigants, the required certificate that is an indication of the pattern of her illegal conduct.
The habitual violations of the OCGA § 15-14-5 requirements and the authorized fees is relevant to identify that Nan Freeman did not just make a onetime error, but instead engaged in a pattern of illegal conduct, including overcharging and not including the required certificate.
Nan Freeman was therefore not entitled to any compensation, as she prepared no transcript meeting the OCGA § 15-14-5 requirements. If she had complied, the following fees, with which she also did not comply, govern.
Nan Freeman, by using a template that consistently produced a transcript that did not comply with OCGA § 15-14-5, and using a template that consistently allowed her to collect more compensation than she was permitted to receive under the law, engaged in illegal conduct and actionable fraud, negligent misrepresentation of facts, theft by taking, breach of contract, unjust enrichment and conversion.
The laws of Georgia do not deprive Michelle Murphy from obtaining damages from an official court reporter who engaged in the illegal conduct in which Nan Freeman engaged.
Procedural Background
Michelle Murphy, through counsel, first, informally and very politely, sought the audio recording of the May 27, 2014 proceedings from Nan Freeman, the official court reporter in Murphy v. Murphy— counsel approached Nan Freeman while she was still sitting at her court reporting station.
The audio recordings were initially sought by counsel to provide to regulatory authorities to report the Code of Judicial Conduct violations by Judge Baldwin that had just occurred.
The report of the conduct of Judge Baldwin was appropriate, as his violations of the Code of Judicial Conduct were prevalent on several earlier occasions, but none were as monstrous as Judge Baldwin’s mental blowout on May 27, 2014.
The audio was relevant to obtaining the removal of Judge Baldwin from Murphy v. Murphy.
Nan Freeman initially refused the literal begging of counsel to purchase the audio recording for Michelle Murphy’s use — counsel then, to no avail, sought the audio recording with a Georgia Open Records Act request to Troup County, Coweta County and Nan Freeman.
The Open Records Act request is Plaintiff’s Exhibit 6 to the Deposition of Nan Freeman, and is Attachment 6 to this response. Counsel sought assistance from the Board of Court Reporting, with first an informal request for help, followed by a formal complaint.
Counsel for Michelle Murphy was refused assistance in obtaining the audio recordings for Michelle Murphy until after an action was filed against the Board of Court Reporting, Nan Freeman and Freeman Reporting, Inc., that, with other efforts and concessions, resulted in Michelle Murphy obtaining the audio recordings.
It was a review of the audio recording that supported the illegal conduct of Nan Freeman.
Nan Freeman, over an extended period of time, thought to have begun on, or before, 1996, engaged in illegal court reporting that counsel for Michelle Murphy discovered and documented at the initial cost of in excess of $10,000.
The Answer of Nan Freeman to the original complaint against her by Michelle Murphy is included as Attachment 1.
That Answer, as well as the complete record of the original case, are now in the records of the Superior Court of Troup County and are relied upon in support of this response. The litigious nature of Nan Freeman in not fulfilling her contract with Michelle Murphy, by engaging in false, demeaning depictions of Michelle Murphy, in this Motion for Summary Judgment and elsewhere, qualifies Nan Freeman’s breach of contract for an award of attorney fees and punitive damages.
A video recording and official copy of the transcript and video deposition of Nan Freeman are in the record of the Superior Court of Troup County.
Nan Freeman’s attorney attached a copy of that transcript, without Exhibits, of Nan Freeman’s deposition to Nan Freeman’s motion for summary judgment.
It is relevant to distinguish between the stringent requirements for an official court reporter to receive compensation, from the requirements of a court reporter, who, for example, reports at depositions.
In order to obtain the audio recordings of the May 27, 2014 hearing and to have transcribed omitted portions of the transcripts that were thought available with the audio recordings, the Georgia Open Records Act requests were filed by counsel for Michelle Murphy. See Attachment 6 hereto, and Exhibit 6 to the deposition of Nan Freeman includes the Georgia Open Records Act requests to the Counties of Troup and Coweta, and to Nan Freeman.
