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IN THE SUPERIOR COURT OF PAULDING COUNTY STATE OF GEORGIA

MICHAEL L. LOWE,

)

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Plaintiff,

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v.

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CIVIL ACTION FILE

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NO.OS·CV-1l24-JO

ELISA M. LOWE,

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Defendant.

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NOTICE OF FILING OF COpy OF COURT TRANSCRIPT

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COMES NOW, ELISA M. LOWE, the Defendant in the above styled actions and files Ihis

Notice ofFiling of Copy ofCourt Transcript pursuant to Rules of the Superior Court ofGeonga Rule

S.2. "Filing Requirements" and O.C.G.A. § 9-1 1-29. I(aX3). As the custodian for the trial transcript

ofa hearing conducted in the Superior Court of Coweta County on January 6, 2011 before the

Honorable Quillian Baldwin, Superior Court Judge, I file a copy of the trial transcript with this

Honorable Court. Said transcript contains relevant evidence, testimony, judicial guidance and

direction that directly bears upon thejurisdictional issue that your Defendant has repeatedly brought

to this Honorable Court's attention. This transcript of the proceedings of January 6, 2011 is

necessary for a pretrial and post-trial matters before the Court and said material has not previously

been filed under some other provision of this O,C.GA

§ 9-11-29,1.

WHEREFORE, the Clerk ofCourtshall file said copy ofthe Coweta SuperiorCourt official

court transcript as plitt of the above-captioned case, said document being attached 10 this pleading,

and make it an official part Court Records maintained by the Clerk ofthe Superior Court ofPaulding

County for the above-captioned case.

279 Crossroads Estates Road Newnan, OA 30265 (404) 704-7058

Respectfully submitted,

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ProSe

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Rules lind Law on FWng Depositions and olber Evidenee

Rule S.2. "Filing RequiremenlS" When depositions and other discovery material must be flied with court; custodian until tiling (I) Depositions and other original discovery material shall not be filed with

Ihe coun unless or unlil required by the provisions ofOCGA § 9-11-29.1(8)(1) (5).

§9-11-29.1. Whendepositions and other discovery material must be filed with court; custodian until tiling

(II) Depositioos and other discovery material otherwise required to be flIed with the court under this chapter shall not be required 10 be so filed unless:

(\) Required by local rule of court;

(2) Ordered by the court;

(3) Requested by any party to the action;

(4) Relief relating to discovery material is sought under this chapter and said material has nOI pIeViously been filed under some other provision of this chapter, in which event copies of the material in dispute shall be filed by the movant contemporaneously with the motion for relief; or

(5) Such material is to be used al lrial or is necessary to a prelrial or posttrial motion and said material has not previously been filed under some other provision of this chapter, in which event the portioos to be used shall be filed with the clerk of the court at the OUISet ofthe trial or at !be filing of the motion, insofar as their use can be reasonably anticipated by !be parties having custody thereof, but a party attempting to file and use such material which was not filed with the clerk at the outset of the trial or at the filing of the motion shall show 10 the satisfaction of the court, before the court may authorize such filing and use, that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.

(b) Until such lima as discovery material is filed under paragraphs (I) through (5) ofsubsection (a) of this Code section, the original of all depoSitions shall be retained by !be party taking the deposition and the original of all other discovery material shall be retained by the party requesting such material, and the person thus retaining the deposition or other discovery material shall be the custodian thereof.

160

IN THE SUPERIOR COURT OF COWETA COUNTY

STATE OF GEORGIA

ELISA LOWE,

)

)

Plaintiff,

)

)

vs.

)

)

CASE NO. 2010-V-1534

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MICHAEL LOWE,

)

)

Defendant.

)

)

HEARING AND ORDER

JANUARY 6th, 2011

COWETA COUNTY COURTHOUSE

NEWNAN, GEORGIA

HONORABLE A. QUILLIAN BALDWIN, JR., PRESIDING

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF:

FOR THE DEFENDANT:

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*

*

PRO SE

MARTIN ENRIQUE VALBUENA ATTORNEY AT LAW DALLAS, GEORGIA

---------------------------------------------------------------

DEBORAH SHIELDS MASON, CCR REGISTERED PROFESSIONAL REPORTER PO BOX 1241 CARROLLTON, GEORGIA 30117

770-830-8307

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A P P E A R A N C E S

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FOR THE PLAINTIFF:

PRO SE

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FOR THE DEFENDANT:

MARTIN ENRIQUE VALBUENA ATTORNEY AT LAW 113 VILLAGE WALK SUITE B PO BOX 1125 DALLAS, GEORGIA 30132 TEL: 770-443-2204 FAX: 770-443-6613

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(NEWNAN, GEORGIA; COWETA COUNTY; January 6th, 2011.)

