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IN THE SUPERIOR COURT OF COWETA COUNTY STATE OF GEORGIA ELISA M. LOWE, ) ) Petitioner, ) ) CIVIL ACTION ) FILE NO.

10-v-1534 ) MICHAEL L. LOWE, ) ) Respondent ) COURT-ORDERED BRIEF OF PETITIONER AND STATEMENT OF LAW AND FACTS Comes now, Elisa M. Lowe, Petitioner, in the above styled action, and files her Brief and Statement of Law and Fact shows this Honorable Court the following:

Current Scheduling of Case

The above-referenced case was scheduled pursuant to a Rule Nisi filed by the Petitioner for a hearing Tuesday, November 23, 2010 at 9:00 a.m. before the Honorable Jack Kirby. On Monday, November 22, 2010, a three-party conference call was held with the parties and Judge Kirby. The Respondents attorney, Martin Valbuena, requested a continuance based upon his alleged need to conduct discovery and request for mediation. Judge Kirby denied these requests. Mr. Valbuena then stated and asserted to Judge Kirby that he had filed a Leave of Absence with the Clerk of the Coweta Superior Court for this case. Based upon Mr. Valbuenas statement as an officer of the court that he had filed a leave of absence with the Clerk of Court, Judge Kirby granted the requested continuance. A review of the Clerks official records show that no such leave of absence had been filed with the Coweta Superior Court by Mr. Valbuena for this case. Judge Kirby specially set the case for 9:00 a.m. on January 6, 2011, the next available non-jury trial calendar. Judge Kirby denied the Respondents motion to conduct discovery and attend mediation, finding that this contempt action required no such delay or expense and directed Respondent to turn over receipt of child support payments to the Petitioner before the next hearing.

On January 6, 2011, Judge Jack Kirby, acting as presiding judge of the Coweta Superior Court non-jury calendar, assigned this case to Judge A. Quillian Baldwin, Jr., for further hearing and disposition. After the parties made opening statements, Judge Baldwin directed the parties to provide copies of documentary evidence that will be used at the bench trial and to provide one another said evidence on or before January 13, 2011. Thereafter, the parties were ordered to provide copies of said briefs to Judge Baldwin on or before January 20, 2011. Judge Baldwin told Respondent that he believed that the Coweta Superior Court had maintained exclusive and continuing jurisdiction over the case as two cases cannot be filed at the same time over the same custody issue, and that Coweta had jurisdiction over the custody matters of the minor children as the Coweta case was filed first. (Transcript ordered but not received at time this Brief due-exact wording of Judge Baldwin to be filed with Court). Judge Baldwin directed the Respondent to prove him wrong. The Clerk of Court placed this case on the Superior Courts January 20, 2011, non-jury calendar at 9:00 a.m. for Judge Baldwin to hold a bench trial to consider the briefs of the parties, any further evidence and issue a Final Judgment and Order.

Statement of the Case

This contempt action was filed on July 13, 2010 by your Petitioner Elisa M. Lowe against her ex-husband and father of her two minor children, Zach and Evan Lowe. Your Petitioner was granted sole legal and physical custodian of the minor children by the Coweta Superior Court, Chief Judge William F. Lee, Jr. Presiding. (See Amended Divorce Decree attached as Exhibit 1 of this Brief.) The Respondent was not given legal or physical custody of the minor children but was instead awarded visitation rights. The Amended Final Divorce Decree did not require the Respondent to pay child support to your Petitioner. After filing an action titled Modification of Child Support and Visitation and Motion for Contempt your Petitioner was awarded $750 per month for the support of the minor children per the Order and Judgment dated August 11, 2001. (See Order and Judgment 2001-V-561 marked as Exhibit 2 of this Brief) Your Petitioner shows that her ex-husband, the Respondent Michael L. Lowe, has willfully failed to pay child support, willfully failed to pay for the marital residence, and willfully failed to pay a Federal Tax debt owed to the Internal Revenue Service, as ordered by this Honorable Court. The Respondent has been found in

willful contempt of this Courts orders on three (3) separate occasions. This Honorable Court has ordered the Respondent incarcerated on these two occasions until purging himself as directed. On both occasions, the Respondent has made and submitted certain written promises to this Court of plans to purge himself. However, when released from incarceration, the Respondent fails to pay said court-ordered obligations or complete plans that were submitted to the Court in order to secure his release from jail. Further, the Petitioner shows that the Respondent has filed two change of custody actions against the Petitioner, in order to obtain ex parte relief for immediate changes of custody of the minor children of the parties. In both cases, the minor children were immediately returned to your Petitioner upon judicial review. (See Order of Coweta Superior Court Civil Action File No. 2004-CV-32 dated January 21, 2004 and marked as Exhibit 3 and Order of Paulding Superior Court Civil Action File No. 2008-CV-JO dated April 8, 2008 and marked as Exhibit 4 of this Brief)

