text:
    A12A0361.
    GCCFC 2007-GGP ABERCORN STREET LIMITED PARTNERSHIP v. ABERCORN COMMON, LLLP et al.
    (730 SE2d 589)
   MlKELL, Presiding Judge.

In this foreclosure case, GCCFC 2007-GGP Abercorn Street Limited Partnership (“the Lender”), appeals from the trial court’s denial of its petition to confirm the foreclosure on a Savannah shopping center based on the trial court’s conclusion that the Lender did not present evidence of the true market value of the property because the Lender’s expert appraised the “leased fee interest in the property” and not the “fee simple interest.”

1. The procedure for confirmation of nonjudicial foreclosure sales is set forth in OCGA § 44-14-161, which provides:

(a) When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall obtain an order of confirmation and approval thereon.
(b) The court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.

(Emphasis supplied.)

The legislative intent of this statute was to give the debtor relief, which is provided by “requiring speedy judicial review of the notice, advertisement, and regularity of the sale; insuring that the property sold for a fair value; and protecting debtors from deficiency judgments when the forced sale brings a price lower than fair market value.”

The Lender’s sole enumeration of error is that

[t]he superior court erred by holding that OCGA § 44-14-161 (b) requires a petitioning creditor seeking confirmation of a foreclosure sale of a shopping center that is subject to numerous existing leases to retailers, as well as a ground lease, to present evidence of a hypothetical fee simple interest in the property — unencumbered by the leases — to obtain confirmation.

Although the Lender contends that our standard of review is de novo because this case involves the interpretation of a statute, apparently a reference to OCGA § 44-14-161, we disagree. First, if a statute is plain and susceptible of but one construction, the courts have no authority to place a different construction on it, but must apply it according to its terms. We find OCGA § 44-14-161 to be such a statute. It specifically refers to “real estate” and “land” as the subject of the confirmation of sale procedure, not leased estates. Second, we find no argument made below by the Lender that the statute was in need of interpretation, only that proof of the value of the “leased fee interest” instead of the value of the “fee simple interest” satisfied the requirements of the statute. Therefore, our review of the trial court’s determination that the Lender failed to produce evidence of the true market value is whether the record contains any evidence to support the findings of the trial court, and we view the evidence in the light most favorable to the trial court’s judgment.

Value on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

So viewed, the evidence was that the Lender’s appraiser, Joel Crisler, testified that

the Tax Assessor’s Office estimates a market value for the fee simple interest. I estimated a market value for the leased fee interest. The fee simple interest, the valuation of the fee simple interest typically assumes a stabilized occupancy and that the tenant spaces are leased at market rent levels----[I]f all things were equal, a valuation of the fee simple interest would likely be higher than the valuation of the leased fee interest. So it is correct that the Tax Assessor’s Office estimated a higher value, but they estimated a value for the fee simple interest in the property, assuming everything was rented at market rates and that it had attained a stabilized occupancy. I didn’t estimate that in the appraisal.
I estimated the value of the leased fee interest.

(Emphasis supplied.)

Further, Crisler stated that he was asked to appraise “the leased fee interest, which is the property owner/landlord’s interest subject to the existing leases which encumber the various tenant spaces in the center.” He appraised this interest as of January 4,2011, at $19,920,000, with the income approach using a discounted cash flow analysis. He acknowledged that, using the sales comparison approach, he appraised the leased fee interest at $20,927,000. He also acknowledged that the tax assessor’s valuation of the fee simple interest was $23,024,800, and that, in his opinion, this valuation could not be successfully challenged.

The attorney who conducted the foreclosure sale bid in the property, as he had been instructed by the Lender, at $20,500,000, the only bid received. He also testified that he had been authorized by the Lender to bid up to $27,000,000 for the property.

The Lender also acknowledged that, in November 2010, Cousins Properties had offered to purchase the property for $23,000,000.

Abercorn Common produced evidence of its assessment of the true market value of the shopping center through appraiser Donald Pardue, Jr. Pardue, using the direct capitalization analysis on the income method of valuation, arrived at $22,160,000 as the true market value of the fee simple interest of the real estate.

2. Our opinion, of course, speaks only to facts presented in the present appeal. We do not hold that the “leased fee” interest can never be equivalent to the true market value. It would almost always be relevant to market value. The statute requires the party which foreclosed to convince a superior court judge, by a preponderance of the evidence, that the property sold for its “true market” value. Clearly, in the case at bar, the foreclosing party failed to convince this superior court judge. Perhaps if the appraiser for the foreclosing party had himself appraised the fee simple interest, and then explained how that value should be discounted, or increased, by the leased fee interest, the trial court would have been persuaded. But we are not willing to hold as a matter of law that the trial courts must always accept the leased fee interest as being the “true market” value. The trial court’s conclusions are supported by some evidence in the record so we must affirm the judgment.

Decided July 13, 2012.

Ellis, Painter, Ratteree & Adams, Kimberly C. Harris, Sutherland, Thomas M. Byrne, for appellant.

Schreeder, Wheeler & Flint, John A. Christy, for appellees.

Judgment affirmed.

Miller and Blackwell, JJ., concur.

       The Lender came to hold the Loan Documents on the $30,000,000 loan to Ahercorn Common, LLLP through a series of assignments originating with the original lender, Greenwich Capital Financial Products, Inc.

       (Footnote omitted.) Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 614 (1) (467 SE2d 531) (1996).

        State Revenue Comm. v. Brandon, 184 Ga. 225, 228 (190 SE 660) (1937).

       An appellate court need not consider arguments made for the first time on appeal. Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002).

       True market value “is the price which the property will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.” (Citation and punctuation omitted.) Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 259 (1) (424 SE2d 889) (1992).

        Metro Land Holdings Investments v. Bank of America, 311 Ga. App. 498, 499 (716 SE2d 566) (2011); Hammock v. Issa, 310 Ga. App. 547, 550 (713 SE2d 717) (2011).

       (Punctuation and footnote omitted.) Henderson Property Holdings v. Sea Island Bank, 310 Ga. App. 795 (714 SE2d 382) (2011).

       The statement of a bidder that he was prepared to bid more can be considered as evidence that the bid price was in fact below the market price. Thomas v. Henry, 150 Ga. App. 792, 793 (1) (258 SE2d 710) (1979).