 

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P

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D

I N G S

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THE COURT:

Ms. Lowe, the deal is if you have it

 

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reported, you're going to have to share in what we call

5

the take-down fee. I don't know exactly -- we never know

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how much that's exactly going to be because she doesn't

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know how long we're going to be in here doing this.

But

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can you give her an idea, Debby?

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COURT REPORTER: Yes. It's like around $43 an hour.

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THE COURT: Do you want to participate in that?

 

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MS. LOWE:

Yes, sir.

 

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THE COURT:

Is this a motion for contempt; is that

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what it is?

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MS. LOWE:

Yes, sir.

 

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THE COURT: You're not represented?

 

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MS. LOWE:

No, sir.

 

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THE COURT:

I tell you what.

Let's do this.

 

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Mr. Valbuena, since you're the only lawyer in this,

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how about swearing them both?

 

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MR. VALBUENA: Okay. You both stand up and raise

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your right hand.

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ELISA LOWE AND MICHAEL LOWE,

 

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(Whereupon, after having been duly sworn upon an oath,

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were examined, and testified as follows:)

 

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THE COURT:

Ms. Lowe, tell me why you want to hold

 

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Mr. Lowe in contempt.

 

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MS. LOWE:

Sir, there's a large amount of child

3

support that's owed. He also, these are things that he

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has already actually been found in contempt in previous

5

orders of this Court.

He owes a large amount of money in

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IRS debt that he was ordered that he has not paid.

He

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deliberately did not pay the payment on our house, which

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was also in a foreclosure. He was found in contempt of

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that but never paid. And he just continues to not abide

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by this Court's orders.

 

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This Court has become furious with him so much that

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even Judge Smith handwrote the order from the bench asking

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him to pay $50,000 or go to jail.

He did not.

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THE COURT: Judge who?

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MS. LOWE: Judge Smith, Senior Judge.

 

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THE COURT: Are you talking about Byron Smith?

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MS. LOWE:

Yes, sir.

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MR. VALBUENA: Yes, Judge. There's earlier cases

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that he was involved in and heard and issued rulings in.

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MS. LOWE:

The other thing is that I've got a

 

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jurisdictional issue. I just want the Court to enter a

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declaratory judgment stating that you had continuing

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jurisdiction over our case because there was still, he had

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filed an order for us to change custody in 2004.

And it

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was still pending in this Court when they -- they started

 

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one here in 2004 about a hearing, an ex-parte order. As

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soon as we -- the judge vacated the order.

It had never

3

been filed.

I had the kids returned to me.

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In 2008, in March of 2008 while the case was still

5

pending in this Court, they had another ex-parte or

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emergency custody order entered in Paulding County. They

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had to verified the complaint that there were no orders

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pending. There was no case pending and that no other

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court had interest in our case. They had that order

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signed on March the 4th in 2008. And although I had moved

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to Tennessee and although Mike had been with the boys

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twice -- in fact, he had been with them two days previous

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to this order being signed, he had had them for the

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weekend. I had brought them here for the weekend. They

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said in the order or in their pleadings that they had that

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I had not brought the kids back to see him since I had

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moved, which was a misrepresentation of the truth.

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Then on March the 24th after I had also brought the

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boys back to him for Spring break to see them also and

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then after Spring break and promised to return I have

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e-mails and whatnot, and they even state that they admit

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to doing that, that he just did not meet me to bring the

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boys back.

I went to his house.

I picked the boys up,

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and when the next day they were in school and the boys

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went -- I was waiting for the boys to get off of the bus,

 

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and there were no boys.

I got very upset. Started

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calling around and talked to the transportation

 

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department, blah, blah, blah. The next thing I know I

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have the police calling me and telling me I need to come

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to the police station to talk about the kids, and the boys

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were there.

 

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I

went to the police station and found out that the

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police had been to the boys' school. Picked the boys up.

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Held them in their custody until Mike could drive from

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Georgia to Franklin, Tennessee to pick them up. They had

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me arrested.

I was in jail for four days.

I had never

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been served with any sort of order or any sort of order

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that had been signed even though it had been signed again.

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Some three weeks previous, too, I had been in pretty much

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constant contact with Mike and had been with the boys.

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And then when I got out of jail, I got extradited

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back to Paulding County. While I was in the holding cell

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there I was served with their papers for an emergency

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ex-parte order.

 

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I

went up to court on April 5th of 2008.

