2011.02.17 transcripts with corrections incorporated no extended

8/6/2019 2011.02.17 Transcripts With Corrections Incorporated No Extended

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IN THE SUPERIOR COURT OF COWETA COUNTY

STATE OF GEORGIA

ELISA LOWE, ))

)Plaintiff, )

)vs. )

) CASE NO. 2010-V-1534)

MICHAEL LOWE, ))

Defendant. )_________________________)

HEARING

FEBRUARY 17th, 2011

COWETA COUNTY COURTHOUSE

NEWNAN, GEORGIA

HONORABLE A. QUILLIAN BALDWIN, JR., PRESIDING

* * *

APPEARANCES OF COUNSEL:

FOR THE PLAINTIFF: ELISA LOWE - PRO SE

FOR THE DEFENDANT: MARTIN ENRIQUE VALBUENAATTORNEY AT LAWDALLAS, GEORGIA

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

DEBORAH SHIELDS MASON, CCRREGISTERED PROFESSIONAL REPORTER

PO BOX 1241CARROLLTON, GEORGIA 30117

770-830-8307


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1 A P P E A R A N C E S

2 FOR THE PLAINTIFF: ELISA LOWE - PRO SE

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4 FOR THE DEFENDANT: MARTIN ENRIQUE VALBUENAATTORNEY AT LAW

5 113 VILLAGE WALKSUITE B

6 PO BOX 1125DALLAS, GEORGIA 30132

7 TEL: 770-443-2204FAX: 770-443-6613

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1 (NEWNAN, GEORGIA; COWETA COUNTY; FEBRUARY 17th, 2011.)

2 P R O C E E D I N G S

3 THE COURT: This was such a confusing case, and I was

4 having a hard time without knowing anything much about

5 this case the last time when we were in court, really not

6 knowing anything about it and keeping up with what y'all

7 were talking about. I've had a chance to deal with that

8 and had both my law clerk and I go through this and try to

9 determine where we are in this case.

10 Ms. Lowe, I'm going to try to tell you, you're not

11 going to like what I'm fixing to say. I can't do anything

12 about that. Several years ago I had a lawyer in the

13 courtroom, and she represented a lady. There was a lawyer

14 out of Atlanta that represented the guy, and the guy was

15 absolutely the biggest jerk I've ever seen in my life. I

16 would have done anything legally that I could do, because

17 he was such a jerk, to hold him in contempt or those kinds

18 of things. And that lawyer was in court asking me to do

19 that, but she didn't have any grounds for that. She

20 didn't have any legal grounds for what it was. He was a

21 jerk. I didn't blame her for asking.

22 Your problem is that you bring up all this stuff, but

23 a lot of it legally you can't do. So I'm sorry. I'm

24 sorry you say you can't afford a lawyer. But this is

25 where we are in this case. Basically you have asked

WASTE OF

MONEY


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for - - le t me j us t deal with the Paulding County thing.That i s over. I could do nothing about the PauldingCounty thing. The las t time we were here, we were taJkingabout so many things I wasn' t sure. r should have toldyou th i s then. I wasn't sure; but now I 'm sure. Youravenue to complain about that i s an appeal. I t ' s not tocome to me, another court, another Superior court and saytha t a Superior Court was wrong. So we're not even goingto ta lk about i t . And unfortunately you're out of timefor appeal.

MS. LOWE; I 've already done tha t .THE COURT: Then tha t ' s f ine. You can do tha t . But

I can ' t do anything about tha t . So t ha t ' s a done dealtill they do something about i t . I think from what I 'veseen, although I haven ' t delved into tha t problem much,but since Judge had dismissed the case that waspending here, there was nothing pending here.

MS. LOWE; Yes, they were. They s ta r ted the i rs inMarch of 2008. He didn ' t dismiss i t unt i l December of2008.

THE COURT: When he dismissed i t , there wasn' tanything here. And the order tha t they signed was beforethe aff idav i t , wasn' t i t?

MS. LOWE: (Head shook in the negative.)THE COURT: I t wasn't? Anyway, you're going to have.

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for - - le t me j us t deal with the Paulding County thing.That i s over. I could do nothing about the PauldingCounty thing. The las t time we were here, we were taJkingabout so many things I wasn' t sure. r should have toldyou th i s then. I wasn't sure; but now I 'm sure. Youravenue to complain about that i s an appeal. I t ' s not tocome to me, another court, another Superior court and saytha t a Superior Court was wrong. So we're not even goingto ta lk about i t . And unfortunately you're out of timefor appeal.

MS. LOWE; I 've already done tha t .THE COURT: Then tha t ' s f ine. You can do tha t . But

I can ' t do anything about tha t . So t ha t ' s a done dealtill they do something about i t . I think from what I 'veseen, although I haven ' t delved into tha t problem much,but since Judge had dismissed the case that waspending here, there was nothing pending here.

MS. LOWE; Yes, they were. They s ta r ted the i rs inMarch of 2008. He didn ' t dismiss i t unt i l December of2008.

THE COURT: When he dismissed i t , there wasn' tanything here. And the order tha t they signed was beforethe aff idav i t , wasn' t i t?

MS. LOWE: (Head shook in the negative.)THE COURT: I t wasn't? Anyway, you're going to have.

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Do we need to set straight that we were only looking for declaratory

udgement? or will the appeallate court figure it out? WE ASKED


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THE COURT: So we can do nothing about that today.MS. LOWE: Orig ina l ly ! came because we had been

t rying to come to court for several months.THE COURT: Ma'am, l e t me jus t ta lk . Okay?MS. LOWE: Okay.THE COURT: You do have a claim against him for the

IRS s tuf f . I don ' t know why tha t IRS thing has not beenpaid or you d idn ' t a t leas t pay her $50,000 on tha t . Andi t appears tha t you have not ever complied with the courtorder to pay back the $50,000.

MS. LOWE: There was a re lease of the l i en tha t wasf i led with the IRS years ago.

THE COURT: So tha t ' s been released?MR. VALBUENA: Yes, Judge.MS. LOWE: Let me see what you're talking about.MR. VALBUENA: We explained tha t to Judge 'Smith back

in 2008 when I argued the case. That 's a l l been heard byJudge Smith. He issued an order .

THE COURT: I thought Judge Smith I think I didn ' tlook tha t one up; but I thought Judge Smith ordered him topay $50,000 back to her.

MR. VALBUENA: He did, Judge. .And then they came tocourt . Mr. Lowe wasn' t there, a n d ' ~ r . Lowe was found in .

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THE COURT: So we can do nothing about that today.MS. LOWE: Orig ina l ly ! came because we had been

t rying to come to court for several months.THE COURT: Ma'am, l e t me jus t ta lk . Okay?MS. LOWE: Okay.THE COURT: You do have a claim against him for the

IRS s tuf f . I don ' t know why tha t IRS thing has not beenpaid or you d idn ' t a t leas t pay her $50,000 on tha t . Andi t appears tha t you have not ever complied with the courtorder to pay back the $50,000.

MS. LOWE: There was a re lease of the l i en tha t wasf i led with the IRS years ago.

THE COURT: So tha t ' s been released?MR. VALBUENA: Yes, Judge.MS. LOWE: Let me see what you're talking about.MR. VALBUENA: We explained tha t to Judge 'Smith back

in 2008 when I argued the case. That 's a l l been heard byJudge Smith. He issued an order .

THE COURT: I thought Judge Smith I think I didn ' tlook tha t one up; but I thought Judge Smith ordered him topay $50,000 back to her.

MR. VALBUENA: He did, Judge. .And then they came tocourt . Mr. Lowe wasn' t there, a n d ' ~ r . Lowe was found in .

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EEDS CHANGED

IMINE

ECUSAL

IMINE


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1 contempt for not paying the $50,000; and he was ordered to

2 go to jail.

3 In April of 2008, he was taken into jail on that.

4 Judge Smith released him, let him come out of jail for his

5 hearing. We had a hearing here in April of 2008. Judge

6 Smith heard it. Found that he had purged himself of the

7 contempt and issued an order to that effect.