       We are aware that the leased fee interest maybe less than the fee simple interest, i.e., the value of the unencumbered land and improvements, but it could be, in theory, higher than the value of the fee. The latter circumstance might occur if the rent rolls were full, and the leases were all made for long terms, at above market rates, with financially solvent tenants.

       The Lender’s argument that the trial court erred in not considering Pardue’s testimony in determining true market value is unavailing since it was the Lender’s burden to show that the property brought true market value and consideration of its evidence alone showed that it had not fulfilled this burden.

       See, e.g., footnote 8 above.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A0529. A12A0530.
    FULTON COUNTY v. COLON. FULTON COUNTY v. WARREN.
    (730 SE2d 599)
   Andrews, Judge.

Maria Colon and Gwendolyn Warren filed separate actions against Fulton County pursuant to OCGA § 45-1-4, the whistleblower statute. The related actions alleged that, while employed by the County, Colon and Warren jointly disclosed to County supervisors the manner in which various County employees were violating laws, rules, and regulations, and were fraudulently wasting and abusing County funds and public money, and that they refused to participate in a cover-up of the fraud. The actions further alleged that, in violation of the whistleblower protection granted under OCGA § 45-1-4, the County retaliated against them by terminating Warren’s employment as deputy county manager, and demoting Colon from her employment as an investigative officer for the County’s Office of Professional Standards. Accordingly, the actions sought compensatory damages and other relief provided under OCGA § 45-1-4.

Consolidated for this opinion are Fulton County’s appeals from the trial court’s denial of identical motions filed in each action by which the County sought: (1) dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis that the County’s sovereign immunity barred the action; and (2) for judgment on the pleadings. For the following reasons: (1) we vacate the trial court’s order denying the motions for dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction on the basis of sovereign immunity; and (2) we vacate in part and affirm in part the trial court’s order denying the motions for judgment on the pleadings. We remand for proceedings consistent with this opinion.

1. The trial court correctly rejected Fulton County’s claims that the whistleblower statute does not constitute a valid waiver of the sovereign immunity from suit provided to counties under the Georgia Constitution. Asserting the defense of sovereign immunity to the whistleblower actions, Fulton County moved pursuant to OCGA § 9-11-12 (b) (1) for dismissal of both actions for lack of subject matter jurisdiction. Bonner v. Peterson, 301 Ga. App. 443 (687 SE2d 676) (2009). Because Colon and Warren sought to benefit from the waiver of the County’s sovereign immunity from suit, they had the burden of establishing the waiver. Id.; Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671-672 (570 SE2d 1) (2002); Conrad v. Conrad, 278 Ga. 107, 109 (597 SE2d 369) (2004).

Under the Georgia Constitution, sovereign immunity from suit is extended to all state counties and “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. 1983, Art. I, Sec. II, Par. IX (e); Gilbert v. Richardson, 264 Ga. 744, 746-748 (452 SE2d 476) (1994); OCGA § 36-1-4. Moreover, “[i]mplied waivers of governmental immunity should not be favored.” City of Atlanta v. Gilmere, 252 Ga. 406, 409 (314 SE2d 204) (1984). Fulton County contends that OCGA § 45-1-4 cannot be construed to waive its sovereign immunity because the statute does not do so expressly and specifically. Although OCGA § 45-1-4 nowhere contains the terms “sovereign immunity” or “waived,” a specific waiver of sovereign immunity and the extent of such waiver under Art. I, Sec. II, Par. IX (e) does not require that the Act of the General Assembly expressly state “sovereign immunity is hereby waived.” We find that the cause of action for relief set forth in OCGA § 45-1-4 unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver.

Where a legislative act creates a right of action against the state which can result in a money judgment against the state treasury, and the state otherwise would have enjoyed sovereign immunity from the cause of action, the legislative act must be considered a waiver of the state’s sovereign immunity to the extent of the right of action — or the legislative act would have no meaning.

Williamson v. Dept. of Human Resources, 258 Ga. App. 113, 115 (572 SE2d 678) (2002). Accordingly, to the extent that Colon and Warren asserted causes of action under OCGA § 45-1-4, Fulton County’s sovereign immunity is waived.

2. The trial court erred, however, by ruling that Colon and Warren asserted causes of action under OCGA § 45-1-4 (and the County’s sovereign immunity was therefore waived) on the basis that they disclosed to the County violations of a law, rule, or regulation as defined in OCGA § 45-1-4 (a) (2) and (d), regardless of whether the disclosures provided information about “fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer,” as set forth in OCGA § 45-1-4 (b). Considering the entire statutory scheme including its history and purpose, we find that the legislature did not intend for OCGA § 45-1-4 to be so broadly construed. We find that the above-quoted language in subsection (b) of the statute acts as a limit on whistleblower protection provided under the statute, and that, where the complaint about fraud, waste, and abuse is made to a public employer defined under OCGA § 45-1-4 (a) (4) as a state-funded local governmental entity, whistleblower protection is limited to a complaint related to a state-funded program or operation under the jurisdiction of the public employer.