The judge

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returned the boys to me.

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Then in December of 2008 -- so it was ten months

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after this -- his 2004 case here in Coweta was dismissed;

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dismissed without prejudice.

 

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And then two years later, Mr. Valbuena filed a motion

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to set aside the order asking him to revive that case

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after two years later asking him to revive the case when

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he still had one pending in Paulding County.

 

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So it's went back and forth.

It's been very

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confusing. Very tough for me to keep up with it.

I filed

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my paperwork. And after he did this motion to set aside

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the order asking for summary judgment, and I was granted

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summary judgment. So that case was still, is still

 

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dismissed.

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In the meantime we're going to court for custody in

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Paulding County. I have screamed. Not screamed. I have

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filed a jurisdictional issue, and my first pleading with

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

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alive because when I got the children back --

 

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THE COURT:

Let me stop you for just a second.

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You're getting me confused. Let me ask you a couple of

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questions.

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Where do you live now?

 

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MS. LOWE:

I live in Newnan, Georgia.

 

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THE COURT: You live in Newnan?

 

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MS. LOWE:

Yes, sir.

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THE COURT: Where did y'all get divorced?

 

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MS. LOWE:

Here.

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THE COURT: In Coweta County?

 

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MS. LOWE:

Yes, sir.

 

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THE COURT: Where are the children?

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MS. LOWE: The children are now with Mike in Florida.

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THE COURT:

How did they get to Mike, to be with Mike

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in Florida?

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MS. LOWE: Because they was granted custody in

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Paulding County where Martin Valbuena is also a judge in

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Paulding County. And I feel like I was home cooked there

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to be honest with you.

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THE COURT: But this is a contempt action, right,

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today?

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MS. LOWE: Right. On the jurisdiction issues I would

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just like for the Court to enter again a declaratory

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judgment stating that you never released. They're bound

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to it. Even if they get temporary emergency jurisdiction,

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

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days according to OCGA § 19-9-64.

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THE COURT: And where were you living when y'all,

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when the thing happened in Paulding County giving him

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custody?

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MS. LOWE: Here in Coweta County.

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THE COURT: Where had the boys been living? Are they

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boys?

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MS. LOWE:

Yes.

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MR. VALBUENA: Two boys.

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THE COURT: Where are they living?

 

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1

MS. LOWE: They are living in Florida because he gave

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them --

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THE COURT: No, I'm talking about when you had the

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case in Paulding County, where had they been living?

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MS. LOWE: With me in Coweta and in Tennessee.

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Tennessee and we moved back to Coweta.

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THE COURT:

How long when the case was filed in

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Paulding County, where were they living?

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MS. LOWE:

We had moved about two weeks we were in

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Tennessee.

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THE COURT: You had been in Tennessee for about two

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weeks?

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MS. LOWE: Correct.

 

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THE COURT: Why was it filed in Paulding County? Had

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you been living there?

 

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MS. LOWE:

No, sir.

Mr. Lowe, Mike Lowe had lived in

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Paulding County.

I'm not sure if it was a court they were

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familiar with or what.

 

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THE COURT: The boys lived with him in Paulding

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County?

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MS. LOWE:

No, sir.

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THE COURT: Let me read this petition for contempt

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and answer real quick. Maybe that will help me since

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you're not a lawyer.

 

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MR. VALBUENA: There's an amended petition for

 

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contempt.

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THE COURT:

I saw that in there.

It will take me a

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minute or two.

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MS. LOWE:

May I step out and get some water?

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THE COURT: Yes.

 

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(Short pause.)

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THE COURT:

Mr. Valbuena, what have you got to say

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about this?

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MR. VALBUENA: Judge, the overwhelming number of

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these issues that Ms. Lowe has raised in her petition and

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the amended petition have already been decided by other

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

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them all here for you.

 

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All of the jurisdictional issues that Ms. Lowe raises

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about what happened in Paulding County, she raised all of

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those numerous times in Paulding County, and the judge

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determined that she had waived those because she didn't

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bring them properly when she was represented by an

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

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case.

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THE COURT:

Let me ask you this about that:

If there

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was a previously pending suit concerning the same matter

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

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Paulding.

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MR. VALBUENA: What had happened in the Coweta County

 

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1

case was that case was filed in 2001.

It was tried to a

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final hearing in April of 2005. Judge Byron Smith.

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THE COURT:

Wait just a minute.

I don't want you to

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say a word.

(Speaking to Ms. Lowe.)

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MR. VALBUENA: Judge Byron Smith heard that as a

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

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took down their notes and never entered an order.

