IN THE COURT OF APPEALS OF GEORGIA ELISA M. LOWE, Appellant, v. MICHAEL L. LOWE, Appellee.

BRIEF OF APPELLANT COMES NOW Appellant Defendant below, and files this brief on appeal. PART ONE FACTS Elisa Lowe, Appellant and Michael Lowe, Appellee were married on August 6, 1994. During their marriage they had two children: Zachary, born May 7,1995 and Evan, born July 9, 1997. The parties were divorced by order of the Superior Court of Coweta County, Civil Action No. 99-V-447 on April 19, 2000 (R-13) which incorporated an Agreement dated April 6, 2000 (R-17). An Amended Final Decree was filed May 18, 2000. (R-15) Appellant, Elisa Lowe, was granted Sole Custody of the parties minor children.5 6XEVHTXHQWO\ LQ 6XSHULRU &RXUW RI &RZHWD &RXQW\ &LYLO $FWLRQ 1R Y 0V /RZH filed D Petition for FKLOG VXSSRUW DQG PRWLRQ IRU FRQWHPSW 2Q $XJXVW   DQ RUGHU ZDV HQWHUHG ILQGLQJ $SSOOHH 0LFKDHO /RZH LQ FRQWHPSW RI FRXUW DQG RUGHUHG WR KLP WR EHJLQ SD\LQJ 0V /RZH FKLOG VXSSRUW IRU WKHLU FKLOGUHQ 5 -DQXDU\   0LFKDHO /RZH ILOHG IRU 0RGLILFDWLRQ RI &XVWRG\ DQG 6XSSRUW LQ &RZHWD 6XSHULRU &RXUW &LYLO $FWLRQ 9 :LWKRXW DQ HYLGHQWLDU\ KHDULQJ 0LFKDHO /RZH 1 CASE NUMBER: A11A2129

requested and received an ex parte emergency order granting him temporary emergency custody of the minor children. Upon review or the ex parte relief at the emergency hearing, Chief Judge William F. Lee, Jr. vacated said ex parte order, stating that the ex parte relief was improvidently granted. Ms. Lowe was restored to the sole custodian of the minor children with Michael Lowe having visitation rights. Appelllee's Modification of Child Custody and Child Support case was pending from -DQ   Xntil it was dismissed on December 9, 2008 for lack of prosecution by Judge /HH 5 March 4, 2008 during the pendency of the Coweta Superior court case. Appellee, 0LFKDHO Lowe filed D second, simultaneous, Complaint for Change of Custody in the Paulding Superior Court, Civil File No. 08-CV-1124-JO (R-6) Stating under oath that there were no pending proceedings (R-9) DQG WKDW YHQXH ZDV SURSHU LQ WKH 3DXOGLQJ &RXUW 5 ,W LV D IDFW WKDW DW WKH time the Paulding Case was filed, Appellee's first modification IRU FXVWRG\ case LQ &RZHWD ZDV pending $SSHOOHH
V DWWRUQH\ DFNQRZOHGJHG WKLV ZKHQ DVNHG E\ D &RZHWD -XGJH (R-172 line 13) Repeating his ill-fated tactics from the Coweta 2004-V-32 case, Mr. Lowe initiated this Paulding case (08-CV-1124-JO) E\ REWDLQLQJ an ex parte emergency order 5 changing the sole custody of the minor children from Elisa Lowe to Mr. Lowe. The Paulding Superior Court, Judge James Osborne, presiding, issued an emergency ex parte order making a written finding RQ 0DUFK   WKDW 0V /RZH KDV OHIW WKH 6WDWH RI *HRUJLD5 RQO\ WHQ GD\V SULRU RQ )HEUXDU\   5 DQG WKDW ZDUUDQWHG DQ HPHUJHQF\ FKDQJH RI FXVWRG\ The ex parte hearing was not transcribed or otherwise recorded and is not part of the trial record. There were no affidavits from teachers, police, DFACS, doctors any other person qualified to evaluate and testify to emergency conditions affecting the welfare of minor children as part of the 2

trial record. The only sworn testimony offered was that of Mr. Lowe by and through his verified complaint (R-Page 32) and proffered by his attorney of record, Martin E. Valbuena. Mr. Lowe

