2009-GA-0630.108
Savannah GA Divorce Lawyer - Uncontested Divorce Attorney - PASLAY v. STATE
PASLAY v. STATE
PASLAY
v.
STATE
S09A0521.
Supreme Court of Georgia.
June 29, 2009
HUNSTEIN, Presiding Justice.
Appellant Todd Russell Paslay was convicted of malice murder, felony murder, two counts of cruelty to children in the third degree, and possession of a firearm during the commission of a crime in connection with the shooting death of his wife, Elizabeth Paslay. He appeals from the denial of his motion for new trial(fn1) and, finding no error, we affirm.
1. The evidence authorized the jury to find that Paslay and the victim had marital difficulties stemming primarily from ongoing custody and child support
2
disputes with Paslay's ex-wife. On the evening of the crimes, the telephone rang once at the out-of-state home of Harold Brooks, the victim's father, and the call was identified as originating from the victim's cell phone. Brooks had his son return the call twice; the line engaged each time, but all that could be heard were noises, including gasping, gurgling and children screaming during the second call, before the line was disconnected. Brooks called the Richmond County Sheriff's Department, and units were dispatched to the Paslay residence. There, officers found the victim lying on the kitchen floor with a cell phone in her hand, dead from a single gunshot wound to the head. Paslay's father arrived at the residence and informed officers that Paslay and his two children were at the father's house in Burke County. Paslay was taken into custody there, and a handgun retrieved on the premises was later determined to have fired the bullet that killed the victim. At trial, recordings of Paslay's two interviews with law enforcement were played for the jury. Paslay testified that he and the victim were arguing inside the home over his ex-wife's failure to pick the children up for visitation; that the argument became physical; that he took the children, his wallet and his gun out to his truck; that he returned to the house; and that he did not know what happened after that.
3
Viewed in the light most favorable to the verdict, we conclude that the evidence was sufficient for a rational trier of fact to find Paslay guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
2. Paslay contends that the trial court erred by excluding the testimony of one expert witness and one lay witness regarding his abuse by the victim.(fn2) At trial, defense counsel made clear that there was no issue regarding Paslay's competence to stand trial and that Paslay was not raising an insanity or mental illness defense.(fn3) The stated purpose of the testimony was to put the remainder of the evidence in perspective by showing that Paslay was undergoing emotional and physical turmoil at the time of the crimes. On appeal, Paslay argues that he was not claiming to have acted in self-defense.(fn4) Rather, he was attempting to
4
mitigate the element of intent, i.e., he was pursuing a verdict of voluntary manslaughter.(fn5)
[W]ith regard to voluntary manslaughter, "the question is whether the defendant acted out of passion resulting from provocation sufficient to excite such passion in a reasonable person. It is of no moment whether the provocation was sufficient to excite the deadly passion in the particular defendant."
(Footnote omitted.) Beck v. State, 272 Ga. 863, 865 (2) (535 SE2d 756) (2000). Accordingly, we conclude that the trial court did not err by excluding the testimony in question.
3. Paslay also claims that the trial court violated OCGA § 17-8-57 by expressing or intimating an opinion as to what had been proven or as to his guilt.
The State objected several times on relevance and hearsay grounds to defense counsel's questioning of attorney Smith, see n. 2, supra, regarding Paslay's divorce. Ultimately, the trial court interrupted defense counsel, making the following comments prior to dismissing the jury:
What's the purpose of all this, [defense counsel]? This doesn't have anything to do with this case does it? . . . Well, how? I mean all this is very interesting about he had problems with his former wife and they had a divorce and they had children and . . . she didn't pay support. But we're talking about a murder case here involving another person.
5
The rule set forth in OCGA § 17-8-57 "`"does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence. (Cits.)" (Cit.)' [Cit.]" Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996), overruled on other grounds by Paul v. State, 272 Ga. 845 (3) (537 SE2d 58) (2000). See also Creed v. State, 255 Ga. App. 425 (1) (565 SE2d 480) (2002) (no OCGA § 17-8-57 violation where trial court inquired as to direction defense counsel was going with particular line of questioning and encouraged counsel to move forward). Because the trial court's comments concerned the relevance of the testimony at issue and did not constitute an opinion as to what had been proven or whether Paslay was guilty, we find no error.
Judgment affirmed. All the Justices concur.
