COMES NOW , Marquitta L. Portman, Plaintiff in the above styled matter, and files this her COMPLAINT AND SUIT, pursuant to the Declaratory Judgment Act of 1945, created by the General Assembly, and pursuant to O.C.G.A. Sec. 9-4-3 (CGA Sec. 110-1102), and shows this Court the following:
1.
An actual and justiciable controversy exists. Civil Action File No. 94-1-5243-22 has been a Civil Action before Cobb County Superior Court since July 1994. The parties of Civil Action File No. 94-1-5243-22 are: Marquitta L. Portman, Plaintiff; and Gregory Russell Portman, Defendant. Said Civil Action File No. 94-1-5243-22 has resulted in subsequent litigation in various courts and tribunals: Superior Court Civil Action Files 96-1-0373-24, 96-1-2243-22, 98-1-6130-33, 99-1-0343-24, Juvenile Court File 76177-00, State Bar of Georgia Petition for Fee Arbitration and Grievance RE: Daryl Kidd, Court of Appeals Case No. A99I0090, and Georgia Supreme Court Case Nos. S99A0440 and S99C0504. All such actions are predicated on the Final Judgment and Decree from Civil Action File No. 94-1-5243-22. Exhibit A.
2.
The Defendants in this current civil action at bar and their role in the underlying Civil Action File No. 94-1-5243-22 are:
The underlying Civil Action File No. 94-1-5243-22 was assigned to the Honorable Robert E. Flournoy, Jr. at the time of the filing, July 1994. Said case was heard by bench trial October 2, 3, and 4, 1995 and Judge Flournoy filed with the Clerk of Cobb County Superior Court a nunc pro tunc Final Judgment, December 11, 1995. Civil Action File No. 96-1-2243-22, being a Modification of Child Custody, was then filed March 22, 1996 and by Superior Court Rule 3.2, was also assigned to the Honorable Robert E. Flournoy, Jr. Upon the Disqualification of the Honorable Robert E. Flournoy, Jr. by Order, January 9, 1998, of the Honorable Dorothy Robinson, said modification case was then assigned to the Honorable S. Lark Ingram.
4.
Judge Ingram twice refused to file a judgment on heard motion (June 24, 1998) and Plaintiff filed a Petition for Mandamus, to receive judgment by September 22, 1998, pursuant to O.C.G.A. Sec. 15-6-21 (b) & (c). Judge Ingram assured the Court (Judge Bodiford) that the sought Order would be complete by September 22, 1998. Consequently, Mandamus was denied by the Honorable James G. Bodiford. The sought Order, prepared by Judge Bodiford and filed by Judge Ingram, was filed September 25, 1998, and placed Jurisdiction of Civil Action File No. 94-1-5243-22 (the divorce action), in the Court of Judge Ingram. Judge Ingram’s subsequent Recusal Order of October 6, 1998 removed her from the modification action, but not from the divorce action. No Order exists to either recuse or disqualify Judge Ingram from the divorce action.
5.
Pursuant to Superior Court Rule 3.3, "the judge to whom any action is assigned shall have the exclusive control of such action, except as provided in these rules, and no person shall change any assignment except by order of the judge affected and as provided in these rules. In this regard an assigned judge may transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge." Superior Court Rule 3.3 was apparently violated by both Judge Bodiford and Judge Ingram with the filing of the September 25, 1998 Order, for no Order exists releasing Civil Action File No. 96-1-2243-22 from the Court of Judge Flournoy.
6.
Plaintiff was, by this time, thoroughly confused as to the Jurisdiction of the original divorce action, in which several motions were outstanding, including a Motion for New Trial and Post-Judgment Motion to Re-Open Discovery. Plaintiff appealed the denial of Mandamus (Civil Action File No. 98-1-6130-33) to the Georgia Supreme Court (Case No. S99A0440), and asked the high court to declare the September 25, 1998 Order VOID. Through oral argument and comment, the high court affirmed the ruling of the lower court and clearly acknowledged the Order of September 25, 1998. Acting in timely accordance with Superior Court Rule 25.1, and without clear knowledge of true jurisdiction of the divorce action, Plaintiff immediately filed a Motion to Disqualify the Honorable Robert E. Flournoy, Jr., the Honorable Michael Stoddard, the Honorable Dorothy Robinson, the Honorable S. Lark Ingram, and the Honorable James G. Bodiford from Civil Action File No. 94-1-5243-22.
7.
Said "Motion to Disqualify having been read and considered," by Order of June 7, 1999, the signature of the Honorable George H. Kreeger assigned Civil Action File No. 94-1-5243-22 to "the Honorable G. Conley Ingram, Assisting Judge in Cobb Superior Court." The Order of June 7, 1999 did not contain Findings of Fact and Conclusions of Law, and did therefore not identify the "jurisdiction," for it did not determine Disqualification of any of the five judges.
8.
Said Order of June 7, 1999 has a handwritten notation, identifying Judge Kreeger as "Presiding" Judge. If Judge Kreeger was acting in the capacity as determined by Superior Court Rule 25.4, then there has been a judgment to Disqualify and said judgment is not on the Record.
9.
If Judge Kreeger’s actions were pursuant to Superior Court Rule 25.4(C), (2), then the next hearing would necessarily have to be an evidentiary hearing, pursuant to Superior Court Rule 25.6, concerning the Disqualification of any or all of the five judges. However, the Order did not indicate that the parties should be prepared for an evidentiary hearing; rather, it stated that the Honorable G. Conley Ingram was, "to rule on all issues outstanding."
10.
Again, pursuant to Superior Court Rule 3.3, "the judge to whom any action is assigned shall have the exclusive control of such action, except as provided in these rules, and no person shall change any assignment except by order of the judge affected and as provided in these rules. In this regard an assigned judge may transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge." The record contains no Order, either transferring the jurisdiction, or relinquishing the jurisdiction. The record contains no motion for emergency action, requiring a presiding judge.
11.
Plaintiff filed her MOTION FOR STAY AND MOTION FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW June 14, 1999. Plaintiff also filed a Motion seeking Judge Conley Ingram’s voluntary recusal or his Disqualification. Although the Honorable G. Conley Ingram voluntarily recused himself from Civil Action File No. 94-1-5243-22 in open court, he did not file his recusal. Rather, the June 15, 1999 Order of Judge George Kreeger simply acknowledged the verbal Order. As of the date of this Complaint, no Findings of Fact and Conclusions of Law have been put on the Record. It is specifically the absence of identification of Jurisdiction which yields the Honorable George H. Kreeger to be named as a Defendant in this instant case at bar.
12.
Pursuant to Superior Court Rule 25.3, and upon the timely filing of Plaintiff’s Motion to Disqualify, the Honorable Robert E. Flournoy, Jr., along with the other four judges named,1 was legally bound to cease acting on the merits of the case and to "immediately determine the timeliness of the motion and legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted." Pursuant to Superior Court Rule 25.3, "the trial judge shall not otherwise oppose the motion."
13.
Pursuant to Superior Court Rule 25.5, "the challenged judge shall neither select nor participate in the selection of the judge to hear the motion; if recused or disqualified, the recused or disqualified judge shall not select nor participate in the selection of the judge assigned to hear further proceedings in the involved action." Further, pursuant to Superior Court Rule 25.4(C)(2), "in the event the chief judge is the one against whom the motion is filed, the assignment shall be made by the judge of the circuit who is most senior in terms of service other than the chief judge and who is not also a judge against whom the motion is filed..."