After the Board of Court Reporting members were dismissed as defendants from the Superior Court of Fulton County portion of this case, Nan Freeman, on her motion, was successful in having the case transferred to the Superior Court of Troup County.
The original complaint, upon which the motion for summary judgment relies, was amended before the response Michelle Murphy to this motion for summary judgment was due.
The Complaint against Nan Freeman contains issues that are embedded within each of the causes of action that affects the damages that should be awarded against Nan Freeman.
The embedded issues in each cause of action are
(1) the proportion of the tortious conduct by Nan Freeman that can be attributed to her violation of protections provided to litigants by the Code of Judicial Conduct, OCGA §15-14-5, the Uniform Superior Court Rules, the Constitutional provisions of the United States and the State of Georgia equivalent, First Amendment, Equal Protection, Due Process protections, statutes, decisional law, Georgia Code of Professional Conduct, the Court Reporter Code of Professional Ethics (or, collectively, or separately, “LAW*”).
Nan Freeman’s intentional participation in the illegal conduct of Judge Baldwin in order to deprive Michelle Murphy and her children of their protections under the LAW* by Nan Freeman’s reckless and wanton disregard of consequences, evinced an intention to inflict injury upon Michelle Murphy —
(2) the proportion of Nan Freeman’s tortious conduct that is attributed to her intent to obtain illegal financial and employment benefits for herself —
(3) the proportion of Nan Freeman’s tortious wrongdoing that is attributed to her fraud and negligent misrepresentation; and —
(4) the damages caused to Michelle Murphy as the result of Nan Freeman’s illegal and unethical conduct that included Nan Freeman’s participation in attempting to secret and otherwise participate in the illegal conduct and other violations of the Code of Judicial Conduct by Judge A. Quillian Baldwin, Jr. Response to the Individual Statement of Purported Facts relied upon by Nan Freeman in support of her motion for summary judgment. [The purported statement of fact by Nan Freeman is first quoted in an italicized font, then the response follows.]
Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 12 of 28 1.
Since 2012, Ms. Freeman has served as the court reporter for Chief Judge A. Quillian Baldwin, Jr. of the Coweta County Superior Court. Dep. of Nan Freeman at 8:19-9:12. A copy of the transcript of Ms. Freeman’ s Deposition is attached to the Affidavit of Kenneth Lamar Gordon (“Gordon Affidavit”) as Exhibit A. Response to No. 1
Nan Freeman has been an official court reporter in the Coweta Judicial Circuit since approximately 1999, and a court reporter since approximately 1996 (Freeman Dep. p. 8).
During that time, she has been the official court reporter first for Judge Keeble, then Judge Baldwin, and, now, the newly appointed Judge W. Travis Sakrison. At all times excepting August 13, 2013, when another reporter, Alice Moore, was assigned to the case for that one hearing, Nan Freeman was the official court reporter during the Murphy v. Murphy case.
The official transcript of the deposition of Nan Freeman is filed in the Superior Court of Troup County.
Counsel for Nan Freeman did not attach the exhibits to the deposition of Nan Freeman, which are relevant to the testimony contained in the transcript.
The exhibits are attached to the official transcript filed with the Clerk of the Superior Court of Troup County. 2.
From April 2012 until February 2015, (other than a brief period of time in which the case had been transferred to another judge) Judge Baldwin presided over child custody litigation between Plaintiff and her ex-husband, John Murphy (the “Child Custody Litigation”) See Murphy v. Murphy, No. 2012-cv-413 (Ga. Super. Ct., Coweta Cnty. filed Apr. 11, 2012). Response to No. 2
After Michelle Murphy filed extensive challenges to the absence of a Uniform Superior Court Rule 3.1 case management plan with disqualification motions and otherwise in the Superior Court of Coweta County, a Rule 3.1 mandated case Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 13 of 28 management plan was implemented by the Coweta Judicial Circuit.