When OCGA § 45-1-4 was enacted in 1993, the preamble to the Act stated that its general purposes were “to regulate the receiving and investigating of complaints or information from public employees concerning fraud, waste, and abuse in or relating to any state programs or operations ... to provide for confidentiality ... [and] to prohibit retaliatory action.” Ga. L. 1993, p. 563. In the 1993 enactment, the statute defined “public employer” as “the executive branch of the state and any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees except the Office of the Governor, the judicial branch, or the legislative branch,” and similarly defined a “public employee” as a person employed by the executive branch or a state agency subject to the same exceptions. Former OCGA §45-1-4 (a) (1), (2), enacted by Ga. L. 1993, pp. 563-564. Accordingly, the 1993 version applied “solely to persons employed in state government” but did not apply “to persons who work in the governor’s office, the General Assembly, the judicial branch of state government, or any local unit of government.” North Ga. Regional Educational Svc. Agency v. Weaver, 272 Ga. 289, 290 (527 SE2d 864) (2000). In 2005, the statute was amended to expand whistleblower protection to public employees in all branches of state government by defining “public employer” as “the executive, judicial, or legislative branch of the state or any other department, board, bureau, commission, authority, or other agency of the state which employs or appoints a public employee or public employees,” and by adopting a similar definition of a “public employee” as a person employed by any branch of state government. Former OCGA § 45-1-4 (a) (3), (4), enacted by Ga. L. 2005, pp. 899-900. The 2005 amendment added language to subsection (d) of the statute providing that retaliation against a public employee prohibited in subsections (d) (1) and (d) (2) was for employee disclosures or refusals to participate in “violation of or noncompliance with a law, rule, or regulation.” OCGA § 45-1-4 (d) (1), (d) (2). The 2005 amendment also provided remedies to a public employee who has been the object of retaliation in violation of the statute. OCGA § 45-1-4 (e), (f). The statute was again amended in 2007 to further expand whistleblower protection by defining “public employer” to include not only all branches of state government but also “any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.” OCGA § 45-1-4 (a) (4). Similarly, the definition of “public employee” was expandedin 2007 to include “all employees, officials, and administrators of any agency covered under the State Merit System of Personnel Administration and any local or regional governmental entity that receives any funds from the State of Georgia or any state agency.” OCGA § 45-1-4 (a) (3). In conjunction with amendments expanding the definition of public employer to include complaints made to state-funded local or regional governmental entities, the statute, as amended, retained provisions in subsection (b) providing that the receipt and investigation of public employee complaints about fraud, waste, and abuse is limited to those complaints “in or relating to any state programs and operations under the jurisdiction of such public employer.” OCGA § 45-1-4 (b). Moreover, the preambles to the original 1993 Act and to the 2005 and 2007 Acts amending the statute make clear that the unchanged purposes of the statute are to provide confidentiality and employment protection to public employees who complain to their public employers regarding “fraud, waste, and abuse in state programs and operations.” Ga. L. 1993, p. 563; Ga. L. 2005, p. 899; Ga. L. 2007, p. 298.

Several rules of statutory construction are relevant to determining under these facts the extent to which the current version of OCGA § 45-1-4 provides whistleblower protection.

First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole. Fourth, in attempting to ascertain legislative intent of a doubtful statute, a court may look to the caption of the act and its legislative history.

(Citations, punctuation and footnotes omitted.) Sikes v. State, 268 Ga. 19, 21 (485 SE2d 206) (1997). In its current version, the general scheme of OCGA § 45-1-4 is set forth in subsections (b), (c), and (d), which act together to address the purposes for which the statute was enacted. Subsection (b) provides that a public employer “may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.” In conjunction with subsection (b), subsection (c) provides that a public employer “shall not after receipt of a complaint or information from a public employee disclose the identity of the public employee” except upon certain conditions. Also in conjunction with subsection (b), subsection (d) prohibits a public employer from taking any adverse employment action as retaliation against a public employee who, by disclosing a violation of a law, rule, or regulation complains or provides information about such waste, fraud and abuse. See Weaver, 272 Ga. at 290 (construing former version of OCGA § 45-1-4); Caldon v. Bd. of Regents &c. of Ga., 311 Ga. App. 155, 158-159 (715 SE2d 487) (2011). Subsection (b) acts within this statutory scheme to limit whistle-blower protection provided under the statute to situations where the public employer receives complaints from the public employee concerning waste, fraud, and abuse relating to state programs and operations under the jurisdiction of the public employer. This gives sensible meaning to the language of subsection (b) and construes it in harmony with other parts of the statute and with the purpose for which the statute was enacted. Moreover, as set forth above, the preambles or captions to the original 1993 Act and to the 2005 and 2007 Acts amending the statute are additional evidence of legislative intent and demonstrate that the original and unchanged purpose of the statute is to provide confidentiality and employment protections to public employees in the context of regulating the receipt and investigation of complaints from those employees “concerning fraud, waste, and abuse in or relating to any state programs or operations.” Ga. L. 1993, p. 563; Ga. L. 2005, p. 899; Ga. L. 2007, p. 298; Brown v. Earp, 261 Ga. 522, 523-524 (407 SE2d 737) (1991).

The parties do not dispute that Fulton County qualifies as a “public employer” under OCGA § 45-1-4 (a) (4) because it is a “local or regional governmental entity that receives any funds from the State of Georgia or any state agency.” OCGA § 45-1-4 (a) (4). Under the limiting language of OCGA § 45-1-4 (b), whistleblower protection would apply only to the extent that Colon and Warren, by disclosing the violation of a law, rule, or regulation, complained to the County about fraud, waste, and abuse relating to state programs and operations under the jurisdiction of the County. Construing these parts of the statute together with the entire statutory scheme, we find that Colon and Warren were entitled to assert causes of action under OCGA § 45-1-4 (and therefore Fulton County’s sovereign immunity was waived) only to the extent that their complaints related to a state-funded program or operation under the jurisdiction of the County. This construes the statute to provide that the state programs or operations under County jurisdiction must be funded at least in part by the state but need not be of state origin. This construction provides the broadest whistleblower protection consistent with reconciling the statutory requirement that the complaint about waste, fraud, and abuse be in or related to state programs or operations under the jurisdiction of the public employer, and the requirement that local or regional governmental entities qualify as public employers only if they receive funds from the state.

Because the trial court misconstrued OCGA § 45-1-4, it did not address the factual issue necessary to determine if Fulton County was entitled to sovereign immunity — whether, by disclosing the violation of a law, rule, or regulation, Colon and Warren complained to the County about fraud, waste, and abuse relating to a state-funded program or operation under the jurisdiction of the County. Accordingly, the trial court’s denial of the County’s motions to dismiss for lack of subject matter jurisdiction on the basis of sovereign immunity is vacated, and the case is remanded for the trial court to make this factual determination.

3. Fulton County moved alternatively for judgment on the pleadings pursuant to OCGA § 9-11-12 (c) against Colonand Warren on the basis that neither of their suits could be construed to allege that their complaints to the County about waste and abuse of County funds and public money were related to state programs and operations under the County’s jurisdiction. Because the trial court misconstrued the basis for their causes of action under OCGA § 45-1-4 (see Division 2, supra) the court did not address this claim. Accordingly, we also vacate the trial court’s denial of the County’s motions for judgment on the pleadings on this basis and remand for reconsideration consistent with this opinion.

We find no merit to the County’s additional claim that it was entitled to judgment on the pleadings because the allegations in Warren’s action show that she was a high-level employee not entitled to protection under OCGA § 45-1-4. The County contends that, as deputy county manager, Warren received whistleblower complaints and directed investigations, and thus she was incapable of making a complaint. We find nothing in OCGA § 45-1-4 providing that a public employee whose job it is to receive complaints is excluded from protection from retaliation under subsections (d) (2) or (d) (3). Accordingly, the trial court’s denial of the County’s motion for judgment on the pleadings against Warren on this basis is affirmed.