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Mr. Lowe's attorney prepared an order. Sent it to Ms.

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Lowe's attorney. They couldn't get together on the

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language. It never got submitted to the Court. Judge

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

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case was done except for an order being signed.

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THE COURT: It was still pending?

 

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MR. VALBUENA: Theoretically, yes.

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THE COURT: Still pending, so no case about the same

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subject matter in Paulding County was valid.

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MR. VALBUENA: Judge, she raised that issue, and the

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Court up there denied them.

 

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THE COURT:

I can't help it.

That doesn't make the

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Court right.

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MR. VALBUENA: I understand it, but I think her

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relief is in Paulding County to appeal that judgment, not

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to come here and try to collaterally attack the Paulding

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County judge's decision in Coweta County.

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THE COURT: It looks like that's what y'all are

 

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doing.

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MR. VALBUENA: How are we doing that, Judge?

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THE COURT: In Paulding County by filing the thing in

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Paulding County.

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MR. VALBUENA:

No, Judge.

When we filed the case in

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Paulding County, we said that order is not signed, Judge,

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

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

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of Judge Smith. We weren't trying to go behind him.

We

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

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She's left the State. He lives in Paulding County, and

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

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lives.

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THE COURT: How can you file it in Paulding County

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where he lives? How does that give you jurisdiction? I

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

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that.

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You can do that in a divorce if she moves out of

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

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all the other requirements. You can file it in the same

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

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the State of Georgia.

 

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If she lives in the State of Georgia, then he's got

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to file it in the county where she's living and/or he's

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

 

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other state.

Or if it's a contempt action it has to be

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filed and it's in the State of Georgia, it has to be filed

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in the county which originally issued the order.

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MR. VALBUENA: Judge, I think that's a venue issue.

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Venue can be waived. She raised that issue in Paulding

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

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that's why he could proceed in Paulding County. She

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raised that issue three or four different times and lost

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every time.

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THE COURT:

I don't care.

I don't agree with that.

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Who was the judge?

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MR. VALBUENA: James Osborne.

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THE COURT: Okay.

 

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MR. VALBUENA: But the issue you're bringing is a

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venue question; and venue can be waived, regardless of

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where, in any kind of case.

 

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THE COURT:

It can be waived, but it's got to be

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

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was pending here, no case in any other case in the State

20

of Georgia is valid if there's a case pending here. I

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

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

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I've got under that case. It's pending there. We'll let

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y'all decide it here.

 

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Did she do that?

 

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MR. VALBUENA: Judge, she raised all those arguments,

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and the judge in --

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THE COURT:

No. I asked you a specific question.

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Did she come in court and say, I'll forget about

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

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that what she did?

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

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County, and you don't have jurisdiction?

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MR. VALBUENA: She was represented by an attorney

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when the case started in Paulding County, and the attorney

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

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in Paulding County go on.

 

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So no, she didn't say, well, I give up my rights.

So

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she didn't object to Paulding County venue. She went

15

forward in Paulding County.

 

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THE COURT: You just said she raised all those

17

issues.

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MR. VALBUENA: After her lawyer withdrew or wasn't

19

representing her down the road, Ms. Lowe raised those

20

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

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found that she had waived them by that point.

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THE COURT: That's incorrect or something.

23

MR. VALBUENA:

And she --

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THE COURT: It's unfortunate that she didn't keep the

25

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

 

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

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incorrect ruling.

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

4

county if the same case was pending in Coweta County.

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

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

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forward.

And if you were the lawyer in both of them,

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that's what you should have done.

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

10

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

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say.

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MR. VALBUENA: The lawyers in the 2004 case that were

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here, Judge, neither one of those have ever represented

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them again.

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THE COURT: I'm sorry they've never represented them

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again.

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MR. VALBUENA:

But what I'm saying is --

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THE COURT:

But what I'm telling you is none of that

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changes.

The one big fact here that there was a case

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

21

cannot do the same thing in another county when that

22

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

23

That judge up there couldn't dismiss this case.

24

MR. VALBUENA: Correct.

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THE COURT: You can't do that.

 

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MR. VALBUENA: I'm not arguing with that, Judge. I

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think it's a venue question.

I think her relief is in

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Paulding County or with the Court of Appeals. The relief

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for that issue is not here.

 

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THE COURT:

Well, the fact of the matter is is she

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can file her case here against him for contempt.

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MR. VALBUENA: Absolutely.

 

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THE COURT: And that case doesn't have any bearing on

9

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

10

ordered in this Court which he never complied with.