8 MS. LOWE: I beg to differ. There's no order.

9 MR. VALBUENA: I've got the order he sent me, Judge.

10 MS. LOWE: There's not an order.

11 MR. VALBUENA: I got the order he sent me.

12 THE COURT: Let me see the order he sent you. It's

13 signed and filed.

14 MR. VALBUENA: It's signed, Judge, but I just have a

15 copy; I don't have the original. I assume Judge Smith

16 sent the original to the Court. I got the copy.

17 THE COURT: Who typed this up?

18 MR. VALBUENA: I typed it up and prepared it and

19 submitted it to Judge Smith.

20 THE COURT: In our circuit usually the policy is that

21 we send these back to the lawyer, and we expect them to

22 get it filed. So I don't know. You don't have a file

23 date on here. This is that 04-32 case which then later

24 Judge Lee dismissed.

25 MR. VALBUENA: That's correct, Judge.

LIMINIE (cont)

LIMINE

Is


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MS. LOWE: However, the modification i s separatelycontested. They're separate cases.

THE COURT; All I can t e l l you i s th i s case numberhas been dismissed.

MS. LOWE: What? The contempt action can be broughtwith a modificat ion. You can do tha t . You can ' t modifyin a contempt action l ike today. You can ' t mOdify i t , buta contempt action i f they ' re sp l i t and the two which JudgeSmith would not hear anything on child support , he onlyheard the IRS - -

Judge Smith in 2008 had the hearing. I 've got thee-mail . We were going to work it together and then sendit to Judge Smith. The next thing, he sent an order.

I called Judge Smith, e-mailed him, faxed him. Ihave the fax cover sheet saying tha t I did not agree withwhat he was putt ing, what he was saying and that I wantedhim to ca l l me. Nothing ever happened. I never receivedan order . That order i s not f inal . And the order i s notan order tha t i s reduced to writ ing and f i led with theSuperior Court clerk .

THE COURT: I agree with tha t . I don ' t know wherethe original i s , Mr. Valbuena, but t ha t ' s your l i t t l e redwagon you're supposed to take care of. You know, i f itwas my cl ient , even i f you thought the judge did i t , Icer ta inly would under those circumstances make 5ure it was

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you cant dismiss the contempt part when it was only askingto enforce an order that was made in 2001, gus made referrenc

The Court's Order allowed the Defendant to purge himself of his contempt by paymentof $50,000.00 to the Defendant, which sum had previously been paid by the Defendant to the

Plaintiff. The Court reserved ruling on other issues presented by the Motion for Contempt PAGE 4 STA

OF CASE TO APPEALS COURT WRITTEN BY GUS.

THE REASON JUDGE SMITH WANTED ME TO COME UP WITH ANY MONEY THAT

i HAD PAID THE IRS WAS SO THAAT HE WOULD ADD TO THE AMOUNT OF 50K. IF HE

INTENDED FOR MIKE NOT TO PAY ME BACK IF I COULD NOT PRODUCE RECEIPTS THEN

IT IS DOUBTFUL HE WOULD HAVE MADE HIM EMPTY HIS CHECKBOOK AND CLOSE HIS

RETIREMENT ACCOUNT AND PAY IT TO ME.

We need the law that

says this!!


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f i led.MR. VALBUENA: I think that Judge Smith already ruled

on those i ssues . But regardless , the IRS has released herfrom any l i ab i l i ty .

THE COURT: I understand tha t . I understand tha t .So there ' s no IRS claim.

MS. LOWE: Yes, s i r , there i s . There 's two l iensthat take place during tha t t ime. Number one. And numbertwo i s during testimony.

THE COURT: Show me the two l iens .MS. LOWE: The testimony of the par t ies .THE COURT: Hold on j us t a second.COURT REPORTER: Ms. Lowe, when you speak would you

speak up a l i t t l e b i t louder, please?MS. LOWE; Yes, I wil l .THE COURT: We need to swear both of y 'a l l . You're

represent ing yourself .Let me see. This i s $17,811.36; and th is i s f i led

October 17th. And I'm jus t t rying to see i f there ' sanything on here that re la tes to tha t . This isOctober 17th, 2002. And I have no idea. I t was $8,000and something plus in teres t .

MR. VALBUENA: Judge, I'm not sure what you'relooking a t for Ms. Lowe. I 've got a copy of the federaltax l ien tha t was f i led in '97 and '98. The two numbers.

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1 total $121,344.

2 THE COURT: I know.

3 MR. VALBUENA: The release of the document I just

4 handed you, that's the release for the same amount. He

5 was ordered to pay the tax for '97 and '98. He was

6 ordered two responsibilities for that. That release shows

7 that she's no longer responsible.

8 THE COURT: I saw that. I'm with you on that.

9 MS. LOWE: He was originally ordered to assume

10 responsibility, and Judge Smith said, pay him the $50,000.

11 The IRS has not collected.

12 THE COURT: Has the IRS tried to do anything?

13 MS. LOWE: The IRS is considered uncollectible.

14 Therefore, he has taken my money and not paid the debt.

15 And here I --

16 THE COURT: This says he has paid that, that you're

17 released.

18 MS. LOWE: Has not paid. My point is, and I'm going

19 off of Judge Smith's order that says Michael Lowe took my

20 $50,000. Now, say he didn't pay the IRS. He hasn't paid

21 the IRS. So why is it fair for him to keep the money and

22 not pay the IRS and give me my money back? At least that

23 would help with my credit that has suffered and everything

24 else. This is a valid order, Your Honor.

25 THE COURT: Well, Ms. Lowe, I'm not going to argue

The Plaintiff, Michael L. Lowe, shall be solely and totally responsible for payment ofindebtedness owing to Internal Revenue Service for taxes due for the calendar years 1997 and1998, plus all penalties, interest and any other assessments that have accrued on such unpaidindebtedness. The Plaintiff shall indemnify and save harmless the Defendant from any claims ordemands which may be made against her as a result of said indebtedness, such indemnity toinclude without limitation any legal or accounting fees or court costs incurred by the Defendantwith respect to any such collection efforts by Internal Revenue Service

He AGREED in the Amended Decree. He was Ordered 50kthere was no "two responsibilities ordered"

LIMINE


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1 with you. I know the contempt law probably ten times

2 better than you do. After Judge Lee dismissed this thing,

3 this case is gone. Everything in that case is gone, okay?

4 I'm not going to argue with you. If you don't like it,

5 you can appeal.

6 MS. LOWE: Even that order that was appealed to the

7 Supreme Court, and they dismissed it.

8 THE COURT: They didn't dismiss this.

9 MS. LOWE: Yes, they did. The Supreme Court heard

10 this, which was why I was in shock that they brought it

11 back in 2008.

12 THE COURT: That's not what our notes show. Our

13 notes show the Supreme Court -- hold on just a minute.

14 January 17th, 2006. Georgia, Supreme Court of Georgia

15 contempt appeal, and it says dismissed. I thought I saw

16 another one somewhere that was appealed, but that one was

17 dismissed.

18 MS. LOWE: So, in fact, he was found in contempt in

19 2001, and the 2001-V-32 he was --

20 COURT REPORTER: Ma'am, would you please speak up and

21 a little slower, please?

22 THE COURT: Look. That is what we're going to do. I

23 can't do anything about the Paulding County claim. It

24 appears that he has taken -- you have gotten rid of any

25 liability that you may have to the IRS. Now I don't know.

LIMINE

I wonder if this part may could be used in Paulding. Saying everything

gone. Proof there was no order giving him joint custody.???

So he


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1 What did you do with the $50,000 that she gave you?

2 Let's swear both of you, by the way. I don't think

3 either one of you have been sworn.

4 ELISA LOWE AND MICHAEL LOWE,

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

6 and testified as follows:)

7 MR. VALBUENA: Judge, if I could, his contention in

8 that case back then was he never received $50,000. They

9 had a hearing on that in the 2001 case, and the judge

10 ordered that he did receive it. So when you say, what did

11 you do with it, his answer to me, I never received it. He

12 lost that, in one of those earlier cases, he lost that

13 battle; so we're not here trying to say --

14 THE COURT: Did she come forward with a cancelled

15 check or anything?