Judgment affirmed in part and vacated in part, and case remanded.

Doyle, P. J., and Boggs, J., concur.

Decided July 13, 2012

Kaye W Burwell, Y. Soo Jo, for appellant.

Parks, Chesin & Walbert, Allan L. Parks, Jr., Larry H. Chesin, for appellee.

       Although the order denying the County’s motion pursuant to OCGA § 9-11-12 (b) (1) was not a directly appealable final judgment under OCGA § 5-6-34(a) (1), pursuant to the collateral order exception to the final judgment rule, we have jurisdiction to consider the County’s direct appeal from the denial of its sovereign immunity defense. Bd. of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 506-507 (672 SE2d 471) (2009); In re Paul, 270 Ga. 680, 682-683 (513 SE2d 219) (1999).

       “Retaliation” refers to discharge, suspension, demotion, or any other adverse employment action taken against the public employee for making the disclosure. OCGA § 45-1-4 (a) (5).

       A“[l] aw, rule, or regulation includes any federal, state, or local statute or ordinance or any rule or regulation adopted according to any federal, state, or local statute or ordinance.” OCGA § 45-1-4 (a) (2).


author: BARNES, Presiding Judge.

text:
    A12A0568.
    SMITH v. CURTIS.
    (730 SE2d 604)
   BARNES, Presiding Judge.

Greg Smith petitioned for modification to the custody, support and visitation terms that had been established by a February 11, 2009 consent order with his daughter’s mother, Cindy J. Curtis. The trial court granted Smith’s petition as to the modification of his child support obligations, but terminated all “parental rights concerning custody, parenting time, and parenting rights of any type or manner” granted in the previous final order. On appeal, Smith contends that the trial court erred in terminating all of his parenting rights associated with the previous order. Upon review, we affirm.

The evidence shows that Curtis and Smith were not married when their daughter was born, but Smith later legitimated the child. The couple shared legal custody, but had extremely contentious dealings regarding visitation with their child. On March 4, 2010, Smith filed a motion for contempt, alleging that Curtis was denying him his visitation rights. After a hearing, the trial court found Curtis in wilful contempt for the denial of visitation rights, and ordered her to comply with the visitation established in the final order. Smith also contemporaneously filed a petition for modification of child support, custody and visitation, in which he alleged a material change in circumstances warranting the modification of “support and custody and/or visitation.” He alleged a decrease in income, that he was now “able to spend more time with the minor child than [Curtis],” and that the child would have a more secure and stable home with him. Smith later moved to withdraw the request for change in custody, which the trial court granted without prejudice, but he still sought modification of support and visitation.

At the October 4, 2011 hearing on the modification petition, the trial court noted that the only issues for its consideration were the modification of support and visitation. At the conclusion of the hearing, the trial court commented on the extreme animosity displayed by the parents toward each other, their inability to co-parent the child, and the negative impact their actions had on the child. The trial court advised Smith that he would take all of the evidence under advisement and “generate an order.” Smith attempted to interrupt the trial court several times, stating that “I could bring this all to an end” and that “I have a solution.” Smith’s attorney advised him to “hold his tongue and see what the Court’s order is and then make a decision.” Smith continued to speak, and the trial court instructed him that it did not “want to hear another word” until after Smith consulted with his attorney.

After a five-minute recess, Smith returned to the courtroom and declared that “in the past [Curtis] has offered [me] the opportunity to surrender [my] parental rights to this child. If that offer is still open, [I’m] willing to do that.” The trial court advised Smith that it did not have the jurisdiction to terminate his parental rights, but that it would take his assertion as an intent to not exercise “parenting time.”

In its order, the trial court found that Smith was entitled to a downward modification in his child support obligations, but that it would “accept [Smith’s] renunciation of [his] parental rights made in open court,” and modified the final order so that Smith did not have “custody, parenting time and parental rights of any type or manner, connected with the prior court order.” It further instructed that “[s]hould [Smith] again consider becoming a viable and positive part of his daughter’s life, he may seek such modification in any court of competent jurisdiction.” Smith filed a motion to set aside the trial court’s order, which it denied, and he now appeals.

On appeal, Smith contends that the trial court erred in “terminating” his parental rights. Although Smith contends that the trial court “terminated” his parental rights, it is clear from the record that the trial court simply modified the parenting rights provided for in the earlier consent order between Smith and Curtis. The trial court clearly advised Smith that it was without jurisdiction to terminate his parental rights. Nomenclature aside, Smith contends on appeal that his offer to relinquish his parental rights was conditional upon the acceptance of Curtis, and that the trial court was required per OCGA § 15-11-94 to show unfitness, inability or exceptional circumstance. We do not agree.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.

(Citations and punctuation omitted.) Lynch v. Horton, 302 Ga. App. 597, 600 (4) (692 SE2d 34) (2010); OCGA § 19-9-3 (b) (“[T]his subsection shall not limit or restrict the power of the judge to enter a judgment relating to the custody of a child in any new proceeding based upon a showing of a change in any material conditions or circumstances of a party or the child.”).

Modification of child visitation rights is a matter of discretion with the trial court. If reasonable evidence exists in the record to support the trial court’s decision to change visitation rights, then the decision of that court will stand. The trial court’s decision will not be overturned absent abuse of discretion.

(Punctuation and footnotes omitted.) Gildar v. Gildar, 309 Ga. App. 730, 731-732 (710 SE2d 913) (2011). “[W]e are mindful that the Solomonic task of [making these decisions] lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Citation and punctuation omitted.) Lynch, 302 Ga. App. at 601 (4).

Here, Smith, after consulting with his trial counsel, informed the trial court that he wished to voluntarily “surrender” his parental rights, and that he had offered to do so on other occasions. The trial court informed Smith that it could not terminate his parental rights, but that it would “take that as [Smith’s] intent not to exercise parenting time.”

Our courts have held that the voluntary surrender of physical custody over a child by the custodial parent can constitute a material change of condition. Lodge v. Lodge, 230 Ga. 652 (198 SE2d 861) (1973) (“The voluntary surrender by a parent of the custody of a child is a change in condition which will authorize a court to consider anew the issue of custody.”); Wilt v. Wilt, 229 Ga. 658 (193 SE2d 833) (1972). It follows that the voluntary request to relinquish visitation, custody or other parental rights can also be deemed a material change in condition.