testified that a mere ten days before the filing of this action, Elisa Lowe had moved to Tennessee. (5 7) Under oath, Mr. Lowe claimed to have been awarded joint legal and joint physical custody of the Children. (R 7.) Mr. Valbuenas pleadings promise a true and correct copy RI WKH unexecuted Final Order is attached as Exhibit E. 5 The Clerk of the Paulding Superior Court initiated a diligent search to determine whether said Exhibit E was ever filed as asserted by Mr. Valbuena. The August 9, 2011 Order from the Clerk of this Honorable Court, and a part of this appellate record, confirms that Exhibit E was not filed with the Complaint. Again, upon review of the emergency ex parte order issued by the Paulding Superior Court, Judge James Osborne, presiding, found the emergency change of custody unwarranted and returned the sole custody of minor children to your Appellant, Elisa M. Lowe. Judge Osborne allowed Mr. Lowe to resume his visitation, ordering, LASTLY, the visitation schedule previously followed by the parties shall continue once the father is released from jail. (R-44) Attorney Dawn Ballard DWWHQGHG WKH emergency custody hearing but WKDW ZDV $SSHOODQW
V ILUVW DQG ODVW WLPH VHHLQJ KHU VKH QHYHU filed any responsive pleadings or an entry of appearance.7 7KH Order returning WKH PLQRU Fhildren to Elisa Lowes custody ZDV DVVXPHG ILQDO RQ April 9, 2008. (R-44) This case lay dormant for next 30 months, with the exception of Mr. Valbuenas Motion For Withdrawal Of Counsel for non-payment of attorneys fees. Mr. Lowe had written Mr. Valbuena a $3000 bad check (R-49) Mr. Valbuenas PRWLRQ ZDV JUDQWHG E\ -XGJH 2VERUQH RQ $XJXVW  2008. 5 :LWKRXW DQ DWWRUQH\ DQG D UHORFDWLRQ WR 6DYDQQDK *$ 0U /RZH GLG QRW prosecute the case: no discovery was conducted and , the Paulding Mediation Center refused to 3

schedule mediation, ILQDQFLDO GRFXPHQWV QHYHU ILOHGbut no final disposition form was completed. Sometime before April 12th, 2010, Mr. Valbuena and Mr. Lowe resolved their fee dispute and renewed their legal activity. Instead of pursuing this Paulding custody modification, they filed a new action titled Motion to Set Aside in Coweta Superior Court and assigned Civil Action File Number 10-V-1084. (R-53) Mr. Lowe again availed himself of and submitted himself to Coweta Superior Courts jurisdiction and venue by this new Motion to Set Aside. Said motion requested the Coweta Superior Court to set aside WKH ILQDO RUGHU GLVPLVVLQJ WKH 9 0RGLILFDWLRQ RI &XVWRG\ FDVH Armed with lots of equity but lacking supporting statutory or case law, Mr. Lowe and DQG KLV DWWRUQH\ could not overcome that they were 17 months late to reinstate there case. As such, their Motion was summarily dismissed by Judge Jack Kirby. (R-77)7 Two months after filing the Coweta Motion to Set Aside and before it was summarily dismissed, Mr. Valbuena officially re-involved himself in Mr. Lowes Paulding modification of custody action, filing an Entry of Appearance on July 6, 2010 (R-56) and a Rule Nisi for July 21, 2010, a mere 15 days later. The Rule Nisi did not state the purpose of the requested hearing. (R-

55). The day after filing his entry of appearance and certificate of service and mailing it to Ms. Lowe (557), Mr. Valbuena filed with the Clerk of Paulding Superior Court two affidavits titled Minor Child Election executed by the parties two minor children stating that they desired to live with their father in Florida. The children had executed the affidavits on July 3, 2010 before Martin E. Valbuena, Notary Public. 5 These swearings and execution of affidavits were completed during one of their fathers visitation periods. Despite having possession of these notarized Minor Child Elections before he mailed his Entry of Appearance to Ms. Lowe, he never sent a copy of these affidavits to Elisa Lowe.7Further, after a thorough search at the direction 4

of the Clerk of this Honorable Court, the Clerk of Paulding Superior Court was unable to find any filing of a certificate of service by Mr. Valbuena showing he had provided these Minor Child Elections to Ms. Lowe. On July 21, 2010, Ms. Lowe filed her first responsive pleadings in 08-CV-1124-JO with the Clerk of Court. They included the following pleadings: 1. Notice to Court of Another Court Having Jurisdiction over Child Custody Matters Pursuant to O.C.G.A. 19-9-62, Fraud, Perjury and Request for Rule 12 Sanctions (R-76) 2. Motion for Dismissal of Plaintiffs Current Request for a Temporary Hearing (R64) 3. Plaintiffs Failure to Comply with Georgia Uniform Rules of Superior Court (5 74) Ruling on the Appellants pleadings, Paulding Superior Court, Judge James Osborne, presiding, issued a Temporary Order dated August 10, 2010.5 At Paragraph 2 the Court wrote: Before the temporary hearing commenced, Defendant objected to the Courts jurisdiction based on improper venue. The Court finds that Defendant had an attorney representing her previously in this case and that her attorney made an appearance in the case and participated in an emergency hearing, in which Defendant prevailed, without raising any objection to venue. The Court further finds that in the two and half years that this case has been pending, Defendant has not filed any responsive pleading raising an objection to venue. Based on these factual findings, the Court finds that Defendant has waived any objection to venue that she might have had. (R88) On November 2, 2010, Ms. Lowe filed her Motion for Reconsideration of Whether this Court Has Jurisdiction. (R-102) As part of her motion she attached a copy of Hatch v. Hatch, 287 Ga. App. 832 (2007), a case decided by this Honorable Court, with similar facts, and the current controlling law of Georgia in custody jurisdiction and venue matters. 5