_____________________
Footnotes:
FN1. The crimes occurred on August 20, 2004. Paslay was indicted in Richmond County on November 2, 2004 and charged with malice murder, felony murder based on aggravated assault, two counts of misdemeanor cruelty to children in the third degree, and possession of a firearm during the commission of a crime. Following a jury trial held May 8-10, 2006, Paslay was found guilty on all counts. On May 26, 2006, the trial court sentenced Paslay to life imprisonment for malice murder, with a concurrent 12-month term for each cruelty to children conviction and a consecutive five year term for firearm possession; the felony murder conviction was vacated by operation of law. See Malcolm v. State, 263 Ga. 369 (4) (434 SE2d 479) (1993). Paslay's motion for new trial was filed on June 15, 2006, amended on August 20, 2008, and denied on November 5, 2008; his notice of appeal was timely filed. The appeal was docketed in this Court on December 18, 2008 and submitted for decision on the briefs.
FN2. Paslay sought to introduce the testimony of (1) Dr. Marti Loring, a licensed clinical social worker who assessed Paslay and found that he experienced battered person syndrome prior to and during his relationship with the victim; and (2) Beth Ann Smith, the attorney who represented Paslay during his divorce and subsequent contempt action against his ex-wife.
FN3. See Paul v. State, 274 Ga. 601 (2) (555 SE2d 716) (2001) (expert evidence of mental impairment inadmissible in light of defendant's refusal to assert mental illness or insanity defense).
FN4. See Smith v. State, 268 Ga. 196, 199 (486 SE2d 819) (1997) (battered person syndrome is not separate defense, but component of justifiable homicide by self-defense).
FN5. The trial court did charge the jury on the crime of voluntary manslaughter.
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WALTON v. WALTON
WALTON
v.
WALTON
S09F0303.
Supreme Court of Georgia.
June 29, 2009
MELTON, Justice.
Following a bench trial, Willie C. Walton ("Husband") and Aileen Walton ("Wife") were divorced pursuant to a Final Judgment and Decree of Divorce entered on March 27, 2008. After considering the income and other circumstances of both Husband and Wife, the trial court ordered Husband to pay child support in the amount of $1,800 per month (the presumptive amount), and awarded wife three years of periodic alimony. The trial court awarded Husband the marital residence and lot, and ordered him to pay $319,000 to Wife for her equity in the home by May 31, 2008. The trial court also awarded Wife one of Husband's businesses (the Alliance Financial Group), and ordered Husband to pay off the debt that had been used to finance the business. Finally, in a separate July 2, 2008 order, the trial court awarded Wife attorney fees of $50,000. We granted Husband's application for discretionary appeal in this divorce case pursuant to this Court's Family Law Pilot Project, under which this Court will
2
grant all non-frivolous discretionary applications seeking review of a final decree of divorce. Maddox v. Maddox, 278 Ga. 606 (604 SE2d 784) (2004). Husband contends that the trial court erred by failing to properly consider evidence relating to his nonmarital contribution to the purchase of the marital home and his interest in the home; erred in its consideration of the evidence relating to the awards of child support and alimony; and erred in its award of attorney fees to Wife. For the reasons that follow, we affirm.
1. Husband contends that the trial court did not properly determine his interest in the marital home, because the court failed to give him credit for his nonmarital contribution to the purchase of the marital home. See Hubby v. Hubby, 274 Ga. 525 (556 SE2d 127) (2001) ("In applying the `source of the funds' rule to the equitable division of a home which was brought to a marriage, the trial court must determine the contribution of the spouse who brought the home to the marriage, and weigh it against the total nonmarital and marital investment in the property") (citations and punctuation omitted). However, evidence supported the trial court's conclusion that Husband did not use his own personal funds to make the down payment on the home. Specifically, the evidence showed that the down payment on the home was made with funds from
3
Husband and Wife's joint account, and from funds shared by Husband and Wife that Husband had transferred into his own personal account. The transfer of the couple's funds to Husband's account did not make the funds Husband's separate property. Because evidence supported the trial court's conclusion that Husband did not make a nonmarital contribution to the purchase of the marital home, that determination will not be disturbed here.(fn1) Southerland v. Southerland, 278 Ga. 188 (1) (598 SE2d 442) (2004).