14.
As further evidence that the Honorable Robert E. Flournoy, Jr. was well aware of his judicial responsibilities in the matter of his challenged disqualification, Plaintiff offers evidence from the record of Civil Action File No. 96-1-2243-22, in which Judge Flournoy acted promptly and in accordance with Superior Court Rule 25.4 (C). Although Superior Court Rule 25.6 states, "any determination of disqualification shall not be competent evidence in any other case or proceedings," Plaintiff offers Judge Flournoy’s previous actions as precedent in determining an expectation of immediate action from Judge Flournoy in Civil Action File No. 94-1-5243-22.
15.
By Order filed September 25, 1998, the Honorable S. Lark Ingram claimed Jurisdiction of Civil Action File No. 94-1-5243-22. Judge Ingram lacked the jurisdiction to file the Order moving the divorce action to her Court. Pursuant to Superior Court Rule 3.3, "the judge to whom any action is assigned shall have the exclusive control of such action, except as provided in these rules, and no person shall change any assignment except by order of the judge affected and as provided in these rules. In this regard an assigned judge may transfer an assigned action to another judge with the latter’s consent in which event the latter becomes the assigned judge." There is clearly nothing on the record to show that Judge Flournoy voluntarily yielded the divorce action to Judge Ingram. However, said Order was filed after the 90 days as required by O.C.G.A. Sec. 15-6-21 (b) & (c). The Record is insufficient to identify the Validity of said Order, and specific implications create confusion.
16.
At the Oral Hearing of the related Mandamus case, appealed to the Supreme Court of Georgia, Justice Fletcher clearly implied that since Appellant "had an Order," it was consequently a valid Order. In addition, Kathryn L. Allen, Senior Assistant Attorney General, argued both in pleadings and in oral argument, that "Appellant has what she was asking for, an order in her favor and she didn’t have to prepare it." Clearly, both the high Court and the Attorney General interpret the Order of September 25, 1998 to be VALID. However, the record shows no evidence of Civil Action File No. 94-1-5243-22 ever being transferred to the Honorable S. Lark Ingram.
17.
In addition, the Honorable S. Lark Ingram, after entering her Order of September 25, 1998, did then by Order of October 6, 1998 voluntarily recuse herself from said modification action, Civil Action File No. 96-1-2243-22. There is no evidence on the record that she also recused herself from Civil Action File No. 94-1-5243-22. Pursuant to Butler v. Bivens Software, Inc. 473 S.E.2d 168 (Ga. App. 1996), "by the very nature of recusal, any act by a judge after he/she should have recused, is VOID." Argument can be sustained to show that Judge Ingram had no new cause, between her September 25, 1998 Order and her October 6, 1998 Order, from which to justify her voluntary recusal, after delaying the case between January and October. Plaintiff intends to show the jury that the Honorable S. Lark Ingram knowingly and intentionally entered a VOID Order in Civil Action File No. 96-1-2243-22.
18.
The actions of the Honorable S. Lark Ingram, to enter an Order claiming jurisdiction of a case, currently assigned to another Court, is in violation of Superior Court Rule 3.3. Any such attempt is clearly judicial trespass, beyond the jurisdiction of any judge, and subsequently yields the Honorable S. Lark Ingram to be named as a defendant in this instant case at bar.
19.
Although the Law does not bar the Honorable James G. Bodiford
from performing the ministerial act of putting the spoken words of the
Honorable S. Lark Ingram in written form, Judge Bodiford’s knowledge that
the Order was in violation of Superior Court Rule 3.3 makes his act of
composition for the purpose of filing to be a clear act of judicial trespass,
beyond the jurisdiction of any judge, and subsequently yields the Honorable
James G. Bodiford to be named as a defendant in this instant case at bar.
20.
Jay Stephenson, Cobb County Superior Court Clerk, has the responsibility of assigning Civil Actions to the eight judges in the Cobb County Circuit, according to the pre-defined method established in Superior Court Rule 3. His responsibility to do so is purely ministerial. Civil Action File No. 96-1-0373-24 (Foreclosure against Plaintiff’s home by Attorney Daryl Kidd) was assigned to the Honorable Michael Stoddard, although it was a direct result (by nature of the attorney’s lien statute) of Civil Action File No. 94-1-5243-22 and should have been assigned to the Honorable Robert E. Flournoy, Jr., as was the Modification Action, Civil Action File No. 96-1-2243-22. The Record is insufficient to determine if the assignment was erroneous, due to a fraudulent filing by Attorney Daryl Kidd, or if it was by consent yielded by Judge Flournoy.
21.
Judge Michael Stoddard, assigned by Clerk of Court to Civil Action File No. 96-1-0373-24 has issued several interlocutory Orders and has, by Order, allowed Plaintiff Kidd to dismiss said suit without prejudice. The result of said dismissal places Portman (Plaintiff in instant case) in severe jeopardy and without remedy to remove the lien, except by payment. Although the Order of May 8, 1996, in which Judge Stoddard states, "As Defendant [Portman] has raised defenses to the foreclosure of the mortgage, this Court finds that the action should be submitted and tried by a jury," Judge Stoddard’s Dismissal Order of January 14, 1997, in response to Plaintiff’s Motion to Strike, presumes to ignore those same rights of defense. Plaintiff Portman sought to Strike the Dismissal. Through a series of questionable procedures, evident in the record of Civil Action File No. 99-1-0343-24, Plaintiff was denied due process of appeal. The actions of the Honorable Michael Stoddard to take jurisdiction of Civil Action File No. 96-1-0373-24, knowing such action to be in violation of Superior Court Rule 3.3 was judicial trespass, beyond the jurisdiction of any judge, and subsequently yields the Honorable Michael Stoddard to be named as a defendant in this instant case at bar.
22.
The Clerk’s role in the assignment of cases again asserts itself at the point of a Judge’s Disqualification, pursuant to Superior Court Rule 25.4(C). However, the Record is insufficient to determine if the random, impartial case assignment was used, or if the special circumstances as stated in Superior Court Rule 25.4(C) (1), (2), (3), or (4) necessitated an alternative method. It is specifically the lack of information on the Record which yields Jay Stephenson to be named as a Defendant in this instant case at bar.
23.
By Affidavit of June 22, 1999, Plaintiff showed that the Honorable Robert E. Flournoy, Jr. not only participated, but took a commanding role, in the selection of the judge assigned to hear further proceedings in the instant action, and was therefore acting outside his Jurisdiction, pursuant to Superior Court Rule 25.4 and 25.5. It is specifically the action of the Honorable Robert E. Flournoy, Jr. to select the Honorable Jere F. White which yields Judge Flournoy to be named as a Defendant in this instant case at bar.
24.
As further evidence of the validity of facts alleged in Plaintiff’s affidavit filed June 22, 1999, with Plaintiff’s Motion to Disqualify the Honorable Jere F. White, Plaintiff offers the silence of Attorney Larry W. Yarbrough. Mr. Yarbrough was timely served with said Affidavit and has had more than 60 days to deny, or to respond to, any statements of fact which he believes to be erroneous, in light of the fact that he was present at the time of the incident cited in Plaintiff’s affidavit.