Including this case before this Honorable Court, there have been six (5) separate cases involving the custody, child support of the minor children of the parties and property settlement and allocation of debt between the parties. The cases are as follows: 1999-V-447 Coweta Divorce 2001-V-561 Coweta Modification of Child Custody and Child Support and Motion for Contempt 2004-V-32 Change of Custody with ex parte temporary relief in Coweta County 2008-CV-1124-JO Change of Custody with ex parte temporary relief in Paulding County 2010-V-804 Coweta Motion to Set Aside Order the dismissed Coweta 2004 case 2010-V-1534 Coweta Case presently before this Honorable Court

(Your Petitioner submits a verified and sworn Detailed Flow Chart and Timeline of Cases showing the progress of each case through the Superior Courts marked as Exhibit 5 of this Brief )

The Respondent currently owes $89,350 to your Petitioner in past due child support. The Respondent currently owes $25,000 to your Petitioner for equity lost in the marital residence. The Respondent owes $50,000 to your Petitioner for monies Petitioner gave to Respondent to pay the IRS debt and of which Respondent was previously incarcerated. The Defendant has fraudulently filed innocent spouse status with the IRS, said action deeming the IRS to classify the debt as

uncollectible against Respondent and saddling the Petitioner with the entire IRS debt, interest and penalties, said debt being in excess of $123,344 plus penalties and interest accruing since the original debt. (See Attached Spreadsheet showing the Court-Ordered monetary obligations of the

Respondent, marked as Exhibit 6 of this Brief)

Due to the willful failure of the Respondent to pay financial obligations as ordered by this Honorable Court, the continual filing of frivolous child custody modifications in this and other courts, his failure to pay his legal counsel after the initiation of these actions leaving the cases unprosecuted for years, and making false sworn statements in his pleadings to said Georgia Courts, the Respondent has created a legal situation where the minor children of the parties have received a pittance of the required child support for more than ten (10) years and where your Petitioner has spent more than $30,000 to defend these actions and has been forced to handle these matters pro se. Your Petitioner prays that this Honorable Court set forth an Order of Contempt clearly and concisely setting forth a sum certain for each financial obligation created by the Amended Divorce Decree and the permanent child support order of Coweta 2001-V-561: the total amount of past due child support; the total amount of IRS debt; and the total amount of monies due to Petitioner from the marital residence. Your Petitioner prays that this Court honor and enforce past contempt orders, determine whether the Respondents further actions have been contemptuous, and require immediate purging of the contempt by the Respondent. Further, the Petitioner requests this Honorable Court to issue a declaratory judgment that it is the Court with proper, legal, exclusive, continuing jurisdiction of all child custody matters involving the minor children of the parties.

Contempt Issues
IRS Debt The Amended Final Divorce Decree of Coweta Superior Court Civil Action File 99-V-447, executed and made an Order of this Honorable Court on May 17, 2000. (See Amended Final Divorce Decree marked as Exhibit 1 of this Brief) Said Amended Final Divorce Decree set forth the rights, duties and obligations the parties regarding the dissolution of the marriage of the parties and support of the minor children. Your Petitioner, Elisa M. Lowe, was awarded sole custody of the two minor children of the parties. The Respondent, by agreement and consent, was ordered to do the following