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MR. VALBUENA: Judge, we disagree with that.

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THE COURT:

Go ahead. Tell me about that.

13

MR. VALBUENA:

Those are the orders I have for you,

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Judge. The first one is what the judge issued in Paulding

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County. You can take that for whatever it's worth.

16

Judge Simpson issued an order in 2001 holding

17

Mr. Lowe in contempt; issued an order holding him in

18

contempt saying he can purge himself by a certain date.

19

Then they had a hearing.

Mr. Lowe didn't appear. The

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judge found that he hadn't purged himself and ordered him

21

incarcerated and said you can purge yourself by showing

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these things.

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That's the 2001 case in front here. We provided

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those things to Judge Simpson.

 

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At that time Ms. Lowe was represented by a lawyer.

 

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Judge Simpson issued an order and said he's provided those

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things, he's allowed to purge himself of the contempt. He

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can be released on that order. There was no more contempt

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on that issue.

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THE COURT:

So what was it that he did that Judge

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Simpson allowed him to purge himself?

7

MR. VALBUENA: Dealing with the abandoning the

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innocent-spouse status.

 

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THE COURT:

Wait, wait, wait.

I need to find it.

10

Finding willful contempt by Judge John Simpson.

11

Failure to produce financial records as previously

12

ordered.

13

MR. VALBUENA: That was his 2000 tax return.

14

THE COURT:

Did he do that?

15

MR. VALBUENA: Yes. All of those documents we

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produced to Judge Simpson.

 

17

THE COURT: Failure to provide medical insurance.

18

MR. VALBUENA: We provided copies of insurance cards

19

to Judge Simpson showing that the insurance has been paid.

20

THE COURT: Failure to pay for marital residence as

21

ordered allowing said residence to go into foreclosure and

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the plaintiff lose $25,000 of nonmarital downpayment of

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the residence.

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MR. VALBUENA: That was never in any court order of

25

Judge Simpson's or Judge Smith's for that. We contest

 

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that he was ever ordered to do that.

He's not in contempt

2

of that.

3

THE COURT: Who handled the original divorce?

 

4

MR. VALBUENA:

I think Gus Wood did for Ms. Lowe.

5

THE COURT: I'm talking about what judge?

 

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MR. VALBUENA:

I don't know, Judge.

I've got the --

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THE COURT: I mean, it doesn't matter whether it

8

was -- what matters is:

Was there a court order?

I don't

9

care if it was Judge King Farouk.

If there is an order

10

saying that he was supposed to pay for the marital

 

11

residence, then he had to do it. It doesn't matter who

12

the judge was.

13

MR. VALBUENA: I understand, Judge. I don't believe

14

that's what it said in the final judgment and decree.

15

THE COURT:

I don't know.

I don't have the final

16

judgment and decree. Do you have it?

 

17

THE CLERK:

I have it.

18

THE COURT:

Get it for me.

19

What about the failure to pay income tax debt

 

20

afforded as previously ordered? What about that?

21

MR. VALBUENA: Judge, Judge Simpson did not rule on

22

that because Judge Simpson didn't order him to do that.

23

There was a separate order that Judge Smith issued

 

24

ordering him to do certain things. We had a hearing here

25

in April of 2008, and Judge Smith issued an order that

 

18

1

dealt with that and addressed those issues and found that

2

he was still responsible for the entire tax debt and that

3

he was to reimburse Ms. Lowe for anything out of pocket

4

she had paid for the tax debt.

He ordered Mr. Lowe to

5

make certain payments based on Ms. Lowe's testimony of

6

what she already was already out of pocket. Mr. Lowe made

7

those payments.

8

Ms. Lowe was to provide me with proof of the

9

out-of-pocket payment. She never provided that proof to

10

me.

11

So I don't know what her out of pocket actually is,

12

but Judge Smith found that that's a hold harmless.

13

Anything that she has to pay for the tax debt, he's going

14

to be required to reimburse her as long as she provides

15

proof that that's what she's had to pay. That's where we

16

stand on that issue. That issue has already been heard.

17

THE COURT: All right. Why didn't you ever provide

18

proof of that?

19

MS. LOWE: Your Honor, I'm looking right now. When

20

we came back to court, what happened was --

 

21

THE COURT: Just answer my question.

22

MS. LOWE: I was waiting on information coming back

23

from the IRS, and Martin knew that. Martin told me that

24

he would get me an order.

I've got e-mails here that I

25

can show you that he would get me an order.

Have me

 

19

1

approve it.

Send him my changes to it, what I put into

2

it.

He would get it back.

And then he would send it to

3

Judge Smith.