25.
The Honorable Jere F. White has requested an "informal" meeting, now scheduled for October 11, 1999, at 11:30 a.m. Judge White has indicated, through Judge Flournoy’s staff, that the meeting will require an expected 15 minutes. Although Plaintiff has agreed to meet with Judge White and Attorney Yarbrough (with court reporter), Plaintiff is hesitant to assume that Judge White rightly has jurisdiction. Although the June 15, 1999 Order signed by the Honorable George Kreeger assigned Civil Action File No. 94-1-5243-22 to the Honorable Jere F. White, Plaintiff has received a letter from the Office of the Honorable Robert E. Flournoy, Jr. identifying Civil Action File No. 96-1-2243-22 to be the case now assigned to Judge White. The record is insufficient to show proper jurisdiction of 94-1-5243-22. Plaintiff has not named the Honorable Jere F. White as a defendant, but reserves her right to add him by amendment upon the proper showing of valid jurisdiction.
26.
Defendant Gregory Russell Portman initiated a relationship with defendant R. Wynette Kennedy Portman prior to the filing of Plaintiff’s Action for divorce. Defendant G. Portman continued said relationship throughout the separation of the parties to Civil Action File No. 94-1-5243-22. Prior to the filing of Final Judgment in said Civil Action, Defendant Portman established cohabitation with R. Wynette Kennedy, at her place of residence. Reversing roles, R. Wynette Kennedy soon after established cohabitation in Defendant Greg Portman’s place of residence, said residence also being that of parties’ minor child. Only after Plaintiff Portman amended her Complaint for Modification to specifically cite said cohabitation as a justifiable cause for change of custody, did Defendant Greg Portman take steps to marry R. Wynette Kennedy.
27.
Plaintiff intends to show the jury that Attorney Daryl Kidd’s lien and foreclosure were fraudulent, barred Plaintiff from selling her home, and resulted in continual financial harassment of Plaintiff during the last four years.
28.
The Honorable George H. Kreeger has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether he has a claim of judicial immunity for his Orders, or whether he is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable George H. Kreeger is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the Jurisdiction of a Superior Court and may be served with Summons and Complaint at his place of business located at 30 Waddell Street, Marietta, GA.
29.
The Honorable Robert E. Flournoy, Jr. has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether he has a claim of judicial immunity for his actions, or whether he is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable Robert E. Flournoy, Jr. is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the Jurisdiction of a Superior Court and may be served with Summons and Complaint at his place of business located at 30 Waddell Street, Marietta, GA.
30.
The Honorable Dorothy Robinson has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether she has a claim of judicial immunity for her Orders, or whether she is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords her the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable Dorothy Robinson is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the jurisdiction of a Superior Court and may be served with Summons and Complaint at her place of business located at 30 Waddell Street, Marietta, GA.
31.
The Honorable S. Lark Ingram has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether she has a claim of judicial immunity for her Orders, or whether she is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords her the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable S. Lark Ingram is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the jurisdiction of a Superior Court and may be served with Summons and Complaint at her place of business located at 30 Waddell Street, Marietta, GA.
32.
The Honorable James G. Bodiford has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether he has a claim of judicial immunity for his Orders, or whether he is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable James G. Bodiford is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the Jurisdiction of a Superior Court and may be served with Summons and Complaint at his place of business located at 30 Waddell Street, Marietta, GA.
33.
The Honorable Michael Stoddard has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether he has a claim of judicial immunity for his Orders, or whether he is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Plaintiff shows this Court that the Honorable Michael Stoddard is now, for the purpose of this Complaint and Suit for Declaratory Judgment, subject to the Jurisdiction of a Superior Court and may be served with Summons and Complaint at his place of business located at 30 Waddell Street, Marietta, GA.
34.
Jay Stephenson, Clerk of Cobb County Superior Court, has a vested interest in this Declaratory Judgment in that it determines the validity of Jurisdiction of Civil Action File No. 94-1-5243-22, therein determining whether he completed his sworn duty, or whether he is vulnerable to litigation. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Plaintiff shows this Court that Jay Stephenson, Clerk of Superior Court of Cobb County, is subject to the jurisdiction of a Superior Court and may be served with Summons and Complaint at his place of business located at 30 Waddell Street, Marietta, GA.
35.
The Attorney General for the State of Georgia has a vested interest in this Declaratory Judgment in that seven of the Defendants are officers of the State Judiciary. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords the Attorney General the opportunity to be heard and seeks an Answer from the Attorney General whether the Attorney General elects to participate as a party. The Attorney General may be served with Summons and Complaint at the Office of the Attorney General, State of Georgia, Department of Law, 40 Capitol Square SW, Atlanta, GA 30334-1300.
36.
Daryl Kidd, Attorney at Law, has a vested interest in this Declaratory Judgment in that he holds an attorney’s lien on Plaintiff’s home, such lien which is directly subordinate to the validity of the Final Judgment in Civil Action File No. 94-1-5243-22. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Daryl Kidd, Attorney at Law, is a professional corporation, incorporated under the laws of the State of Georgia. Attorney Daryl Kidd, both individually and through incorporation, is subject to the jurisdiction of Superior Court and may be served with Summons and Complaint at his place of business located at 540 Powder Springs Street, Suite D-23, Marietta, GA, or at his residence located at 2850 Delk Road, Marietta, GA.
37.
Larry W. Yarbrough, Attorney at Law, has a vested interest in this Declaratory Judgment in that he knowingly submitted fraudulent evidence in Civil Action File No. 94-1-5243-22. Plaintiff intends to show the jury that Attorney Larry W. Yarbrough knowingly allowed his client, Gregory Russell Portman, to submit false testimony in Civil Action File No. 94-1-5243-22. Revelation of such action subjects Attorney Yarbrough to disciplinary action of disbarment by the State Bar of Georgia for violation of Standard of Conduct, Rule 4-102(d), Standard 4. Pursuant to O.C.G.A. Sec. 9-4-7 (CGA 110-1106), Plaintiff hereby affords him the opportunity to be heard as a party. Larry W. Yarbrough, Attorney at Law, is a professional corporation, incorporated under the laws of the State of Georgia. Larry W. Yarbrough, both individually and through incorporation, is subject to the jurisdiction of Superior Court and may be served with Summons and Complaint at his place of business located at 237 Roswell Street, Marietta, GA 30060.
38.
Gregory R. Portman, Defendant in the underlying Civil Action File No. 94-1-5243-22, has a vested interest in this Declaratory Judgment in that he fraudulently obtained a Final Judgment in Civil Action File No. 94-1-5243-22. The division of property between the parties, child custody, and assignment of alimony was based on said Final Judgment. Plaintiff hereby affords him the opportunity to be heard as a party. Gregory R. Portman is subject to the Jurisdiction of Superior Court and may be served with Summons and Complaint at his residence located at 2935 Brookside Court, Marietta, GA 30067, or at his place of business located at 5416 Glenridge Drive, Suite 250, Atlanta, GA 30342.
39.