On November 5, 2010, Paulding Superior Court, Judge James Osborne, presiding, conducted a hearing regarding the custody of the minor children of the parties. Based upon the childrens elections, the Court ordered that the children could move to Florida with Mr. Lowe as their permanent primary legal and physical custodian.5

On November 16, 2010, trying to prompt and urge a communication between Paulding and Coweta Superior Courts as required by O.C.G.A. 19-2-64(d), your Appellant filed her Demand for Abatement of Proceedings Due to Lack of Jurisdiction and Notification of Inquiry of Jurisdiction in Coweta Superior Court.(R-136) This pleading informed Paulding Superior Court that she had brought this jurisdictional and venue matter to the attention of the Coweta Superior Court, Judge Quillian Baldwin, presiding. Ms. Lowe attached a copy of the pleading she filed with Coweta Superior Court titled, Amended Petition for Contempt and Notification of Improper Usurpation of Personal and Subject Matter Jurisdiction by a Court Without Jurisdiction. (R-122) Ms. Lowe specifically requested that Paulding Superior Court notify and communicate with Coweta Superior Court pursuant to O.C.G.A. 19-2-62. Prerequisites for termination of exclusive, continuing jurisdiction. (R-136) The Court denied Ms. Lowes Motion for Reconsideration and such denial was made a part of its Final Order (R-143) filed with the Clerk on January 5, 2011. On January 6, 2011, Judge Baldwin conducted an inquiry as to the Coweta Superior Courts continuing and exclusive jurisdiction at a hearing with the parties and Mr. Valbuena present and participating without objection. A copy of the Coweta transcript was filed with the Clerk of the Paulding Superior Court, and made part of the record, without objection, (R- 159-198) 6

Though it is usually considered bad form to include portions of a transcript in an appellate brief, Judge Baldwin succinctly framed this venue and jurisdiction issue by his cross-examination of Appellant Elisa Lowe and Mr. Valbuena at this hearing. 10 Ms. Lowe: In the meantime we're going to court for custody in 11 Paulding County. I have screamed. Not screamed. I have 12 filed a jurisdictional issue, and my first pleading with 13 the court I did not even know that that case was still 14 alive because when I got the children back -15 THE COURT: Let me stop you for just a second. 16 You're getting me confused. Let me ask you a couple of 17 questions. 18 Where do you live now? 19 MS. LOWE: I live in Newnan, Georgia. 20 THE COURT: You live in Newnan? 21 MS. LOWE: Yes, sir. 22 THE COURT: Where did y'all get divorced? 23 MS. LOWE: Here. 24 THE COURT: In Coweta County? 25 MS. LOWE: Yes, sir. 1 THE COURT: Where are the children? 2 MS. LOWE: The children are now with Mike in Florida. 3 THE COURT: How did they get to Mike, to be with Mike 7

4 in Florida? 5 MS. LOWE: Because they was granted custody in 6 Paulding County where Martin Valbuena is also a judge in 7 Paulding County. And I feel like I was home cooked there 8 to be honest with you. 9 THE COURT: But this is a contempt action, right, 10 today? 11 MS. LOWE: Right. On the jurisdiction issues I would 12 just like for the Court to enter again a declaratory 13 judgment stating that you never released. They're bound 14 to it. Even if they get temporary emergency jurisdiction, 15 they're supposed to get a relief from this Court within 90 16 days according to OCGA 19-9-64. 17 THE COURT: And where were you living when y'all, 18 when the thing happened in Paulding County giving him 19 custody? 20 MS. LOWE: Here in Coweta County. 21 THE COURT: Where had the boys been living? Are they 22 boys? 23 MS. LOWE: Yes. 24 MR. VALBUENA: Two boys. 25 THE COURT: Where are they living?