Under that plan, Judge Dennis Blackmon was assigned the Murphy v. Murphy case, as confirmed by the Clerk of the Superior Court of Coweta County. Judge Baldwin, through a process that did not comply with the LAW*, obtained the case from Judge Blackmon.
There were continuous pleas to the jurisdiction of Judge Baldwin presiding after Judge Blackmon’s Rule 3.1 case management plan assignment. The Murphy v. Murphy case was a modification of custody, or in the Alternative, Parenting Time of John Harold Murphy that also involved a modification of child support.
John Harold Murphy initiated the litigation that resulted in Counterclaims against John Harold Murphy and a Third Party Complaint against Renee L. Haugerud, his spouse, who is a hedge fund operator. At that time, the case in the Superior Court of Coweta County was styled as follows.
John Harold Murphy, Plaintiff vs. Civil Action No. 12V-413 Nancy Michelle Murphy, Defendant/Third Party Plaintiff vs. A Jury Trial is Requested on the Child Support Issues, the Counterclaim and the Third Party Complaint Renee Haugerud, Third Party Defendant The hedge fund operator, third party defendant was dismissed by Judge Baldwin without allowing a hearing.
Judge Baldwin refused counsel for Michelle Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 14 of 28 Murphy the right to depose Renee L. Haugerud or to call her as a witness at any time, despite numerous requests. 3.
On April 1, 2014, Judge Baldwin issued an Order in the Child Custody Litigation (a) requiring Plaintiff to submit to a psychological examination pursuant to O.C.G.A. § 9-11-35;
(b) setting a compliance hearing for May 27, 2014; and
(c) warning Plaintiff that the issue of temporary custody of the children would be considered at the compliance hearing, if necessary.
A copy of the April 1, 2014 Order in the Child Custody Litigation is attached to the Gordon Affidavit as Exhibit B. Response to No. 3
On April 1, 2014, Judge Baldwin filed an Order in Murphy v Murphy, that is incorporated as Attachment 2.
The Attachment is the representation of the designation of the content of the Order, as Michelle Murphy is opposed to the characterization of the litigation and the characterization of the Order contained in the No. 3 statement of purported fact of Nan Freeman.
4. On May 27, 2014, Judge Baldwin conducted the compliance hearing in the Child Custody Litigation.
Following Plaintiff’s admission on the stand that she had failed to comply with the Rule 35 psychological examination, Judge Baldwin awarded temporary custody of the children to Plaintiff’s ex-husband, John Murphy. Response to No. 4 Judge Baldwin, on May 27, 2014 did not conduct a hearing that provided Michelle Murphy her Due Process rights, as Judge Baldwin presided at a proceeding that violated the Code of Judicial Conduct, as evidenced by his recusal. Attachment 8, p. 1 is incorporated here.
On May 27, 2014, Judge Baldwin commenced what was scheduled to be a hearing in the case of Murphy v. Murphy.
Judge Baldwin would not allow any of Michelle Murphy’s witnesses to testify and would not even allow direct examination of Michelle Murphy by her counsel, while Judge Baldwin, in attempting to examine Michelle Murphy, violated the Code of Judicial Conduct as well as the protections that the law provided to Michelle Murphy.
Judge Baldwin abruptly refused to allow Michelle Murphy even to explain her answers to questions that he posed, or questions posed by opposing counsel. Judge Baldwin apparently predetermined that he was going to use his judicial authority to abuse Michelle Murphy. Judge Baldwin, by illegal and unethical conduct, attempted to and did prevent Michelle Murphy from presenting her justifiable defense.
Judge Baldwin would not allow Michelle Murphy, through her testimony, or through her witnesses’ testimony, to present her defenses.
The characterization of the litigation and the purpose of the proceeding is inaccurate, and is accurately explained in the Affidavit of Michelle Murphy, Attachment 3.