R. Wynette Kennedy Portman, Defendant in the underlying Civil Action File No. 94-1-5243-22, has a vested interest in this Declaratory Judgment, as determined by her marriage to defendant Gregory R. Portman. The rights and legal status of R. Wynette Kennedy Portman are subject to prejudice by this instant action. Therefore, Plaintiff hereby affords her the opportunity to be heard as a party. R. Wynette Kennedy Portman is subject to the Jurisdiction of Superior Court and may be served with Summons and Complaint at her residence located at 2935 Brookside Court, Marietta, GA 30067, or at her place of business, Department of Corrections, State of Georgia, 8th Floor East Tower, No. 2 MLK, Jr. Drive, Atlanta, GA 30334.
40.
Pursuant to O.C.G.A. Sec. 9-4-7 (CGA Sec. 110-1106), no declaration shall prejudice the rights of persons not parties to the proceeding. Plaintiff has attempted, by good faith, to name all parties whose rights are subject to prejudice. Plaintiff hereby claims the right to amend this instant Motion, to name additional parties whose rights are hidden or suppressed.
41.
Considering that Jurisdiction of Civil Action File No. 94-1-5243-22 is the issue of the instant case at bar, Plaintiff yields that judicial immunity may be claimed by the Court of Jurisdiction. Plaintiff further yields that said judicial immunity may necessitate the removal of a defendant party from the instant case at bar. Because the Record is insufficient, Plaintiff seeks understanding from the Court and from the identified Judges during the period of time until Jurisdiction is identified.
42.
Pursuant to the Constitution of the United States and to the Georgia Constitution, Plaintiff hereby claims her property rights, including declaration of both past and present Jurisdiction of Civil Action File No. 94-1-5243-22. Plaintiff further claims as her property right, declaration of the Final Judgment in said Civil Action, filed December 11, 1995 as VOID ab initio. Defendant Gregory Russell Portman denies Plaintiff’s claim that the Final Judgment is VOID.
43.
Further, Plaintiff claims as her property right, declaration that the September 25, 1998 Order of the Honorable S. Lark Ingram is VOID. Defendant Judge S. Lark Ingram denies Plaintiff’s claim that said Order is VOID.
44.
Yet further, Plaintiff claims as her property right, declaration that the attorney’s lien, being subordinate to the Final Judgment in Civil Action File No. 94-1-5243-22, is necessarily and consequently VOID. Defendant Daryl Kidd denies Plaintiff’s claim. Defendant Judge Michael Stoddard also denies Plaintiff’s claim.
Demand for Jury Trial
45.
Pursuant to O.C.G.A. Sec. 9-11-39 and the Georgia Constitution 1983, Article I, Section I, Paragraph XI, Plaintiff seeks her right to a trial by jury, such jury trial to be set at a time and place to be designated by the Court, set down for the first day of the next term of the Superior Court as other jury cases are tried. Pursuant to O.C.G.A. Sec. 9-6-27 (c), the case may stand for trial at the present term.
Motion for Change of Venue
46.
The most recent Order from Cobb County Superior Court, that of June 15, 1999, signed by the Honorable George H. Kreeger, assigns Civil Action File No. 94-1-5243-22 to the Honorable Jere F. White, Senior Judge, retired from Bartow County Superior Court. Such action to assign this case to a Judge outside the Circuit is evidence of purposeful removal of Cobb County Jurisdiction and/or establishes Plaintiff’s right to Disqualify all the Judges in Cobb County Superior Court from the instant case at bar.
47.
The procedure used to assign Civil Action File No. 94-1-5243-22 to the Honorable Jere F. White was clearly erroneous and in violation of Superior Court Rule 25, for the Honorable Robert E. Flournoy, Jr. took not only a participatory role, but a commanding role in determining the assignment of the Judge. Such action by Judge Flournoy has prejudiced Plaintiff’s right to an impartial adjudicator, for the appearance is clearly of impropriety and bias.
48.
In an effort to ensure Plaintiff’s rights to an impartial
adjudicator, Plaintiff does hereby request a change of Venue pursuant to
O.C.G.A. Sec. 9-10-50. Because the Clerk of Cobb County Superior Court
is a Defendant party to this Civil Action, the assignment of this case
by the Clerk would necessarily have the appearance of impropriety and bias.
If the Law holds procedural direction as to the proper method of the assignment
of Venue, Plaintiff yields to such procedure. In the absence of procedural
direction in the Law, Plaintiff requests that the assignment of Venue be
made by the Judicial Qualifications Commission. Further, Plaintiff requests
similar assignment of Jurisdiction of the instant case at bar.
Motion for Temporary Restraining Order
49.
Plaintiff seeks motion from the Court to grant a Temporary Restraining Order, for the purpose of maintaining the status quo pending an adjudication with respect to rights, status, and other legal relations of the parties to this suit.
Complaint for Plenary Relief
50.
Plaintiff has been represented by several attorneys and has paid other attorneys for legal advice. Plaintiff is indebted to yet other attorneys for legal assistance. In addition to a long list of legal fees, Plaintiff has incurred legal costs of copying, postage, filing, travel, research, process service, etc. Plaintiff’s professional pursuits have been considerably damaged by both the time and stress imposed by the four years of litigation. Plaintiff’s relationship with her sons has suffered significantly from the lies and misrepresentations made by Defendant Gregory R. Portman. Joint legal custody, as identified in the Final Judgment, has not been enforced and supported by the Cobb County Court system, such action giving further control to the lies and misrepresentations perpetrated by Defendant Gregory R. Portman. Plaintiff’s personal life has been on perpetual "hold," for the litigation has affected every aspect of her life: religious, financial, professional, social, psychological, and emotional. Plaintiff has had to delay her educational pursuits, for the litigation has required an inordinate amount of time. Plaintiff has been subjected to a cloud on the title of her home, such attorney’s lien being directly subordinate to the Final Judgment in Civil Action File No. 94-1-5243-22.
51.
Plaintiff is now proceeding pro se and has had to represent herself through much of the identified litigation, as a result of two significant factors: 1. she is without the funds to pay for further legal fees, and 2. capable attorneys decline to take her case for fear of their own professional future. Simply, attorneys know that it is political and professional suicide to represent a client who is at war with the seat of Power, regardless of the absence of intent for Plaintiff to engage in such war. Because Plaintiff has no formal education in the Law, she has had to research, study, and learn the Law in order to protect her rights. She has repeatedly been verbally abused by members of the Judiciary for her self-representation.
52.
Plaintiff never intended to enter into an adversarial relationship with any official of the Judiciary. Plaintiff continues to respect and abide by the Laws of the State of Georgia and the Laws of the United States of America. Plaintiff continues to believe in the Judicial System. However, Plaintiff has, through discovery, investigation, and experience, concluded that the December 11, 1995 Final Judgment is VOID ab initio. Plaintiff will show the jury that defendants had knowledge of said fact, but continued to conceal said fact from Plaintiff. Plaintiff has repeatedly attempted to have the Judgment declared VOID. She has been met with a purposeful attempt to hide the status of the Final Judgment. The very stature of the Final Judgment is a property right of Plaintiff, for it affects her rights, status, and legal relations.
53.