In this regard, contrary to Husband's claims, the trial court did not abuse its discretion in refusing to grant Husband more than fifty percent of the equity in the marital residence. Indeed,
an equitable division of marital property does not necessarily mean an equal division. The purpose behind the doctrine of equitable division of marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital property.
(Citations and punctuation omitted.) Wright v. Wright, 277 Ga. 133, 134 (2) (587 SE2d 600) (2003).
4
2. Husband contends that the trial court erred in its factual findings used to support its awards for child support and alimony. Specifically, Husband claims that the trial court erred in finding that his income was $15,708 per month for purposes of calculating child support, and erred in failing to consider any alimony award as a deviation from the presumptive amount of child support. See OCGA § 19-6-1 (b) (child support calculated based on determination of adjusted monthly gross income of both the custodial parent and the noncustodial parent); OCGA § 19-6-1 (c) (alimony awarded in accordance with needs of the party and ability of other party to pay); OCGA § 19-6-15 (i) (requirements for deviation from presumptive amount of child support). However, "this court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses." (Citations and punctuation omitted.) Frazier v. Frazier, 280 Ga. 687, 690 (4) (631 SE2d 666) (2006).
Here, the trial court considered the many personal expenses of Husband that were paid for by his companies -- including two Mercedes Benz lease payments and entertainment and travel expenses. The court also considered a loan application on which Husband had listed his monthly income as $68,750
5
per month, as well as Husband's own domestic relations financial affidavit in which Husband claimed that his income was $15,708 per month. Additionally, the court took into account Wife's status as a stay-at-home mother since the birth of the parties' son, Husband's conduct towards Wife, and Wife's potential income from the court's award to her of one of Husband's companies. The evidence supported the trial court's child support and alimony awards to Wife, and supported its conclusion that no deviation from the presumptive amount of child support was warranted. See OCGA § 19-6-15 (b); OCGA § 19-6-1 (c); OCGA § 19-6-15 (i).
3. An award of attorney fees as part of the expenses of litigation is left to "the sound discretion of the trial court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party." OCGA § 19-6-2 (a) (1). "The purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved." (Citation omitted.) Johnson v. Johnson, 260 Ga. 443, 444 (396 SE2d 234) (1990). Here, as noted in Division 2, supra, the trial court considered evidence of the financial circumstances of the parties. Further, the court considered
6
evidence that Wife incurred over $75,000 in litigation expenses in her efforts to obtain necessary financial documents and to effectively present the complicated financial issues raised in the case. We find no abuse of discretion in the trial court's award of $50,000 in attorney's fees to Wife. Rieffel v. Rieffel, 281 Ga. 891 (1) (644 SE2d 140) (2007).
Judgment affirmed.
Hunstein, C.J., Carley, P.J., Benham, Thompson and Hines, JJ., concur.
_____________________
Footnotes:
FN1. We note that evidence also supported the trial court's conclusion regarding the value of the marital home.
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WALTON v. WALTON
WALTON
v.
WALTON
S09F0303.
Supreme Court of Georgia.
June 29, 2009
MELTON, Justice.
Following a bench trial, Willie C. Walton ("Husband") and Aileen Walton ("Wife") were divorced pursuant to a Final Judgment and Decree of Divorce entered on March 27, 2008. After considering the income and other circumstances of both Husband and Wife, the trial court ordered Husband to pay child support in the amount of $1,800 per month (the presumptive amount), and awarded wife three years of periodic alimony. The trial court awarded Husband the marital residence and lot, and ordered him to pay $319,000 to Wife for her equity in the home by May 31, 2008. The trial court also awarded Wife one of Husband's businesses (the Alliance Financial Group), and ordered Husband to pay off the debt that had been used to finance the business. Finally, in a separate July 2, 2008 order, the trial court awarded Wife attorney fees of $50,000. We granted Husband's application for discretionary appeal in this divorce case pursuant to this Court's Family Law Pilot Project, under which this Court will
2
grant all non-frivolous discretionary applications seeking review of a final decree of divorce. Maddox v. Maddox, 278 Ga. 606 (604 SE2d 784) (2004). Husband contends that the trial court erred by failing to properly consider evidence relating to his nonmarital contribution to the purchase of the marital home and his interest in the home; erred in its consideration of the evidence relating to the awards of child support and alimony; and erred in its award of attorney fees to Wife. For the reasons that follow, we affirm.