16 MS. LOWE: It was an agreement signed.

17 THE COURT: Do you have a copy of the agreement?

18 MS. LOWE: Yes, sir.

19 MR. VALBUENA: Judge, I don't think it's an

20 agreement. That's what he was ordered to do.

21 My point is, I don't see the relevance of that today

22 either because he was ordered to pay --

23 THE COURT: Let me just ask the question. Do you

24 mind? I'm trying to sort this thing out.

25 MR. VALBUENA: I guess, Judge, let me just --

LIMINE

WHO THE HELL IS THE JUDGE HERE?

No hearing itwas in theAmendedDivorce

I shouldn't have said agreement, I should have said it's in the amended decree. I see that one.W


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1 THE COURT: I have a simple question. You say that

2 he never got it. That's the answer to the question.

3 MR. VALBUENA: I just want to say for the purposes of

4 the case, I want to object to your going into issues that

5 aren't before the Court, which I don't think this one is.

6 THE COURT: I'm not sure what is because it's crazy.

7 Let me see what the agreement is. Ma'am, an agreement and

8 the fact that he got it and paid it or did something with

9 it are two different things. He, in an amended divorce

10 decree, was ordered to pay the IRS, right?

11 MS. LOWE: He admitted to paying it.

12 THE COURT: He admitted to paying it?


14 THE COURT: Where does it say that?

15 MS. LOWE: Right there.

16 THE COURT: The defendant paid and delivered to the

17 plaintiff over $50,000 with an understanding towards claim

18 if plaintiff accepted said sums from the defendant for

19 payment of said taxes but failed to apply said payment to

20 income taxes -- (Reading from document.)

21 Mr. Lowe, what have you got to say about that?

22 MR. VALBUENA: Just the very next paragraph is what

23 we have to say about it. Go ahead. Read the next

24 paragraph.

25 The plaintiff, Michael Lowe, is going to be solely

AND SO IS HE.

epping in for lowe


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1 and totally responsible for the payment of the

2 indebtedness -- (reading from document) -- The plaintiff

3 shall indemnify and save harmless the defendant from any

4 claims in the making.

5 That's when we came back in front of Judge Smith.

6 Ms. Lowe at that point is asking again for the $50,000.

7 I said, Judge, he doesn't have to pay the 50,000

8 back. He has to hold her harmless for anything she's paid

9 out.

10 She said she had paid out some sums of money. Judge

11 Smith ordered her to provide proof of that, ordered us to

12 make payments that based on what she said at trial before

13 she had any proof, we made the payments of more than two

14 or $3,000 for that. That's all included in the order that

15 Judge Smith signed that hasn't been filed.

16 But the reality is he wasn't ordered to pay $50,000.

17 He was ordered to assume sole responsibility.

18 THE COURT: What it was was he said in here that she

19 paid him $50,000 and that he was to apply it towards that

20 debt.

21 MR. VALBUENA: And yet because he didn't he was to be

22 solely responsible for the taxes.

23 THE COURT: That isn't what it says.

24 MR. VALBUENA: That's exactly what it says, Judge.

25 THE COURT: It does not. It says he'll be solely

skips a big part/

for taxes due for the calendar years 1997 and1998, plus all penalties, interest and any other assessments that have accrued on such unpaidindebtedness.

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 indeminclude 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

NOTE: Indemnification may work by either reimbursement or through direct compensation to the liable party.

"such imdemnity to include without limitation any legal or accounting fees or court cost incurred by thedefendant with res oect to an such collection efforts b the IRS. "(amended decree)

8 years later!

LIMINE

CO

CL

NO I WAS ASKING HIM TO UPHOLD A CONTEMPT FROM 2001 AND A SUBSEQUENT 50K ORDER IN 2005 IN 2004V32- AS W

A ORDER DISMISSING HIS APPEAL FROM SUPREME COURT DECISION.

HE

Judge Smith made him cash in his teacher retirement account, empty his checkbook at the time of 600-700$ He told him that he kne

And that I would get my money. He then asked if I had paid any additional money to the IRS over and above the 50k. I told him m

were very confusing back then due to Personal, Elisa Lowe Inc. and Mikes business taxes. I knew I had paid penalties but had no idea on

years they were for etc. He told me to get receipts and that he would make sure I got that also. He was very harsh to Mike. He also sai

I would get fully reimbursed by the 15th of May or June and that I would have sole custody of the boys until I w

Martin wrote in an email to Judge Smith: Ms. Lowe thought she was to be paid in full by the 15th and that she would h

custody of the children until she was paid.....something to the effect of, I don't believe you said that. (I'll attach the lett

I believe this was just more of Martins confusing the court in order to get what he wants.

LIMINIEMa

PRET
http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/http://2000.5.18%20amended%20final%20decree%20irstwo%20liens.pdf/


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1 responsible for them, but it didn't say if he didn't pay

2 the $50,000.

3 All I'm asking him is what did he do with the $50,000

4 that he said he got right here.

5 MR. LOWE: 2000, 1999.

6 THE COURT: You got your name on here, Mr. Lowe.

7 Wait just a minute. Just sit down, Ms. Lowe.

8 You signed this yourself saying you got the $50,000

9 and that you were to apply it. So what did you do with

10 the $50,000?

11 MR. LOWE: Your Honor, I never received the $50,000.

12 I signed that.

13 THE COURT: Why did you sign something saying you

14 did?

15 MR. LOWE: Well, to be honest because I thought that

16 Elisa and I would work together. This has been 2000.

17 This is now 11 years that we've been moving back and

18 forth. We initially, when we got divorced and I came

19 through that divorce agreement, I just wanted it to be

20 finished and finalized. I never thought it would go to

21 this. I thought she would actually pay me the $50,000,

22 but I never received the $50,000.

23 THE COURT: Let me just ask you this. The last

24 question -- no more arguing about this point. Do you have

25 a receipt for the $50,000? A receipt, not this agreement,

really mike? :)

Why should it matter? Talk about whanot before the court Martin, sheesh! /:

BECAUSE HE WASN'T ORDERED TO DO THAT YET. IT WAS A

SUBSEQUENT ORDER THE ONLY VALID ORDER IN 2004 V 32


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1 but a receipt?

2 MS. LOWE: I can easily get one from Smith Barney.

3 THE COURT: Golly, Moses, Ms. Lowe. We're in court.

4 I'm not modifying anything. You want him to pay you

5 $50,000.

6 MS. LOWE: To enforce an order.

7 THE COURT: You can't show. Well, that order is

8 gone. I'm not going to argue with you about that any more

9 either.

10 He's got a document there that says that you've been

11 released from the debt, so what I want to ask you is --

12 MS. LOWE: There's no document the same tax year, I

13 am not --

14 THE COURT: Have you got a certified copy from the

15 IRS saying that you're not released from the other thing?

16 MS. LOWE: No, sir.

17 THE COURT: Ma'am, if you're going to represent

18 yourself, you've got to come to court with the same type

19 of information that we would require your lawyer to have.

20 MS. LOWE: I understand that.

21 THE COURT: You would need certified copies.

22 MS. LOWE: I didn't think it was proper to

23 re-litigate an order that has already been in place.

24 THE COURT: Ma'am --

25 MS. LOWE: This is a contempt action on him to

Recusal recusal recusal.... what an idiot.

another document.

I would think Martin should have provid

with that in his discovery Kirby told him

I actually did have a certified copy of the 17k tax lien

show


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1 enforce an order.

2 THE COURT: I know exactly what it is. He's got to

3 be in contempt.

4 MS. LOWE: He is in contempt.

5 THE COURT: I see right now you can't prove that he's

6 in contempt.

7 MS. LOWE: In 2001 --

8 THE COURT: Wait just a minute. Wait just a minute,

9 or I'm going to hold you in contempt and put you in jail

10 right here.