Plaintiff will show at trial the costs which Plaintiff incurred to bring this litigation to fruition. Pursuant to O.C.G.A. Sec. 9-4-3 (CGA Sec. 110-1102), as amended in 1959, Plaintiff seeks plenary, rather than coercive relief. Plaintiff does not seek execution or performance from the defendants. Under the Civil Practice Act, Plaintiff hereby petitions the Court for restoration of rights, including financial recovery. As in Sacks v. Bell Tel. Laboratories, Inc., 149 Ga. App. 799, 256 S. E. 2d 87 (1979), Plaintiff hereby shows the Court that knowledge and experience are weighted against the petitioner, for the defendants have been in control of that which the petitioner seeks to remedy, res ispa loquitor. Although defendants’ knowledge and experience allowed an advance scope on the outcome of the series of litigation, petitioner has been denied such knowledge and experience. Petitioner seeks to level the ground of knowledge by seeking this instant declaratory judgment. Specifically, Plaintiff claims a property right to: 1. history of, and current jurisdiction in, Civil Action File No. 94-1-5243-22; 2. declaration of the December 11, 1995 Order by Judge Robert E. Flournoy, Jr. as VOID ab initio; and 3. declaration of all subsequent Orders by Superior Court, which relied on the validity of said December 11, 1995 Order, as VOID ab initio.
54.
Because petitioner remains in jeopardy of losing future financial rights, it would be error to dismiss petitioner’s claim.
Citation of Authority
55.
The legislative intent and purpose of the Declaratory Judgment Act is to settle and relieve against uncertainty and insecurity with respect to rights, status, and other legal relations between the parties. O.C.G.A. Sec. 9-4-1 (CGA Sec. 110-1111)
56.
Pursuant to O.C.G.A. Sec. 9-4-2(b) (GCA Sec. 110-1101) the Superior Courts are charged with the responsibility to "determine and settle by declaration any justiciable controversy of a civil nature where it appears to the court that the ends of justice require that such should be made for the guidance and protection of the petitioner, and when such a declaration will relieve the petitioner from uncertainty and insecurity with respect to his rights, status, and legal relations."
57.
Pursuant to (case law) Butler v. Bivens Software, Inc. 473 S.E.2d 168 (Ga. App. 1996), "by the very nature of recusal, any act by a judge after he/she should have recused is VOID."
58.
Relief by Declaratory Judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies. O.C.G.A. Sec. 9-4-2(c) (CGA Sec. 110-1101).
59.
Pursuant to the Constitution of the United States, Plaintiff has a property right to knowledge concerning the Final Judgment of Civil Action File No. 94-1-5243-22.
60.
Pursuant to the provisions of O.C.G.A. Sec. 9-11-39 and Ga. Const. 1983, Art. I, Sec. I, Paragraph XI, Plaintiff asserts her right to a trial by jury.
Statements of Fact
61.
The Record for the related cases has become voluminous and redundant in many aspects. Plaintiff prays that each document will be studied by the jury for clarity and possible conflict. Plaintiff offers to copy and make available any document, either part of the record or in Plaintiff’s possession, upon indication of need by the jury assigned to this action. Plaintiff stands ready and willing to produce.
62.
Plaintiff Portman was employed by Robert E. Flournoy, III, eldest son of the Honorable Robert E. Flournoy, Jr., more than 10 years ago. Said employment, and Judge Flournoy’s awareness of said employment, was reason that the Honorable Robert E. Flournoy, Jr. should have offered his recusal, pursuant to the Code of Judicial Conduct. Said Code, which requires that the Judge, if knowledgeable of possible conflict, offer his voluntary recusal to both parties, and should proceed only in the event that both parties waive their right to his/her disqualification. At no time did the Honorable Robert E. Flournoy, Jr. offer his voluntary recusal from Civil Action File No. 94-1-5243-22. During the process of the divorce trial, the Honorable Robert E. Flournoy, Jr. did reveal that he was knowledgeable of the past employment, yet he continued to deny both parties an opportunity to claim his disqualification without prejudicing their own case.
63.
The Honorable Robert E. Flournoy, Jr. has a pecuniary interest in the success or demise of legal cases handled by Attorney Larry W. Yarbrough. Pursuant to the Code of Judicial Conduct, the Judge carried the weight of the burden to offer his own recusal to the parties.
64.
Plaintiff was defrauded by her own attorney, Daryl Kidd. At the time of retaining attorneys Gleisner and Kidd, Plaintiff had a jury trial scheduled for July 10, 1995. On July 3, 1995 Kidd and Gleisner presented Plaintiff Portman with only two options: 1. to proceed with the jury trial on July 10, 1995 without their representation, or 2. to waive the jury trial and be placed on a later calendar for a bench trial, predictably for September or October. Plaintiff relied on the information given to her by attorneys Kidd and Gleisner; that they (attorneys Kidd and Gleisner) could indeed legally withdraw, leaving her without the necessary discovery and without legal counsel for an impending jury trial.
65.
On July 3, 1995, Attorney Gleisner met in chambers with the Honorable Robert E. Flournoy, Jr. and attorney J. Houston Lennard. Defendant Gregory Russell Portman’s attorney of record, Larry W. Yarbrough, was not present for said in-chambers meeting and was on approved leave of absence. Attorney J. Houston Lennard participated in the July 3 in-chambers meeting, but did not enter an appearance until July 17, 1995, fourteen (14) days later. Such delayed Notification of Representation is in violation of Superior Court Rules 4.6, 4.8 & 4.9.
66.
Attorneys Kidd and Gleisner represented to Plaintiff that her Answers to Interrogatories, submitted to attorney Larry W. Yarbrough on January 6, 1995, were a part of the Record and that the Honorable Robert E. Flournoy, Jr. was responsible for reading all of the Record prior to any trial. Plaintiff did not learn until after the Final Judgment and Decree, that Plaintiff’s Answers to Interrogatories were, in fact, NOT part of the Record and therefore had not been considered by the Court. Plaintiff had been given no counsel until meeting with Lawrence B. Custer that she had a right to inspect the Court file, as it was public record.
67.
Attorneys Kidd and Gleisner represented to Plaintiff that her Deposition, submitted to attorney Larry W. Yarbrough on January 6, 1995, was a part of the Record and that the Honorable Robert E. Flournoy, Jr. was responsible for reading all of the Record prior to any trial. Plaintiff did not learn until after the Final Judgment and Decree, that Plaintiff’s Deposition was, in fact, NOT part of the Record and therefore had not been considered by the Court. Plaintiff had been given no counsel until meeting with Lawrence B. Custer that she had a right to inspect the Court file, as it was public record.
68.
During the period of discovery, Plaintiff presented the name and phone number of R. Wynette Kennedy to attorney Gleisner, asking her to follow up on what Plaintiff knew to be a woman intimately involved with the Defendant. Attorney Daryl Kidd subsequently suppressed said evidence about R. Wynette Kennedy, and did so for personal reasons. The act of suppression of evidence resulted in jeopardy and damage to his own client.
69.
October 2, 3, & 4, 1995, Civil Action File No. 94-1-5243-22 was heard by the Honorable Robert E. Flournoy, Jr., who announced, prior to recording the case, that he would restrict non-party witnesses to one on each side. He was aware that Plaintiff had four subpoenaed witnesses. The witnesses who testified were Mitchell Kaye, Certified Appraiser and expert witness for Plaintiff and Robert Smith, business consultant and expert witness for Defendant.
70.