regarding the IRS debt: The parties hereto filed joint income tax returns with federal and state taxing authorities for the calendar years 1997 and 1998. The Defendant paid and delivered to the Plaintiff over $50,000 with the understanding that Plaintiff would apply said sum towards the payment of tax due for the calendar years 1997 and 1998. The Plaintiff accepted said sums from the Defendant for payment of said taxes, but failed to apply said sums towards the payment of income taxes due to the IRS for the calendar years 1997 and 1998, resulting in a current indebtedness to IRS which exceeds $17,000 for the calendar year 1997 and exceeds $60,000 for the calendar years 1998. The Plaintiff, Michael L. Lowe, shall solely and totally be responsible for payment of indebtedness owing to Internal Revenue Service for taxes due for the calendar years 1997 and 1998, plus all penalties, interest and any other assessments that have accrued on such unpaid indebtedness. The Plaintiff shall indemnify and save harmless the Defendant from any claims or demands which may be made against her as a result of said indebtedness, such indemnity to include without limitation any legal or accounting fees or court costs incurred by the Defendant with respect to any such collection efforts by Internal Revenue Service. On August 11, 2001, in Contempt Action 2001-V-561, Judge John Simpson found the Respondent in contempt of the provisions ordered in the Amended Final Divorce Decree regarding failing to provide medical insurance for the minor children of the parties, failing to provide copies of his federal income tax returns, failure to vacate the marital residence, failure to pay the federal income tax debt and for filing innocent spouse status with the IRS in order to avoid the courtordered liability. (See August 11, 2001 Order and Judgment marked as Exhibit 2 of this Brief).

On October 11, 2001, in Contempt Action 2001-V-561, Judge John Simpson found the Respondent in contempt and issued a pickup order. Despite being given two (2) months to purge himself of contempt Judge Simpson found that the Respondent had several opportunities to purge himself and was granted several continuances before actually being found in willful contempt for failure to handle the Internal Revenue Service Tax debt as agreed to by Respondent and Ordered by the Amended Decree of Divorce. Judge Simpson found and ordered as follows: It appearing that the Defendant has failed to purge himself as required by this Court's Order, the Court entertained a motion from the Plaintiff to incarcerate the Defendant, which is hereby GRANTED. The Sheriff of Coweta County, Georgia is hereby ordered and directed to pick up the Defendant and incarcerate him in the common jail of Coweta County, Georgia until such time as he may purge himself of his contempt by providing proof of medical insurance coverage for the children of the parties, by providing a copy of his federal income tax return for the year 2000, and by providing evidence that he has assumed sole

responsibility with Internal Revenue Service for payment of the federal income tax indebtedness of the parties and abandoning any "innocent spouse" defense that he may has asserted with Internal Revenue Service. Defendant shall provide such evidence to the Sheriff of Coweta County, Georgia, and may be released at such time as such evidence is provided to the Sheriff. (See Order dated October 11, 2001 marked as Exhibit 7 of this Brief) Although the Respondents Coweta 04-V-32 Change of Custody case was dismissed for lack of prosecution by Chief Judge William F. Lee, Jr., and all orders issued during the pendency of the case have been vacated and rendered void by operation of law (see Bickford v. Bickford, 228 Ga. 353, 355 (185 SE2d 756) (1971), several contempt hearings were conducted in that case regarding the Respondents failure to pay the IRS debt as previously ordered. After conducting a contempt hearing on March 3, 2005, Senior Judge Byron Smith was so inflamed and impassioned with the Respondents misconduct that Judge Smith handwrote an Order finding the Respondent in willful contempt of this Courts orders and ordered him incarcerated the following day unless he returned to your Petitioner $50,000 that Petitioner had given him to pay the IRS debt. (See Handwritten Order of Judge Byron Smith dated March 3, 2005 and marked as Exhibit 8 of this Brief) The Respondent again failed to pay as ordered but when subsequently detained, the Respondent pleaded for mercy by and through his attorney and offered a written plan of purging and was released. (See Martin Valbuena Letter dated June 13, 2008 and marked as Exhibit 9 of this Brief). Despite the assurances of Mr. Valbuena, no documentation from the attorney that he has hired to handle his tax relief issues were ever provided to either Judge Smith or to your Petitioner. Further, just days later, Martin Valbuena wrote a letter to Judge Byron Smith giving specific details of the Respondents alleged activities to purge himself of the IRS tax debt. (See letter dated June 16, 2008 from Martin Valbuena to Judge Byron Smith, marked as Exhibit 10 of this Brief) Your Petitioner received the cover letter but no such referred to engagement letter from a tax professional was enclosed and was not provided thereafter. Nonetheless, the Respondent again failed to carry through with his promises to the Court to purge himself of this debt. At the time of the hearing before Senior Judge Byron Smith, March 3, 2005, the IRS had filed a Notice of Federal Tax Lien in the amount of $123,344.24 with the Clerk of the Superior Court of Coweta County. (See Amendment to Defendants Motion for Contempt Filed February 25, 2005, and marked as Exhibit 11 of this Brief)

