author: Blackburn, Judge. Cooper, Judge,

text:
    A92A2440.
    THOMAS v. WHALEY.
    (430 SE2d 655)
   Blackburn, Judge.

This appeal is from an order domesticating a Virginia court order and modifying its provisions regarding child support and visitation. The appellant and the appellee were divorced in Washington, D. C. in 1987. An order was entered at that time which provided for child support payments by the appellant for the parties’ two minor children as well as liberal visitation rights.

The appellant was employed by the United States Information Agency with an annual salary of $64,992 until May 1992, when he was involuntarily retired. Since that time, he has been receiving approximately $33,000 per year in retirement benefits. The appellant also invested heavily in real estate over the years, specifically in rental properties in Washington, D. C.

In June 1991, a Virginia court issued an order reducing the appellant’s child support payments to zero after finding that the appellant had no real income. This finding was made notwithstanding the appellant’s almost $65,000 salary at the time, because of the trial court’s consideration of debts incurred in connection with the appellant’s real estate investments. The appellee participated in the hearing in Virginia, and did not appeal the Virginia court’s order.

The appellee remarried and moved to Georgia in 1990. When the appellant filed a petition in Georgia in 1992 alleging denial of his visitation rights, the appellee counterclaimed, seeking domestication of the Virginia order and modification of the child support order. The trial court domesticated the Virginia order and modified it to provide for increased child support payments of $750 per month and specified times for visitation. This appeal followed.

1. The appellant contends that the trial court erred in modifying his child support obligation without any showing of changed circumstances. We disagree.

At the time of the June 14, 1991, order entered by the Virginia court, the appellant was found to have gross wages of $64,992 per year, but based upon the “ ‘debts that he incurred for production income’ ” in relation to real estate investments, as recognized by a Virginia statute, the court found that appellant had no income for the purposes of calculating support, notwithstanding his salary gained from his employment with the United States Information Agency, which was unrelated to his real estate investments. Consequently, no support was ordered. However, at the time of the June 25, 1992 hearing, the appellant testified that his income had changed due to his involuntary separation. Since his involuntary separation from work in May 1992, the appellant has received approximately $33,000 annually in retirement benefits. Now that he is retired, he manages his investment properties which exceed $2,000,000 in value with approximately $194,000 in equity. Additionally, the appellant annually receives approximately $17,000 in rental income from those investment properties.

More importantly, an improvement in the appellant’s financial status and ability to pay is demonstrated by his having provided financial support for his 21-year-old daughter, a college student in Chicago. Although he no longer has a statutory obligation to financially support his adult daughter as he does his two minor sons, he readily admits that he continuously provides his daughter with money, pays her tuition and books for college, and half of her living expenses. He has also purchased several cars for her use. The record shows that after June 14, 1991, he has contributed the following monetary payments to or on behalf of his daughter:

6- 16-91 $313.00 for her flight to Washington, D.C.
7- 23-91 $344.00 for college tuition
8- 25-91 $400.00
9- 3-91 $400.00
9- 27-91 $400.00
10- 29-91 $400.00
12-1-91 $400.00
12-26-91 $104.46 for ski clothing
12-26-91 $400.00
12-26-91 $5,000.00
1-1-92 $390.00
1-1-92 $320.00 for college tuition

In addition to these payments, the appellant includes in his monthly expenditures as “child expenses,” “child support” and “tuition” for his adult daughter of $600. He also concedes that he pays for her automobile insurance and monthly automobile payments. When questioned on cross-examination as to his lack of support of his minor sons, he asserted that “[t]hey are not in any danger of starving or going without.” He also indicated at trial that he did not pay for the support of his sons because he “knew that the boys were or could be provided for with the people ... in whose care they were,” and admitted that he chose not to provide support for his minor children because “they didn’t absolutely have to have” it. He further acknowledged that, although the Virginia court declared that he did not owe his minor children any money, the order “didn’t say that he couldn’t give money to [his] daughter,” which, as the record reflects, he began doing two days after the June 14, 1991 order. According to appellant, his minor sons “have a mother [in Georgia] and [she has] a new husband that can handle” their support. On cross-examination, the appellant failed to deny that he had enough money to support his sons. This evidence unmistakably demonstrates the appellant’s ability to financially support his minor children, which constitutes a change in condition from that alleged by the appellant during the June 1991 hearing in the Virginia proceeding.

“A trial court’s decision on whether a substantial change in the parent’s income authorizes an upward or downward revision of child support will be allowed to stand on appeal if there is ‘some evidence’ to support his finding. [Cit.]” Decker v. Decker, 256 Ga. 513, 515 (2) (350 SE2d 434) (1986). There is an abundance of evidence to support the trial court’s conclusion that the appellant’s financial status, including his ability to pay, has materially changed for the better, warranting a modification of his obligation to support his children. Accordingly, the trial court did not abuse its discretion in modifying the previous order as to child support.

2. The appellant also contends that the trial court erred in denying his motion to dismiss under OCGA § 19-6-19 (a), which provides that “[n]o petition may be filed by either former spouse under this subsection within a period of two years from the date of the final order on a previous petition by the same former spouse.” The statute necessarily pertains to modification petitions filed in Georgia, and even if the appellee’s counterclaim for child support is properly considered a “petition” within the meaning of the statute, the fact remains that no prior petition had been filed in Georgia under OCGA § 19-6-19 (a). The statute has previously been strictly construed in the context of modification petitions filed within two years of the divorce decree which adjudicated a support obligation. McAlpine v. Leveille, 258 Ga. 422 (369 SE2d 907) (1988). Similarly, the statute should be strictly applied to multiple petitions filed within this state, and not where the previous adjudication occurred in another state. For that reason, the appellee’s counterclaim would not be barred under OCGA § 19-6-19 (a).

It is the sound public policy of this state that parents should be responsible for the support of their minor children. Blue v. Blue, 243 Ga. 22, 23 (252 SE2d 452) (1979). It has even been stated that our public policy favors support of minor children by a parent’s estate after that parent’s death. Russell v. Fulton Nat. Bank of Atlanta, 247 Ga. 556 (276 SE2d 641) (1981). Limiting the application of OCGA § 19-6-19 (a) to multiple petitions filed in this state is appropriate to ensure adherence to our state’s strong public policy favoring support of minor children.

The appellant’s considerable support payments to his adult daughter, which began immediately following the Virginia order finding him incapable of providing any support for his minor children, makes it abundantly clear that either the appellant perpetrated a fraud upon the Virginia court, or the public policy in Virginia differs greatly from that of Georgia. Although the Virginia order must be afforded full faith and credit in this state even if that order were violative of our public policy, Cannon v. Cannon, 244 Ga. 299 (260 SE2d 19) (1979), nothing prevents our application of OCGA § 19-6-19 (a) to protect this state’s residents and public policy. See also for example OCGA § 19-6-26, which provides that our courts will not recognize or enforce a judgment from another state that modifies a judgment of this state awarding child support.

3. The appellant further argues that the trial court erred in limiting his visitation rights. A trial court may modify visitation rights without a showing of changed circumstances, and the trial court’s increase or decrease of visitation rights will be affirmed on appeal unless the trial court abused its discretion. See Gazaway v. Brackett, 241 Ga. 127, 129 (244 SE2d 238) (1978); OCGA § 19-9-3 (b). The trial court’s order grants the appellant visitation rights with the children for six weeks each summer, four days at the end of December including Christmas, every other spring break, one weekend a month, and the weekend of Father’s Day. Under the circumstances of this case, we cannot conclude that this modification of visitation constituted an abuse of the trial court’s discretion.

Judgment affirmed.

Pope, C. J., Beasley, P. J., and Johnson, J., concur. Andrews, J., concurs in the judgment only. McMurray, P. J., and Cooper, J., dissent. Birdsong, P. J., not participating.

Cooper, Judge,

dissenting.