11 Do you understand me?


13 THE COURT: All right. You cannot prove that you

14 gave him the $50,000; so that's out the door. Wait just a

15 minute. That's out the door. So we don't have the thing

16 about Paulding County. We don't have the thing about the

17 taxes.

18 Now, I will say the thing about the child support is

19 problematic because of the way y'all did this because you

20 had an order in there that said neither one of you would

21 pay child support for a period of time. That causes a

22 problem in figuring out what's what. Let me find which

23 one that was. Since Judge Lee dismissed that case, I

24 would say that order is not in effect.

25 So then we have to go back somewhere at some point

Go Elisa :)

also part of the 2004 he said was dead "everything in it" wh

oops nevermind

I cant believe it again, I'm here to have him enforce orRECUSAL


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1 somewhere and figure out where we start with the $750,

2 although I would say from May 7th, 2004, up until Judge

3 Lee signed the order that he signed, I would be reluctant

4 to hold him in willful contempt for those approximately

5 four years because Judge Simpson had signed an order that

6 said that plaintiff's child support obligation is

7 suspended pending further Order of the Court. Evidently

8 there was no further Order of the Court; isn't that right?

9 MS. LOWE: The plaintiff took the risk by charging

10 all the erroneous charges saying that I had a drug

11 problem.

12 THE COURT: That doesn't have anything to do with the

13 child support.

14 MS. LOWE: It does.

15 THE COURT: You have got to have an order there that

16 says you weren't paying anything.

17 Now, I don't totally disagree with you that once it

18 was dismissed none of this existed which should go back.

19 But the problem is is you've got about four years, not

20 quite four years, but approximately four years there that

21 he had a court order saying he didn't have to pay

22 anything.

23 So I'd be reluctant to hold him in willful contempt

24 on that amount. I would need to go back to the order that

25 he was ordered to pay the 750.

By George I think he's got it. nahhhh


18/47

18

1 MS. LOWE: That was August 14th, 2001.

2 THE COURT: August 14th, 2001; I've got that

3 somewhere.

4 It was filed August 14th; $750 per month from

5 August 14th, 2001 till the agreement that Judge Simpson or

6 that temporary order that Judge Simpson signed on May 7th,

7 2004. Judge Lee signed his order December of 2008.

8 MS. LOWE: May I bring a case that I pulled up on

9 this?

10 COURT REPORTER: Ma'am, please speak up if you want

11 what you say on the record.

12 THE COURT: May you bring me a case what?

13 MS. LOWE: (Inaudible) -- A child support judgment

14 cannot be modified retroactively.

15 THE COURT: Well, the 750 at the time he was not

16 paying anything, was he?

17 MS. LOWE: Correct.

18 THE COURT: What I'm saying was he wasn't ordered to

19 pay anything.

20 MR. VALBUENA: Before the 2001 order, that's correct.

21 THE COURT: Okay. This is what it looks like to me.

22 From August 14th, 2001 to June 10th, 2004, that's when the

23 order was filed. I calculated that as 34 months. That's

24 actually 34 months lacking a couple of days there. But

25 for practical purposes it was 34 months. And from 2008,


19/47

19

1 December 2008 till December 2010, it's 25 months. So

2 that's 59 months.

3 It looks like to me that that totals $44,250 that he

4 probably should have paid in child support, but I'm

5 gathering y'all say he didn't pay. But I know at some

6 point you said he paid like $9,000 or something.

7 MR. VALBUENA: Two things, Judge. The Paulding

8 County case, the judge there issued an order on

9 August 9th, nunc pro tunc July 21, pay the father's child

10 support obligation because the father after that temporary

11 hearing, the father had primary physical custody of the

12 children.

13 THE COURT: From when to when to when?

14 MR. VALBUENA: In the period you said from December

15 of '08 to December of 2010, from December '08 until July

16 of 2010.

17 THE COURT: December of '08 to --

18 MR. VALBUENA: To July of 2010.

19 THE COURT: Okay. So it would be seven months to

20 July is what you're saying.

21 MR. VALBUENA: It would be four months, five months

22 left in the second period.

23 THE COURT: It would be seven months.

24 MR. VALBUENA: It would only be 20 months instead of

25 25.1 year, 7 months, 14 days December


20/47

20

1 THE COURT: I know, but I'm just saying 2010.

2 MR. VALBUENA: Would be seven months.

3 THE COURT: Seven months.

4 MR. VALBUENA: And then, Judge, we have the temporary

5 order in the Paulding County case.

6 Then, Judge, as to the period from August of 2001

7 until April of 2005, our defense for that is that Mr. Lowe

8 had the children the majority of that time, which was what

9 was litigated in the 2004 case which is why Judge Smith

10 said he didn't owe any back child support. That's our

11 defense, and that's what we'll be litigating today.

12 THE COURT: That's another thing. He says it this

13 way. I'm assuming the way things have been going, she's

14 denying that.

15 So have y'all got some independent evidence of that?

16 MR. VALBUENA: We have school records, e-mails, him

17 checking the kids out of school. The e-mail showing that

18 you have the kids this time; you have the kids that time.

19 Yes, Judge, we have all of that. All of that was

20 presented in 2005, but we'll present it all again today.

21 THE COURT: What I'm asking you is, of course, I'm

22 not sure how much of that is admissible unless you've got

23 it in the proper form.

24 MR. VALBUENA: It's all in proper form. It's the

25 communications between the two of them and his own

he didn't filecustody .mod u2004 claiming it was 1 year. bthen and b.s. n


21/47

21

1 testimony.

2 THE COURT: That's fine. I was just saying I just

3 didn't know whether it was or wasn't, whether y'all had

4 just gone to the school and got these records. But you

5 can't testify.

6 MS. LOWE: I tried to file a motion to set aside, and

7 it was denied by Judge Kirby in October.

8 THE COURT: I'm not going to re-litigate that if he's

9 already denied it.

10 MS. LOWE: I'm saying I'm having to deal with the

11 IRS.

12 MR. VALBUENA: She's saying that she filed a contempt

13 in that 2004 case, and she lost because of the defense

14 that he raised.

15 Now she's filed another contempt alleging that same

16 child support. She doesn't want to allow us to raise

17 those defenses we raised in that case because that case,

18 you already did that. You did it in that case. You don't

19 get to do it again. Well, you can't have your cake and

20 eat it, too.

21 THE COURT: You're right about that.

22 MR. VALBUENA: We're going to have the same defense

23 we had then with the same result.

24 MS. LOWE: Your Honor, I would like to please call a

25 witness that can offer some proof on this.

This needs to be changed big time to HE tried to file or either Valbuena

this,. either way it has to go.

I have no idea what but I know i didn't say this.

can anything be done like objecting to this

LIMINE

WTF?


22/47

22

1 THE COURT: Proof on what?

2 MS. LOWE: On what Mike is saying is false, and he

3 has dealt with him extensively.

4 THE COURT: Have a seat. Y'all are saying that when

5 Judge Smith ordered him to pay the 50,000, he said that he

6 didn't owe any child support.

7 Is that in his order?

8 MS. LOWE: Well --

9 THE COURT: Be quiet.

10 MR. VALBUENA: Judge, that's in the transcript.

11 Remember an order was never signed on that. That's in the

12 transcript on page 3 of the transcript.

13 He said, "I heard all y'all. It's too confusing.

14 I'm going to find that no back child support is owed

15 because I can't figure out who has the kid when, so I'm

16 going to find no child support."

17 THE COURT: That's the reason why I'm saying it's

18 problematic --

19 MR. VALBUENA: I agree.

20 THE COURT: -- is that they're going to get up there

21 and say one thing, and you're going to say another. I'm

22 probably not going to be able to make heads or tails of

23 really who had the child.

24 This is the deal. Let's say, the way it usually

25 works is the mother has the children and the father is

NO HE WAS SAYING SIMPSONS 2004 ORDER WAS THE PROB


23/47

23

1 ordered to pay child support. Usually, not always, of

2 course. Maybe they work out visitation rights and he has

3 them for two months in the Summer or something like that.