4

And he never did that.

 

And --

5

THE COURT:

Let me stop you again. Listen.

6

MS. LOWE:

Okay.

7

THE COURT:

My question is: Why did you never

8

provide them --

9

MS. LOWE:

I did not have that yet.

 

10

THE COURT:

If you paid it, didn't you have it in a

11

checkbook?

12

MS. LOWE:

No, I never paid all of it then.

13

THE COURT:

No, wait just a minute.

That's not what

14

he's saying.

15

He's saying that if you had to pay any amount -- if

16

it was $5 or it was $5,000 and you had paid any of that

17

toward the tax debt, then he had to reimburse you that.

18

Isn't that what you're saying?

 

19

MR. VALBUENA: That's what the judge ordered.

20

THE COURT: So why didn't you provide him proof, and

21

he said that the judge said that you had to provide proof

22

of those payments. So I'm guessing that you must have

23

proved to the Court that you had paid some payments.

24

Surely you knew how much you had paid and that kind of

25

thing.

 

20

1

Who is this lady here?

 

2

MS. LOWE:

This is my mother.

 

3

THE COURT:

Ma'am, you can't sit inside the bar --

4

MS. LOWE:

Oh, I'm sorry.

Just go back.

5

THE COURT:

-- unless you're a lawyer.

You can sit

6

out in the courtroom.

 

7

VOICE: Yes, sir.

8

THE COURT: Why didn't you ever provide that

9

information to them?

 

10

MS. LOWE:

I was sorting through -- I had my

11

personal, I had a legal opening which was my corporation.

12

I had all of my arrears with Mike that was to be paid.

13

Judge Smith had a handwritten order for him to pay me

14

$50,000 in cash or go to jail.

This whole, this entire

15

case was actually dismissed. I'm not sure how valid those

16

orders are anyway. This is the one that was dismissed in

17

2008; we've already talked about those orders.

 

18

THE COURT: Plaintiff was ordered to pay $700

19

instanter.

20

Did he do that?

 

21

MR. VALBUENA: Yes, Judge.

22

THE COURT: And liquidate his teacher requirement

23

account and pay the net proceeds to the defendant as soon

24

as they're received.

 

25

Did he do that?

 

21

1

MR. VALBUENA: Yes, Judge.

It was a little over

2

$1900.

3

THE COURT: Plaintiff testified that he had already

4

taken this step and that he expected to receive net

5

proceeds shortly. Plaintiff is further ordered to pay

6

defendant $500 on May 15th, 2008.

 

7

Did he do that?

8

MR. VALBUENA: Yes, Judge.

9

THE COURT:

And $500 on June 15th, 2008?

10

MR. VALBUENA: He did that also.

11

THE COURT: Defendant is ordered to provide proof of

12

her out-of-pocket damages.

 

13

She was the defendant in this case?

14

MR. VALBUENA: Yes judge.

 

15

THE COURT: Related to outstanding tax indebtedness

16

to plaintiff's counsel.

 

17

So that's the balance you're talking about; is that

18

right?

19

MR. VALBUENA: Well, Judge, she didn't have any proof

20

that day of the hearing. The judge found on the testimony

21

that he probably owed these amounts, and that's why he

22

ordered it.

23

But the proof was to substantiate what he was already

24

paying her plus any additional amounts because her

25

testimony was that she had paid in excess -- it was about

 

22

1

35 to $3700 the judge ordered her to pay. Her testimony

2

was she had already had out-of-pocket expenses in excess

3

of that.

 

4

 

THE COURT: Within 60 days of today's date plaintiff

5

is ordered to provide the Court with a plan of how he

6

intends to address the couple's outstanding federal tax

7

indebtedness for 1997 and 1998 and how he intends to

8

reimburse the defendant for any amount that she has been

9

required to pay towards the couple's 1997 outstanding

10

federal tax indebtedness since the date of the amendment

11

to the agreement.

 

12

 

Did he do that?

13

MR. VALBUENA: Yes, Judge.

We sent a letter to Judge

14

Smith outlining that entire plan. My belief is that she

15

has not paid any additional money whatsoever since that

16

time.

All of it has been through Mr. Lowe.

Mr. Lowe has

17

worked out an agreement with the IRS. They have released

18

Ms. Lowe from any responsibility whatsoever, and he's the

19

one that's fully responsible for that debt.

 

20

 

THE COURT:

What have you got to say about that?

21

MS. LOWE:

Okay.