During the period of separation, Defendant had steadfastly refused to move from the marital residence. Consequently, Plaintiff reluctantly moved to a rental house. The parties’ youngest son moved with Plaintiff, by his own choice, and the oldest son remained in the marital residence with the Defendant, by his own choice. Plaintiff chose a rental house within the school district so as to maintain as much of the youngest son’s regular pattern of living as was possible. Plaintiff condescended to Defendant’s demand concerning the marital home, and decided to focus her efforts on making a home in the rental house for herself and her youngest son. She therefore made no demand or request to the court that she be granted the marital residence, nor did she enter the marital home between September 1994 and the trial in October 1995, a period of more than one year. It was only after moving back into the marital residence, at the direction of the Honorable Robert E. Flournoy, Jr., that Plaintiff learned about numerous costly repairs which were needed to make the home safe. The living room floor and wall, inter alia, had suffered water damage and was in desperate need of specialized structural repair, the house had a severe infestation of rats, and the "open" staircase was structurally irreparable. In addition to double moving expenses, Plaintiff was forced to hire independent contractors to correct the damage and make the home safe.
71.
The marital residence had been the family home since 1979, and the only home that the youngest child had ever known. The parties’ youngest son, age 13, asked to live in his old neighborhood for the summer months of 1995, because his two best friends were within walking distance. When the trial date was changed from July to October, Defendant convinced the youngest son to extend his stay through the trial, claiming that Plaintiff was mentally unstable. Plaintiff was denied any opportunity to maintain a relaxed and secure relationship with her sons.
72.
Attorneys Kidd and Gleisner, along with Plaintiff, learned at the time of trial, that Defendant had defrauded both Plaintiff and the United States Internal Revenue Service. Attorney Kidd refused to use the offered evidence, claiming that he would be subjecting his own client, Plaintiff, to federal tax evasion charges. Plaintiff neither benefited from the fraud, nor knew about the fraud prior to trial.
73.
On October 4, 1995, the Honorable Robert E. Flournoy, Jr. gave oral judgment in Plaintiff’s Petition for Divorce and did issue an oral bench decree in Civil Action File No. 94-1-5243-22. Daryl Kidd, Attorney at Law, and Leslie H. Gleisner, Attorney at Law, represented Plaintiff in said action. Attorneys Larry W. Yarbrough and J. Houston Lennard represented Defendant in said action.
74.
Plaintiff sought Findings of Fact and Conclusions of Law in timely manner and the Honorable Robert E. Flournoy, Jr. did respond to Plaintiff’s attorneys, Daryl Kidd and Leslie Gleisner, to prepare the final decree WITHOUT findings of fact and conclusions of law. Said DENIAL of Findings of Fact and Conclusions of Law is in violation of O.C.G.A. Sec. 9-11-52. Said denial is in the Record of Civil Action File No. 96-1-3343-22.
75.
On November 21, 1995, Plaintiff notified her attorney, Daryl Kidd, that as her attorney, he no longer had authority to act on her behalf, but that any action by him would require her express permission. Plaintiff requested a response from attorney Kidd concerning his good faith intentions.
76.
On November 29, 1995, Plaintiff received INTENT TO WITHDRAW,
dated November 22, 1995, from her attorney, Daryl Kidd. In said document,
attorney Kidd stated that, absent any response from Plaintiff within 10
days, his withdrawal would take effect.
77.
On December 5, 1995, the Honorable Robert E. Flournoy, Jr. did sign, nunc pro tunc, the text of Final Judgment and Decree which had been prepared by Attorney Larry W. Yarbrough, for Defendant Gregory Russell Portman, in Civil Action File No. 94-1-5243-22. Said final decree was filed with the Clerk of Superior Court of Cobb County, December 11, 1995.
78.
Plaintiff was unaware that any Final Decree had been signed and filed with the Clerk until January 13, 1996. Plaintiff received said final decree after the period of 30 days in which she could have appealed the judgment. The postmarks on the envelope indicate that the recipient at the Maxine Drive address returned the envelope to the U.S. post office for corrected delivery. Attorney Kidd had received the Final Judgment and Decree from the Court and had mailed it by U.S. Mail to Plaintiff. The evidence shows that attorney Kidd intentionally delayed Plaintiff’s knowledge of the Final Judgment by using what he knew to be the outdated address for Plaintiff. Attorney Kidd was fully aware of Plaintiff’s move from the rental house to the marital home as per Judge Flournoy’s direction. The Final Judgment and Decree directed that Defendant move out and Plaintiff move back into the marital residence by December 1, allowing 5 days between the two moves. Further, attorney Kidd released the Pioneer Trail address to Mitchell Kaye as Plaintiff’s new address, evidenced by Mitchell Kaye’s billing statement. Without direction from Attorney Kidd, Kaye would have had no knowledge that Plaintiff was directed to move to the marital address and would have been expected to continue to use the previous address for Plaintiff. Mitchell Kaye had given his testimony October 3 and was not present in the courtroom October 4, 1995.
79.
Attorney Daryl Kidd did file a lien on Plaintiff’s home on December 13, 1995 and did subsequently file an action of foreclosure on January 16, 1996. Attorney Daryl Kidd did fail, at the time of filing his Complaint, to identify, pursuant to Superior Court Rules 4.2, 4.8, and 4.9, that the foreclosure action was subsequent action to Civil Action File No. 94-1-5243-22. Said foreclosure, Civil Action File No. 96-1-0373-24 was therefore assigned randomly to the Honorable Michael Stoddard. Attorney Kidd used Plaintiff’s maiden initial as a middle initial, rather than Plaintiff’s name as it appears in Civil Action File N. 94-2-5243-22.
80.
Plaintiff filed action for Modification (Change of custody) March 22, 1996. Lawrence B. Custer, Attorney at Law, represented Plaintiff in said action. Said Civil Action File No. 96-1-2243-22 was identified to be in the jurisdiction of the Honorable Robert E. Flournoy, Jr. from March of 1996 until January of 1998. Plaintiff has filed subsequent Motions to Amend said Complaint. Plaintiff has been led through a web of delays and misrepresentations.
81.
Minor child of the parties from Civil Action File 94-1-5243-22 became the subject of Juvenile Court Action in January of 1996. Juvenile Court of Cobb County did act in a manner contrary to the Final Judgment and Decree from Civil Action File No. 94-1-5243-22, by denying Plaintiff her rights as Joint Legal Custodian. Plaintiff did pursue said rights, did supply the Juvenile Court with a copy of the Final Judgment in Civil Action File No. 94-1-5243-22, and did expect to be treated as a Joint Legal Custodian by all courts subordinate to Superior Court. However, she was directed by officers of the Juvenile Court that she would have to waive her rights to due process in exchange for her rights as a Joint Legal Custodian. Because of the presentation by court officials to the minor child that Plaintiff was refusing to waive her due process rights, the parent/child relationship has been irretrievably damaged. Although it appeared that Juvenile Court was ignoring the Final Judgment in Civil Action File No. 94-1-5243-22 and ignoring Plaintiff’s right as a joint legal parent, it is now evident that Juvenile Court was actually ruling in accordance with a VOID Order from Superior Court of Cobb County.
82.
After prolonged communication, and miscommunication, with attorney Lawrence B. Custer, Plaintiff requested clarification from the Honorable Robert E. Flournoy, Jr. concerning a supposed “in-chambers” conference which had been held “in lieu of” an open hearing, May 6, 1996. Plaintiff had been barred from attending supposed “in-chambers” conference. Attorney Lawrence B. Custer had presented to Plaintiff that the conference was called by the Honorable Robert E. Flournoy, Jr., and that by the judge’s direction, the conference was to be with counsel only.