1 MS. LOWE: They are living in Florida because he gave 2 them -3 THE COURT: No, I'm talking about when you had the 4 case in Paulding County, where had they been living? 5 MS. LOWE: With me in Coweta and in Tennessee. 6 Tennessee and we moved back to Coweta. 7 THE COURT: How long when the case was filed in 8 Paulding County, where were they living? 9 MS. LOWE: We had moved about two weeks we were in 10 Tennessee. 11 THE COURT: You had been in Tennessee for about two 12 weeks? 13 MS. LOWE: Correct. 14 THE COURT: Why was it filed in Paulding County? Had 15 you been living there? 16 MS. LOWE: No, sir. Mr. Lowe, Mike Lowe had lived in 17 Paulding County. I'm not sure if it was a court they were 18 familiar with or what. 19 THE COURT: The boys lived with him in Paulding 20 County? 21 MS. LOWE: No, sir. 22 THE COURT: Let me read this petition for contempt

23 and answer real quick. Maybe that will help me since 24 you're not a lawyer. 25 MR. VALBUENA: There's an amended petition for 1 contempt. 2 THE COURT: I saw that in there. It will take me a 3 minute or two. 4 MS. LOWE: May I step out and get some water? 5 THE COURT: Yes. 6 (Short pause.) 7 THE COURT: Mr. Valbuena, what have you got to say 8 about this? 9 MR. VALBUENA: Judge, the overwhelming number of 10 these issues that Ms. Lowe has raised in her petition and 11 the amended petition have already been decided by other 12 judges, and there are court orders to that effect. I have 13 them all here for you. 14 All of the jurisdictional issues that Ms. Lowe raises 15 about what happened in Paulding County, she raised all of 16 those numerous times in Paulding County, and the judge 17 determined that she had waived those because she didn't 18 bring them properly when she was represented by an 19 attorney there. The judge issued a fine on her in this

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20 case. 21 THE COURT: Let me ask you this about that: If there 22 was a previously pending suit concerning the same matter 23 in Coweta County, there's no way for it to be valid in 24 Paulding. 25 MR. VALBUENA: What had happened in the Coweta County 1 case was that case was filed in 2001. It was tried to a 2 final hearing in April of 2005. Judge Byron Smith. 3 THE COURT: Wait just a minute. I don't want you to 4 say a word. (Speaking to Ms. Lowe.) 5 MR. VALBUENA: Judge Byron Smith heard that as a 6 special set, issued a ruling from the bench. The lawyers 7 took down their notes and never entered an order. 8 Mr. Lowe's attorney prepared an order. Sent it to Ms. 9 Lowe's attorney. They couldn't get together on the 10 language. It never got submitted to the Court. Judge 11 Smith issued a ruling, but it never got entered. But the 12 case was done except for an order being signed. 13 THE COURT: It was still pending? 14 MR. VALBUENA: Theoretically, yes. 15 THE COURT: Still pending, so no case about the same 16 subject matter in Paulding County was valid.

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17 MR. VALBUENA: Judge, she raised that issue, and the 18 Court up there denied them. 19 THE COURT: I can't help it. That doesn't make the 20 Court right. 21 MR. VALBUENA: I understand it, but I think her 22 relief is in Paulding County to appeal that judgment, not 23 to come here and try to collaterally attack the Paulding 24 County judge's decision in Coweta County. 25 THE COURT: It looks like that's what y'all are 1 doing. 2 MR. VALBUENA: How are we doing that, Judge? 3 THE COURT: In Paulding County by filing the thing in 4 Paulding County. 5 MR. VALBUENA: No, Judge. When we filed the case in 6 Paulding County, we said that order is not signed, Judge, 7 but that's the order that they're living under. We 8 weren't (sic) -- we were (sic) trying to change the order 9 of Judge Smith. We weren't trying to go behind him. We 10 were trying to say, that's the order and the case is done. 11 She's left the State. He lives in Paulding County, and 12 we're filing it in Paulding County because that's where he 13 lives.

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14 THE COURT: How can you file it in Paulding County 15 where he lives? How does that give you jurisdiction? I 16 may be wrong about all this, but I don't think you can do 17 that. 18 You can do that in a divorce if she moves out of 19 state and the person is a resident of the state and meets 20 all the other requirements. You can file it in the same 21 county that the plaintiff lives in if she doesn't live in 22 the State of Georgia. 23 If she lives in the State of Georgia, then he's got 24 to file it in the county where she's living and/or he's 25 got to file it in the county where she's living in the 1 other state. Or if it's a contempt action it has to be 2 filed and it's in the State of Georgia, it has to be filed 3 in the county which originally issued the order. 4 MR. VALBUENA: Judge, I think that's a venue issue. 5 Venue can be waived. She raised that issue in Paulding 6 County, and the judge found that she had waived venue and 7 that's why he could proceed in Paulding County. She 8 raised that issue three or four different times and lost 9 every time. 10 THE COURT: I don't care. I don't agree with that.