[T]he determination of whether there has been a voluntary surrender of. . . custody [or visitation] affecting the child’s welfare, or a more temporary relinquishment... not rising to the level of a material change in condition, is a factual question that falls within the trial court’s broad discretion in these matters.

Shotwell v. Filip, 314 Ga. App. 93, 96-97 (1) (722 SE2d 906) (2012). In these circumstances, we cannot say that the trial court abused its discretion in finding that Smith’s attempted voluntary surrender of his parental rights was a material change in condition.

Regarding the best interest of the child, the trial court noted several examples of the “acrimony and rancor” between the parents and its impact on their ability to effectively co-parent the child. The trial court further found that Smith’s “blind obsession [with] attacking the mother” took precedence over his parenting duties. It also found that Smith used his parenting rights to “harass, annoy, and bother the mother.” The trial court found that Smith could not be a peaceful presence in the child’s life, and that the child was displaying obsessive-compulsive behavior because of the “psychological stress-ors” in her life. The trial court also found that, while the parenting plan in the final consent order provided for Smith to become more involved in the child’s life, “[t]hat process has not progressed ... and is no longer in the best interests of the minor child.”

Decided July 13, 2012.

Lawrence L. Washburn III, Nicholas P. Martin, for appellant.

Cynthia J. Curtis, pro se.

Under these circumstances, we find no error in the trial court’s modification of Smith’s custody rights.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The final order establishing custody, support and visitation is not in the record. There is merely a one-page exhibit from an earlier contempt hearing that is labeled “Page 3 Final Amended Order,” which details a visitation schedule for holidays.

       Although the trial court said that it was “terminating” Smith’s parental rights, it also acknowledged that it was doing so only to the extent of its jurisdiction, and could not literally “terminate [Smith’s] parental rights.”

       Smith does not contest the trial court’s modification of his child support.

       OCGA § 15-11-94 applies to the termination of parental rights rather than the modification of custody or visitation.

       OCGA § 19-9-22 (1) defines “custody” as including visitation rights.

       Although Smith had withdrawn his petition for custody modification, it was reasonable for the trial court to assume that by voluntarily requesting to relinquish his parental rights, Smith was orally reinstating his custody petition.

       Although ... a trial court must find that a material change in circumstances has taken place before it can consider whether modification of custody is in the children’s best interests, we will not remand to require the use of the word “material” where, as here, it is manifest from the written order that the trial court considered that significant and substantial changes in circumstances had occurred.

        Weickert v. Weickert, 268 Ga. App. 624, 628 (1) (602 SE2d 337) (2004); Ray v. Denton, 278 Ga. App. 69, 73 (2) (628 SE2d 180) (2006) (“It is not necessary to remand this case in order for the court to use the exact language provided in the statute where the pertinent findings and conclusions have been made.”).


author: Blackwell, Judge.

text:
    A12A0661.
    RUTTER v. RUTTER.
    (730 SE2d 626)
   Blackwell, Judge.

In this divorce case, Charles Rutter moved the court below to exclude any evidence that his wife, Stacy Rutter, might have derived from several video surveillance devices that she surreptitiously installed in their marital residence. Charles argued that her use of these devices amounts to a violation of OCGA § 16-11-62 (2), which makes it generally unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent. But at a hearing on the motion, the court below pointed to OCGA § 16-11-62 (2) (C), which sets out an exception to the general prohibition and expressly permits one to conduct video surveillance of persons “within the curtilage of [her own] residence” for certain purposes. Relying on the exception set out in subparagraph (2) (C), the court below denied the motion to exclude, and Charles appeals from its denial. We affirm the judgment below.

1. Before we consider whether the court below properly understood the exception set out in OCGA § 16-11-62 (2) (C), we must address a threshold question, namely whether subparagraph (2) (C) is still good law. Subparagraph (2) (C) came into being on April 20, 2000, when the Governor approved legislation known as House Bill 1576 (“HB 1576”), which amended OCGA § 16-11-62 and added, among other provisions, subparagraph (2) (C). Ga. L. 2000, p. 491, § 1. HB 1576 was effective on the day it was approved by the Governor. Id. at § 5. One week later, on April 27, 2000, the Governor approved legislation known as Senate Bill 316 (“SB 316”), which amended OCGA § 16-11-62 by “striking [that] Code [s]ection” and “inserting in its place a new Code section,” one that contains no subparagraph (2) (C) and otherwise contains no provision substantially like subpara-graph (2) (C). Ga. L. 2000, p. 875, § 2. The legislation known as SB 316 was effective as of July 1,2000. Id. at § 3. We are presented, therefore, with a question about whether SB 316 effectively repealed subpara-graph (2) (C), such that subparagraph (2) (C) ceased to be good law as of July 1,2000. This question has been briefed not only by the parties, but also by the Attorney General and the Office of Legislative Counsel as amici curiae.

A statute can be repealed expressly or by implication, see Boyn-ton v. Lenox Square, Inc., 232 Ga. 456, 461 (II) (207 SE2d 446) (1974), but we find no language in SB 316 that expressly and specifically repeals either HB 1576 or subparagraph (2) (C). Accordingly, we turn to consider whether SB 316 repealed subparagraph (2) (C) by implication. Repeals by implication are disfavored, and “it is only when a statute and a previous statute are clearly repugnant that a repeal by implication will result.” Concerned Citizens of Willacoochee v. City of Willacoochee, 285 Ga. 625, 625 (680 SE2d 846) (2009). Moreover, statutes touching upon the same subject generally are construed together, and that rule applies with “peculiar force,” our Supreme Court has said, when the statutes were enacted at the same session of the General Assembly. Inter-City Coach Lines v. Harrison, 172 Ga. 390, 395 (3) (157 SE 673) (1931) (“The rule that statutes in pari materia should be construed together applies with peculiar force to statutes passed at the same session of the legislature; it is presumed that such acts are imbued with the same spirit and actuated by the same policy, and they are to be construed together as parts of the same act.”) (citation and punctuation omitted). Consequently, to the extent that the words of the statutes permit, courts should construe statutes passed at the same legislative session “so as to make both valid and binding, and to give effect to all the terms of both, so as to make them capable of enforcement.” Id.