Funds Due from Loss of Marital Residence The Amended Final Divorce Decree ordered the following regarding the marital residence:

The husband shall have the exclusive right to the use and possession of the marital residence located at 195 Springwater Chase, Newnan, Georgia 30265, and he shall be solely responsible for payment of indebtedness secured thereby, in accordance with the terms of said indebtedness, and shall further be solely responsible for payment of ad valoremm taxes and premiums required to maintain insurance coverage on the house with coverages and amounts presently in force. Title to said residence shall be maintained jointly in the parties until such time as the residence shall be sold. The decision to sell shall be in the sole discretion of the husband. Upon a sale of the residence, any indebtedness secured thereby shall be sold, and all closing costs incurred under any agreement of sale shall be paid at closing. The remaining proceeds from the sale shall be divided by payment of the sum of $5,000 to the Defendant, with the remaining proceeds to be equally divided between the parties. In the event the Plaintiff fails to make payment of any installment of indebtedness, taxes or insurance as heretofore mentioned, the wife shall have the option to make such payments and she shall be entitled to promptly recover such payment from the husband. She shall further be entitled to file a contempt action against the husband for a violation of disagreement incorporated into the final decree of divorce between the parties. In the event the Plaintiff becomes delinquent in the payment of two or more installments on the indebtedness secured by the residence, the husband shall thereupon lose his right to the exclusive use and possession of the marital residence, and he shall vacate the residence promptly. The wife shall thereupon become entitled: to the exclusive use and possession of the residence and she shall thereafter have the sole discretion to sell the residence at a price to be determined in her sole discretion. Upon such a sale, the wife shall be entitled to recover any payments which she has made towards any installment of indebtedness or toward the taxes or insurance premiums required on the house and the remaining proceeds shall be divided between the parties as hereinabove set forth. (See Amended Divorce Decree marked as Exhibit 1 of this Brief) On August 11, 2001, Judge John Simpson found the Respondent in contempt of the provisions ordered in the Amended Final Divorce Decree for failure to vacate the marital residence. (See August 11, 2001 Order and Judgment marked as Exhibit 2 of this Brief) Two months later Judge Simpson again found that the Respondent has failed to purge himself as required by this Court's Order, and issued a pickup order. (See October 16, 2001 Order marked as Exhibit 7 of this Brief)

Your Petitioner shows that she never received any funds from the sale of the house as agreed to by the parties and Ordered by this Honorable Court. The Respondent contemptuously refused to pay the required monthly mortgage payment for the marital residence. The Amended Final Divorce Decree required the Respondent to notify your Petitioner if he was unable to pay said mortgage. In such event, he been ordered by the Court to notify your Petitioner and allow her to make the payments on the house so that the equity and investment would not be lost. Further, the Court order in such event She shall further be entitled to file a contempt action against the husband for a violation of disagreement (sic) incorporated into the final decree of divorce between the parties. Your Petitioner shows that the she is entitled to no less than $5,000 from the house transaction, regardless of how the house was transferred as the Amended Final Divorce Decree contemplated such a result. The $5000 represented pre-martial property of your Petitioner used to purchase the marital residence. Moreover, at the time of the foreclosure, a real estate agent had a married couple that placed a bid on the property for a profit of $45,000 but Respondent refused to sign said contract and prevent the marital residence from the foreclosure. Due to the Respondents willful contempt, your Petitioner has lost more than $20,000 from the sale of the marital residence. Such loss of residential equity is especially tragic as the parties attorneys crafted an agreement contemplating such malicious actions and provided the remedy of this Courts powers of contempt to enforce the agreements provisions. Child Support The child support obligation was ordered by this Honorable Court in your Petitioners Modification of Child Support and Visitation and Motion for Contempt action in Coweta Superior Court Civil Action File No. 2001-v-561 on August 11, 2001 as the Amended Divorce Decree did not include a child support amount pursuant to the parties wishes at the time. This is the only valid and enforceable Coweta Child Support Order currently still in effect. (See Order and Judgment marked as Exhibit 2 of this Brief) In past hearings, the Respondent has argued that his 2004 Petition for Change of Custody relieved him of paying child support. After one of the hearings in this case was held, Judge Simpson ordered that the Respondents child support obligations be suspended until further order of the Court. (See Temporary Order in 2004-V-22 dated June 10, 2004 and marked as Exhibit 12 of this Brief) Unfortunately for the Respondent, his case was dismissed by Chief Judge of the Coweta