Nan Freeman’s illegal conduct deprived Michelle Murphy of a verbatim transcription or even a complete and accurate audio version of the May 27, 2014 proceeding, explained in the First Amended Complaint against Nan Freeman as follows.
Nan Freeman, intentionally or through negligence engaged in a deceptive physical appearance at the May 27, 2014 proceeding that Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 16 of 28 gave Michelle Murphy and her counsel the appearance that she was fulfilling her legal obligations in the courtroom, as an official court reporter under contract to Michelle Murphy, including being located at her reporting station with her equipment, that was a scheme or an artifice to defraud Michelle Murphy and thereby her counsel and the appellate courts and all other courts.
On May 27, 2014, Nan Freeman failed to take down, audio record, accurately and completely transcribe Judge Baldwin’s Order and assurance to Michelle Murphy, her children and her counsel that the children would be allowed to testify at the May 27, 2014 proceeding, and, thereby, deceptively engaged in actionable fraud and/or alternatively, negligent misrepresentation conduct, creating damages sought in the First Amended Complaint against Nan Freeman by Michelle Murphy. See, Affidavit of Millard Farmer attached to this Response.
At the time of the May 27, 2014 proceeding, Nan Freeman was a person known to Michelle Murphy and her counsel as the official court reporter who was assigned to the case as the official reporter whom Michelle Murphy, through her counsel, contracted to report and transcribe the proceeding on May 27, 2014.
Nan Freeman, as a part of her fraud and/or alternatively, negligent misrepresentation conduct, requested that Michelle Murphy make payment to her for work which Nan Freeman deceptively failed to perform while appearing to perform as required by the Board of Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 17 of 28 Court Reporting Rules and Regulations.
Nan Freeman charged, and Michelle Murphy paid for pages of the transcript that did not meet the legal requirements of being page eligible to be included in the fee charged and collected by Nan Freeman.
In addition to not recording and transcribing the first part of the proceedings, while deceptively appearing to be recording the court proceedings, Nan Freeman, as a part of her fraud and/or alternatively, negligent misrepresentation, provided Michelle Murphy, opposing counsel and the Court a certificate stating that the transcript of the May 27, 2014 proceedings provided to the parties, which Nan Freeman was compensated to produce, was a “true” record of the proceedings. (Freeman Dep., Exhibit 5)
Not only was the certificate not legal, but Nan Freeman had illegally charged for ineligible pages and omitted portions of the proceedings.
Nan Freeman, who personally transcribed the transcript from a recording that she produced, (Freeman Dep. p. 7) as a part of her fraud and/or alternatively, negligent misrepresentation conduct, in addition to omitting the beginning of the proceeding, omitted the four pages of Judge Baldwin’s massive temper tantrum at the end of the proceeding that no human in attendance could forget.
Nan Freeman engaged in fraud and/or alternatively, negligent misrepresentation conduct by attempting to have Judge Baldwin use his authority as the presiding Judge to influence counsel for Michelle Murphy not to bring an action against Nan Freeman that ultimately provided counsel for Michelle Murphy the information to learn of a substantial portion of the fraud and/or alternatively negligent misrepresentation conduct of Nan Freeman, much of which was verified during the deposition of Nan Freeman, where she continued to conceal her fraud and/or alternatively negligent misrepresentation, by first making false statements and frequently feigning that she did not remember.
5. After issuing this ruling, Judge Baldwin stated ”that’s the end of this hearing today” and left the bench. Compl., Attach. 7, at 41. Response to No. 5 Purported Statement 5 is deceptive, as it attempts to imply the end of the proceeding. Instead, Judge Baldwin stood up, but did not leave the bench, and immediately was engaged by counsel and responded with his monstrous temper tantrum, contained in the omitted pages of the “true record” transcript involving the “Blame Yourself,” “Blame Yourself,” Blame Yourself,” of Judge Baldwin that is included in the Addendum, accompanied with the “indicating” comment and the statement of Larry King to Judge Baldwin that is also included in the Addendum to the May 27, 2014 transcript of Nan Freeman. (Attachment 4)
Even if Judge Baldwin accosted counsel, as he had during the monstrous temper tantrum, after a hearing, and Nan Freeman had the recorded audio of that conduct, she was equally required to transcribe the conduct of Judge Baldwin in order that the relevance of the conduct could be weighed by the regulatory authorities and an appellate court.