In June 1990, a Virginia court issued a decree reducing appellant’s child support payments to zero based on its finding after a hearing that appellant had no real income. Appellee participated in the hearing in Virginia and did not appeal the Virginia court’s order. Because I cannot agree that the record shows that appellant’s financial status has changed for the better since June 1990,1 must respectfully dissent from the majority’s holding in Division 1 that the trial court properly modified the child support provisions of the domesticated Virginia decree.

Clearly, the Virginia court’s decision reducing appellant’s child support obligation to zero is a decision none of us would have reached. Nonetheless, that decision is the judgment of a sister state’s court. It is part of an order which has been domesticated in this state, and must therefore be treated as though it were a local decree. See Blue v. Blue, 243 Ga. 22 (252 SE2d 452) (1979). Accordingly, the child support provisions of the Virginia court’s order can only be modified if “a change in the income and financial status of either former spouse or in the needs of the child or children” is shown. OCGA § 19-6-19 (a).

Decided March 19, 1993 —

Reconsideration denied April 1, 1993

Griner & Mírate, Galen A. Mírate, for appellant.

The majority holds that evidence at trial showed a material change in appellant’s financial circumstances, but my reading of the record reveals no evidence of such a change. Although appellee’s attorney asked appellant on cross-examination whether he had $194,000 in equity and elicited a positive response by limiting appellant’s answer to the documentation in front of him, appellant explained that the $194,000 figure reflected in that documentation was based on old appraisals and that new appraisals showed a devaluation of approximately 12 to 15 percent so that the mortgages were approximately equal to the new appraised values. Moreover, that same documentation was before the Virginia court. Furthermore, contrary to the majority’s view of the evidence, I cannot conclude that evidence of appellant’s expenditures on his daughter or his reasons for opposing child support payments for his sons is relevant to the issue of whether appellant’s financial status has changed.

With respect to Division 2, I reach the same conclusion as the majority but for a different reason. Because the Virginia order was entered on a petition for modification brought by appellant and OCGA § 19-6-19 (a) bars the filing of another petition for modification “within . . . two years from the date of the final order on a previous petition by the same former spouse,” that Code section would not apply to bar appellee’s petition for modification in this case. (Emphasis supplied.) I would therefore find it unnecessary to reach the issue of whether the two-year requirement contained in OCGA § 19-6-19 (a) applies to orders entered on petitions for modification filed in other states.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

J. Reese Franklin, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Pope, Chief Judge, Andrews, Judge, Beasley, Judge, Blackburn, Judge,

license: Public Domain

text:
    A92A1667.
    THOMAS v. THE STATE.
    (430 SE2d 768)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted on two counts of armed robbery, two counts of violating Georgia’s Firearms and Weapons Act and one count of aggravated assault. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in failing to grant his motion to assemble another jury panel, arguing that the State exercised six peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69).

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41. Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779); Shaw v. State, 201 Ga. App. 438, 439 (1) (411 SE2d 534). In the case sub judice, voir dire was not taken down, but the State’s attorney stated that he used eight of his ten peremptory strikes to exclude prospective black jurors; that he used two peremptory strikes to exclude prospective black alternate jurors; that the panel comprised twenty-seven white persons and twenty-seven black persons; that a white female and a black male were struck for cause and that the jury was comprised of six white jurors, six black jurors and two black alternate jurors. The State’s attorney then explained the use of each of his peremptory strikes. These recollections do not provide a basis for appellate review as “[c]olloquies between court and counsel and argument of counsel, though included in the record, are not competent evidence of the facts observed therein, and do not suffice to make a proper record of facts required to establish a prima facie case of discrimination. National Assn. &c. People v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957); Johns v. State, 166 Ga. App. 656, 657 (305 SE2d 405) (1983).” Shaw v. State, 201 Ga. App. 438, 439 (1), 440, supra. Consequently, since there is no amendment or supplement to the record to reflect the necessary facts pursuant to OCGA § 5-6-41 (f) or (g) and since there is no stipulation in the record as to facts pursuant to OCGA § 5-6-41 (i), defendant has not carried the burden to show by the record the facts necessary to prove a claim of racial discrimination. Shaw v. State, 201 Ga. App. 438, 439 (1), 440, supra. However, to the extent possible, we address defendant’s contention that the State’s reason for excluding panel member 11 (i.e., uncomfortable judging others) was arbitrary and that the State’s explanations for excluding panel members 8, 12, 20, 38 and 44 (i.e., unstable employment or no employment) are unbelievable because unemployed white panel members were not excluded by the State.

The record contains no stipulation pursuant to OCGA § 5-6-41 (i) supporting defendant’s claim that the State did not strike unemployed white panel members. Further, there is no amendment or supplement to the record pursuant to OCGA § 5-6-41 (f) or (g) reflecting the racial identity or employment status of any panel member. Nonetheless, the defendant (and apparently the dissent) relies on a document entitled, “Juror Biographical Data,” to support defendant’s claim that the State did not exclude unemployed whites from the panel. This reliance is misplaced. First, the “Juror Biographical Data” sheet does not list race. Second, a party may not rely on allegations that are unsupported by evidence at trial or by the official record as supplemented pursuant to OCGA § 5-6-41. Daniel v. State, 170 Ga. App. 795 (3) (318 SE2d 218).

“The duty of deciding whether the defendant established intentional discrimination lies in the trial court. [Cit.] A trial court’s finding of purposeful discrimination is a finding of fact which must be given deference by an appellate court. Ordinarily, great deference should be given to such a finding since it ‘largely will turn on evaluation of credibility.’ [Cit.] ‘Thus, we may only reverse the trial judge’s determination that the prosecution’s peremptory challenges were not motivated by intentional discrimination if that determination is clearly erroneous. [Cits.]’ [Cit.]” McCormick v. State, 184 Ga. App. 687, 688 (362 SE2d 472). See Gamble v. State, 257 Ga. 325, 326 (5), 327 (357 SE2d 792). In the case sub judice, the State’s attorney explained that he excluded panel member 8 because “he was unemployed and not in school at this particular time.” The State’s attorney explained that he struck panel member 12 because “she was unemployed [and because she was] seventy-three years old [and] demonstrated hearing problems.” The State’s attorney explained that he struck panel members 20 and 38 because these panel members had unstable work histories, i.e., they could not hold a job. The State’s attorney explained that he struck panel member 44, an alternate juror, because she “was unemployed, had been employed for about a year prior to that, claims she did private duty nursing but there is nothing in her educational data, that would be eleven years in school, to indicate that any of that was in any way skilled or such that would offset her irregular unsteady employment history.” The State’s attorney explained that he excluded panel member 11 because “she told defense counsel that she was not comfortable judging others due to her beliefs.” These explanations are concrete, tangible and race neutral. Davis v. State, supra. Further, there is nothing in the trial transcript or record indicating that the State’s explanations were not neutrally applied. Compare Ford v. State, 262 Ga. 558, 559 (3) (423 SE2d 245). Consequently, we find no abuse in the trial court’s finding that the State gave “adequate nonracial reasons for selection of the jury. ...”

2. Defendant contends the trial court erred in allowing the State to introduce similar transaction evidence before offering evidence concerning the charges contained in the indictment. However, defendant failed to raise this issue at trial. He therefore may not complain of it for the first time on appeal. Shearer v. State, 259 Ga. 51, 52 (6) (376 SE2d 194).

Judgment affirmed.

Birdsong, P. J., concurs. Pope, C. J., Andrews and Johnson, JJ., concur specially. Beasley, Cooper and Blackburn, JJ., dissent.

Pope, Chief Judge,

concurring specially.

I concur with Presiding Judge McMurray’s initial conclusion that the record is insufficient in this case “to show by the record the facts necessary to prove [defendant’s] claim under Batson.” Shaw v. State, 201 Ga. App. 438, 440 (1) (411 SE2d 534) (1991). For that reason, I agree that the judgment of the trial court must be affirmed.

