In Re Adl

557 S.E.2d 489, 253 Ga. App. 64
CourtCourt of Appeals of Georgia
DecidedDecember 14, 2001
DocketA01A2350
StatusPublished

This text of 557 S.E.2d 489 (In Re Adl) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Adl, 557 S.E.2d 489, 253 Ga. App. 64 (Ga. Ct. App. 2001).

Opinion

557 S.E.2d 489 (2001)
253 Ga. App. 64

In the Interest of A.D.L., a child.

No. A01A2350.

Court of Appeals of Georgia.

December 14, 2001.

*491 William G. Maston, Savannah, for appellant.

Adam P. Cerbone, Lawrence E. Madison, Savannah, for appellee.

*490 ELDRIDGE, Judge.

Appellant, the biological father of A.D.L. III and the noncustodial parent, appeals the Chatham County Juvenile Court's termination of his parental rights contending, among other things, that the trial court erred in failing to set forth explicit findings establishing parental misconduct or inability under OCGA § 15-11-94(b). The termination petition, filed by the child's biological mother from whom the appellant was divorced in June 1997, sought the termination of appellant's parental rights for nonsupport and abandonment of the child for a period exceeding one year before the petition to terminate was filed. After its hearing, the trial court ordered the termination of the appellant's parental rights, finding parental misconduct or inability for wanton and wilful nonsupport and as in the best interest of the child. OCGA § 15-11-94(a), (b)(2).

Pertinently, the record shows that the parties were married in 1993. Their son, A.D.L. was born in 1995. The following year the couple separated, and divorce proceedings were instituted. On October 31, 1996, a trial judge of the Chatham County Superior Court issued a temporary order in the divorce action, among other things, ordering the appellant to pay $80 per week as child support starting October 27, 1996. When the final decree of divorce was entered in June 1997, the appellant was ordered to pay child support in the amount of $660 per month upon the finding that his gross annual income was $40,000. Thereafter, the superior court twice issued contempt orders against the appellant. The first of these cited the appellant for his failure to deliver a medical insurance policy for the benefit of the child, and the second such order, issued a month later, cited the appellant for his failure to pay court-ordered child support. Notwithstanding the foregoing, no evidence of record reflects the appellant's payment of child support from early February 1997 through the termination hearing in August 1998.

On November 14, 1997, the appellant was discharged in Chapter 7 bankruptcy without distribution of assets, and, at the time of the termination hearing, he owed in excess of $12,000 in child support. The appellant, nonetheless, did not appear at the termination hearing, because the space available, nonrevenue guest airline ticket he obtained to travel to the hearing was cancelled. Noting that the superior court had found that the appellant failed to appear at its May 1997 contempt hearing and at its final hearing on the appellant's divorce two months later, at its termination hearing the juvenile court found that the appellant had "ample opportunity to make arrangements" to be present. It is also undisputed in the record that the appellant had not had contact of any sort with his son for more than 20 months before the termination hearing. Held:

1. Appellant's claim that the juvenile court erred in refusing to consider evidence of his inability to pay child support is without merit. At its August 1998 termination hearing, without objection, the juvenile court properly ruled inadmissible a copy of a document purporting to be a discharge order of the U.S. Bankruptcy Court for the Middle District of Florida discharging the appellant in Chapter 7 bankruptcy as uncertified. OCGA § 24-7-24(a); see also Venable v. Venable, 153 Ga. 689(1), 112 S.E. 891 (1922) (documents in bankruptcy proceedings certified by the clerk of court as correct and complete admissible). Notwithstanding the foregoing and the appellant's failure to appear at the termination hearing despite good notice thereof, the juvenile court gave the appellant leave through counsel to submit a post-hearing affidavit before issuing its termination order. See In the Interest of T.B. R., 224 Ga.App. 470, 478(3), 480 S.E.2d 901 (1997) (notice of hearing under OCGA § 15-11-39.1 reasonably calculated to afford parties *492 due process right of opportunity to be heard). This the appellant did, attaching duly certified copies of the bankruptcy court's orders discharging him in bankruptcy on November 14, 1997, without distribution. As additional evidence in support of his alleged inability to pay, the appellant attached to his post-hearing affidavit two documents purporting to show that he had twice been evicted from rental properties he lived in the year before the termination hearing. There thus is no error for "failure to consider" the evidence supporting appellant's claim of financial inability to pay court-ordered child support as here in issue.

We nonetheless conclude, as the juvenile court found, that the appellant failed to come forward with evidence showing his inability to pay court-ordered child support. Because the debtor's estate in federal bankruptcy law is subject to extensive exemption to ensure debtors a "fresh start,"[1] among other things,[2] protecting their families from impoverishment, see 11 USC § 522(b)(1), (d); In the Matter of Hahn, 5 B.R. 242 (S.D.Iowa 1980), the appellant's discharge in bankruptcy nearly a year before the termination was not probative of his inability to pay court-ordered child support; rather, it indicated the contrary.

Neither were the two documents on which the appellant relies to show that he was unable to pay his rent in the year before the termination hearing probative of more than the nonpayment of rent. Such documents were also inadmissible as hearsay, i.e., the first, as a copy of an additional uncertified order of the bankruptcy court granting landlord Flossie Clemmons relief from automatic stay for the purpose of evicting the appellant, Venable v. Venable, supra, and the second, as a copy of a document denominated "Five (5) Day Notice to Pay or Quit" for want of separate foundations duly authenticating each document and establishing status as a copy of an original writing or record made in the regular course of business. See OCGA § 24-5-26 (admission of a photostatic copy of a writing without accounting for the original admissible if the photostatic copy made in the regular course of business to preserve the writing); see also Suarez v. Suarez, 257 Ga. 102, 103(2), 355 S.E.2d 649 (1987) (admissibility as business record conditioned upon authentication as such).

Juxtaposed against the absence of evidence in the record showing the appellant's inability to pay child support is the undisputed finding of the superior court that the appellant's annual gross income at the time of the final judgment and decree of divorce was $40,000. Nothing of record shows that the appellant sought a downward modification of the court-ordered child support calculated on the basis of such annual income.

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557 S.E.2d 489, 253 Ga. App. 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-adl-gactapp-2001.