Purported Statement 5 of Nan Freeman mischaracterizes the type of deceptive conduct in which Nan Freeman engaged when she took money that did not belongto her for preparation of numerous transcripts. See, OCGA §15-14-5; Court Reporters’ Fee Schedule of the Judicial Council of Georgia. It also raises the issue of what conduct and testimony was omitted from the transcripts of other litigants for whom she was contracted to provide transcripts.
6. Despite Judge Baldwin having ended the hearing, one of Plaintiff’s attorneys in the Child Custody Litigation continued to argue, prompting Judge Baldwin to return to the courtroom and direct Ms. Freeman to “[s]top taking down.” Compl., Attach. 8, at 4.
Response to No. 6 Purported Statement 6 continues to mischaracterize the litigation and the conduct of counsel for Michelle Murphy, and the location of Judge Baldwin in the courtroom.
At a point in time, at the end of the proceeding’s omitted pages of the certified as “true” transcript, Judge Baldwin, while remaining in the courtroom, did direct Nan Freeman to stop taking down the statements of counsel to Judge Baldwin.
This occurred at the very end, after the omissions of Nan Freeman that she, after being caught, included in the Addendum. Attachment 4, p. 4.
On June 5, 2014, Judge Baldwin entered an Order in the Child Custody Litigation regarding his award of temporary custody of the children to Plaintiff’s ex-husband. A copy of the June 5, 2014 Order in the Child Custody Litigation is attached to the Gordon Affidavit as Exhibit C. Response to No. 7 The June 5, 2014 Order in Murphy v. Murphy is attached to the Gordon Affidavit as Exhibit C.
There are problems with the veracity of the content of Orders of Judge Baldwin. It is the opinion of counsel that the false statements contained in the Orders of Judge Baldwin are most predictably derived from persons other than Judge Baldwin. Counsel for Michelle Murphy observed that Michael Williams Warner, a young Glover & Davis lawyer, made a false swearing to the Magistrate Court of Coweta County that other Glover & Davis counsel acquiesced in Michael William Warner’s using.
This case against Nan Freeman does not include the illegal conduct of persons other than Nan Freeman, although the illegal conduct of persons other than Nan Freeman is identified, as Nan Freeman attempts to demean Michelle Murphy and her counsel.
Having observed the legal ability of Judge Baldwin during this litigation, counsel for Michelle Murphy has the opinion that Judge Baldwin did not write the June 5, 2014 Order, but that a person undisclosed to counsel for Michelle Murphy, either presented the Order to Judge Baldwin’s law clerk, or to Judge Baldwin for Judge Baldwin’s signature.
The June 5, 2014 Order contains false statements not supported by evidence that comports with Due Process requirements, or obtained while Judge Baldwin was conducting a proceeding within the requirements of the Code of Judicial Conduct.
Nan Freeman, upon their request, earlier provided the Glover & Davis lawyers a copy of the last portion of her transcript, which she certified as “true” and which she filed with the Court that did not include the Addendum. It was that early provided portion of the transcript that was used for the drafter of the June 5, 2014 Order signed by Judge Baldwin, most likely, again, without him reading the Order before he signed it.
The Addendum was not produced by Nan Freeman until June 11, 2014. See Attachment
9. Judge Baldwin has signed Orders prepared by the Glover & Davis lawyers in the Murphy v. Murphy case without reading them on at least two other occasions during that litigation. This comports with Judge Baldwin’s signing without invoices presented by Nan Freeman to authorize payment by the Counties for her services as official court reporters, without checking to see that she is in compliance with the law. (Freeman Dep. pp. 34-35)
8. At the request of Plaintiff’s attorneys in the Child Custody Litigation, Ms. Freeman prepared and filed an “Addendum” to the transcript of the May 27, 2014 hearing.