I agree, as noted by Judge Blackburn, that the issue is not whether the record shows defendant established a prima facie case of discrimination. The preliminary issue of whether the defendant made a prima facie showing of intentional discrimination becomes moot where, as here, the trial judge made no ruling on whether defendant has made a prima facie showing of discrimination but the prosecutor nevertheless offered a race-neutral explanation for the challenges and the trial court ruled on the issue. Hernandez v. New York, 500 U. S. _ (111 SC 1859, 1866, 114 LE2d 395) (1991); Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993). The issue of whether the defendant made a prima facie showing of discrimination, however, is but the first of three issues which, must be evaluated in a Batson case. The final two steps in an evaluation of a Batson challenge remain: on appeal the reviewing court must still determine whether the prosecutor adequately articulated a race-neutral explanation for striking the jurors in question and whether the trial court correctly determined whether purposeful discrimination was shown. Thus, the record must contain sufficient evidence from which the reviewing court may reach a conclusion concerning whether the trial court erred. Because the record in this case is insufficient to show the trial court erred in its ruling on defendant’s Batson challenge, the trial court’s ruling must be affirmed.

In this case, the explanation offered by the prosecutor for his peremptory strikes against black jurors was his concern about their employment status in that they were either unemployed or had a history of irregular employment. In response, defendant attempted to show that the prosecutor’s explanation was pretextual because several white jurors had the same employment status or history. The record, however, is simply insufficient for this court to determine whether the trial court erred in rejecting defendant’s argument. The record does not contain the transcript of the voir dire examination of prospective jurors from which the employment status of white jurors may be determined. As noted by Presiding Judge McMurray, the defendant failed to complete the record by any of the several methods provided by statute, such as amendment or supplement to the record pursuant to OCGA § 5-6-41 (f) or (g) or stipulation of the facts pursuant to OCGA § 5-6-41 (i).

Except for the colloquy concerning defendant’s Batson motion, the only information in the record relevant to the issues raised in the motion is a document, apparently prepared by the superior court clerk, which purports to supply certain biographical information about each prospective juror. For some jurors who were excluded, the space provided for occupation is left blank, while for other jurors the form indicates “none” or “unemployed.” In my opinion, this unsworn and incomplete information is simply an insufficient basis on which we may make any comparison of the employment status of those jurors who were excluded by the State and those who were not excluded in order to determine whether the trial court erred in rejecting defendant’s argument that the State exercised its peremptory strikes in a racially discriminatory manner.

I am authorized to state that Judge Andrews and Judge Johnson join in this special concurrence.

Andrews, Judge,

concurring specially.

I join in Chief Judge Pope’s special concurrence. We are constrained by the authority of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) and its progeny to review peremptory challenges to determine if they were racially motivated. Nevertheless, I agree with the assessment of Chief Justice Burger that Batson has substituted for peremptory challenges, “challenges short of a challenge for cause that are just a little bit arbitrary — but not too much.” Id. at 128 (Burger, C. J., dissenting). How can our courts be expected to administer such a rule?

Beasley, Judge,

dissenting.

All of the State’s peremptory challenges were exercised against black jurors although there were an equal number of white jurors on the panel. Several of these members of the venire were stricken for the stated reason that they were unemployed or had unstable work histories. A number of white jurors also were unemployed, but the State did not articulate why this factor weighed against one race but not against the other.

In my view, the explanation given by the state is one of those “certain stereotypical attitudes as to particular groups . . . [which] should be given additional scrutiny by the trial court before they are found acceptable.” Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992). Considering the strength of the prima facie case (see Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988)) in that all strikes from the equally populated panel were against black jurors, together with the absence of an offered distinction between the stricken jurors and the white jurors with similar employment circumstances, I cannot agree that the State’s burden was met. Thus, I cannot join in the affirmance.

However, since it appears that the trial court did not give the matter the “additional scrutiny” required, the case should be remanded to that factfinder, as was done in Weems v. State, 262 Ga. 101, 103 (3) (416 SE2d 84) (1992), and Berry v. State, 262 Ga. 614, 615 (2) (422 SE2d 861) (1992).

Blackburn, Judge,

dissenting.

I respectfully dissent. I cannot agree with the majority that the appellant has not presented a prima facie showing of discrimination in the state’s exercise of all of its peremptory strikes against prospective black jurors, in light of the Georgia Supreme Court’s recent decision in Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993) and other decisions hereinafter cited. In Lewis at 680, the Supreme Court, citing Hernandez v. New York, 500 U. S._ (111 SC 1859, 1866, 114 LE2d 395) (1991), held that “ ‘(o)nce a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.’ ” Notwithstanding the decision in Lewis, supra, the Supreme Court in Gamble v. State, 257 Ga. 325, 327 (6) (357 SE2d 792) (1987), found that where the state exercised all of its peremptory strikes against blacks, as in the instant case, a prima facie case of discrimination was clearly made. Inasmuch as the question of whether the appellant has completed the record sufficiently to establish a prima facie showing of discrimination is moot, the veritable issue is whether the state’s explanations for its exercise of 100 percent of its peremptory challenges to exclude black jurors, were sufficiently racially neutral and related to this case to withstand a Bat-son challenge.

In rebutting prima facie evidence of racial discrimination, the prosecution must explain each peremptory challenge of a black prospective juror. “The burden [is] on the prosecutor to prove that the disproportionate exclusion of black jurors was not the result of the prosecutor’s conscious or unconscious animus against black jurors but was instead mere happenstance.” Ford v. State, 262 Ga. 558, 559 (2) (423 SE2d 245) (1992). “Hence, it is not a sufficient rebuttal simply to offer explanations which do no more than fail to prove the defendant’s claim that the prosecutor acted, consciously or unconsciously, in a racially-discriminatory manner. That he so acted may be inferred by the circumstances establishing the prima facie case. The prosecutor’s explanation must be strong enough to overcome the prima facie case.” Ford, id. at 559. Moreover, the explanations offered must be “the kind of concrete, tangible, race-neutral and neutrally-applied reasons that can overcome the strong prima facie case established by the pattern of strikes and other factors. . . .” Id. at 560.

Although the trial court’s findings are, of course, entitled to great deference, “ ‘ “(r)ubber stamp” approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to “ensure that no citizen is disqualified from jury service because of his race.” Batson, 106 SC at 1723.’ [Cit.]” Gamble v. State, supra at 327. Further, explanations by the state as to the striking of black jurors that reflect certain stereotypical attitudes as to particular groups should be given additional scrutiny by the trial judge before they are found acceptable. Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992). “ ‘The explanation “need not rise to the level justifying exercise of a challenge for cause,” but it must be “neutral,” “related to the case to be tried,” and a “ ‘clear and reasonably specific,’ explanation of his ‘legitimate reasons’ for exercising the challenges.” (Cit.)’ [Cit.]” Bess v. State, 187 Ga. App. 185 (1) (369 SE2d 784) (1988). In Berry v. State, 262 Ga. 614, 615 (2) (422 SE2d 861) (1992), where, as in Weems v. State, 262 Ga. 101, 103 (2) (416 SE2d 84) (1992), the percentage of blacks on the jury exceeded the percentage of blacks on the array, the Supreme Court remanded the case to the trial court for a hearing on the issue of whether the prosecution’s strikes were racially neutral where the prosecution had used all of its strikes to exclude black jurors. In Weems, supra at 103, the Supreme Court further remanded the case “so that the trial court [could] apply the ‘ “additional scrutiny” ’ aspect of Tharpe in making a finding as to whether the strikes were racially neutral,” even though seven members of the trial jury (58 percent) were black. More recently in Williams v. State, 262 Ga. 732 (426 SE2d 348) (1993), the Supreme Court remanded the case for a new trial where the state exercised 90 percent of its peremptory strikes against prospective black jurors for reasons which could have equally applied to white jurors.