I was going by what they said where

22

they sent Judge Smith a letter stating that a tax attorney

23

was working it out and that Martin believed that they were

24

just going to eliminate the interest, the arrears, and

25

that he was just going to make payments on the principal

 

23

1

balance.

2

I found out in the court case on Paulding County that

3

they just deemed it an uncollectible debt and that

 

4

supposedly it was going to be wiped out.

5

THE COURT:

I never heard of the IRS doing that.

6

MS. LOWE:

They won't. It's still on my credit.

7

Then I was going by the order that Judge Smith wrote,

8

handwrote, that he had to pay me $50,000 or go to jail

9

which he appealed.

His father was going to pay it.

His

10

father has the money to pay it.

His father was going to

11

pay me, and then Dee Crouch who, she had just withdrawn

12

for nonpayment, she reentered the day after he handwrote

13

this order and appealed it to the Supreme Court. The

 

14

Supreme Court dismissed the case.

15

Then when I had the pick-up order, when the pick-up

16

was issued, Martin was able to get Judge Smith on the

 

17

phone and ask him to -- I'm not sure if the word is

18

rescind the order and let us go back to a special hearing

19

on it because it had been a while.

 

20

So we came back for special-set hearing which is when

21

he said that he was going to, they were going to work it

22

out with a tax attorney or whatever. He said that Mike

23

has been in contact with all sorts of tax attorneys and

24

led us to believe that he was going to be making the

 

25

payment on everything but the interest.

 

24

1

THE COURT:

Look.

Let me just --

2

MS. LOWE: This whole case has been dismissed. This

3

part of the case has been dismissed.

4

THE COURT:

Have a seat just a second.

5

What else do you want to say about any of these

6

subjects?

7

MR. VALBUENA: The last thing, Judge, is just the

8

child support amount. That April 2008 case was tried for

9

a final hearing. Judge Smith issued his ruling from the

10

bench, and there's the transcript. There's the order that

11

Mr. Lowe's attorney drafted that admittedly was not

12

executed.

13

In that Judge Smith -- they tried it over a two-day

14

hearing or a full-day hearing they tried the whole issue

15

of this contempt about child support up to that point at

16

that time, and Judge Smith found that there was no back

17

child support order. No back child support to pay, that

18

Ms. Lowe had not met her burden.

19

So we think it's patently unfair to allow her to come

20

back now and try that whole issue again when one court has

21

already heard it and determined that there's no child

22

support, that back child support up to that date order,

23

(sic).

That was in April of 2005.

24

From April of 2005 until December of 2008 when his

25

order was out there but never signed, Judge Smith also

 

25

1

issued a new child support amount. And the child support

2

amount during the school year Mr. Lowe would pay

3

25 percent of his income to Ms. Lowe because she had the

4

primary custody of the kids. And in the Summer Ms. Lowe

5

would pay 25 percent of her income to Mr. Lowe because he

6

had primary custody of the kids is what Judge Smith

7

ordered. At that time Ms. Lowe was a real estate agent

8

making a very, very good income in excess of $200,000 is

9

what her testimony has been. Mr. Lowe was working as a

10

teacher and other kind of businesses and only earning 25

11

to $30,000 a year.

12

So neither party during that whole three and a half

13

years paid either one of them child support because the

14

way the percentages would work out they really didn't need

15

to. Then once that case got dismissed, Mr. Lowe started

16

paying $700 a month. He was supposed to be paying 750,

17

but he started paying $700 a month.

So he may owe a

18

little bit of money there.

 

19

And from December of 2008 until August of 2010 when

20

the judge in Paulding County awarded him custody and

21

suspended his child support obligation --

22

 

O R D E R

23

THE COURT:

Let me just tell y'all.

Just have a

24

seat. I practiced law for about 26 years before I became

25

a judge, and I had a lot of domestic cases.

Now I've been

 

26

1

a judge I think over 15 years.

I have never in my life

2

seen one as confusing as this.

 

3

The only way that I can make an accurate decision

4

about this is for both sides to sit down -- and you're not

5

going to be able to do this today -- and give me a

 

6

chronological order of what has happened and along with

7

the orders that took place in chronological order and then

8

maybe I can make some decision.

 

9

You would be better to get you a lawyer.

It's

10

amazing -- you know, usually when we have people that

11

every time they turn around the lawyers are getting out of

12

the case, it's because the people are being very difficult

13

to deal with. The lawyers are saying, this is really what

14

you've got to do. And the person doesn't agree with it,

15

so they ended up getting rid of the lawyers.

It may be

16

that they hadn't been paid. That's the other thing.

 

17

What's that?

 

18

MS. LOWE:

No, sir.