4 He has them as part of Spring break and part of Christmas

5 and all that. But unless they've agreed to something

6 differently or the Court to something differently, he's

7 still got to pay that child support all through that time.

8 It doesn't just stop because he's got them. It stops if

9 there's some court order that says it stops.

10 MR. VALBUENA: Or it stops, Judge, if she, if a

11 non-custodial parent allows the custodial parent to assume

12 primary physical custody of the children and the custodial

13 --

14 THE COURT: Actually that's not true, Mr. Valbuena.

15 Let's just say that she did that and you got 20 witnesses

16 in here, and she doesn't have anybody that says those

17 children were living with him all the time. I probably

18 wouldn't make him pay it.

19 MR. VALBUENA: There's a Department of Human Resource

20 case that the Court of Appeals said that.

21 THE COURT: Okay. I probably wouldn't make him do

22 it. But it's got to be clear that that's what happened.

23 If it's not clear, they can't on their own modify the

24 child support.

25 MR. VALBUENA: Judge, I don't disagree with you. I


24/47

lOP F R O ~ l : TO: 18666986080 P: 10-13

1 guess my point i s a l l of that was l i t iga ted in the 2004 case,2 but we don ' t have an order in .3 THE COURT: That 's not my faul t .4 MR. VALBUENA: I'm not saying it is , Judge. But to56789

10111213141516171819202122232425

me in the in teres t of judicial economy and the in teres t ofendorsing the unclean hands of MS. Lowe, it jus t seemsridiculous to go back and re - l i t iga te on tha t . But we'rehere today prepared to do that .

THE COURT: I'll give you a chance.MR. VALBUENA: She can ' t t e l l us we can ' t ra ise those

defenses because you raised them in the 2004 case.THE COORT: No, you're r ight about tha t .MS. LOWE: I did not lose. There was never an order.

And i f there was an order, i t was not signed.THE COURT: Look.MS. LOWE: I can ' t appeal i t . I couldn ' t . There's

no way to appeal i t . I would have los t that r ight .THE COURT: That 's a l l r igh t . I t ' s okay. You're

r ight . They didn ' t get an order on i t , and the re ' s noorder back there.

I would assume he must admit tha t he owes some childsupport .

MR. VALBUENA: We did that in our br ief , Judge, inour l e t t e r to you I told you what we owe.

THE COURT: What do you owe?24


25/47

25

1 MR. VALBUENA: It was 3,000 -- 2,050 in child

2 support. We agreed we owe the $590 in attorney's fees.

3 And we agreed under that 2001 order he was ordered to pay

4 25 percent of any amount that he owed over $3,000 a month,

5 and we agreed that we owed an additional $339 for that.

6 The total that we agree we owe is $2,979.

7 THE COURT: Let me ask you this. What about her

8 allegation that he was supposed to help pay for the house

9 or something for a period of time? What about that, and

10 he didn't do it?

11 MR. VALBUENA: Judge, if you see in my letter, again

12 I object to that being before the Court because that was

13 never raised in the complaint or the amended complaint

14 until the wherefore prayer clause and the wherefore

15 complaint. That's problem number one.

16 THE COURT: I thought this had been amended.

17 MR. VALBUENA: It's in the prayer for relief in the

18 amended complaint.

19 THE COURT: Well, I agree. I remember seeing it.

20 Let me just look at it again. Hold on just a second.

21 MR. VALBUENA: Paragraph 40 of the amended complaint,

22 Judge.

23 THE COURT: Well, again you don't have a lawyer. You

24 say something like previous contempt of incarceration,

25 which is kind of like a little history of what has


26/47

26

1 happened; but that's not an allegation of contempt.

2 MS. LOWE: He was found to be contempt of this in

3 2001.

4 THE COURT: By whom?

5 MS. LOWE: By Judge Simpson.

6 THE COURT: Which case was that?

7 MS. LOWE: The same case.

8 THE COURT: The 2004-32?

9 MS. LOWE: No, sir. The 2001, 2001 when he gave me

10 the child support. He also had a petition for contempt

11 for child support, and it's on there that Mr. Lowe provide

12 medical insurance, that he provide copies of his income

13 tax returns, which I have still not received. His failure

14 to vacate the marital residence as is required by

15 agreement of the parties, and failure to pay federal

16 income tax. The plaintiff testified he sought innocent

17 spouse instead of paying or taking the heat. He filed

18 innocent spouse against me. He was found in willful

19 contempt right there. Then --

20 THE COURT: Hold on. I'm trying to find Judge

21 Simpson's order that had the 750 in it. I think I pulled

22 it out. Let's see what he said.

23 What do you say about Judge Simpson's 2001 order,

24 Mr. Valbuena?

25 MR. VALBUENA: What part, Judge?


27/47

27

1 THE COURT: The part where he says that he failed to

2 pay for the residence and that he was in contempt for

3 that.

4 It says the plaintiff filed motion for contempt due

5 to the plaintiff's failure to provide medical insurance

6 coverage for the children, failure to provide copies of

7 the federal income tax return, and failure to vacate the

8 marital residence by agreement between the parties, and

9 his failure to pay federal income tax.

10 It doesn't say anything about paying for the

11 residence. Where is that? Where does that hold him in

12 contempt?

13 MS. LOWE: He was in willful contempt for those

14 things.

15 THE COURT: It says failure to vacate the residence.

16 Is he in the residence now?

17 MS. LOWE: No, sir. The deal with the divorce

18 decree, he was allowed to stay in the house so that I

19 could get another home. He stayed in the house, and he

20 was going to make payments. That was something we did

21 because I could afford another house.

22 So out of 13 months there he paid three months in

23 payments. He was supposed to vacate it or turn it back

24 over to me if it became more than two months past due. He

25 never let me know. The first I knew is that he had moved


28/47

28

1 out with his girlfriend. And on 5-25 of '01, moved out,

2 left the house a wreck.

3 I went over there. Cleaned it up. I was a real

4 estate agent. Cleaned up the house. Put it on the

5 market. I got a contract on it pretty quickly. At that

6 time the State ran -- at that time the foreclosure was in

7 such a belated state that we could not stop it because of

8 the contract -- it was a good price contract. We got the

9 broker to testify to that. They had a contract on it for

10 $224,000. We -- (inaudible) -- the house for 179. I put

11 $5,000 to -- (inaudible) -- from my previous house. From

12 the sale of this house, I was supposed to get 5,000 off of

13 the top, and they were going to split the rest.

14 So I had the 224. I lost $50,000 or we lost $50,000.

15 But I'm even being nicer about it in saying okay, it was

16 foreclosed on on the 3rd of -- this is the home that was

17 advertised on June 7th, 14th, 21st, and 28th. And let's

18 see. I received a contract a couple weeks later. And

19 they said they wouldn't close. The mortgage company would

20 not wait past the close date, which was July 3rd. They

21 would not wait past that, and that's in the real estate

22 agreement. He knew he could probably take the house.

23 They wouldn't work with the foreclosure on the house.

24 Then they took it and did a short sale on it for 214.

25 So yes, that was my money lost. He paid again three

FULL

PURCHASED

TOWARDS DOWN PAYMENT

THEY KNEW THEY COULD TAKE THE HOUSE AND MAKE MONEY


29/47

29

1 months' payments in that ten months.

2 THE COURT: This is what I want y'all to do. It's

3 the silliest thing I've ever seen in my life. We don't

4 have the Paulding County question before us. We don't

5 have the tax thing before us, but you don't have the

6 evidence.

7 MS. LOWE: There's two bills.

8 THE COURT: Ma'am, listen, let me talk, please. It's

9 my courtroom. You don't have the tax thing before us. We

10 do have a child support issue before us. And I'm not sure

11 I totally agree with you, Mr. Valbuena, about what you

12 said.

13 I do believe that he didn't comply with what he was

14 supposed to do about paying for the house. You lost the

15 house because of that. I know I could at least order him

16 to pay -- just have a seat.