The “Addendum” included the additional statements made by Plaintiff’s counsel after Judge Baldwin had terminated the hearing. Compl., Attach. 8. Response to No. 8 Nan Freeman, initially in her purported statement mischaracterizes the litigation issues in Murphy v. Murphy, most likely as counsel for Nan Freeman and those opposing Michelle Murphy wish to continue concealing the fact that Nan Freeman assisted Judge Baldwin in attempting to conceal his misconduct.
The statements by Larry King and Millard Farmer toward the end of the proceeding that are included in the Addendum were made before Judge Baldwin terminated the hearing. Judge Baldwin did not terminate the hearing until the end of the Addendum.
A copy of the May 27, 2014 Addendum, as provided to us by Nan Freeman, is included as Attachment 4.
9. On June 10, 2014, one of Plaintiff’s lawyers in the Child Custody Litigation sent an Open Records Request to Ms. Freeman seeking, inter alia, the audio recording of the May 27 hearing. Compl., Attach.
5. Response to No. 9 Again, Nan Freeman, initially in her purported statement mischaracterizes the litigation issues in Murphy v. Murphy. Attachment 6 and Exhibit 6 to the deposition of Nan Freeman contain the Georgia Open Records Act request sent to the Counties of Troup and Coweta and to Nan Freeman. The audio recordings were sought.
10. On June 26, 2014, Ms. Freeman and Judge Baldwin forwarded CDs of the audio recording of the May 27 hearing to Plaintiff’s counsel. Gordon Aff., Exhibit D, at 16. Response to No. 10 The events relating to obtaining the audio disk forwarded on June 26, 2014 occurred as follows. On June 18, 2014 Nan Freeman communicated that she would file a copy of the audio recording in the Clerk of Court’s file. Exhibit D, p. 18 to Affidavit of Kenneth Gordon.
On June 19, 2014 Judge Baldwin sent a letter to Millard Farmer; the copy of this letter which Nan Freeman provided to counsel contains on the right side of the page a note in the handwriting of Nan Freeman as follows, “This email is not altogether accurate, but it of course is what he sent to MF.” Exhibit D, p. 25 to Affidavit of Kenneth Gordon.
On June 24, 2014, The Board of Court Reporting dismissed the Complaint that was filed for Michelle Murphy against Nan Freeman. Attachment 5 On June 25, 2014, after the dismissal of the Complaint by the Board of Court Reporting, Michelle Murphy filed the civil action against Nan Freeman, et. al. that included as defendants members of the Board of Court Reporting in the Superior Court of Fulton County.
On June 26, 2014, the CD containing the audio recording of the May 27, 2015 proceeding was forwarded to counsel for Michelle Murphy.
11. In March 2014, Plaintiff filed a grievance with the Board of Court Reporting challenging Ms. Freeman’s refusal to provide an audio recording of an earlier hearing. Plaintiff alleges that she later amended her grievance to include allegations that Ms. Freeman overcharged for certain transcripts due to the number of spaces per line in the transcripts. The Board of Court Reporting has not issued a decision on Plaintiff’s complaint. Compl. 1.3.1, 1.4.9. Response to No. 11 The Board of Court Reporting had issued a decision on June 24, 2014, as described above in Response to
10. Attachment 5. Response to Nan Freeman’s Purported Statement of Material Facts for Summary Judgment Page 24 of 28 12.
Before Plaintiff raised the “spaces per line” issue, Ms. Freeman was not aware of any error in the number of spaces per line in her transcripts. Ms. Freeman testified that, when she initially set up the word processing program for her court reporting software, she “remember[ed] counting spaces, “but that “at some point,” the spaces per line in her transcript “inadvertently [ ] changed from 63 to 61,”possibly a result of changes in the different versions of Microsoft Word. Freeman Dep. (Gordon Aff. Exhibit A) at 31:2-8. Response to No. 12 Nan Freeman does not create a defense by maintaining that she did not know the law — in fact as an official court reporter, Nan Freeman concedes both her liability and her absence of understanding of her computer program.