Although, in this case, the racial composition of the venire and the racial composition of the trial jury portrayed a 50-50 representation of black and white jurors, “nothing in Batson compels [a] court’s conclusion that constitutional guarantees are never abridged if all black jurors but one or two are struck because of their race. On the contrary, Batson restates the principle that * “(a) single invidiously discriminatory governmental act” is not “immunized by the absence of such discrimination in the making of other comparable decisions.” ’ [Cits.]” Fleming v. Kemp, 794 F2d 1478, 1483 (5) (11th Cir. 1986). In Fleming the court specifically stated that it “cannot agree that Bat-son may be rendered a priori inapplicable by a prosecutorial game of numbers.” Id. at 1483. Moreover, the Supreme Court has recognized in Aldridge v. State, 258 Ga. 75, 79 (4) (365 SE2d 111) (1988), “[djeciding cases through the use of raw numbers carries with it inherent dangers and possibilities of illogical or unjust results. We do not believe the U. S. Supreme Court intended to lead the courts into this kind of hazard. Using numbers as the only criteria under Batson would mean that if the panel of 42 was composed of 42 black persons, a prima facie case becomes automatic.” Id. at 79.

In the instant case, the prosecution used all ten peremptory strikes to exclude prospective black jurors. The strikes that are in question were exercised as follows:

Juror #8, a 20-year-old black male, was excluded because he was unemployed and was not in school, although he was previously eim ployed as a beer truck driver.

Juror #11, a 31-year-old black female, was excluded because she indicated that she did not feel comfortable sitting on the jury, which is disputed by the defendant.

Juror #12, a 73-year-old black female, was excluded because she was unemployed, was last employed at a hotel, and according to the prosecution, demonstrated hearing problems because she answered a question inappropriately and asked the prosecutor to repeat himself.

Juror #20, a 19-year-old black female, was excluded because she held her present job for a short period of time at a local bank, worked for a clothing store for a short period of time, and was previously unemployed.

Juror #26, a 63-year-old retired black female, was excluded because she had not been satisfied with the work of police officers in the investigation of burglaries at her home, which indicated that she was predisposed against the state.

Juror #30, a 57-year-old black male, was excluded because he supposedly had both a speech and hearing impediment demonstrated by inappropriate responses to 50 percent of the voir dire questions.

Juror #38, a 19-year-old black male, was excluded because he had been recently hired by Delta, and previously worked with Circuit City a few months earlier, which, according to the prosecutor, indicated an unstable job history.

Alternate #43, a 45-year-old black female registered nurse, was excluded because she appeared hostile and displayed a belligerent attitude.

Alternate #44, a 54-year-old black female was excluded because “she again was unemployed, had been unemployed for about a year prior to that, claims she did private duty nursing but there is nothing in her educational data, that would be eleven years in school, to indicate that any of that was in any way skilled or such which would offset her irregular unsteady unemployment history.”

The defendant does not question the appropriateness of the prosecution’s exercise of a peremptory strike against Juror #22, a 65-year-old black male and uncle of Wayne Williams, the individual prosecuted by the Fulton County D.A.’s office and convicted of the murder of two adults, and suspected of the murder of several children in the Atlanta area.

Arguably, the prosecutor’s exercise of peremptory strikes against Jurors 11, 26, 30 and 43 were racially neutral and case related exercises. However the prosecution’s exclusion of the remaining jurors based upon their lack of gainful employment is suspect and pretextual because other similarly situated jurors were not likewise excluded. Although the specific racial make-up of the trial jury as well as the race of each potential juror in the venire is not addressed in the record with the exception of the jurors excluded by the prosecution, 20 of the venire who were similarly situated, some of whom are white and were not gainfully employed, were not stricken by the prosecution. Particularly, juror #5, a 61-year-old housewife; juror #18, a 65-year-old homemaker; juror #19, a 42-year-old housewife; juror #25, a 44-year-old homemaker; juror #26, a 63-year-old retired female; juror #35, a 21-year-old male student; juror #36, a 67-year-old unemployed female; juror #41, a 64-year-old housewife; juror #45, a 70-year-old male retiree; juror #46, a 44-year-old housewife; juror #48, a 53-year-old retired female; juror #50, a 19-year-old student; juror #52, a 57-year-old retired male; and juror #53, a 39-year-old housewife. Furthermore, the prosecution failed to exercise any peremptory strikes against six other members of the venire who indicated on the jury biographical data sheet that they were not employed. Here, as in Gamble v. State, supra, and Ford v. State, supra, “many of the explanations offered by the prosecutor could have applied with equal force to white jurors whom the prosecutor declined to strike.” Ford, id. at 559. “A prosecutor’s failure to explain the apparently disparate treatment of similarly situated white and black jurors certainly diminishes the force of his explanation for striking a black juror.” Id. at 560, n. 1. Further the prosecution’s reasons for the exclusion of prospective black jurors from the petit jury were not the kind of concrete, tangible, race-neutral, case related and neutrally applied reasons that can overcome a strong prima facie case established by the pattern of strikes exercised by the state. Ford, id. at 560.

Decided February 22, 1993 —

Reconsideration denied April 2, 1993

Brian E. Steel, for appellant.

Lewis R. Slaton, District Attorney, William C. Akins, Barry I. Mortge, Assistant District Attorneys, for appellee.

In the recent case of Bess v. State, 207 Ga. App. 295 (427 SE2d 813) (1993), this court remanded the matter to the trial court for a hearing on whether the prosecution’s exercise of 100 percent of its strikes against blacks was racially-neutral. However, in Bess, the trial court concluded, without conducting a hearing, that the state had met its burden regarding the neutrality of its exercise of the peremptory strikes based solely on a statistical analysis of the racial composition of the venire and the jury. Unlike Bess, the trial court in the present case held a pre-trial hearing on the Batson motion, at which time the court requested and received an explanation from the state on the exercise of each of its strikes. Whereas remand for a hearing was the proper remedy in Bess, in the instant case, the trial court’s finding that the state did not use its peremptory strikes in a racially discriminatory manner should be reversed in light of the Supreme Court’s decision in Williams, and the case remanded for a new trial.

I am authorized to state that Judge Cooper joins in this dissent.

       The State’s attorney also pointed out that defense counsel used 18 of 21 strikes to exclude prospective white jurors. Defense counsel did not challenge this statement. However, he responded that “we can select who we want to select without answering to anyone at this point.” This is not an accurate assessment. “[T]he U. S. Supreme Court made it clear in Georgia v. McCollum, 505 U. S.__(112 SC 2348, 120 LE2d 33) (1992), that defendants have no more right to discriminate racially in the exercise of their peremptory challenges than prosecutors. . . .” Davis v. State, 263 Ga. 5, 7 (10), fn. 3 (426 SE2d 844).

       The “Juror Biographical Data” sheet lists 54 names and includes spaces for identification of address, occupation, employment, date of birth, home and business telephone numbers, county residence, years of education, prior jury service and marital status.


author: Birdsong, Presiding Judge. Beasley, Presiding Judge,

text:
    A92A1749.
    TAYLOR v. TAYLOR.
    (430 SE2d 659)
   Birdsong, Presiding Judge.

The appeal is dismissed as improvidently granted.

Appeal dismissed.

Pope, C. J., Andrews, Johnson and Blackburn, JJ., concur. McMurray, P. J., Beasley, P. J., and Cooper, J., dissent.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent from the dismissal of this appeal as improvidently granted.

The issue in this appeal is whether the trial court erred in changing custody of the parties’ children from appellant Melanie Taylor to appellee Robert Taylor, either by applying the incorrect legal standard or because there is no evidence of a material change of circumstances so as to support the verdict.

The trial court found: “Mr. Taylor has remarried and lives with his new wife and stepdaughter. Ms. Melanie Taylor recently gave birth to a child out of wedlock whose father left her before the child’s birth. Based upon the evidence adduced at the hearing, the lifestyle of the mother is such that the court believes it is not in the best interests of the children of the parties to be raised in her home. Generally, the court believes the children will fare better in the long run when raised in a conventional home where they have the example of a mother and father as role models. As these children become adolescents in this changing world, they will need the guidance of dedicated parents, present in the home and able to set the proper example for the children to follow. Because of the special nature of the home of this mother (defendant) the children would not have an opportunity to grow and develop in traditional surroundings. Conceding that the mother loves the children as much as the father [does], it does not follow that her home would naturally present opportunities for normal growth and development.”