Judicial Circuit on December 8, 2008 for Lack of Prosecution. as the case was nearly four years old and Final Order had been secured. (See Order of Chief Judge William F. Lee, Jr. dated December 9, 2008 and marked as Exhibit 13 of this Brief) Twenty-two months later, the Respondent, and his current attorney filed Coweta Civil Action File No. 2010-v-804 titled Motion to Set Aside Order requesting this Court to reopen his 2004 Change of Custody action. (See Motion to Set Aside Order marked as Exhibit 14 of this Brief) Your Petitioner prevailed on a Motion for Summary Judgment (See Judge Kirby Order dated October 1, 2010 and marked as Exhibit 15 of this Brief). The Respondents new case, Motion to Set Aside Order, was as well as his request to reopen Coweta 2004-V-32 was summarily dismissed. Judge Kirby ruled that the Respondent had missed the window for re-instating the case by more than 18 months pursuant to O.C.G.A. 9-261(e). (See your Petitioners Brief in Support of Defendants Motion for Judgment on the Pleadings marked as Exhibit 15 of this Brief) It is interesting to note that the Respondent failed to file any response to your Petitioners Motion for Judgment on the pleadings or reference any Georgia case law to show why to summary judgment should not be granted. Despite the Respondent having no basis in law or fact to file said Motion to Set Aside and said action being frivolous, Judge Jack Kirby refused to impose sanctions as requested by your Petitioner in her Demand for Production of Statutorily Required Documents and Pleadings and Request for Reimbursement and Costs and Sanctions. (See said Demand marked as Exhibit 16 of this Brief) Once again the Respondent caused your Petitioner extra work and hardship by filing another frivolous action. Once again, this Honorable Court did not see fit to deal harshly with the Respondents unduly litigious nature.

When 2004-V-32 was dismissed and Respondent allowed the time to pass to reinstate the case, all temporary orders issued by the Court were terminated, vacated and rendered null and void. 'A judgment for temporary alimony continues in full force and effect until a final judgment in the case, until the termination of the litigation in all courts, and as long as the case is pending, including litigation in the Supreme Court. {emphasis added} Bickford v. Bickford, 228 Ga. 353, 355 (185 SE2d 756) [(1971) As there are no valid child support orders that supercede the 2001 Judge Simpson order, the Respondent is legally responsible for the amount accrued under 2001-V561 at $750 per month. In prior hearings, the Respondent has tried to relitigate the circumstances of the child custody in order to avoid child support payments or receive a decrease in the support.

Such arguments include that he had the minor children under his control for periods longer than order by the Amended Divorce Decree and that he should receive a reduction in the amount of child support he should be required to pay. In this action for contempt, no such modification is allowed by Georgia law. Any attempt to change the terms or amounts of child support owed by Respondent to the Petitioner in this case would amount to an improper retroactive modification of a child support debt pursuant to O.C.G.A. 19-6-17 (e)(3). See Georgia Department of Human Resources v. Prater, 278 Ga. App. 900 (1996); Robertson v. Robertson, 266 Ga 516, 518 (1996), Department of Human Resources v. Gould, 222 Ga. App. 489, 490 (1996).

Ability to Pay, Likelihood of Payment of Financial Obligations and Character of Respondent Your Petitioner shows that the Respondent has not only failed to pay his court ordered child support,, property settlement and IRS debts as Ordered by the Court but he has also avoided paying his legal counsel for their attorneys fees while causing your Petitioner to have to pay her representative more than $30,000 to defend herself from his constant filing of new actions. His first attorney of record, Delia T. Crouch filed an Attorneys Lien with the Coweta Clerk of Court in 04-V32 against Michael L. Lowe for failure to pay her attorneys fees in the amount of $11,040.87. (See Attorneys Lien filed September 25, 2007 and marked as Exhibit 17 of this Brief) The Respondent has also failed to pay his current attorney of record, Martin Valbuena. Mr. Valbuena withdrew from both Coweta 04-V-32 and Paulding 08-CV-1124-JO on or about June 30, 2008 due to Michael L. Lowe for passing a bad personal check in the amount of $3000.00. (See Martin Valbuena Letter dated June 30, 2008 and Notification Certificate filed July 31, 2008 marked as Exhibits 18 and 19 of this Brief, respectively.) Despite the Respondents failure to file a required Domestic Relations Financial Affidavit in any of the Coweta cases, your Petitioner shows that the Respondent is employed as a school teacher and sports coach at Oviedo High, a Seminole County, Florida, Public School and earns in excess of $50,000 per annum. The minor children are enrolled in the Masters Academy, an exclusive private school. Neither the minor children of the parties, nor the minor children of his current wife are required to pay tuition to said exclusive private school as the Respondents current wife is an employee of the institution. The respondent recently purchased a new residence and has great family wealth and the ability to purge himself of any amount this court finds him in willful contempt.