1. Husband contends that the trial court did not properly determine his interest in the marital home, because the court failed to give him credit for his nonmarital contribution to the purchase of the marital home. See Hubby v. Hubby, 274 Ga. 525 (556 SE2d 127) (2001) ("In applying the `source of the funds' rule to the equitable division of a home which was brought to a marriage, the trial court must determine the contribution of the spouse who brought the home to the marriage, and weigh it against the total nonmarital and marital investment in the property") (citations and punctuation omitted). However, evidence supported the trial court's conclusion that Husband did not use his own personal funds to make the down payment on the home. Specifically, the evidence showed that the down payment on the home was made with funds from
3
Husband and Wife's joint account, and from funds shared by Husband and Wife that Husband had transferred into his own personal account. The transfer of the couple's funds to Husband's account did not make the funds Husband's separate property. Because evidence supported the trial court's conclusion that Husband did not make a nonmarital contribution to the purchase of the marital home, that determination will not be disturbed here.(fn1) Southerland v. Southerland, 278 Ga. 188 (1) (598 SE2d 442) (2004).
In this regard, contrary to Husband's claims, the trial court did not abuse its discretion in refusing to grant Husband more than fifty percent of the equity in the marital residence. Indeed,
an equitable division of marital property does not necessarily mean an equal division. The purpose behind the doctrine of equitable division of marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital property.
(Citations and punctuation omitted.) Wright v. Wright, 277 Ga. 133, 134 (2) (587 SE2d 600) (2003).
4
2. Husband contends that the trial court erred in its factual findings used to support its awards for child support and alimony. Specifically, Husband claims that the trial court erred in finding that his income was $15,708 per month for purposes of calculating child support, and erred in failing to consider any alimony award as a deviation from the presumptive amount of child support. See OCGA § 19-6-1 (b) (child support calculated based on determination of adjusted monthly gross income of both the custodial parent and the noncustodial parent); OCGA § 19-6-1 (c) (alimony awarded in accordance with needs of the party and ability of other party to pay); OCGA § 19-6-15 (i) (requirements for deviation from presumptive amount of child support). However, "this court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses." (Citations and punctuation omitted.) Frazier v. Frazier, 280 Ga. 687, 690 (4) (631 SE2d 666) (2006).
Here, the trial court considered the many personal expenses of Husband that were paid for by his companies -- including two Mercedes Benz lease payments and entertainment and travel expenses. The court also considered a loan application on which Husband had listed his monthly income as $68,750
5
per month, as well as Husband's own domestic relations financial affidavit in which Husband claimed that his income was $15,708 per month. Additionally, the court took into account Wife's status as a stay-at-home mother since the birth of the parties' son, Husband's conduct towards Wife, and Wife's potential income from the court's award to her of one of Husband's companies. The evidence supported the trial court's child support and alimony awards to Wife, and supported its conclusion that no deviation from the presumptive amount of child support was warranted. See OCGA § 19-6-15 (b); OCGA § 19-6-1 (c); OCGA § 19-6-15 (i).
3. An award of attorney fees as part of the expenses of litigation is left to "the sound discretion of the trial court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney's fees, if any, to be allowed against either party." OCGA § 19-6-2 (a) (1). "The purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved." (Citation omitted.) Johnson v. Johnson, 260 Ga. 443, 444 (396 SE2d 234) (1990). Here, as noted in Division 2, supra, the trial court considered evidence of the financial circumstances of the parties. Further, the court considered
6
evidence that Wife incurred over $75,000 in litigation expenses in her efforts to obtain necessary financial documents and to effectively present the complicated financial issues raised in the case. We find no abuse of discretion in the trial court's award of $50,000 in attorney's fees to Wife. Rieffel v. Rieffel, 281 Ga. 891 (1) (644 SE2d 140) (2007).
Judgment affirmed.
Hunstein, C.J., Carley, P.J., Benham, Thompson and Hines, JJ., concur.
_____________________
Footnotes:
FN1. We note that evidence also supported the trial court's conclusion regarding the value of the marital home.
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We specialize in: Georgia Separation Agreements - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases, Uncontested Divorce, Savannah Georgia Noncontested divorce - Child Custody Attorney / Custody modification - Child Support Modification - Child Visitation
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