The children are a girl, age 8, and a boy, age 12. The parties were divorced in January 1987, and custody was granted to the mother, Melanie Taylor. For several months or a year after the divorce, the father had little or no contact with his children. After the divorce Mr. Taylor was unemployed for a period of two years, during which he attended vocational school; at the time of the hearing, he had been employed for six months. His gross income is $11,000 per year. He has been married for three “years and lives with his stepdaughter and present wife, who earns $36,000 per year.

Appellant, who is 31, bore a child out of wedlock in September 1991. This baby’s father is 50 and is unmarried; he is the president of a Mercedes-Benz dealership. Appellant began dating him in March 1989; she dated him continuously and exclusively until their child was born in September 1991; she has dated no one else since that time. They planned to marry and looked for a house but he did not marry her; he has not said he will never marry, her but that he will not marry her at this time; she is in love with this man, plans to continue to see him and to have sexual intercourse with him. The baby’s father pays about $100 per week child support and continues to visit appellant’s home. She testified that he usually visits when the parties’ children are with their father or after the children have gone to bed; that they have never seen her in bed with the baby’s father although she has never locked them in their rooms. There is no evidence to the contrary.

At the time of the divorce, the children’s mother was a licensed practical nurse working at Phoebe Putney Hospital in Albany, earning $7 per hour. Having determined she did not earn enough to support her children as she desired, she attended school to become a registered nurse (RN), from 1988 until 1990. She attended school 20 hours per week, studied two or three hours per day and worked full time and overtime. She was unable to afford child care expenses, and asked her father and stepmother to look after the girl as they lived nearer her school. Her mother and stepfather looked after the boy. Ms. Taylor’s father testified that during the one-and-one-half years he kept the girl, appellant Melanie Taylor visited her daughter at his house frequently but Mr. Taylor visited less frequently.

Although he remarried in April 1988, at about the time his children began living with their maternal grandparents, and although he was unemployed most of that time and stayed at home looking after his present wife’s daughter, there is no evidence that appellee made any effort to look after his own children while their mother attended school.

After she finished school, appellant immediately brought the children home to a four-bedroom house. She continues to work at Phoebe Putney Hospital as an RN in the neonatal intensive care unit. She now earns $12 per hour, or $27,000 in 1990.

Mr. Taylor sued Melanie Taylor for custody of the children because she gave birth to a child out of wedlock in September 1991, and because she continues to have a sexual relationship with the father of the baby while knowing he will not marry her. Mr. Taylor testified that in his opinion, “every divorced woman who sleeps with a man to whom she is not married should lose custody of her children.” He and his present wife are very faithful church members. He believes his children are being raised in an atmosphere of immorality; that their mother’s having a child out of wedlock will cause the boy to “grow up to be a child abuser,” and “is teaching my little girl that it is okay to have a [sexual] relationship outside of [marriage]” and that she herself will one day be “permissive.”

There is no evidence of child abuse. Dr. Wagner, the psychologist retained by the father, did not testify. The portions of his report in evidence show that he found both children to be emotionally disturbed, but he concluded their best interest would be served by remaining with their mother; that the girl “has had no problems whatever”; and that he could not recommend her custody be placed in her father; and that she would be “very angry and very disturbed if she cannot continue to live with her [mother].”

Dr. Carden, the psychologist retained by appellant, is a specialist in child psychology. Dr. Carden testified he performed extensive interviews and psychological tests on both children; both perform in school above their expected level, have a good environment in their mother’s home, are well-adjusted, very well-mannered, and have many friends who visit in their home. He found that neither child was emotionally insecure because appellant had a child out of wedlock; their reaction to the new baby is “typical and normal.” As to “what [he thinks will] happen to [these children]” as the result of their mother’s having a child out of wedlock, Dr. Carden said, “It is not so much what happens to a child; it is how it is dealt with. And provided that the mother uses that as a learning opportunity, provided that she instructs the children in proper moral development ... to help children understand that we all make mistakes, I don’t think that it will have one detriment to the child whatsoever. ... It can be used as a very positive learning experience. ... I think that it will have a positive bearing on [these children’s] outlook. I think that [appellant] is capable of doing that instruction in a way that will allow them to learn from the fact that we all make mistakes; we are all human.” He found that the boy’s anxiety concerned the custody dispute; that the children would rather not live with their father; that a drastic move would not be in the boy’s interest as he needs stability; that the best interests of the children would be to remain with their mother.

Mr. Taylor relies on a letter written by the boy saying: “My life stinks. My parents are divorced. I live with my mom. My mom’s boyfriend got my mom pregnant. Then he dumped her. I don’t mean to curse but he’s a total ass. Sorry.” However, the letter continues: “My dad is well... I don’t know. He doesn’t work. I’ve got a bratty stepsister. She’s spoiled and even has a water bed. All I have is a bed to sleep in. And my dad treats me mean. At my mom’s I get treated like a human being and I have a Nintendo.”

The children’s sixth and second grade teachers testified that the children are A and B students and their conduct is very good; they get along well with other children and are normal, outgoing, very responsive, eager to learn, neat and well-mannered. The boy is an “All-American little boy” who is “a delightful student.” The girl is “well-adjusted” and “self-assured”; “she feels good about herself and has a good sense of who she is”; she made straight A’s during the school year starting September 1991 (when her half-brother was born); her behavior “[n]ever fell below . . . satisfactory.”

Ms. Taylor’s father, Mr. Eunice, testified that he and his wife kept the girl for one-and-one-half years while his daughter attended school. In his opinion the children would be better off living with their father “because of the immorality that they are exposed to currently . . . and [their] neglect,” caused by their having to spend a lot of time with “friends, relatives and babysitters” because “part of the time [their mother] is at work, but. . . other times . . . she has to go out and party.” As to where his daughter “parties,” he believes she goes to nightclubs but he “can’t witness this for sure,” because he personally has never seen her partying. He believes custody should be removed from his daughter, not because she gave birth to another child out of wedlock but because he does not approve of her lifestyle. He once saw a bottle of wine in her refrigerator, which he does not think is appropriate “because it can lead to other things.” He does not understand her present ill-feelings toward him, but he believes this is on account of his friendship with his former son-in-law. Mr. and Mrs. Eunice visit the children whenever the children are at Mr. Taylor’s house. Mrs. Eunice testified in effect that she performed the role of a mother while the girl lived with them; she picked the child up at school and went on field trips.

Ms. Taylor testified she was in love with the baby’s father and hopes to marry him. Between January 1990, and November 1991, she went to a nightclub only twice. She drinks “occasionally,” and last enjoyed a drink with the baby’s father in her home “sometime around Christmas.” A close friend and co-worker of appellant testified that she visits often in appellant’s home and has taken trips with her and her children. The friend testified that in the three years she and appellant had been friends, the baby’s father was the only man appellant dated; “at one time there was a wedding planned, hopefully.” The friend testified the older children love the baby and that the boy “is usually a little bit more off in his room, but since the baby has been born, he would come out a lot and be affectionate.” This friend had never seen Ms. Taylor drink alcohol that she could remember.

We have held repeatedly that a change in custody of a minor child is authorized only where there has been a material change in circumstances. OCGA § 19-9-1 (b). “The award of custody of a child of the parties in a divorce decree is conclusive unless there have been subsequently to the decree new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child. [Cits.]” (Emphasis supplied.) Young v. Young, 216 Ga. 521, 522 (118 SE2d 82). The trial judge is given discretion in determining whether a material change has occurred (id.; Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276)), but “ ‘he is restricted to the evidence and [the court is] unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.’” Evans v. Stowe, 181 Ga. App. 489, 491 (352 SE2d 811). The question is not whether there has been a change of conditions, but whether there has been a material change, i.e., one that affects the welfare of the child. That necessarily means the change of conditions must be one which is adverse or detrimental to the child’s welfare.