I have ran out of money.

I

19

spent over $30,000 in attorneys. I've ran out of money.

20

Mr. Lowe has liens on him for his attorney fees, the

 

21

$11,000. I have paid my attorney bills.

 

22

THE COURT:

All I'm telling you is --

23

MS. LOWE: I have a chronological order.

24

THE COURT: Just stop, please. All I'm telling you

25

is well, I can't do it today; I'm going to give him a

 

27

1

chance to do the same thing.

All I'm telling you is I

2

need something like that to look at.

I would like it in

3

advance of the next hearing so that I can go through

4

everything and kind of have questions in my mind to ask.

5

Now, you may be right that the thing in Paulding

6

County doesn't make any difference at this point, but I'd

7

have to see that in chronological order. I think he's

8

absolutely wrong. I know Judge Osborne real well. He is

9

a good friend, but I disagree with him about that.

I

10

mean, I just don't think the fact that both sides, there

11

was a pending order out there and a pending case.

I never

12

would have ruled on this other thing. So that was

13

resolved. Either the order got signed or the order was

14

dismissed. I don't think they could do either. But y'all

15

get me some cases that says that he can.

 

16

I mean, I know that you can waive venue and that you

17

can do that, but she didn't file the thing in Paulding

18

County, did she?

19

MR. VALBUENA: Yes.

 

20

MS. LOWE: Your Honor, they were no pleadings on the

21

case.

22

THE COURT:

Wait just a minute.

Ma'am, I swear you

23

can't be quiet.

When I turn to you and say, what about

24

this, that's when I'm asking you a question, okay?

 

25

MS. LOWE:

Okay.

 

28

1

THE COURT:

He filed it, so he can't file it in

2

Paulding County and in that way create a waiver of venue

3

by her.

He can't do that.

So, I'm sorry.

4

MR. VALBUENA: Judge, I raised that with Judge Kirby

5

a couple months ago when I asked to reinstate the case and

6

enter that order because it seems a grave injustice more

7

to Mr. Lowe that that case gets dismissed when the people

8

lived by the order -- even though the order wasn't signed,

9

the people lived by it for a couple of years --

10

THE COURT: Okay.

11

MR. VALBUENA: -- and then it gets dismissed. But

12

Judge Kirby said no. Judge Kirby said you waited too long

13

to ask for this order to be signed, so I'm not reinstating

14

the case.

15

THE COURT: Who had ever dismissed the case?

16

MR. VALBUENA: Judge Lee dismissed off the peremptory

17

calendar in December.

18

THE COURT:

See, I need to know all those things.

19

It's hard for me to look at this and evaluate it if I

20

don't know every little thing that has happened. And that

21

includes like the dismissal by Judge Lee off of the

22

peremptory calendar. And that includes talking to Judge

23

Kirby about it and him saying, I won't reinstate that.

24

All that stuff I need to know in order to make some kind

25

of evaluation about this. I can't do it listening to

 

29

1

y'all going back and forth here. Maybe somebody is a lot

2

smarter than me and can, but I can't keep it all straight

3

without having some kind of chronological thing.

4

MR. VALBUENA: Judge, if Ms. Lowe already has her

5

chronological order can we ask her to present hers to us?

6

THE COURT:

I'll let her amend it, though, if it

7

turns out that she's let out some stuff.

 

8

MR. VALBUENA:

If she can have ten days or 20 days to

9

prepare that and present that to us and then we have then

10

the same amount of time.

 

11

THE COURT:

Let me look and see the next time we come

12

to court.

13

What I'd like for her to do is for her to -- where is

14

your office, Mr. Valbuena?

 

15

MR. VALBUENA: In Dallas.

16

THE COURT: Not Texas?

17

MR. VALBUENA: No, Judge.

18

THE COURT:

Let's do this.

Let's say that she has to

19

get you your copy by the 13th of January.

That's a week

20

from now.

21

And you have to get her and to me and you've got to

22

send it to me, too, by the 20th of January.

 

23

Then we'll come back to court on the 27th of January.

24

MR. VALBUENA:

As long as Ms. Lowe is okay with that,

25

Judge, I'm fine.

I don't know how much work she has.

30

1

THE COURT: Do you have any problem with that?

2

MS. LOWE:

I have a few other things.

 

3

VOICE:

I've got an order here from --

4

THE COURT: Ma'am, you're not supposed.

5

VOICE:

I know I'm not, but --

6

THE COURT: Ma'am, I'm being nice now.

7

VOICE: Yes, sir.

 

8

THE COURT: Don't you talk out unless you get sworn

9