17 (Mr. Valbuena sits down.)

18 THE COURT: -- $5,000 on that. If you can show me a

19 signed contract for the other, and I probably can make him

20 pay the $25,000 that he caused you to lose on that and to

21 purge himself of that for failure to do that.

22 Now, what did you want to say about that,

23 Mr. Valbuena?

24 MR. VALBUENA: A lot of things. Number one, in Judge

25 Simpson's order from August 10th, 2001, the order and

THIRTEEN

RECUSAL


30/47

30

1 judgment he found him in contempt. Okay? He ordered him

2 to purge himself. Well, he said Defendant shall be

3 allowed to purge himself by September 20th. Otherwise he

4 would be incarcerated.

5 Well, Ms. Lowe's attorney went back in front of the

6 judge and showed the judge in October that Mr. Lowe had

7 not purged himself, and Judge Simpson issued another order

8 on all of that contempt. So we can't re-litigate the

9 issue. Judge Simpson said, this is what you've got to do

10 to purge yourself of the contempt including the house.

11 THE COURT: Wait, wait, wait. The only thing that

12 was said in the house -- let me see Judge Simpson's. This

13 one wasn't filed either?

14 MR. VALBUENA: No, Judge, this was. Finally I've got

15 one that was filed and stamped and signed by the judge.

16 THE COURT: Hold on just a second.

17 MR. VALBUENA: In my defense so we need it on the

18 record. I didn't represent Mr. Lowe in any of these older

19 cases where orders weren't filed.

20 THE COURT: You're the one that said you sent it to

21 Judge Smith and figured he'd take it on to the clerk's

22 office.

23 MR. VALBUENA: That order, it was my fault.

24 THE COURT: (Reading document to himself.) --

25 indebtedness of the parties, abandoning innocent spouse

LIMINE

COMPLAINT ON VALBUENA


31/47

31

1 defense, which at least he has one document that says

2 that.

3 MS. LOWE: That was four years later.

4 THE COURT: And defendant shall provide such evidence

5 to the sheriff of Coweta County, Georgia, but be released

6 at such time as the evidence was provided.

7 It says nothing about him paying for the house.

8 MR. VALBUENA: Correct, correct. And she raised that

9 issue at that time. She didn't get that relief. She

10 can't now ask for it again; that's res judicata. She

11 asked the judge, she asked the Court --

12 THE COURT: It doesn't say in here you're not

13 entitled to that anyway.

14 MR. VALBUENA: He found him in contempt for not

15 vacating. So then he didn't order any penalty.

16 Then in April of 2008, when we had the temporary

17 hearing in Paulding County, Mr. Lowe was taken into

18 custody. So here's the letter I provided to Judge Simpson

19 and the order where Judge Simpson released him from jail

20 showing that he purged himself from that contempt.

21 At that point in time, Ms. Lowe was represented by a

22 lawyer, and the lawyer spoke with Judge Simpson. That's

23 what the result was. He's purged himself of that contempt

24 already. It's not fair for her to bring it up now.

25 MS. LOWE: Judge Simpson didn't say --

WHERE IS

THIS LETTER?

RICO-DAWN

CUSEAL


32/47

32

1 THE COURT: Wait, wait, wait. Look. Y'all are going

2 to argue yourself into the ground.

3 MR. VALBUENA: Judge --

4 THE COURT: Wait. It looks like every one of you is

5 going to be in jail in just a minute or two.

6 He obviously made no decision about what to do about

7 that. I don't know whose fault that was. It's not in the

8 order. He didn't say anything about paying for the house.

9 That's the issue. It's not whether he vacated the house.

10 It's whether he paid for it or not and whether she lost

11 the house because he didn't do what he was supposed to.

12 So I'm going to tell you right now that -- oh wait,

13 I need to look at the petition, though. You're saying it

14 wasn't ever alleged in here.

15 MR. VALBUENA: Yes, Judge. You started out asking me

16 what I have to say about that, I've still got two more

17 things I want to say.

18 THE COURT: Hold on just a minute.

19 MS. LOWE: It's alleged in number 21.

20 THE COURT: 21.

21 MS. LOWE: And then on the back --

22 (The Court reading documents to himself.)

23 MS. LOWE: Said I could file a contempt action in the

24 final decree if they did not do that.

25 THE COURT: Well, I don't know any decree that found

SEE AMENDED CONTEMPT HOUSE FILE

ATTACHED IT WAS ALLEGED 3 TIMES.

DOES HE MEAN ANY ORDER?


33/47

33

1 him in contempt for the failure to pay for the marital

2 residence. I haven't seen that. One has failure to

3 vacate, but I'm not sure you have alleged that.

4 MS. LOWE: The thing was he was supposed to vacate.

5 He was more than a month past due.

6 THE COURT: Look. Let me tell you. If you're going

7 to be your own lawyer, you've got to do it right.

8 MS. LOWE: I'm just trying to explain.

9 THE COURT: It doesn't matter. It's got to be in

10 here, okay?

11 MS. LOWE: (Inaudible.)

12 THE COURT: Okay? I'm sorry.

13 MS. LOWE: It is in the complaint.

14 THE COURT: No, ma'am, it is not. It is not, you

15 said in here you tried to allege some previous contempt

16 action, which is nothing but a history of these previous

17 contempt actions, one of which you say is failure to pay

18 for marital residence as ordered and allowing said

19 residence to be foreclosed and this, that, and the other.

20 But the thing about it was that it wasn't in the

21 contempt action. You said in there about him vacating the

22 residence. But there was nothing in there about him

23 vacating and paying for it. It certainly wasn't in the

24 order saying that he had to pay for it.

25 MS. LOWE: Did you look at the final amended divorce


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34

1 decree? It talks about it.

2 THE COURT: Yes, ma'am. It orders him to do it, but

3 you didn't allege in here that he's in violation of that

4 order. You said that he had previously been held in

5 contempt of that.

6 MS. LOWE: He was in contempt for vacating. I think

7 it goes along with the words in the order.

8 THE COURT: I'm not going to argue with you any more,

9 Ms. Lowe.

10 This is what we're going to do. I'm probably going

11 to hold him in contempt for not paying on the 25,000 one

12 way or the other. I'm probably going to hold him in

13 contempt for more than y'all have got. It appears to me

14 that he owes about $40,000 in child support, and I'm

15 probably -- again on the property she hasn't alleged it in

16 here correctly. So I'm probably not going to hold him in

17 contempt on that. But on the child support it looks like

18 to me it's about $40,000.

19 Now if you want to, if y'all want to go back there

20 and y'all try to make me a list and show me why he

21 shouldn't be held in contempt for particular years on the

22 child support, I'll be glad to do it. I've already

23 modified that to show in 2010 it only went seven months.

24 And if you want to show me that, I'll be glad to do it.

25 But I do think once Judge Lee dismissed that other

RECUSAL:::::::DIDN'T HE JUST SAY HE KNEW OF NO DE

THAT ORDERED THIS?

CUSAL

CUSAL

HOW CONFUSING!

HE IS GLAD TO DO ANYTHINGMIKE AND NOTHING FOR ME


35/47

35

1 thing, it kicked that all back. He's just going to be

2 stuck. I'm just sorry.

3 MR. VALBUENA: Judge, are you saying that we're not

4 going to have a hearing where we can present our

5 testimony, or are you saying --

6 THE COURT: You can present the testimony. I've got

7 other cases here. Y'all are going to have to go out there

8 and get this in some kind of order so I can understand it.

9 I'm talking about the child support now.

10 Again, we don't have the Paulding County order before

11 us. We don't have the IRS thing before us. Unfortunately

12 for Ms. Lowe, we don't have the stuff about the paying for

13 the residence. But I would tell you, if you file that I

14 would make him pay that. But you haven't got it right

15 here. So y'all might want to keep that in mind in going

16 back there and trying to settle this thing. That's the

17 smart thing for y'all to do.

18 I'm telling you, he's not leaving this court today

19 without either paying the money or going to jail.