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11 Who was the judge? 12 MR. VALBUENA: James Osborne. 13 THE COURT: Okay. 14 MR. VALBUENA: But the issue you're bringing is a 15 venue question; and venue can be waived, regardless of 16 where, in any kind of case. 17 THE COURT: It can be waived, but it's got to be 18 specifically waived. The thing about it is is if a case 19 was pending here, no case in any other case in the State 20 of Georgia is valid if there's a case pending here. I 21 don't think she can waive that. If it's pending here, she 22 can't come to court and say, well, I give up any rights 23 I've got under that case. It's pending there. We'll let 24 y'all decide it here. 25 Did she do that? 1 MR. VALBUENA: Judge, she raised all those arguments, 2 and the judge in -3 THE COURT: No. I asked you a specific question. 4 Did she come in court and say, I'll forget about 5 what's going on in Coweta County, let's do it here; is 6 that what she did? 7 Or did she say there's a case pending in Coweta

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8 County, and you don't have jurisdiction? 9 MR. VALBUENA: She was represented by an attorney 10 when the case started in Paulding County, and the attorney 11 didn't make any objection as to venue. They let the case 12 in Paulding County go on. 13 So no, she didn't say, well, I give up my rights. So 14 she didn't object to Paulding County venue. She went 15 forward in Paulding County. 16 THE COURT: You just said she raised all those 17 issues. 18 MR. VALBUENA: After her lawyer withdrew or wasn't 19 representing her down the road, Ms. Lowe raised those 20 objections on her own, and two years later; and the Court 21 found that she had waived them by that point. 22 THE COURT: That's incorrect or something. 23 MR. VALBUENA: And she -24 THE COURT: It's unfortunate that she didn't keep the 25 lawyer, and it's unfortunate if that happened that wasn't 1 appealed because that's just incorrect. That's just an 2 incorrect ruling. 3 There's no way for him to issue an order in that 4 county if the same case was pending in Coweta County.

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5 What could have happened is he could have said, well, 6 y'all go get that one in Coweta County dismissed and come 7 forward. And if you were the lawyer in both of them, 8 that's what you should have done. 9 But there's no way that order he signed was valid. 10 So anyway, go on and tell me what else y'all have got to 11 say. 12 MR. VALBUENA: The lawyers in the 2004 case that were 13 here, Judge, neither one of those have ever represented 14 them again. 15 THE COURT: I'm sorry they've never represented them 16 again. 17 MR. VALBUENA: But what I'm saying is -18 THE COURT: But what I'm telling you is none of that 19 changes. The one big fact here that there was a case 20 pending in this court that hadn't been dismissed and you 21 cannot do the same thing in another county when that 22 hadn't been dismissed. There's just no way to do it. 23 That judge up there couldn't dismiss this case. 24 MR. VALBUENA: Correct. 25 THE COURT: You can't do that. 1 MR. VALBUENA: I'm not arguing with that, Judge. I

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2 think it's a venue question. I think her relief is in 3 Paulding County or with the Court of Appeals. The relief 4 for that issue is not here. 5 THE COURT: Well, the fact of the matter is is she 6 can file her case here against him for contempt. 7 MR. VALBUENA: Absolutely. 8 THE COURT: And that case doesn't have any bearing on 9 this. He's obviously in contempt of some things that were 10 ordered in this Court which he never complied with. Ms. Lowe filed her Motion to Set Aside, Motion for New Trial and Renewal of Request for Rule 12 Sanctions Based Upon Continuing Fraud Committed by Attorney Martin Valbuena.5 A hearing was conducted to consider said motions on April 6, 2011. Ms. Lowes Motions were denied. (5) PRESERVATION OF ERROR Your Appellant has preserved her allegations of error by an through the following pleadings: 1) Notice to Court of Another Court Having Jurisdiction Over Child Custody Matters Pursuant to O.C.G.A. 19-9-62, Fraud, Perjury and Request for Rule 12 Sanctions (R-Page 76) (Filed July 14, 2010) (Defendants First Responsive Pleading) 2) Motion for Reconsideration of Whether This Court has Jurisdiction Over this Custody Matter (R-102-108) (Filed November 2, 2010) 3) Demand for Abatement of Proceedings Due to Lack of Jurisdiction and Notification of Inquiry of Jurisdiction in Coweta Superior Court (R-136-137)(Filed November 16, 2010) 17

4) Transcripts of April 6, 2011 Hearing (R-271-289) ) Motion to Set Aside, Motion for New Trial, and Renewal of Request for Rule 12 Sanctions Based Upon the Continuing Fraud Committed by Attorney Martin E. Valbuena (TR-Page 152-158) (Filed February 4, 2011) PART TWO ENUMERATION OF ERRORS Jurisdictional Statement: Appellant shows that jurisdiction is properly in this Court, rather than the Supreme Court, because this is an appeal from a final judgment in a domestic relations case pursuant to O.C.G.A. 5-6-35(a)(2). 1. Whether the Paulding Superior Court can assume jurisdiction over the parties and their minor children when there was a pending change of custody action in Coweta Superior Court at the time the Paulding Superior Court case was filed and hence, whether the Final Order dated January 5, 2011 is void for lack of jurisdiction. 2. Whether the Paulding Superior Court erred by finding that the Appellant consented to the jurisdiction of the Paulding Superior Court by making an appearance at an emergency hearing, where her children were taken from her custody in an ex parte emergency hearing based upon solely upon the false swearing of the Appellant, and the Paulding Superior Court returned custody of the children to Appellant at said emergency hearing, at a time when there was a pending custody action in Coweta Superior Court, and hence, whether the Final Order dated January 5, 2011 is void for lack of jurisdiction.