There are two ways in which SB 316 potentially might work a repeal of subparagraph (2) (C) by implication. First, to the extent that the substantive provisions of SB 316 — meaning the substantive provisions of the “new” OCGA § 16-11-62 enacted by SB 316 — conflict with the substance of subparagraph (2) (C), such a conflict might amount to a repeal by implication. Second, to the extent that the enacting provision of SB 316 — meaning the legislative directive “striking Code Section 16-11-62 . . . and inserting in its place a new Code section” — conflicts with the very existence of subparagraph (2) (C), that conflict too might amount to a repeal by implication. Having reviewed carefully the language of SB 316, as well as the legislative history of both HB 1576 and SB 316, we conclude that SB 316 works no repeal by implication of subparagraph (2) (C).

About the substantive provisions of SB 316, we cannot say that they clearly are repugnant to subparagraph (2) (C). Although the version of OCGA § 16-11-62 enacted by SB 316 contains no provision substantially like subparagraph (2) (C), it also contains no provision inconsistent with subparagraph (2) (C). Indeed, that version of OCGA § 16-11-62 canbe combined with subparagraph (2) (C) without contradicting any substantive provision of the Code section adopted in SB 316, and the exception set out in subparagraph (2) (C) is applicable to circumstances other than those addressed by the exceptions to OCGA § 16-11-62 (2) that are set out in SB 316. Accordingly, we conclude that the substantive provisions of SB 316 did not repeal subparagraph (2) (C) by implication.

The enacting provision of SB 316 presents a more difficult issue. After all, subparagraph (2) (C) had been made a part of OCGA § 16-11-62 by the time SB 316 became effective, Ga. L. 2000, p. 491, § 5, and SB 316 contains an express directive “striking Code Section 16-11-62 . . . and inserting in its place a new Code section,” one that contains no subparagraph (2) (C). Ga. L. 2000, p. 875, § 2. When we consider the meaning of a statute, “we always must presume that the General Assembly means what it says and says what it means.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011). To this end, our search for the meaning of a statute “must begin with the words of the statute, and if those words are clear and unambiguous, the search also must end there.” Id. at 577-578 (1). But when the words of the statute are reasonably susceptible of more than one meaning, we properly may look beyond the statutory language itself to other indicia of meaning. See Speedway Motorsports v. Pinnacle Bank, 315 Ga. App. 320, 326 (2) (727 SE2d 151) (2012).

Here, it is perfectly clear that SB 316 was intended to strike “Code Section 16-11-62,” and at first glance, such a specific reference to a particular Code section seems clear and unambiguous. But when we consider the unusual circumstance of OCGA § 16-11-62 having been amended only a week before SB 316 was approved by the Governor, the identity of the statutory provisions intended to be struck by SB 316 seems less clear. After all, SB 316 was passed by the General Assembly on March 15, 2000, Journal of the Senate of the State of Georgia, 2000, p. 1411, more than a month before the Governor approved HB 1576, adding subparagraph (2) (C) to OCGA § 16-11-62. So, between the time the General Assembly passed SB 316 and the time it became effective, OCGA § 16-11-62 changed.

To which version of OCGA § 16-11-62 does SB 316 refer when it mentions “Code Section 16-11-62”? The most reasonable answer, it seems to us, is the version of OCGA § 16-11-62 that was in effect as of the date the General Assembly passed SB 316. In the first place, to answer otherwise would be to permit subsequent developments to alter the meaning of the statute. Second, to answer otherwise would contradict the usual rule that statutes touching upon the same subject and passed in the same legislative session should be reconciled, if possible. And finally, to answer otherwise would be to ignore the legislative history of HB 1576 and SB 316. Indeed, the legislative record shows that the Senate passed the final version of SB 316 on March 15, 2000, Journal of the Senate of the State of Georgia, 2000, p. 1411, and it also reveals that, the very next day, the Senate amended HB 1576 to add the provision that eventually became subparagraph (2) (C). Journal of the House of Representatives of the State of Georgia, 2000, p. 2881. We cannot ascertain any reason for the Senate having so amended HB 1576 if it intended that subparagraph (2) (C) would be struck by another statute that the Senate had passed only one day earlier. For all these reasons, the most reasonable interpretation of the reference in SB 316 to “Code Section 16-11-62,” we think, is that it refers to the version of OCGA § 16-11-62 that was effective as of March 15, 2000, the date that the General Assembly passed SB 316. Consequently, subparagraph (2) (C) survived the enactment of SB 316 and remains good law.

2. We next consider whether the court below properly applied subparagraph (2) (C) when it denied the motion to exclude. As an exception to the general prohibition of certain video surveillance set out in OCGA § 16-11-62 (2), subparagraph (2) (C) provides that it is lawful “[t]o use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device.” OCGA § 16-11-62 (2) (C). Charles contends that this exception does not apply in this case for several reasons. First, he says, it does not apply because surveillance of persons within a residence itself is not surveillance “of persons who are within the curtilage of the residence.” Second, he argues, Stacy was not a resident of the marital residence at the time she installed and used the video surveillance devices, and the court below erred when it found otherwise. Third, he says, Stacy did not use the video surveillance devices in question for a permissible purpose, namely security, crime prevention, or crime detection. We will address these contentions in turn.

(a) As to the contention that the residence itself is not “within the curtilage of the residence,” we disagree. Charles contends that a residence and its curtilage are separate and distinct, such that the residence itself is not, strictly speaking, a part of its curtilage. See, e.g., United States v. Dunn, 480 U. S. 294, 300 (II) (107 SC 1134, 94 LE2d 326) (1987) (“curtilage” usually refers to “the area immediately surrounding a dwelling house”); Thomas v. State, 300 Ga. App. 265, 268 (3) (684 SE2d 391) (2009) (“ ‘Curtilage’ has been defined as the yards and grounds of a particular address, its gardens, barns, and buildings.”) (citation and punctuation omitted). But the statutory exemption in subparagraph (2) (C) does not extend merely to surveillance of “the curtilage,” but rather, it extends to surveillance “within the curtilage.” So, even if the word “curtilage” unambiguously excludes the residence itself, it is not so clear that “within the curtilage” excludes the residence. After all, when English-speaking people say that one thing is “within” another, they sometimes mean that the first thing is a part of the second, and they sometimes mean that the first thing is enclosed by the second. In which sense is “within” used in subparagraph (2) (C)? The answer does not appear clearly from the words of the statute alone, so we must look elsewhere.