The trial court did not follow the correct legal standard for determining custody in this case. Under the proper legal standard — whether there has been a change of condition materially (adversely) affecting the welfare of the child — there is no evidence to support its change of custody. There is no evidence that the mother’s lifestyle has had an adverse or detrimental effect on the welfare of these children. In a 1980 case we held that the fact that the mother was living with a man who was not her husband may be sufficient under the any evidence rule to authorize a decision “that the child’s welfare would be enhanced by a change of custody.” Bell v. Bell, 154 Ga. App. 290, 292 (267 SE2d 894). But we more recently confirmed that the issue is not whether the child’s welfare will be enhanced (improved) by a change of custody. Rather, the issue is whether there has been a material change, that is, a change which adversely affects the child’s welfare. See Arp v. Hammonds, 200 Ga. App. 715, 718 (409 SE2d 275). This is a necessary conclusion, for all change materially affects a child’s welfare; an adverse change may even have a favorable effect on a child’s welfare. Since the object is the child’s best interests, the only justification to change custody, based on a change in circumstance, is that the change has harmed the child’s welfare.

“[A] showing of changed conditions of [a parent] without a showing of its material effect on the child, is insufficient to warrant a change in custody.” Robinson v. Ashmore, 232 Ga. 498, 502 (207 SE2d 484); Evans, supra. “Material” change, in the sense of a child’s best interests, means an adverse change. We recently declined to overturn a ruling leaving custody in a mother although the evidence showed she had lived with a boyfriend and the children had been in the bed with them while watching television. Hayes, supra. As in Hayes, the children in this case have never seen their mother in bed with their half-brother’s father. Id. at 133.

The professional observers in this case agreed unanimously that the best interest of these children will be served by allowing them to remain with their mother. The undisputed and overwhelming evidence shows that, as Dr. Carden indicated, appellant has dealt with her special circumstance with her older children in a positive manner. The only element in this case indicating that appellant’s changed circumstances have an adverse effect on these children was appellee’s bald speculation that in the future the girl would be permissive and the boy would be a child abuser. Such fears and speculations are not supported by the evidence, nor are they evidence of a present adverse effect. Appellee’s opinion that his son “has a disrespect sometimes for women” is not supported by any evidence. Appellant’s father’s opinion that her children were exposed to “immorality” is a personal philosophical or judgmental opinion only, as to which the court is not an arbiter except in cases involving evidence of actual detrimental effect; his opinion that the children were suffering “neglect” is not supported by any evidence. Appellee’s opinion that appellant is “indoctrinating” his kids by her lifestyle does not constitute evidence of a change adversely affecting the children. His opinion that “any woman that is divorced and has a sexual relationship with a man that she is not married to should lose custody of her children” is not one that we have adopted in Georgia courts. Even assuming appellant broke the moral code of some persons or of society at large, deprivation of child custody is not a sanction which a court may render. See the dissent in Gibson v. Pierce, 176 Ga. App. 287, 290 (335 SE2d 658). Although appellee stated that appellant arbitrarily changed the visitation schedule, “there was no evidence that [appellant] wilfully interfered with his visitation or maliciously moved the [children] ... so that [appellee] could not see [them].” Hayes, supra at 133.

Finally, the trial court’s finding that the baby’s father “left [appellant] before the child’s birth,” is factually incorrect and not supported by any evidence.

The reasons given by the trial court for this change of custody have to do with its belief that children will fare better when raised in a “conventional” and “traditional” home where they have the example of a mother and father as role models, and that they must have an “opportunity to grow and develop in traditional surroundings.” These are not preconditions to child custody which this state has recognized, and are not grounds to remove custody from a single parent. The trial court’s ultimate conclusion that appellant’s home is deficient because it does not provide the “dedicated guidance” of both a mother and a father as in a “traditional” or “conventional” home, and that consequently her home does not “present opportunities for normal growth and development,” is not the standard for determining a change of custody and is, moreover, not supported by any evidence and is contrary to the overwhelming evidence in the case.

According to the cases cited above, I find no evidence of a material change in circumstances, that is, there is no evidence that appellant’s changed circumstances have adversely affected her children’s welfare so as to warrant or authorize a change in custody.

The judgment below should be reversed.

I am authorized to state that Presiding Judge McMurray and Judge Cooper join in this dissent.

Decided March 19, 1993 —

Reconsideration denied April 2, 1993

Vansant, Corriere & McClure, John M. Vansant, Jr., K. Alan Dasher, for appellant.

Black & Black, Eugene C. Black, Sr., for appellee.


author: Cooper, Judge.

text:
    A92A1836.
    BROADFOOT et al. v. CITIZENS & SOUTHERN NATIONAL BANK.
    (430 SE2d 638)
   Cooper, Judge.

This appeal, the third case from the same set of facts to appear before this court, arises from the trial court’s grant of appellee’s motion for summary judgment.

Appellants Marie and Pierre Merlot and Broadfoot, as trustee in bankruptcy for the Merlots’ restaurant, brought this action against appellee and other named parties for severe damage to their restaurant caused by the collapse of brick veneer from the wall of an adjacent building onto property rented by the Merlots. As a result, the restaurant closed and went into bankruptcy.

Abco Builders, Inc. (“Abco”) was the original general contractor of the adjacent building from 1963 until 1965. In 1965, a partnership composed of C. Phillip Richards, Harwell S. Huggins and M. William Breman purchased the building at a foreclosure sale from appellee, the lender. The partnership abandoned the building in 1976 to appellee. In 1978, appellee sold the property to Aaron Rents, Inc., the owner of the building when appellants’ property was damaged in 1985. Appellants filed their complaint in 1986. Abco, Richards, Huggins, Breman, Aaron Rents and appellee were originally defendants in this case. The complaint alleged that defendants negligently failed to discover and correct inherent defects in the wall’s brick veneer. The record reveals that problems with the brick veneer arose both during construction and afterwards, in 1966, 1971, 1974 and 1977, as well as 1985. In 1974, Abco was retained to correct problems in the wall. Abco was to have installed horizontal expansion joints under each shelf angle of the wall in order to relieve the vertical expansion pressure of the building and prevent future collapses; however, in 1977, while appellee was the sole owner of the building, brick veneer again fell from the wall. An engineer hired by appellee determined that despite the 1974 effort to correct problems in the wall, the cause of the collapse was still an insufficient number of brick ties. Appellants contend that during its ownership appellee knew of the prior collapses, knew or should have known through the exercise of ordinary care that the wall was defectively constructed and failed to correct the defects, in breach of its duty to exercise reasonable and ordinary care.

The case proceeded to trial before a jury, during which the court granted directed verdicts on all counts in favor of Abco, Breman, Richards and Huggins. The court also granted directed verdicts in favor of appellee and Aaron Rents on appellants’ claims for punitive damages, attorney fees and the Merlots’ individual claims for mental anxiety and damage to their credit. The trial court’s rulings were appealed to this court and affirmed in Broadfoot v. Aaron Rents, 195 Ga. App. 297 (393 SE2d 39) (1990) (“Broadfoot”) and Broadfoot v. Aaron Rents, 200 Ga. App. 755 (409 SE2d 870) (1991). Appellants voluntarily dismissed appellee and Aaron Rents without prejudice and within six months renewed the case pursuant to OCGA § 9-2-61. Based on our decision in Broadfoot, that the claims asserted against previous owners Breman, Huggins and Richards were barred by the statutes of limitation for damage to real property (OCGA § 9-3-30) and damage to personal property (OCGA § 9-3-31), appellee moved the trial court for summary judgment. Adopting the language of Broadfoot, the trial court held that since the “ ‘last work complained of was performed in [1977]’ ” and appellee “ ‘had not owned the building for almost [eight] years before the brick veneer fell in 1985, and it was not made a party to the lawsuit until 1986,’ ” appellants’ claims against appellee were also barred by the applicable statutes of limitation. The trial court’s order indicates that appellants settled their claim against defendant Aaron Rents; thus, the claim against appellee is the sole remaining claim in this case. Appellants contend the trial court erred in granting summary judgment in favor of appellee on the basis of a four-year statute of limitation when appellants’ first injury occurred and the cause of action accrued against appellee on April 5, 1985 and appellants brought suit against appellee on December 30, 1986. Appellants argue that the trial court erroneously applied Broadfoot because appellee is not situated similarly to prior owners Breman, Richardson and Huggins, who had no legal interest in the building after 1976. Appellants contend that by holding the security deed after the sale of the building to Aaron Rents, appellee retained the right to inspect and demand that the building be properly maintained in good condition and repair and not create an unsafe hazard to the public.