83.
By Order of the Honorable Robert E. Flournoy, Jr. did permit the withdrawal of attorney Lawrence B. Custer from the Modification action, over the filed Answer and objection of Plaintiff. The Honorable Robert E. Flournoy, Jr. allowed Plaintiff no opportunity for a hearing. Said Order was issued prior to the expiration of the required 10 days and prior to Plaintiff receiving her file and papers from attorney Larry Custer. Said Order left Plaintiff in severe jeopardy.
84.
Plaintiff filed a Motion to Disqualify the Honorable Robert E. Flournoy, Jr. from Civil Action No. 96-1-2243-22 on August 27, 1997. Said motion was timely filed and supported by Verified Affidavit.
85.
Pursuant to Rule 25, the Honorable Robert E. Flournoy, Jr. did rule that the Motion was timely filed and supported by sufficient affidavit. Judge Flournoy did cease to act on the merits of Civil Action File 96-1-2243-22 and did refer the Motion for Disqualification back to the Clerk, at which time the Motion for Disqualification was assigned to the Honorable Dorothy Robinson.
86.
The divorce trial transcript, recorded by Court Reporter Gerald Knight, was transcribed in preparation for litigation in the custody modification, Civil Action File No. 96-1-2243-22, specifically for the Motion to Disqualify the Honorable Robert E. Flournoy, Jr. Plaintiff received it December 9, 1997 and upon reading the transcript, Plaintiff was shocked that it was not complete. Plaintiff learned from the Board of Court Reporters that she should file an Affidavit, which she did. Plaintiff also learned that statutory law actually allows a judge to change a transcript. The Official Court Reporter’s handbook cites O.C.G.A. Sec. 5-6-41 as, [The legislature has endowed the trial judges of this State with the power to change or correct a transcript.] Realizing that Judge Flournoy had the legal power to eradicate his own misconduct during the trial, Plaintiff requested an emergency hearing.
87.
The Honorable Dorothy Robinson did schedule an evidentiary hearing for January 14, 1998 after personally calling Plaintiff by telephone and telling Plaintiff that any and all action would take place at an evidentiary hearing. Plaintiff filed her demand for Oral Hearing on the Motion to Disqualify.
88.
Plaintiff did serve and file more than 15 subpoenas to witnesses. Plaintiff did serve a subpoena ducas tecum to Jerald Knight, official Court Reporter, the evening of January 8, 1998 and filed it with the Clerk on the morning of January 9, 1998.
89.
By Order of January 9, 1998, the Honorable Dorothy Robinson superseded the very evidentiary hearing which she had set, by removing the Honorable Robert E. Flournoy, Jr. from any further jurisdiction in Civil Action File No. 96-1-2243-22. Said modification action was moved to the court of the Honorable S. Lark Ingram.
90.
Although Plaintiff was gratified that Judge Flournoy had been removed from the modification action, Plaintiff challenged the January 9, 1998 Order with a Motion for Reconsideration and a Request for Immediate Review by a higher court. Plaintiff’s challenge was clearly identified for the Court; the reason cited by the Court for the Disqualification was specifically not permitted by Georgia Law. Pursuant to O.C.G.A. 15-1-8, "Courts may not add other grounds of disqualification. In order to disqualify a judge there must exist a ground authorized by law to disqualify him; it is not for the courts to add other grounds of disqualification." This is supported by case law, Blakeman v. Harwell, 1948 Ga. 165, 31 S.E.2d 50 (1944); Cox v. State 85 Ga. App. 702, 70 S.E.2d 100 (1952); Daniel V. Yow, 226 Ga. 54, 176 S. E.2d 67 (1970); Mapp v. State, 204 Ga. App. 647, 420 S.E.2d 615 (1992) and Johnson v. State 208 Ga. App. 453, 430 S.E.2d 821 (1993). However, the Honorable Dorothy Robinson denied both, allowing the Disqualification, and it’s reason, to stand.
91.
Pursuant to O.C.G.A. Sec. 5-5-41 and Sec. 5-5-43, Plaintiff timely and accurately filed a Motion for New Trial. Said Motion was a timely collateral attack on the Judgment rendered in Civil Action File No. 94-1-5243-22.
92.
Plaintiff filed a Motion for Declaratory Judgment to clarify legal questions of procedure and fact before proceeding with action in either Civil Action File No. 94-1-5243-22 or Civil Action File No. 96-1-2243-22. The two actions were essentially the same and involved the same parties, same minor child, and continuation of same issues. However, Modification was necessarily filed as a separate action, pursuant to O.C.G.A. and Superior Court Rule 3.2.
93.
Being an untrained litigator, Plaintiff believed that a Motion for Declaratory Judgment had to be filed in a pending Civil Action. The Honorable S. Lark Ingram did hear Plaintiff’s Motion for Declaratory Judgment in Civil Action File No 96-1-2243-22 at hearing on June 24, 1998 and did orally rule that, in addition to Civil Action File 96-1-2243-22 being within her Jurisdiction, she would claim Jurisdiction of Civil Action File No. 94-1-5243-22. Such action is a violation of Superior Court Rule 3.3. Further, Plaintiff has since learned that a Motion for Declaratory Judgment is filed as a separate and distinct Civil Action, as is this instant case at bar.
94.
Upon Judge Ingram’s refusal to file a timely Order in response to the Motion for Declaratory Judgment, reflecting her oral ruling of June 24, 1998, Plaintiff initiated a Petition for Mandamus against the Honorable S. Lark Ingram. The Honorable S. Lark Ingram continued to refuse to file her written Order, yet Answered said Petition. After a delay to accommodate the State Attorney General’s office, the Honorable James G. Bodiford on September 16, 1998, did hear and issue his ruling, Order filed September 18, 1998, denying Plaintiff her timely and properly requested jury trial. During the course of the hearing, Judge Bodiford offered to prepare the Declaratory Judgment Order and Judge Ingram assured Judge Bodiford that she would sign and timely file said Order. Pursuant to O.C.G.A. Sec. 15-6-21, said Order was to be filed by September 22, 1998, within 90 days after the hearing. The Honorable S. Lark Ingram failed to submit said Order to the Clerk of Superior Court of Cobb County until September 25, 1998 By Order of the Honorable James G. Bodiford, September 18, 1998, Plaintiff was denied Writ of Mandamus.
95.
After filing the untimely Order of September 25, 1998, the Honorable S. Lark Ingram then recused herself from Civil Action File No. 96-1-2243-24, and the Modification case was assigned to the Honorable Michael Stoddard. The recusal Order failed to clarify the validity of Judge Ingram’s previous Order, and failed to identify the court jurisdiction of Civil Action File No. 94-1-5243-22.
96.
Plaintiff filed a Motion to Disqualify the Honorable Michael Stoddard, which was promptly denied by the Honorable Michael Stoddard. Pursuant to case law, Butler v. Bivens Software, Inc. 473 S.E.2d 168 (Ga. App. 1996), and pursuant to Superior Court Rule 25, the Honorable Michael Stoddard had failed to adhere to Court Rule, procedure, and Law.
97.