20 MR. VALBUENA: Then I guess what I'm going to say is

21 I don't think that the two sides, without a mediator, have

22 any chance.

23 THE COURT: Have y'all been to mediation?

24 MR. VALBUENA: No, Judge. There's been no mediation.

25 But having said that, as the defendant I want

RECUSAL? WHY THE HELL IS HE SO SORRY?

ISN'T THIS WHAT KIRBY SAID NO TO

ECUSAL

TELLING US TO AMEND

RECUSAL: HERE IS THE BIGGIE

MINE

THERE HAS BEEN

LEAST 2 MED. SE

ATTACHED TO

PORTFOLIO


36/47

36

1 Ms. Lowe to take the stand and present her evidence and I

2 get to cross-examine her before we're going to put up our

3 side of the case. I object to doing it any other way.

4 THE COURT: That's fine. I don't care. It doesn't

5 matter to me, but we're not going to do it right now.

6 MR. VALBUENA: I understand that, Judge.

7 THE COURT: I'm going to get rid of all of these

8 other cases and come back to this.

9 But the only thing we're going to be talking about is

10 the child support. None of these other things we're going

11 to be talking about. Do y'all understand? And, of

12 course, y'all have already admitted the attorney's fees

13 being paid.

14 MR. VALBUENA: Yes, sir.

15 THE COURT: But I need the stuff you have got right

16 there. If he's not prepared to pay that much that y'all

17 admit that he owes, he's going to stay in jail until he

18 pays.

19 MR. VALBUENA: Again, Judge, I think that if he's not

20 found in willful contempt, he shouldn't go to jail. Like

21 you said, if he was operating under court order that

22 said --

23 MS. LOWE: I took care of that.

24 MR. VALBUENA: I understand. And then under the

25 entire 2004 case, there were court orders in place. He

IS THIS PROPER PROCEDURE SINCE IT IS MY CASE? DOESN'T SOUND

CUSAL

i am just marking this

to see if he mentions

the "other stuff" again

RECUSAL

I GUESS HE IS TALKING ABOUT THE 2700 IN HIS LETTER WHICH I

COMMENT ON IS A BUNCH OF B.S. DUE TO OUR FINANCIAL AFF,

ID LIKE TO KNOW THE END OF THIS A

WHY I WOULD HAVE SAID....EEDS TO BE CHANGED


37/47

37

1 was operating under those.

2 THE COURT: I didn't hold him on 2004. I just got

3 him on 2001, 2002, and 2003 to June 10th, 2004. Then I

4 started back again in 2008.

5 MR. VALBUENA: And go on forward.

6 THE COURT: I didn't hold him in contempt. That's

7 still $40,000.

8 MR. VALBUENA: I understand, Judge.

9 THE COURT: I'm sorry. I thought we were going to

10 get right through this, but obviously none of y'all agree

11 with anything I have to say so we'll just --

12 MS. LOWE: Your Honor, if I have a witness from out

13 of town I want to bring with me, can I bring them up?

14 THE COURT: Not right now, no. Let's go.

15 (Proceedings adjourned and then continued in session.)

16 O R D E R

17 THE COURT: There's no question that he owes you some

18 attorney's fees.

19 The other question is how much child support does he

20 owe you? I would only find him in contempt for those

21 times when that was kind of, that the other order was in

22 effect when we had, when y'all were given time that you

23 had, that y'all were supposed to have shared custody and

24 no child support paid. I'm not going to hold him in

25 contempt for that.

ECUSAL

BALDWIN WILL NOT LET ME PROVE MY CASE!!

THIS IS WHEN MY MOTHER AND GRANDMOTHER HEARD THE EXPARTECOMMUNICATIONS.

CHANGED HIS MIND FROM HE WOULDN'T HOLD H

IN WILLFUL CONTEMPT TO NOW IN CONTEMPT A

ALL. TIME HE IS SPEAKING OF IS SIMPSON TEMP FR

JUNE OR JULY 2004- DEC. 2008. It doesn't sound right t

Mike be able to not drive his case, end up loosing it and stiwhat he wants!


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38

1 Then I had the other time, and I figured it up at

2 $40,000. So what I want is an order, and I want to

3 approve the mediator.

4 When is the next time we're in court in, let's say

5 April?

6 THE CLERK: 14th and the 28th.

7 THE COURT: Am I here both times?

8 THE CLERK: Yes, sir.

9 THE COURT: I'm going to give y'all until -- we'll do

10 it the 28th. And y'all have got to have this mediated by

11 then. The mediator has got to give me a report of either

12 the agreement that y'all have written or are recommending

13 now.

14 This is not all bad for you, Ms. Lowe, because if

15 during that time I'll allow you to amend your petition,

16 contempt petition, and if you allege it correctly about

17 the money you lost on losing the house, I would probably

18 give you some or all of that money. I can't exactly tell

19 you now. It sounds like the 5,000 you're definitely due,

20 and the other I don't know. We'll just have to see. I'd

21 have to see all your documents. You're going to have to

22 have somebody to testify about those documents. So you've

23 got that.

24 The other thing, wasn't there some taxes, y'all had

25 the tax thing that said she was no longer in the deal?

THIS MAKES NO SENSE. "WHAT I WANT IS AN ORDER" AND I WANT TO APPROV

THE MEDIATOR? DO YOU THINK HE WANTED A 40K ORDER?AGAIN IT LOOKS LIKE SOME PART IS MISSING?

RECUSAL.

IVE RECOMMENED WHAT I WANT INTHE

COMPLAINT!

RECUSAL. HE HAS MEMORY PROBLEMS!


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39

1 MS. LOWE: I've got a certified copy.

2 THE COURT: What I want to do is I want to find out

3 what those taxes were for and whether she still has any

4 liability for them. That's what I want to find out.

5 I will accept some kind of certified something from

6 the IRS that says whichever way it is. I don't care.

7 Technically we should have somebody from the IRS come in

8 here and testify that this is a true and correct copy of

9 this thing. But I know that's a lot of trouble for y'all.

10 So I'll accept just a, kind of like you've got on the

11 other thing about the showing that she's taken off.

12 Now, the dilemma is is that I never understood

13 exactly why you gave him $50,000 to go toward the taxes.

14 MS. LOWE: Because he did all of our finances, all of

15 them. Hopefully Matt Collins --

16 COURT REPORTER: I can't hear you. I'm sorry.

17 MS. LOWE: Hopefully Matt Collins will be happy to

18 come up and testify.

19 THE COURT: What I'm trying to find out was in the

20 divorce were y'all taking the position that both of you

21 owed these taxes, and so you just gave him your share or

22 some portion of it and he was supposed to pay it?

23 MS. LOWE: No. He took it. We had shared accounts.

24 It was for our taxes, so he said he was paying the taxes.

25 I made more money than he did at that point, and that's

i knew he wou

mention it aga

DOESN'T MA

BALDWIN!

OMG, READ TH

DECREE.


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40

1 how it went. He took the money. I said I didn't know

2 they were not paid until I got a tax bill.

3 But what I do know is that his tax lien, personal tax

4 lien got paid off at the same time.

5 THE COURT: What I'm trying to ask you is, is you

6 want this 50,000 back. I'm trying to think of some reason

7 I should or should not give it back to you. It seems like

8 if you gave him 50,000 to take care of y'all's joint tax

9 bill, and so far as you're concerned it was taken care of,

10 I don't know why you should get the 50,000 back.

11 MS. LOWE: Because that's like you allowing him to

12 steal from me and him not paying anything.

13 THE COURT: You just said his taxes were paid off.

14 MS. LOWE: His personal before we were married. He

15 had a $12,000 tax lien he paid off at that time.

16 THE COURT: Was this a tax lien on the business?

17 MS. LOWE: No. It was on him personally.

18 THE COURT: No, I'm talking about the 50,000 that you

19 gave him. Was that on the business?

