Richardson v. Barber

527 S.E.2d 8, 241 Ga. App. 254, 2000 Fulton County D. Rep. 120, 1999 Ga. App. LEXIS 1611
CourtCourt of Appeals of Georgia
DecidedDecember 3, 1999
DocketA99A1005
StatusPublished
Cited by9 cases

This text of 527 S.E.2d 8 (Richardson v. Barber) 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
Richardson v. Barber, 527 S.E.2d 8, 241 Ga. App. 254, 2000 Fulton County D. Rep. 120, 1999 Ga. App. LEXIS 1611 (Ga. Ct. App. 1999).

Opinions

Blackburn, Presiding Judge.

Donald Ray Richardson, the biological father of Zsa Vonn, appeals the trial court’s order which determined that he was not entitled to receive further proceeds from the settlement of Zsa Vonn’s wrongful death suit brought by Zsa Vonn’s mother. The trial court determined that Richardson lacked any meaningful relationship with Zsa Vonn as shown by evidence concerning custody, control, and lack of support and the poor example he set, under the standards of OCGA § 19-7-1 (c) (6). The trial court therefore precluded Richardson from receiving any portion of the remaining proceeds of the settlement of the underlying wrongful death action. The trial court determined that the mother had a meaningful relationship with the child and was entitled to the proceeds of the settlement.

Zsa Vonn’s mother, Janice Barber, filed a wrongful death action against Dr. Homer Breckenridge after Zsa Vonn was killed when Dr. Breckenridge struck him with his car. During the pendency of the wrongful death action, Barber and Richardson entered into a settlement agreement by which they agreed that Barber would control the wrongful death action. The agreement further provided that Barber was entitled to 50 percent of the proceeds from any judgment or settlement with the remaining 50 percent of the proceeds to be held in escrow until Richardson’s rights in the proceeds were determined. Richardson was paid $5,000 upon entering the agreement with the express understanding that if the court determined he was not entitled to further proceeds, such monies were non-refundable.

After Barber obtained a $1,000,000 settlement in the wrongful death action, the parties filed the underlying joint declaratory judg[255]*255ment action for the trial court’s determination of Richardson’s rights in the escrowed $500,000. On appeal from the trial court’s determination of that issue, Richardson raises several enumerations of error.

1. In his first enumeration of error, Richardson contends that the trial court erred by adopting verbatim the proposed findings of fact and conclusions of law prepared by Barber’s attorney prior to announcing the court’s decision regarding such facts and conclusions. Richardson contends that the trial court’s actions effectively deprived him of a thorough consideration of the case.

In their joint complaint, the parties submitted the issues to the trial court based upon the record in the wrongful death action and the depositions and affidavits of the parties and witnesses. They also filed their briefs setting forth their respective positions. Thereafter, the trial court requested that each side present findings of fact and conclusions of law to the trial court and not to each other. The record contains no objection to this request. The trial court adopted the order presented by Barber’s counsel.

Although the practice of adopting orders prepared by counsel has been “greatly disfavored,” it is not reversible error. See PDA, Inc. v. Haas Corp., 185 Ga. App. 785, 786 (366 SE2d 169) (1988); North Fulton Community Hosp. v. State Health Planning &c., 168 Ga. App. 801, 810 (3) (310 SE2d 764) (1983); Pruitt v. First Nat. Bank of Habersham County, 142 Ga. App. 100, 101 (2) (235 SE2d 617) (1977); United States v. El Paso Natural Gas Co., 376 U. S. 651, 656-657, fn. 4 (84 SC 1044, 12 LE2d 12) (1964).

Richardson argues that the order adopted by the trial court contained “inadmissible facts, exaggerations, overreachings, and misquotations from the record.” Specifically, Richardson contends the order’s reference to Richardson’s affidavit as an “ex-parte affidavit . . . prepared by [Richardson’s] lawyer in which he attached a couple of letters from Zsa Vonn” mischaracterized the letters and suggested an impropriety on counsel’s part. Richardson also argues that the order misquotes Richardson when it finds that Richardson described his relationship with Zsa Vonn as, “he was just my boy.” In fact, the record quotes Richardson as saying, “That’s my boy. That was my boy.” And finally, Richardson contends that the order contains inadmissible testimony regarding several matters that were irrelevant.

We do not find that the order’s reference to Richardson’s affidavit mischaracterized the evidence to the extent that it deprived Richardson of a thorough consideration of the case. Additionally, the misquoted language was clearly a scrivener’s error and added little, if anything, to the meaning of the quote. Finally, we do not find that the trial court considered irrelevant evidence. First, the parties themselves in their joint declaratory judgment complaint set forth [256]*256the evidence that the trial court was to review. There were no objections to the trial court’s consideration of any of the evidence in the record. Second, pursuant to OCGA § 19-7-1 (c) (6), the trial court is allowed to consider any factors it finds to be pertinent to the parent’s relationship to the deceased child. The testimony now considered to be irrelevant by Richardson falls within that allowed by the parameters of OCGA § 19-7-1 (c) (6) and the trial court’s discretion.

2. In his second enumeration of error, Richardson contends that the trial court committed reversible error by apportioning the wrongful death proceeds without considering evidence of the child’s relationship with Barber. We cannot agree that the trial court did not consider sufficient evidence of the child’s relationship with his mother.

The joint petition for declaratory judgment specifically requested that the trial court make a determination as to Richardson’s rights in the $500,000 held in escrow. The joint petition did not request any determination as to Barber’s rights in the settlement proceeds. And, her rights to such proceeds were never contested. Additionally, the record does contain evidence that Barber was the only custodial parent that Zsa Vonn had known. Barber supported Zsa Vonn without the assistance, financial or otherwise, of Richardson.

This enumeration is, therefore, without merit.

3. In his final enumeration of error, Richardson contends that the trial court erred by finding that he had abandoned Zsa Vonn.

Initially, we note that a legal finding of abandonment was unnecessary in order to support the trial court’s determination that Richardson was entitled only to the $5,000 he had already received. Additionally, however, we find that the fact of abandonment was supported by clear and convincing evidence that Richardson had failed to provide for the “care and support of [Zsa Vonn] as required by law or judicial decree.” OCGA § 19-8-10 (b) (2). Despite being ordered to do so, Richardson never voluntarily paid child support on Zsa Vonn’s behalf. Richardson admitted that he paid no support for Zsa Vonn for the 12 months prior to his death.

4.

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Richardson v. Barber
527 S.E.2d 8 (Court of Appeals of Georgia, 1999)

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Bluebook (online)
527 S.E.2d 8, 241 Ga. App. 254, 2000 Fulton County D. Rep. 120, 1999 Ga. App. LEXIS 1611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-barber-gactapp-1999.