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3. Whether the Paulding Superior Court erred by finding that Appellants first responsive pleadings, that specifically objected to the exercise of continued jurisdiction over the custody matters of the children, were untimely filed, and hence, whether the Final Order dated January 5, 2011 is void for lack of jurisdiction. 4. Whether the Paulding Superior Court had a duty communicate with the Coweta Superior Court regarding the concurrent exercise of jurisdiction over the same parties and same subject matter pursuant to O.C.G.A.19-2-64(d). 5. Whether the Paulding Superior Court had a duty to investigate that allegations of fraud and perjury that are found on the face of the Appellants pleadings, and dismiss said action or refer said allegations of perjury and violations of to the State Bar of Georgia or to the local District Attorney as required by Judicial Canon 3(b)(2.), PART THREE STANDARD OF REVIEW The Standard of Review for all of the Enumerations of Error is a de novo review as the evidence is uncontroverted . Rigdon v. State, 270 Ga. App. 217, 605 S.E.2d 903 (2004); (Because the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court's application of the law to the undisputed facts.); Dougherty County v. Webb, 256 Ga. 474, 477, 350 S.E.2d 457 (1986); Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 750, 525 S.E.2d 118 (1999); Moore v. Food Associates, Inc., 210 Ga. App. 780, 781, 437 19

S.E.2d 832 (1993). ARGUMENT AND CITATION OF AUTHORITIES Enumerations of Error 1, 2, 3, and 4 pertaining to the Jurisdiction and Venue Issues The trial court found that Ms. Lowe had waived her right to contest the exercise and venue by Paulding Superior Court at an emergency hearing. The trial court erred as such a finding is contrary to the rationale and holding of Hatch v. Hatch, 287 Ga. App. 832 (2007). Analyzing whether Ms. Hatch had waived her issues of proper jurisdiction and venue, the Hatch Court noted that OCGA 19-9-62 (a) except as provided in OCGA 19-9-64, a court of this state which has made a child custody determination consistent with OCGA 19-9-61 or 19-9-63 has exclusive, continuing jurisdiction); see Upchurch v. Smith, 281 Ga. 28 (635 SE2d 710)(2006); Fish v. Fish, 266 Ga. App. 224 (596 SE2d 654)(2004), Id at ___. It is undisputed that Coweta Superior Court presided over the parties Divorce with Minor Children and determined that Elisa Lowe was the proper parent for legal and physical custody of the minor children. Further, Mr. Lowe availed himself of Coweta Superior Courts jurisdiction by filing a modification of custody action in Coweta 04-V-32. At the time Mr. Lowe and his attorney of record, Martin E. Valbuena filed the current Paulding modification of custody action, Mr. Lowes Coweta 04-V-32 was still pending. Incredibly, while this Paulding custody action was pending, Mr. Lowe and his attorney of record, Martin E. Valbuena filed another custody action (Coweta Superior File Action Number 10-V-803) requesting the Coweta Court to revisit the issues of 04-V-32. 20

The Paulding trial court found that because Ms. Lowe was represented by an attorney, made an appearance and participated in an emergency hearing, in which Elisa prevailed, she waived her right to object to Paulding County YHQXH 7 $ppellant shows that each and every Georgia court has the jurisdiction to exercise jurisdiction in any matter where a child is in danger pursuant to O.C.G.A. 19-9-64. O.C.G.A. 19-9-64(a) states: A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse. However, this exercise of emergency jurisdiction should not be construed to allow the usurpation of a another Courts continuing and exclusive jurisdiction. This Honorable Court in Taylor v. Curl, 298 Ga App 45 (2009) stated the following: Georgia's child custody laws limit the ability of a parent to terminate the continuing jurisdiction of the court that made an initial child custody determination. Such limitations serve, in part, to prevent a noncustodial parent from seeking to modify custody determinations in his or her home jurisdiction without regard to where the child and custodial parent have the closest connections. However, one exception to this general rule is found in OCGA 19-9-64, which provides courts with temporary emergency jurisdiction over child custody cases. Mr. Lowe alleged in his Paulding Complaint for Change of Custody that Defendants actions in moving and denying Plaintiff access to the Children, her stability issues and her neglect of the Childrens educational needs have created an emergency situation this in the Childrens best