At the outset we reject appellants’ contention that the power to inspect the premises granted appellee in the security deed was intended to benefit the public and therefore to benefit appellants specifically. “ ‘A third-party beneficiary contract is one in which the promisor engages to the promisee to render some performance to a third person. (Cit.)’ [Cit.] ‘In order for a third party to have standing to enforce such a contract ... it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient. (Cits.)’ [Cit.]” American Legion v. Foote & Davies, 193 Ga. App. 225, 226 (1) (387 SE2d 380) (1989). There is no evidence of any intent on the part of the appellee and Aaron Rents to benefit appellants. Indeed, the Merlots only entered into their lease of the restaurant premises eight months before the 1985 brick collapse whereas the security deed was executed in 1978. In addition, this court has previously held that actions against lending or financing authorities by homeowners or purchasers for faulty construction “will not lie because the lender’s customary participation, the inspection, is normally not made for the benefit of the homeowner, but is made instead for the protection and benefit of the lender. [Cit.]” Harden v. Akridge, 193 Ga. App. 736 (389 SE2d 6) (1989). “If any exception to this rule is made, it will have to be based on some clear promise of the lender to perform certain protective functions, and upon a clear and distinct participation in the activity which resulted in the damage. It is certainly not enough to make general allegations that the lender inspected the work, since such inspections are presumed to be for its own financial purposes and are not intended to ensure a quality of work.” Id. at 737.

Appellants also argue that this case is controlled by Welding Products of Ga. v. S. D. Mullins Co., 127 Ga. App. 474 (193 SE2d 881) (1972) and Hunt v. Star Photo Finishing, 115 Ga. App. 1 (153 SE2d 602) (1967). However, we are not persuaded that these cases, which involve suits by tenants against independent contractors for negligent construction, are controlling. Appellants seek to hold appellee liable as the holder of the security deed or as the sole owner of the building when the 1977 collapse occurred and the last repairs were made prior to the 1985 collapse.

OCGA §§ 9-3-30 and 9-3-31 provide that all actions for trespass upon or damage to realty and for injuries to personalty “shall be brought within four years after the right of action accrues.” In Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (368 SE2d 732) (1988), the Supreme Court ruled that actions under OCGA § 9-3-30 must be brought within four years of substantial completion of the structure. In the instant case, the last work performed on the building, which could arguably be considered “substantial completion,” was in 1977; thus, the statute of limitation ran in 1981. Since this action was not filed until December 1986, it was time-barred. See Miles Ins. & Realty Co. v. Gilstrap, 187 Ga. App. 858 (1) (371 SE2d 672) (1988). Accordingly, the trial court did not err in granting summary judgment to appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided March 18, 1993 —

Reconsideration denied April 2, 1993

Hurt, Richardson, Garner, . Todd & Cadenhead, A. Paul Cadenhead, C. Michael Johnson, Pamela B. Adams, for appellants.

Fortson & White, Bruce H. Beerman, Greene, Buckley, Jones & McQueen, Francis C. Schenck, for appellee.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1906.
    LIPHAM v. FEDERATED DEPARTMENT STORES, INC.
    (430 SE2d 590)
   Birdsong, Presiding Judge.

This is an appeal from an order of the state court granting the motion for summary judgment of appellee Federated Department Stores, Inc. d/b/a Rich’s (Rich’s).

Appellant Minnie B. Lipham, a senior citizen, drove to Market Square Mall to take her usual walk. The only reason she went to the mall was to walk around the outside of the Rich’s building. Rich’s was not yet open that morning and appellant was not going to do any shopping at the mall. While walking, she observed a crowd of about 75 people approximately 50-60 feet away in the parking lot of Rich’s store. Being curious appellant left the sidewalk and walked toward the crowd. As she approached, appellant observed a roped-off area in which an organized, competitive-type game was taking place; the event was sponsored by Rich’s. People were running back and forth between participants inside this area. The crowd gathered around the outside of the roped-off. area was “just standing as a group” watching. Appellant conversed with no one in the crowd either before or after walking to the area. She stood directly in back of a male employee of appellee Rich’s. The employee was attending and participating in the Rich’s event. The employee turned around very quickly, unintentionally moving into appellant, knocking her to the ground and thereby injuring her. (There exists no evidence of record that the employee was aware of appellant’s presence behind him when he turned, nor has any evidence been introduced from which such fact could reasonably be inferred.)

Appellant brought a suit for damages alleging vicarious liability on the part of Rich’s, under the doctrine of respondeat superior, for the negligence of its employee. Rich’s moved for summary judgment on the grounds appellant was a licensee at the time of the injury and its employee did not wilfully or wantonly injure appellant, and that appellant assumed the risk when she walked to the activity area. Held:

1. The defense of assumption of the risk has three separate elements. Moon v. Homeowners’ Assn. &c., 202 Ga. App. 821, 822 (1) (415 SE2d 654). Whether these elements have been established to the extent that no genuine issue of material fact remains thereto will ordinarily, as in this case, constitute a jury question and is not susceptible of summary adjudication. Thompson v. Crownover, 259 Ga. 126 (5) (381 SE2d 283). However, the question of assumption of risk does not arise unless there first exists a genuine issue of material fact regarding appellee’s liability to appellant for the alleged negligent conduct of appellee’s employee.

2. As a general principle of law, the legal duty in this case arises out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm. Bradley Center v. Wessner, 250 Ga. 199, 201 (296 SE2d 693). However, Bradley, supra, does not create a new tort but, consistent with the broad provision of OCGA § 9-2-3, merely provides for a remedy consistent with the applicable, traditional tort principles of this state (see Bradley, supra at 202; Reddell v. Allen, 193 Ga. App. 102, 103 (1) (386 SE2d 735)). Thus, in Bradley, supra at 201, the Supreme Court clarified the general legal duty owed to the world as follows: “ ‘[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ ” (Emphasis supplied.) Id. at 201; accord Dupree v. Keller Indus., 199 Ga. App. 138, 142 (2) (404 SE2d 291). Bradley merely reaffirms the general legal duty to protect other humans against unreasonable risk of harm; it does not purport to set a legal standard applicable to each and every conceivable tortious situation.

Ellington v. Tolar Constr. Co., 237 Ga. 235 (227 SE2d 336), involving a suit for injuries sustained at a construction site by a laborer employed by a subcontractor against the general contractor, is distinguishable from this case.

The complaint in this case avers an alleged act of active negligence committed by an employee of the owner or occupier of the premises where the incident occurred against a third party on the premises. Accordingly, we must now establish appellant’s legal status on the premises at the time of the incident to determine the correct legal standard to apply in this case.

The test of status of third party as a licensee is well established by statute and case law. See generally OCGA § 51-3-2; Savage v. Flagler Co., 185 Ga. App. 334, 337 (2) (364 SE2d 52). Although appellant averred in her complaint that she was an invitee, she made the following uncontroverted admissions of fact in her deposition (see generally Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305); Pate v. Ga. Southern &c. R. Co., 196 Ga. App. 211, 212 (395 SE2d 604)): She was walking around the outside of Rich’s before it was opened for business; she was merely using Rich’s sidewalk; the only reason she went to the mall and Rich’s was to walk outside; she was not going to do any shopping at the mall, and she spoke to no one either before or after voluntarily joining the crowd in the parking lot. These admissions have not been withdrawn and, even if they could be contradicted, no such evidence exists in this record. We are satisfied, based on the clear and palpable evidence of record, that appellant was as a matter of law on the premises at the time of the incident in the status of a mere licensee.