Your Petitioner shows that the Respondent is now a resident of the state of Florida and has no reason to return to Georgia after these proceedings are completed.

Remedy for Findings of Contempt

Previous presiding Coweta Superior Court Judges have tried to work with the Respondent Michael L. Lowe, on these contempt issues. They have threatened incarceration and even had him held for several hours before his attorney begged, pled and promised a plan of action. Nothing has impressed the Respondent or persuaded him to act as other non-custodial parents and pay his courtordered child support and other financial obligations. As the Respondent has shown a total disdain, contempt, and disregard for this Courts judicial process, prior judgments, as well as prior findings of contempt by this Court, as well as having no care for the financial well being of his minor children, your Petitioner argues and submits that the Court should tailor whatever remedy chooses in a way and manner to insure prompt payment of a substantial portion of the contempt and debt amount. Your Petitioner requests this Honorable Court to be mindful that with the Respondent living in Florida, further attempts to collect these Georgia judicially created financial obligations in Florida would require lengthy and complicated domestication of foreign judgment proceedings that would require your Petitioner to avail herself of the Florida courts. The time for judgment for the Respondent is more than ripe for disposition. Unfortunately, if allowed to leave the jurisdiction of Georgia and return to Florida your Petitioner is highly unlikely to ever receive any of her justly due court-ordered child support, property settlements, the misappropriated $50,000 and the staggering IRS debt, interests and penalties. As such, the Respondent is, as in criminal law terms, a flight risk and there is a high likelihood that if not required to purge himself before leaving the grasp of this Honorable Court, he will again wilfully refuse to pay these Court ordered obligations.

Jurisdiction and Venue Issue


It is appropriate that the same Judge hearing the Contempt matters in this case should consider the issue of the appropriate jurisdictional venue for issues regarding the minor children of the parties as the conduct of the Respondent, as well as his attorney, Martin Valbuena, fall into the category of contemptuous behavior toward this Honorable Court. The Coweta Superior Court has

maintained exclusive, continuing jurisdiction over the child custody determinations since the filing of the original divorce petition by the Respondent in 99-CV-447. O.C.G.A. 19-9-62 outlines Georgia statutory law on the Prerequisites for termination of exclusive, continuing jurisdiction.

(a) Except as otherwise provided in Code Section 19-9-64, a court of this state which has made a child custody determination consistent with Code Section 19-9-61 or 19-9-63 has exclusive, continuing jurisdiction over the determination until:

(1) A court of this state determines that neither the child nor the child's parents or any person acting as a parent has a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(2) A court of this state or a court of another state determines that neither the child nor the child's parents or any person acting as a parent presently resides in this state.

(b) A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this Code section may modify that determination only if it has jurisdiction to make an initial determination under Code Section 19-9-61.

As none of the conditions outlined above in in O.C.G.A. 19-9-62 exist in this case, Coweta Superior Court continues to have exclusive and continuing jurisdiction over the custody matter of the minor children of the parties. The Respondent has availed himself of this Honorable Courts jurisdiction and venue on three separate occasions by filing three separate custody cases involving issues of custody of the minor children. However, the Respondent filed another custody

modification in Paulding County, Georgia (Paulding Civil Action File No. 08-CV-1124-JO) while his Custody Modification (Coweta Civil Action File No. 2004-V-32 was still pending before this Honorable Court. Learning that he could dupe a Superior Court Judge in Coweta County, (See Improvidently Granted Order Vacating Ex Parte Order, marked as Exhibit 3 of this Brief), Respondent Michael L. Lowe filed Paulding 08-CV-1124-JO, again requesting and obtaining an ex parte emergency custody order from Judge James R. Osborne. (See ex parte Temporary Order dated January 14, 2004 and marked as Exhibit 20 of this Brief) As with the improvidently granted