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interests, warrants an immediate ex parte change of custody. Without this immediate ex parte change of custody, an eminent and substantial threat to the health, safety and well-being exists. (TR-Page 11, Paragraph 16) Based on Mr. Lowes allegations of an emergency situation involving the health, safety and welfare of the minor children, the Paulding Superior Court saw reason to issue an ex parte order transferring custody of minor children to Mr. Lowe. Ms. Lowe was ordered by a competent Superior Court of Georgia to attend an emergency custody hearing so that the Court could determine if the minor children needed protection. She complied with the Paulding Courts direction to attend the hearing. Obviously, the allegations of danger to the children were determined by Court to be unfounded as the Paulding Superior Court immediately returned the minor children to Elisas custody upon review. (Order at TR Page 44). At the point in time that the Paulding Superior Court determined that no emergency circumstances existed, its temporary emergency powers ceased and the continuing and exclusive jurisdiction returned to Coweta County It is also obvious that when the children were returned to Ms. Lowes custody, Mr. Lowe all but abandoned this case. Mr. Lowe wrote Mr. Valbuena a bad check for his attorneys fees and Mr. Valbuena withdrew from his representation of Mr. Lowe in this case. Mr. Lowe chose not to hire another attorney, proceed pro se, or otherwise, prosecute this case. Elisa Lowe had prevailed again against Mr. Lowes unfounded accusations made at an ex parte hearing. Because the Appellee opted to initiate this Paulding modification of custody case with allegations of requiring immediate and emergency action, Ms. Lowe did not have the statutorily

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prescribe amount of time, thirty (30) days, to respond to Mr. Lowes complaint. Before the usual thirty days had expired she had been vindicated and her minor children returned to her custody. In an incredible case of home-cooking, the Paulding Court stated in its Temporary Order dated August 10, 2010 the following: The Court further finds that in the two and a half years that this case has been pending, Defendant has not filed any responsive pleading raising an objection to venue. Based on these factual findings, the Court finds that the Defendant has waived any objection to venue she might have had. (R- 88) Of course, Mr. Valbuena drafted the Temporary Order ( R91) without providing a copy of a draft to Ms. Lowe for review. Without shame, Mr. Valbuena presented such a finding for Judge Osbornes signature when it was, in fact, Mr. Valbuena that had been absent and withdrawn from the case for the two and half years due to the bad check incident and non-payment of his attorneys fees. Your Appellant shows that though Paulding Superior Court could exercise emergency jurisdiction over any matter involving the safety of a minor child, such jurisdiction is not exclusive and continuing. When, after more than two years, Mr. Valbuena had the Court issue a Rule Nisi, Elisa Lowe filed her first responsive pleadings. In these first responsive pleadings she challenged the jurisdiction and venue of the Paulding Superior Court and informed the Paulding Court that Coweta Superior Court had continuing and exclusive jurisdiction over the custody matters of the parties minor children. . In Bonner v. Bonner, 272 Ga. 545 (2000) the Court held: A Defendant waives the defenses of improper venue and lack of jurisdiction of the person by failing

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to raise such defenses by motion or through responsive pleadings. Sub judice, Appellant did both, and did so before and throughout the course of this action. Clearly and without question, Appellant properly and timely raised her defense to jurisdiction and venue. There is no question that Appellant is a resident of Coweta County, that the parties were divorced by the Coweta Superior Court, that Coweta Superior Court has never relinquished its jurisdiction over the parties or their minor children and that the Appellee and his attorney, Martin E. Valbuena, continually avail themselves of the jurisdiction of the Coweta Superior Court. As contemplated by O.C.G.A. 9-11-12(h)(1), the Appellant clearly raised the issue of the defense of jurisdiction and venue in her first responsive pleading and continued to object to the exercise of Paulding Superior Courts jurisdiction over her and her minor children Your Appellant in her November 16, 2010 Demand for Abatement of Proceedings Due to Lack of Jurisdiction and Notification of Inquiry of Jurisdiction in Coweta Superior Court specifically requested and implored that this Court follow O.C.G.A 19-9-62 and notify Coweta Superior Court of this subsequently filed case in an attempt to resolve jurisdictional issues. See R136) OCGA 19-9-62 (d) A court of this state which has been asked to make a child custody determination under this Code section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Code Sections 19-9-61through 19-9-63, shall immediately communicate with

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the other court. A court of this state which is exercising jurisdiction pursuant to Code Sections199-61 through 19-9-63, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this Code section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. The Paulding Superior Court committed reversible error by refusing to communicate with the Coweta Superior Court as required by O.C.G.A.19-9-62(d). Enumeration of Error 5 pertaining to Courts Duty to Investigate Allegations of Fraud and Perjury Without question, Mr. Lowe and Mr. Valbuena knew that the proper court for litigating these child custody matters was Coweta Superior Court This jurisdictional mess was created by Mr.