The legal standard applicable to active negligence cases involving a licensee was reaffirmed by this court in Wade v. Mitchell, 206 Ga. App. 265, 267 (424 SE2d 810). In Wade we reaffirmed that “the owner of the premises owes only a slightly higher duty to a licensee than to a trespasser. ‘He must not wantonly or wilfully injure the licensee; and since the presence of the licensee as a result of his license is at all times probable, some care must be used to prevent injuring him after his presence is known or reasonably should be anticipated.’ ” (Second emphasis supplied.) Wade, supra at Division 2(c). We further noted that “ ‘[t]he fundamental concept of this class of cases ... is of a liability only for wilful and wanton injury, but it is usually wilful or wanton not to exercise ordinary care to prevent injuring a person who is actually known to be, or may reasonably be expected to be, within the range of a dangerous act being done or a hidden peril on one’s premises.’ ” Id. “ ‘[Thus] as to a licensee . . . “ordinary care and diligence must be used to prevent injuring him after his presence is known or reasonably should be anticipated” ’ ” to be within the range of a dangerous act or a hidden peril on one’s premises. Id. That is, “ ‘[a]fter the presence of the licensee is known, exactly the same acts of caution may be required of the owner to satisfy the legal duty as would be necessary if the licensee were invited.’ ” Id.

In this case, unlike the circumstances in Wade, supra, we find that there exists no evidence from which it can reasonably be inferred that appellant’s presence was known or should have been known. In any event, assuming arguendo her presence should have been known, as a matter of law, appellant was not injured by either the performance of a dangerous act or by a hidden defect in the premises-, the clear and palpable evidence of record is such that a jury could draw but one conclusion — the performance of no dangerous act or the existence of no hidden premises defect caused appellant’s injuries. Thus, the portion of the rule in Wade, supra, that pertains in situations involving dangerous acts and hidden defects is not applicable to a resolution of the summary judgment issue in this case.

The proper legal standard in this case is to determine whether there exists a genuine issue of material fact, within the meaning of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), that appellant was injured through the wanton or wilful conduct of the Rich’s employee. Wade, supra. If appellant, as a mere licensee, had sued Rich’s directly for injury sustained on Rich’s premises, a genuine issue of material fact would have to exist that she was injured by the wanton and wilful conduct of Rich’s. The legal standard expressed in Wade, supra, is in part a recognition of the legal concept that a party cannot do indirectly that which the law does not allow to be done directly (Kingsmill Village &c. v. Homebanc &c., 204 Ga. App. 900, 902 (2a) (420 SE2d 771)). Whether appellant, as a licensee, seeks to sue Rich’s, the premises owner, either on a theory of direct liability or on a theory of vicarious liability, the legal standard remains the same; the standard to be applied is that explained in detail in Wade, supra. Applying the applicable portions of the legal standard of Wade, supra, and the summary judgment law as expressed in Lau’s Corp., supra, we are satisfied the trial court did not err in granting summary judgment to Rich’s. We will not reverse the correct judgment of a trial court regardless of the reason given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673); see National Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344).

Moreover, “ ‘[s]ummary judgment law does not require the movant to show that no issue of fact remains but only that no genuine issue of material fact remains; and while there may be some shadowy semblance of an issue, the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.’ ” Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 68 (4) (397 SE2d 576). There exists but a shadowy semblance of an issue as to appellee’s liability in this case whether considered on the grounds of appellee’s averred liability as an owner or occupier of the premises, or on the grounds of appellee’s averred liability under the doctrine of respondeat superior. Accordingly, we find the trial court did not err as enumerated by appellant.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Cooper, Andrews, Johnson and Blackburn, JJ., concur. Beasley, J., concurs in part and dissents in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in the conclusion that the evidence precludes judgment against the department store based on its duty as owner or occupier of the premises, because plaintiff was only a licensee and the evidence conclusively shows that the employee did not act wilfully or wantonly. OCGA § 51-3-2. The duty of the owner or occupier of land is to keep the premises and approaches safe. OCGA § 51-3-1. This statutory duty relates to the condition of the premises and is grounded on defects or changes thereon. The extent of the duty depends on the status of the plaintiff in relation to the premises.

Decided March 3, 1993 —

Reconsideration denied April 2, 1993

John M. Hyatt, for appellant.

Drew, Eckl & Farnham, W. Wray Eckl, Elizabeth C. Helm, for appellee.

Plaintiff has pursued another theory as well, however. The evidence does not foreclose recovery based on the employee’s duty to exercise ordinary diligence in his actions wherever he is, a duty “raised by the law for the protection of others against unreasonable risks of harm.” Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); OCGA § 51-1-2. See also Ellington v. Tolar Constr. Co., 237 Ga. 235, 237-238 (III) (227 SE2d 336) (1976). This does not depend on plaintiff’s status vis-a-vis location. There is some evidence that the employee negligently knocked plaintiff to the ground and that he was within the scope of his employment at the time. If those are found to be the facts, the employer would be liable vicariously under the doctrine of respondeat superior. OCGA § 51-2-2; McCranie v. Langdale Ford Co., 176 Ga. App. 281 (335 SE2d 667) (1985). In McCranie, as here, plaintiff was allegedly knocked to the ground and injured by an employee on the employer’s premises. Recovery was not based on a premises liability theory.

In order to hold the employer liable vicariously, or derivatively, it is not necessary to seek recovery against the employee also. A judgment against a master may be obtained without joining the servant. See Porterfield v. Gilmer, 132 Ga. App. 463 (208 SE2d 295) (1974), aff’d 233 Ga. 671 (212 SE2d 842) (1975). Of course, plaintiff must prove the servant/employee’s negligence.


author: Carley, Presiding Judge.

text:
    A92A1915.
    CAUSEY v. THE STATE.
    (430 SE2d 594)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Pursuant to OCGA § 17-7-211, appellant filed a pre-trial request for a copy of the written scientific reports which the State would seek to introduce. Contrary to appellant’s contentions, the record demonstrates the State’s complete and timely compliance with the requirements of OCGA § 17-7-211. See Williams v. State, 201 Ga. App. 384, 386 (3) (411 SE2d 316) (1991).

Decided January 29, 1993 —

Reconsideration denied April 2, 1993.

Burl E. Causey, Sr., pro se.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Fred R. Simpson, Assistant District Attorneys, for appellee.

2. It obviously was not error to fail to quash a count of the indictment when no motion to quash that count had ever been filed.

3. The denial of appellant’s motion to suppress is enumerated as error. The record shows that appellant was arrested pursuant to a warrant issued by the parole board. See OCGA § 42-9-48 (a). Contrary to appellant’s contentions, this warrant was not invalid on the ground that he was no longer a parolee who was subject to the authority of the parole board. Although appellant’s ten-year sentence for violating state criminal laws had been imposed in 1979, that sentence ran consecutively to the sentence he was serving for violation of federal criminal laws. Taylor v. Green, 229 Ga. 164 (190 SE2d 66) (1972). Accordingly, appellant’s ten-year state sentence did not begin to run until 1985, when he was released by the federal authorities. It follows that appellant was subject to arrest under the warrant issued by the parole board and that the search of his person pursuant to his arrest under that warrant was authorized. “ ‘Once a defendant has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.’ [Cit.] The trial [court] correctly denied the appellant’s motion to suppress.” Paxton v. State, 160 Ga. App. 19, 20 (1) (285 SE2d 741) (1981).

4. In his motion for new trial, appellant raised the issue of the effectiveness of his trial counsel. After conducting a hearing, the trial court found no merit in this contention. We find no error in the trial court’s ruling in this regard. See Whitner v. State, 202 Ga. App. 608 (415 SE2d 52) (1992).

5. Appellant having fled after jeopardy had attached, the trial court did not err in failing to declare a mistrial and in allowing the trial to continue in appellant’s absence. Croy v. State, 168 Ga. App. 241 (1) (308 SE2d 568) (1983). Compare Pollard v. State, 175 Ga. App. 269 (333 SE2d 152) (1985).

6. Appellant’s remaining enumerations of error have been considered and found to be without merit.

Judgment affirmed.

Pope, C. J., and Johnson, J., concur.