Plaintiff filed a Request for Immediate Review and was granted permission to appeal by the Honorable Michael Stoddard. Plaintiff appealed the action to the Court of Appeals and mailed the appeal in timely manner. The Court of Appeals dismissed Plaintiff’s Petition, stating that said Petition had been filed beyond the time allowed. The issue at question was the type of mailing used by Plaintiff, which impacted the docketing date of Plaintiff’s appeal. Plaintiff filed for Reconsideration, showing that the mail type, pursuant to U.S. Postal regulations, was inclusive of the type required by the Court of Appeals. The Court of Appeals denied Plaintiff’s Motion. Plaintiff filed for Writ of Certiorari from the Georgia Supreme Court. The Georgia Supreme Court denied a Writ of Certiorari.
98.
Plaintiff appealed the September 18, 1998 Order of the Honorable James G. Bodiford, to the Georgia Supreme Court, showed the high court that Judge Ingram’s September 25, 1998 Order should be declared VOID, and asked the high court to investigate the Record from the Trial Court. The high court, pursuant to Rule 59, refused to rule on the merits of the case, but allowed the ruling of the lower court to stand. During Oral Argument before the Georgia Supreme Court, Justice Fletcher pointed out to Plaintiff that she did, indeed, "have an Order." Plaintiff requested clarification, but was denied knowledge as to jurisdiction of Civil Action File No. 94-1-5243-___.
99.
Plaintiff was unable to determine which Court had jurisdiction of Civil Action File No. 94-1-5243-___. Because time is of the essence in filing a Motion for Disqualification, Plaintiff filed a Motion to Disqualify the Honorable Flournoy, Robinson, Stoddard, Bodiford, and Ingram, pending the response of the high court to Plaintiff’s Motion for Reconsideration.
100.
Plaintiff was notified by Order of June 7, 1999 signed by the Honorable George Kreeger that Civil Action File No. 94-1-5243-22 had been assigned to the Honorable Conley Ingram, as assisting judge. Plaintiff filed a Motion to Disqualify, and requested within said motion, former Justice Conley Ingram’s voluntary recusal. Plaintiff appeared at the hearing June 15, 1999 before the Honorable Conley Ingram and was informed of his voluntary recusal. Plaintiff has yet to receive an Order of voluntary recusal from former Justice Ingram, but has filed a Motion for Findings of Fact and Conclusions of Law in the matter of his Disqualification.
101.
By Order of June 15, 1999, signed by the Honorable George Kreeger, Civil Action File 94-1-5243-22 was reassigned to the Honorable Jere F. White, Senior Judge, Superior Court of Bartow County. However, it is evident that the Honorable Robert E. Flournoy, Jr. took the leadership role in such assignment. Such action by Judge Flournoy is in violation of Superior Court Rule 25, and is documented in the Record.
102.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of the Honorable Robert E. Flournoy, Jr. and is awaiting action on Plaintiff’s Motion to Disqualify Judge Flournoy.
103.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of the Honorable S. Lark Ingram and is awaiting action on Plaintiff’s Motion to Disqualify Judge S. Lark Ingram.
104.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of the Honorable Jere F. White and is awaiting action on Plaintiff’s Motion to Disqualify Judge White.
105.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of the Honorable Michael Stoddard and is awaiting action on Plaintiff’s Motion to Disqualify Judge Stoddard.
106.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of the Honorable George Kreeger.
107.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ is rightly vested in the Court of another judge, yet to be named by the random process used in Cobb County Superior Court.
108.
The record contains evidence that the jurisdiction of Civil Action File No. 94-1-5243-__ must now be assigned to another venue, for the Court has already acted to request a trier from outside the Circuit of Cobb County, by the assignment of the Honorable Jere F. White, Senior Judge, Bartow County Superior Court.
109.
The record contains evidence that the Honorable Robert E. Flournoy, Jr. was bound by Canon 3 of the Judicial Code of Conduct to disclose his knowledge of circumstances which reasonably presented the appearance of his impartiality. Judge Flournoy was cognizant of the former employment relationship, and he was very aware that such knowledge placed him in a supreme position of vulnerability to be influenced by his own son, through persuasions unavailable to either of the parties. The record contains evidence that the Honorable Robert E. Flournoy, Jr. should have made such disclosure prior to any trial in Civil Action File No. 94-1-5243-22.
110.
The record contains evidence that the Final Judgment and Decree of Divorce in Civil Action File No. 94-1-5243-22 is VOID ab initio.
111.
The record contains evidence that the September 25, 1998 Order by the Honorable S. Lark Ingram, in Civil Action File No. 96-1-2243-22 is also VOID ab initio.
112.
The record of Civil Action File No. 96-1-0373-24 contains evidence that the Lien placed on Plaintiff’s home by attorney Daryl Kidd is predicated on the validity of the Final Judgment and Decree, and as such, is also VOID ab initio.
Cause of Delay
113.
Plaintiff shows this Court that she has proceeded through a series of litigation while studying and researching Georgia Law. Throughout that time the mere possibility of the Final Judgment being a VOID order was evident only to those trained in the Law, i.e. members of the legal profession. Only through surprising and extremely confusing responses from the Court and from attorneys did the Plaintiff suspect that the Final Decree was, in fact, VOID ab initio.
114.
The term "VOID orders" is not indexed, but is an obscure topic, in the mainstream of Georgia Law books. Consequently, Plaintiff researched VOID orders in the law books of other states, and concluded that all evidence, both on and off the record of the identified civil actions, clearly points to the Final Judgment of Civil Action File No. 94-1-5243-22 as VOID ab initio.
115.
Thoughout the series of related litigation, Plaintiff was clearly led to believe that the Final Judgment was, in fact, a valid judgment. Plaintiff has been purposely misled by actions of a number of attorneys and more than a few judges. Plaintiff has been seeking declaration of the VOID Order in three of the identified civil actions, and has been met with a determined effort by the Court to ignore Plaintiff's question. ONLY through the abuse and prejudice which Plaintiff has experienced, has Plaintiff been able to deduce that the Final Judgment can be nothing other than VOID.
116.
Plaintiff shows this Court that she has, with due diligence, attempted to learn the true facts concerning the Final Judgment and Decree. Plaintiff has requested the information from more than one Court. The responses have been neither affirmative nor negative, as to whether the Final Decree is either Valid or Void. Apparently, the Court intends that Plaintiff proceed on the assumption that the December 11, 1995 Final Judgment is Valid. Plaintiff claims her property right to the truth and knowledge of the status of the identified Final Judgment, whether it be on the record or hidden.
117.
Plaintiff shows this Court that she has met the statute of limitations through her due diligence and her repeated request for declaration of the Final Judgment as VOID. The Final Judgment was filed less than four years ago, December 11, 1995, was identified as Nunc Pro Tunc, simply for the purpose of making the proceedings conform to the facts at the time the entry should have been made. Precisely because an Order is not Valid until it is filed with the Clerk, the Statute of Limitations consequently began tolling from December 11, 1995.
WHEREFORE, Marquitta L. Portman, Plaintiff in the above styled action, prays for:
Respectfully submitted,
Marquitta L. Portman, Plaintiff
261 Pioneer Trail
Marietta, GA 30068-3470
Sworn to and subscribed before me this _____ day of October
1999.
Notary Public
Commission expires:
email: m-portman@clr.org