Lowe and his attorney, Mr. Valbuena by disregarding the most basic tenets of Georgia civil procedure and Georgia statutes enacted to protect parties and their minor children from such abuses within the system. By disregarding these statutes of protection, the Appellee wrongfully and unnecessarily engaged the powers of Paulding Superior Court. Mr. Lowe made the following false statements in his verified complaint in Paulding Civil Action File Number 08-CV-1124-JO: a. Although Coweta County previously granted the Parties divorce and heard the modification case, none of the Parties currently reside in Coweta County, and it has no interest in the case. (TR25

Page8, Paragraph 7) b. Plaintiff is not aware of any pending proceeding other than this action concerning the custody of the children. (TR-Page 9, Paragraph 8(b)) c. As a result of the 2005 (Coweta) modification action, the Parties share joint legal and joint physical custody of the Children. (TR-Page 7, Paragraph 5). As an officer of the Court, Mr. Valbuena knew that Mr. Lowes above-referenced verified assertions were false and misleading to the Paulding Superior Court. Mr. Valbuena knew that Coweta Superior Court was the Court of continuing and exclusive jurisdiction as he referenced Cowetas prior rulings and orders in Paragraph 4 of his Complaint for Change of Custody in Paulding County. In Paragraph 5 of his Complaint for Change of Custody in Paulding County, Mr. Valbuena prepared the following pleading for his client to verify under oath and asserted the following: Subsequent to their divorce, Plaintiff filed a Petition for Modification of Child Custody and Child Support in Coweta County, Georgia in Civil Action File No. 04-V-32. The Court held a Final Hearing on April 12, 2005. A proposed Final Order was prepared but never executed. A true and correct copy of the unexecuted Final Order is attached hereto as Exhibit E. As a result of the 2005 Modification action, the Parties share joint legal and joint physical custody of the Children. (TR-Page 7, Paragraph 5.) Conveniently, Mr. Valbuenas Exhibit E was never attached to the Complaint or filed with the Clerk of Court. Interestingly, the proposed Final Order that was never executed by Coweta Superior Court granting Mr. Lowe something more than his visitation rights 26

was never made a part of the Paulding Clerks record. The only valid custody order in existence after all of Mr. Lowes modification of custody actions is the Amended Final Divorce Decree issued by Coweta County in 2000. Your Appellant continually requested that Paulding Superior Court, Judge Osborne, presiding, conduct an inquiry into these false and misleading statement made under oath by Mr. Lowe and suborned by Mr. Valbuena. Paulding Superior Court refused to conduct such an inquiry. Conversely, Coweta Superior Court conducted a hearing and inquiry as to the basis for Pauldingss usurpation of Coweta Superior Courts jurisdiction. The fraud is readily evident on the face of the verified complaint. Further, Judge Baldwin could elicit no good reason from Mr. Valbuena why Paulding should retain jurisdiction over this matter. It is clear that Mr. Valbuena was forum shopping for Mr. Lowe. This Honorable Court has recognized that a certain degree of home-cooking exists in the Georgia legal system. Taylor v. Curl, 298 Ga App 45 (2009), citing Gordon v. Gordon, 185 Ga. App. 100, 103 (363 SE2d 353) (1987) (noting that custodial parent "may have been the victim of some 'home cooking'" by [*4] a court of the jurisdiction in which the noncustodial parent resided). After informing Judge Quillian Baldwin that she had lost custody of her children to Mr. Lowe who now lives in Florida, and testifying that she felt like I was home cooked there to be honest with you. (T-69) Judge Baldwin chastised Mr. Valbuena for bringing this action in Paulding County rather than Coweta County. 27

The fraud, perjury, and misleading statements and proffering of non-existent custody orders granting Mr. Lowe shared custody is clear, evident, and uncontroverted on the face of the verified complaint. During Judge Baldwins cross-examination of Mr. Valbuena, Mr. Valbuena could offer no valid reason, and much less, case law or Georgia statutes supporting his actions of filing this case in Paulding County. It is clear Mr. Valbuena was forum shopping for a Mr. Lowe in hopes of serving Ms. Lowe a heaping plate of home cooking. from his power-base of Paulding County. Paulding Superior Court, Judge Osborne, presiding, has a duty under Georgia Judicial Canon 3(d)(2)s to identify perjury and other unethical conduct committed by attorneys in their Court and take appropriate action. The trial court erred in not investigating or hearing evidence on these matters of fraud.

This 15 day of August, 2011

_________________________________ Elisa M. Lowe Appellant Pro Se

279 Crossroad Estates Drive Newnan, GA 30265 (404) 704-7058

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