The parties point us to no extrinsic indicia of legislative intent that bear upon this question, they point us to none of the usual canons of statutory construction that might apply, and we have found none. We turn, therefore, to the rule of lenity, an interpretative rule of last resort for the construction of penal statutes. See Harris v. State, 286 Ga. 245, 253 (7) (686 SE2d 777) (2009). Subparagraph (2) (C) sets forth an exemption to the general prohibition contained in OCGA § 16-11-62 (2), and the latter is a penal statute, a violation being punishable as a felony. OCGA § 16-11-69. As such, the rule of lenity is a proper aid, we think, in the resolution of any ambiguity appearing in subparagraph (2) (C). And according to the rule of lenity, when the usual rules of statutory construction fail to resolve an ambiguity in a penal statute, a court must attribute to the ambiguous statutory language the reasonable meaning that exposes the least conduct to criminal sanctions. See Haley v. State, 289 Ga. 515, 527 (2) (b) (712 SE2d 838) (2011) (“To the extent that these tools of statutory construction leave doubt about the meaning of the statute, moreover, the rule of lenity would require us to interpret it in favor of the defendant.”); Harris, 286 Ga. at 253 (7) (“[T]o the extent that, after applying the usual tools of statutory construction, it is uncertain or ambiguous whether OCGA § 16-8-12 (a) (5) (A) applies to a riding lawnmower, the rule of lenity would require us to give the benefit of that doubt to the accused.”); Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228, 231 (3) (430 SE2d 352) (1993) (penal statute “must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted”). Accordingly, we conclude that “within the curtilage of the residence,” as that phrase is used in OCGA § 16-11-62 (2) (C), includes the residence itself.

(b) About the contention that the court below erred when it found that Stacy was a resident of the marital residence wheq she installed and used the video surveillance devices, we disagree. Stacy was not a resident of the marital residence at that time, Charles says, because she did not sleep there and had given another address as her residential address to some third parties. But the evidence shows that, notwithstanding these things, she continued, during the time that she used the video surveillance devices, to keep clothes and other personal items at the marital residence, she paid a portion of the mortgage for that residence, she received some mail at that residence, and she spent some portion of every other day at the residence, doing things like cooking, eating, bathing, and washing clothes. The law recognizes that a person can have more than one residence, see Baghdady v. Central Life Ins. Co., 224 Ga. App. 170, 170-171 (1) (a) (480 SE2d 221) (1996), and this Court has recognized that a person can maintain a residence by keeping personal items there, paying bills relating to the home, receiving mail at its address, and returning to the home frequently, even though she does not usually stay overnight at the home. See, e.g., State Farm Fire & Cas. Co. v. Goodman, 259 Ga. App. 62, 66 (3) (a) (576 SE2d 49) (2002). Although the evidence of residence in this case was disputed, we cannot say that the court below clearly erred when it found that Stacy was a resident of the marital home during the relevant times.

(c) About the contention that Stacy did not use the video surveillance devices for a permissible purpose, we again disagree. Subpara-graph (2) (C) identifies three such purposes, namely security, crime prevention, and crime detection. The court below found that Stacy did not use the video surveillance devices for security purposes, inasmuch as she did not usually monitor a live video feed from the devices so as to detect criminal activity in progress, but instead viewed recordings of the video surveillance well after the events depicted in the recordings were complete. The court also found that Stacy did not use the devices for crime prevention, inasmuch as they were installed surreptitiously and, therefore, would not deter any criminal conduct. Instead, the court found that Stacy primarily was motivated by a desire to capture evidence of Charles doing things that would help her to obtain custody of the children in the divorce proceedings. Nevertheless, the court concluded that subparagraph (2) (C) applied, and it did so after clearly acknowledging that subparagraph (2) (C) requires that video surveillance be undertaken for one of the permissible purposes identified in the statute. For this reason, although the court below did not say so explicitly, we understand it to have found that Stacy used the video surveillance devices for the purpose of crime detection, insofar as video evidence of Charles committing a crime, especially if the crime were committed against or in the presence of their children, obviously would help her to gain custody in the divorce. Indeed, the record supports such a finding, Stacy having testified at the hearing on the motion to exclude that she installed and used the video surveillance devices in an effort to discover and document any harm that Charles might visit upon the children. Consequently, we cannot say that the court below erred when it concluded that subparagraph (2) (C) applies in this case.

Decided July 13, 2012

Bray & Johnson, Roger M. Johnson, Jennifer S. Gill, for appellant.

Abbott & Abbott, Robert K. Abbott, Jr., Parri S. Abbott, Hill-MacDonald, Vic B. Hill, Brad E. MacDonald, for appellee.

Samuel S. Olens, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Neis S. D. Peterson, Wayne R. Allen, amici curiae.

For these reasons, we affirm the judgment below.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       Evidence obtained in violation of OCGA § 16-11-62 is usually not admissible in court. See OCGA § 16-11-67 (“No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part.”).

       The court below certified its denial of the motion for immediate review, and Charles timely filed an application with this Court for leave to take an interlocutory appeal. See OCGÁ § 5-6-34 (b). Because the Supreme Court has appellate jurisdiction in “[a]U divorce and alimony cases,” Gates v. Gates, 277 Ga. 175, 175 (1) (587 SE2d 32) (2003), we initially transferred the application to the Supreme Court, but it returned the application to us, concluding that “orders in pending divorce cases that do not involve issues of divorce or alimony do not invoke [the Supreme] Court’s subject matter jurisdiction.” Rutter v. Rutter, Case No. S11I1778 (Ga. Sep. 1, 2011). We then granted the application, and this appeal followed.

       The briefs of amici curiae have been especially helpful to the Court, and we thank the Attorney General and Legislative Counsel for their assistance in this case.