13. As soon as Ms. Freeman learned of the “spaces per line” issue, she immediately corrected her transcript program and recalculated the cost of Plaintiff’s transcripts to determine if the error had resulted in any overcharges. Ms. Freeman determined that, over the entirety of the Child Custody Litigation, the spaces per line issue had resulted in only $45 of overcharges to Plaintiff.
Freeman Dep. at 28:21-29:24, 31:4-9, 33:5-9, 86:24-87:7. Response to No. 13 An official court reporter, as Nan Freeman, cannot personally design a template, as she did around 1996, and use it in each of her official court reporter’s contractual fulfilments until she is caught in 2014 and then legally urge the defense of mistake — the law burdens Nan Freeman, as a condition of qualifying and being compensated, as an official court reporter, to both learn and comply with the legally permissible fees and the legal requirements for the preparation of transcripts that qualify for the fees legally obtainable as an official court reporter.
Nan Freeman stated at her deposition that she produced her transcripts and did not have an assistant do her transcriptions. (Freeman Dep. p.6) Returning compensation illegally taken does not absolve one of the consequence of violating the law.
14. Shortly after Ms. Freeman’s deposition, Mrs. Freeman’ s attorney, Ken Gordon, tendered Plaintiff a check for $50 to cover any overcharge.
Gordon Aff.ii7, Exhibit E. Response to No. 14 Nan Freeman’s check in the amount of $50 to cover any overcharge did not cover the liabilities of Nan Freeman.
For further response, the response to purported Statement 13 is incorporated and included here.
The fees and the conditions upon which an official court reporter in the State of Georgia can obtain compensation is mandated by the Judicial Council of Georgia.
Nan Freeman was required by law to charge only the Judicial Counsel of Georgia authorized fees to persons whom wished, or were required to purchase transcripts from her in her capacity as an official court reporter for the Coweta Judicial.
The fees follow that were allowable for Nan Freeman to charge for legally prepared transcripts in the Superior Court of Coweta County case of John Harold Murphy v. Michelle Murphy, and related Counterclaim, Third Party action Civil Action No. 12V-413 (or, “Murphy v Murphy.”)
Nan Freeman did not comply with the certificate requirements legally imposed upon her by the OCGA § 15-14-5, Duty to transcribe statute — Nan Freeman used an abbreviated, incomplete version of the required certificate.
OCGA § 15-14-5.
Duty to transcribe; certificate. It shall be the duty of each court reporter to transcribe the evidence and other proceedings of which he has taken notes as provided by law whenever requested so to do by counsel for any party to such case and upon being paid the legal fees for such transcripts. The reporter, upon delivering the transcript to such counsel, shall affix thereto a certificate signed by him reciting that the transcript is true, complete, and correct.
Subject only to the right of the trial judge to change or require the correction of the transcript, the transcript so certified shall be presumed to be true, complete, and correct. [emphasis supplied]
Nan Freeman, as a part and parcel of her habitual violations of the laws of Georgia, did not provide Michelle Murphy’s transcripts with an OCGA § 5-14-5 required certificate containing the certification that the transcript is “true, complete and correct. . ” as required by OCGA § 5-14-5 — — The transcripts provided and paid for by Michelle Murphy was not true or complete or correct.
Nan Freeman has never provided to Michelle Murphy, or other litigants, the required certificate that is an indication of the pattern of her illegal conduct.
The habitual violations of the OCGA § 15-14-5 requirements and the authorized fees is relevant to identify that Nan Freeman did not just make an one time error,
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