Coweta ex parte order, Judge Osborne immediately returned the minor children of the parties to your Petitioner. (See Exhibit 4 of this Brief) The Paulding County case lay dormant for more than 2 years after the return of the minor children of the parties to your Petitioner. However, after moving to Florida and obtaining child custody election affidavits from the minor children during a visitation period, the Respondent requested and moved the Paulding Superior Court to transfer custody of the minor children of the parties to his legal and physical custody. The controlling case law in this situation Hatch v. Hatch, 287 Ga. App. 832 (2007). In 1998, the DeKalb County Superior Court awarded Laurie Hatch (the mother) primary physical custody of the Hatches' then six-year-old child. Jeffrey Hatch (the father) was granted visitation and ordered to pay child support. The mother and child resided in DeKalb County. In December 2005, while the child was visiting with the father at his residence in Spalding County, the mother traveled to Pennsylvania. While the mother was in Pennsylvania, the father filed a complaint in Spalding County to modify custody and support. He alleged that the mother had moved to Pennsylvania, that there was a material change in circumstances, and that the child desired to live with him. It is not clear from the record whether the mother was a resident of DeKalb County, Georgia, or Pennsylvania at the time the modification petition was filed. In either case, jurisdiction and venue were proper inDeKalb County, not Spalding County. This is because if the mother (as the legal custodian) was a resident of DeKalb County, the father was required to file the complaint seeking to change custody in DeKalb County. If the mother was a resident [***8] of Pennsylvania, the father was required by the Uniform Child Custody Jurisdiction and Enforcement Act to file the complaint in DeKalb County, the county in which the custody determination was initially made. A judgment entered by a court lacking jurisdiction is void. Accordingly, all orders of the Spalding County court in this case are vacated. The case is remanded with direction that it be transferred to the appropriate court. (See case of Hatch v. Hatch marked as Exhibit 21 of this Brief) Building upon this body of caselaw, the Court of Appeals in Taylor v. Curl, 298 Ga. App. 45 (2009) citing Hatch and O.C.G.A. 19-9-62, held that , ". . . after a court has determined who is to be the legal custodian of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought as a separate action in the county of residence of the legal custodian [*3] of the child"). See OCGA 19-9-62 (a) (pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, "[e]xcept as otherwise provided in Code Section 19-9-64, a court of this state

which has made a child custody determination consistent with Code Section 19-9-61 or 19-9-63 has exclusive, continuing jurisdiction over the determination"); see also Hatch v. Hatch, 287 Ga. App. 832, 835 (2) (652 SE2d 874) (2007). As in Hatch, your Petitioners first responsive pleadings brought the venue issue to the Paulding Superior Courts attention and requested that Paulding County transfer the case, or at the very least contact the Coweta Superior Court in an attempt to resolve this issue. (See Second Motion and Demand for Stay of Temporary Hearing Due to Improper Venue Due to Misrepresentation of Facts and Law to This Honorable Court Resulting in an Unlawful Detention and Unlawful Interference with Custody Rights marked as Exhibit 22 of this Brief) After a verbal denial of your Petitioners Motion and Demand by the Paulding Superior Court, your Petitioner filed a Motion for Reconsideration of Whether this Court has Jurisdiction Over This Custody Matter. (See said Motion marked as Exhibit 23 of this Brief) The Respondent argued and the Paulding Superior Court apparently found that your Petitioner submitted and acquiesced to the venue of Paulding County by attending the first appearance pursuant to the ex parte emergency order where the children were returned to your Petitioners custody. Your Petitioner notes and recognizes that pursuant to O.C.G.A. 19-9-84, Authority to enter temporary orders if lacking jurisdiction; remedy from court with jurisdicion, victims of family violence states: ( c) If a court of another state or a court of this state has made a finding of family violence on the part of either parent of the child. . . .a court of this state may enter any orders necessary to ensure the safety of the child and of any person who has been the victim of family violence . .. (See full language of O.C.G.A. 19-9-84 marked as Exhibit 24 of this Brief) Though Paulding County is authorized to issue temporary emergency orders to protect victims of family violence, said authorization surely ended when Judge Osborne returned custody of the minor children of the parties to your Respondent after review of the ex parte custody Order as the Paulding Court surely would not have returned custody to Respondent under such circumstances. (See Exhibit 4 of this Brief) However, once the Paulding Superior Court was put on notice that Coweta had a pending custody case at the time of the filing of the Paulding custody case, the Court had a duty to investigate the facts and circumstances of the jurisdictional issue. Your Petitioner shows that not only did she filed the above-described Second Motion and Demand for Stay and Motion for Reconsideration, but a Notice to Court of Another Court Having Jurisdiction Over Child Custody Matters Pursuant to O.C.G.A 19-9-62, Fraud, Perjury and Request