       Legislative Counsel invites us to avoid altogether the question of repeal and to hold instead that the publication of subparagraph (2) (C) in the Official Code is dispositive of its validity, inasmuch as the Code Revision Commission has approved of its publication, see OCGA § 28-9-1 et seq., and the General Assembly annually has the opportunity to disapprove the work of the Commission. We respectfully decline that invitation. In the first place, it has long been settled in this country that it is the responsibility of the courts to ascertain the law. See generally Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177 (2 LE 60) (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). Consistent with that principle, our Supreme Court has undertaken to consider whether a provision of the Official Code had been repealed, and in doing so, it did not say anything about deferring to the fact of publication in the Official Code. See, e.g., Gilbert v. Richardson, 264 Ga. 744, 749 (4), n. 6 (452 SE2d 476) (1994). Moreover, as the Attorney General explains in his amicus brief, the position of Legislative Counsel on this point raises serious constitutional concerns, including concerns about the delegation of the legislative power.

       The legislative history on which we rely is not the kind that consists of subjective statements of legislative intent, judicial reliance upon which has sometimes been questioned. See Merritt v. State, 286 Ga. 650, 656-657 (690 SE2d 835) (2010) (Nahmias, J., concurring specially). Rather, we look to a more objective sort of legislative history, the legislative votes upon, and amendments of, the bills that ultimately were passed and approved as the statutes in question.

       SB 316 sets out two exceptions to OCGA § 16-11-62 (2), subparagraphs (2) (A) and (2) (B). Ga. L. 2000, p. 875, § 2. Subparagraph (2) (A) concerns video or photographic surveillance of persons in correctional facilities, and subparagraph (2) (B) concerns video or photographic surveillance by the owner of any real property (not just residential property) to observe or record activities “in areas where there is no reasonable expectation of privacy” for certain purposes. Subparagraph (2) (C), on the other hand, concerns video or photographic surveillance by a resident upon residential property to observe or record activities “within the curtilage” of the residence for certain purposes.

       Although one might think that statutory language “striking Code Section 16-11-62” could reasonably be understood as “repealing Code Section 16-11-62,” the typical usage of such language in Georgia statutes during the 2000 legislative session indicates that it should not necessarily be so understood. As the Attorney General notes in his amicus brief, at that time, the General Assembly routinely used the “striking ... and inserting in its place” language, or substantially similar language, whenever it revised an existing Code section. See, e.g., Ga. L. 2000, p. 1, § 1 (“striking... and inserting in lieu thereof”); Ga. L. 2000, p. 2, §§ 3-14 (same); Ga. L. 2000, p. 15, § 1 (“striking... and inserting in its place”); Ga. L. 2000, p. 16, § 1 (“striking... and inserting in lieu thereof”); Ga. L. 2000, p. 20, §§1-28 (same). As such, we do not understand the “striking . . . and inserting in its place” formulation to necessarily signal a repeal of everything contained in “Code Section 16-11-62,” but we understand it instead to signal that “Code Section 16-11-62” is revised to read as set out in the “new Code section” that follows. Nevertheless, to the extent that a provision contained in “Code Section 16-11-62” was omitted from the “new Code section,” “striking . . . and inserting in its place” might reasonably he understood to impliedly repeal the omitted provision, so it becomes important to consider exactly what was meant by the General Assembly when it referred in SB 316 to “Code Section 16-11-62.”

       That would, of course, be inconsistent with the constitutional commitment of the legislative power to the General Assembly, Ga. Const., Art. Ill, Sec. I, Par. I, as well as the settled notion that statutes have fixed meanings. See Scalia & Garner, Reading Law: The Interpretation of Legal Texts, p. 78 (1st ed. 2012).

       As the leading commentary on statutory interpretation notes, this rule has particular importance when the statutes amend the same body of preexisting law and “may be introduced in each of the two houses of the legislature independently of each other, and passed within a few days of each other, and for which the order of introduction is only accidental.” Singer & Singer, 1A Sutherland on Statutory Construction, § 22:32 (7th ed. 2009).

       HB 1576 then returned to the House, which modified the language of the Senate amendment adding subparagraph (2) (C), Journal of the House of Representatives of the State of Georgia, 2000, p. 2972, and the Senate approved these modifications and passed the final version of HB 1576 on March 22, id., p. 3882, exactly one week after it approved SB 316.

       We do not mean to suggest that the order in which the Governor approves several legislative acts is inconsequential. We only find that, in the circumstances presented here, the order in which the Governor approved HB 1576 and SB 316 does not alter the meaning of the express terms of SB 316 and does not work a repeal of subparagraph (2) (C), either expressly or by implication.

       As this Court explained nearly a century ago, the term “curtilage” originally was understood at common law to refer to those structures and areas within the fence or wall that usually surrounded dwelling houses in England. Wright v. State, 12 Ga. App. 514, 515-516 (77 SE 657) (1913). But in the United States, where dwelling houses are not always so neatly enclosed by a fence or wall, the term is now understood to include any structures and areas upon residential property that are so near and so closely connected to the dwelling house as to be considered a part of it, whether or not enclosed with the dwelling house by a fence or wall. Id. at 516-517.

       For instance, it would be fair to say that the core of the Earth is not within the crust, if you mean to say that the core is not a part of the crust. But it also would be fair to say that the core is within the crust, if you mean to say that it is completely enclosed by the crust. It all depends on the sense in which the word “within” is used.

       Some of us are inclined to think that “within the curtilage” is most naturally understood to include the residence to which the curtilage is attached, especially since the traditional American understanding of “curtilage” is as a reference to those structures and areas so closely connected to the residence as to be considered a part of it. See note 12 supra. Nevertheless, we admit some douht about this inclination, and so we do not rest our conclusion upon the plain words of the statute alone. We accept that some ambiguity exists, and we proceed upon that premise.

       The rule of lenity applies to the construction of penal statutes, even when they are construed in the context of a civil lawsuit. See Fleet Finance, Inc. of Ga. v. Jones, 263 Ga. 228, 231 (3) (430 SE2d 352) (1993).

       This case comes to us on an interlocutory appeal from a pretrial evidentiary ruling, and the evidentiary record has not yet been fully developed. The reader should know that, although Stacy has alleged that Charles abused her and that she worries about Charles abusing their children, the record contains no finding that he has done any such thing. Whether or not he has, in fact, abused anyone is a question not presented in this appeal.

       Charles also contends on appeal that Stacy failed to preserve, or at least has failed to produce, all of the video recordings made in their marital home. But as far as we can tell, the motion to exclude was not premised on any theory of spoliation, and the court below did not rule on any such theory. Accordingly, we offer no opinion about whether video recordings offered at trial by Stacy might properly be excluded on grounds of spoliation.