20 MS. LOWE: Personal taxes.

21 THE COURT: Personal taxes?

22 MS. LOWE: Personal taxes.

23 THE COURT: Just a joint-tax return thing.

24 MS. LOWE: There was self-employment for business and

25 then a personal also.

BECUASE IT IS

ORDER IS WHA

SHOULD HAVE

INSTEAD OF....


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41

1 THE COURT: Okay. Well, the whole purpose of you

2 giving him $50,000 was to take that liability off of you.

3 MS. LOWE: No. It was just -- we were married at

4 that time.

5 THE COURT: But I mean, why do you care if you don't

6 have the liability? And you did have the exposure now

7 before. That's what I don't understand.

8 MS. LOWE: I still have the exposure. He's not

9 paying the IRS back the 50,000. He's already said that.

10 THE COURT: No, you don't have the exposure. He's

11 got the thing from the IRS saying that you don't have any

12 responsibility for it.

13 MS. LOWE: That would be just like telling people

14 it's okay to take the money and then bankrupt on the loan

15 that you keep the money. That's not right. That's not

16 right. My credit is seriously damaged by this. I'm not

17 even taking any of that into account.

18 THE COURT: You're probably not going to get that

19 50,000.

20 MS. LOWE: There's an order that says that. A

21 contempt action can modify; is that not right? What law

22 do you have that tells that?

23 THE COURT: I don't have to tell you anything.

24 MS. LOWE: I'm just asking.

25 THE COURT: I'm not going back through all these

CANT MODIFY. I THOUGHT SHE CHANGED THAT.

ECUSAL

RECUSAL- HE KNOWS NOW AB

SUPREME COURT HE READ IT

HIMSELF.

RECUSAL

RECUSAL.


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42

1 things. I know darn well that you don't have any

2 outstanding order like that, order for him to pay you

3 $50,000. I'll double check that, but I'm sure I'm right.

4 What y'all have got to do is have somebody mediate.

5 I need to know who the mediator is. Y'all are going to

6 have to share in the cost of the mediator. That mediator

7 has got to give me a written report about what he

8 recommends as back child support, what he recommends about

9 the tax bill, and what he recommends about the contempt --

10 I feel like, and I know you don't agree with that; you

11 think it's been litigated and is no longer an issue, but I

12 don't agree with you -- what he thinks about the house,

13 what she should get where he was supposed to be paying for

14 the house and it went under.

15 MR. VALBUENA: Judge, two things. Would you want it

16 more in the nature of a special master instead of a

17 mediator because the mediator normally tries to stay

18 neutral and doesn't make a report like that back to the

19 Court?

20 THE COURT: I'm ordering him to do it. I think it

21 ought to be mediated. Y'all ought to have a professional

22 mediator, but I don't want y'all coming back here and

23 telling me what the mediator said. If y'all can't settle

24 it -- now, if you settle it, it doesn't matter -- if you

25 can't settle it, then I want a report from him

RECUSAL,


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43

1 recommending to the Court what he thinks ought to be done

2 in this case.

3 MR. VALBUENA: What I'm saying is, the mediator

4 hearing rules it is completely confidential. He can't be

5 compelled to testify to all of that.

6 Do you want it to be more of a special master where

7 the special master is ordered to mediate the case and then

8 make a recommendation back to the Court? The mediator may

9 say, I can't do that; because of mediation rules I'm not

10 allowed to do that.

11 THE COURT: Is that right? You can't compel them to

12 testify? I've never seen that before. I can compel

13 almost anybody to testify, including doctors and

14 psychiatrists and everybody else.

15 MR. VALBUENA: The mediators tell you that when you

16 start mediation, they will tell you it's completely

17 confidential. I can't be compelled to testify. You can't

18 call me to court to say this is what has been offered, and

19 this is how they want this mediation.

20 THE COURT: You're not supposed to be able to discuss

21 any kind of settlement discussions, if the thing is not

22 settled.

23 But if you want to make it like a special master,

24 that is fine with me. I don't care. They both have got

25 to pay one-half the bill, and it's got to be done by April

RECUSAL, HE DOESN'T EVEN KNOW WHAT HE CA

CANT DO.

RECUSAL: WHY ME PAY FOR 1/2 AND I DON

CARE?


44/47

AN-1-2002 12:lOP FRDr1: TO: 18666986080 P:11-13

1 the 28th.2 MR. VALBUENA: Your Honor , one other thing

I have.

34

56789

10111213141516 171819202122232425

We served a discovery request on Ms.Lowe back in October.

When we f i r s t appeared or f i r s t had a conversation with

Judge Kirby, he said I raised tha t. And said , well, I

don 't need discovery for a contempt. Ms. Lowe said tha t .

So Judge Kirby basica lly to ld Ms. Lowe she d idn 't have to answer discovery.

At th is point I need some direction from theCourt

because as things progressed today i t ' s c lear I need that

discovery to be able to defend what she'S alleging,

especially i f she goes and modifies or amends hercomplaint as to now th is marita l house s tu ff . I need tha t

discovery. Otherwise I have no documents from her. We

get here l ike th is , and i t ' s a circus .THB COURT: What are you asking for?MR. VALBUENA: The documents and the answers to the

discovery.MS. LOWE: All my account numbers and - - (inaudible)THE COURT: Look. I th ink you'd l im it what your

discovery i s to those issues tha t I ju s t gave you.MR. VALBUENA: Yes.THE COURT: You do that and le t me know what you're

asking for, and then I'll see i f I le t you do i t . MS. LOWE: Your Honor, i f I might add that they were.

44

NOTE: MARTIN ISSUPPOSED TOLET HIM KNOWWHAT HE ISASKING FOR INDISCOVERY

BEFORE I GIVEUP ANYTHING.


45/47

45

1 also asking to get the receipts on any money they paid. I

2 never did receive anything. The timeline that you ordered

3 him to give to me to send to you, I even called him. I've

4 e-mailed him. I even paid for the transcript. They've

5 never sent me anything. He said no; Judge Baldwin said

6 for you to send me your allegation and then you send that

7 to him.

8 We have been to mediation twice before. It does not

9 help. I wish -- I'm begging you to let me prosecute this

10 case. Let me get my witnesses up there, and you will see;

11 it will be very clear to you, if you would let me do that.

12 THE COURT: I would not be doing this if this was

13 clear to me, Ms. Lowe.

14 MS. LOWE: It will be clear if you'll to listen them.

15 THE COURT: I've read tons of stuff. So this is what

16 we're going to do. I didn't cause this problem. I didn't

17 make this mess.

18 MS. LOWE: I didn't either.

19 (Proceedings concluded.)

20

21

22

23

24

25

RECUSAL: HE WILL NOT LET ME PROVE MY CASE


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46

1 C E R T I F I C A T E

2 G E O R G I A:

3 CARROLL COUNTY:

4

5

6 I hereby certify that the above and foregoing proceedings

7 were taken down, as stated in the caption, and reduced to

8 typewriting under my direction; that the foregoing pages,

9 1 through 45 represent a true and correct transcript of

10 said proceedings.

11 This, the 7th day of March, 2011.

12

13

14

15 _________________________________

DEBORAH SHIELDS MASON, CCR-B-104016 Registered Professional ReporterMy Commission Expires the

17 6th day of May, 2013.

18

19

20

21

22

23

24

25


47/47

FROM: TO: 18666986080 P: 1]/13

1 C E R T I FIe ATE2 G E 0 R G I A:3 CARROLL COUNTY:456789

1011121314151617181920

212223

I hereby cer t i fy that the above and foregoing proceedingswere taken down, as sta ted in the caption, and reduced totypewriting under my direct ion; tha t the foregoing pages4, 5, 7, 8, 24, and 44 are amended to the originalt ranscr ip t and represent a t rue and correct t ranscr ip t ofsaid proceedings.

This, the 18th day of March, 2011.

DEBORAH SHIELDS MASON, CCR-B-I040Registered Professional ReporterMy Commission Expires the6th day of May, 2013.

6:24 pm, Mar 30, 2011

2011.02.17 transcripts with corrections incorporated no extended

Documents