for Rule 12 Sanctions. (See Exhibit 25 of this Brief) Further, after the minor children were returned to the Petitioner, the Respondent effectively abandoned the action, waiting 2 years to make any pleadings, appearances or motions and said allegations first cited had become stale and were no longer a basis for a modification of custody. The great delay in the Respondent pursuing the Paulding case was because after the minor children were returned to your Petitioners custody and control, he had effectively, lost the custody case. Shortly thereafter, his attorney of record, Martin Valbuena withdrew for lack of payment of his legal fees when the Respondent bounced a $3000 personal check to Mr. Valbuena. (See Martin Valbuena Withdrawal Letter and Certificate of Notification marked as Exhibits 18 and 19, respectively. Obviously, when the Respondent secured the minor childrens custody elections, he either paid Mr. Valbuean his past due debt or renegotiated his legal representation fees. It should be noted that when Mr. Valbuena re-entered the Paulding case in 2010 he failed to file an Entry of Appearance as required by the Rules of the Superior Court of Georgia. The only notification your Petitioner had of Mr. Valbuenas re-involvement in the case or the Respondents interest in pursuing this custody action was when she received a Rule Nisi to attend Paulding Superior Court for a Temporary Hearing. Of course, no Children of Divorce Classes were attended, mediation sessions, filing of Domestic Relations Financial Affidavits, or discovery or any other regularly court-ordered and required actions took place in the Paulding custody case. The only reason the Respondent filed in Paulding County Superior Court was because his attorney practices in Paulding County and it is evident that your Petitioner has been the victim of some home cooking. See Gordon v. Gordon, 185 Ga. App. 100,( 1987). Further evidence of this bad-faith home cooking is the desperate act of the Respondent and his attorney to rush a Final Order in the Paulding case, said Final Order being presented to Judge Osborne, without prior review by your Petitioner, and executed by said Judge on January 5, 2011, a date after this present case was set for hearing on these venue and jurisdictional matters by Judge Kirby. (See Paulding County Final Order dated January 5, 2011 marked as Exhibit 26 of this Brief) Moreover, the Respondent prepared the Final Order for Judge Osbornes signature without allowing your Petitioner to review the language of the Final Order before submission for execution or with the benefit of reviewing the previously ordered transcripts of the hearing. As such, the Final Order does not reflect the verbal judgment issued from the bench and leaves your Petitioner again in a costly and unnecessary situation of having to appeal the Final Order of Judge Osborne.

. In past proceedings, the Respondent has argued that the 14-year-old custody elections completed by the minor children pursuant to O.C.G.A. 19-9-3 trump and jurisdiction or venue problem that is created by having concurrent custody cases. This is not the state of affairs in Georgia. In Hatch, the Georgia Court of Appeals described the Spaulding County Superior Court proceedings as follows: The judge remarked that the mother's attorney raised "a very good point" regarding where the case should be heard. 4 The judge stated, however, that he was opposed to prolonging the case another six to twelve months, "traveling to DeKalb County one more time to another courthouse, "so that the child can tell a DeKalb County judge "the same thing she's told me," just to have a judge in DeKalb County make the same decision he was making in Spalding County. The judge added that the jurisdictional issue is "a technical thing," and it may not be beneficial to the child in the long run to draw the case out when the result would be the same regardless ofwhere the case was heard. There was no discussion of waiver at the hearing at all (despite the statement in the order prepared by the father's attorney that the issues were waived), only whether it would be preferable to try the case in Spalding County. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.

Unquestionably, Coweta Superior Court has continuing and exclusive jurisdiction of the child custody matters of the minor children of the parties. Your Petitioner prays for a declaratory judgment finding such. Respectfully submitted,

Elisa M. Lowe Petitioner Pro Se

279 Crossroads Estates Drive Newnan, GA 30265 (404) 704-7058