Brooks v. Lopez.

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
June 11, 2019
In the Court of Appeals of Georgia
A19A0324. BROOKS v. LOPEZ. DO-013
DOYLE, Presiding Judge.
In this interlocutory appeal, Shane Brooks appeals from a superior court order
granting a motion for genetic testing filed by his ex-wife, Crystal Lopez, as part of her
petition to modify custody and child support. Brooks contends that the superior court
erred because (1) relitigation of the issue of his paternity is barred by collateral
estoppel due to the final order in the parties’ prior divorce proceeding, (2) there is no
evidence that genetic testing is in the best interest of the child, (3) and the superior
court granted the motion for genetic testing without allowing Brooks 30 days to
respond. For the reasons that follow, we reverse.
The undisputed portion of the record shows that in 2008, Lopez, who was
dating Brooks, gave birth to a child. Although the couple was not married, Brooks
signed the child’s birth certificate, and the child was given Brooks’s last name; the
couple later married in 2010. In 2011, the couple divorced, and pursuant to their
settlement agreement, they shared joint legal and physical custody of the child, with
Brooks having primary physical custody due to Lopez’s school schedule.
In July 2017, Lopez, acting pro se, filed a petition for modification of custody
and child support, seeking a change in custody because she alleged that Brooks was
moving from Butts County to Cobb County, which would hinder her visitation.1
Brooks answered and denied the allegations in Lopez’s petition. In September 2017,
Lopez then amended the petition, alleging that the couple had always known that
another man, Chad Gregorious, was the child’s biological father. Lopez also alleged
that she agreed to the divorce settlement stating that “there is one minor child born
as a result of this marriage” because she lacked counsel at the time of the divorce. In
December 2017, Brooks moved for a continuance so that he could obtain local
counsel in Cobb County, pointing out that their divorce decree and settlement
agreement characterized Brooks and Lopez as the child’s parents. He attached the
final decree and incorporated settlement agreement to the motion. A hearing date was
1
The Butts County Superior Court soon transferred the case to Cobb County
due to the lack of personal jurisdiction over Brooks in Butts County.
2
set for May 21, 2018, so the court could make a temporary determination as to
custody. At that hearing, Brooks moved to dismiss any de-legitimation claim on
collateral estoppel grounds, citing the divorce decree. The court declined to make a
ruling, instead inviting further briefing on the paternity issue.
On June 5, 2018, Lopez again amended her claim, arguing that Brooks was not
the biological father and seeking either sole legal custody or joint legal custody with
primary physical custody of the child. Also on that date, Lopez filed a motion for
genetic testing to demonstrate that Brooks is not the biological father of the child. On
June 21, 2018, sixteen days later, the superior court entered an order granting Lopez’s
motion for genetic testing. A week later, Brooks moved for reconsideration or for a
certificate of immediate review, noting that the court had ruled without allowing
Brooks 30 days to respond to the motion pursuant to Uniform Superior Court Rule
6.2. The next day, the superior court entered a certificate of immediate review.
The following week, on July 2, 2018, Brooks filed an affidavit attesting to the
facts surrounding his divorce and authenticating additional attached copies of his
2011 complaint for divorce as well as copies of the divorce decree and settlement
agreement already filed with the court as exhibits to his motion for a continuance.
Lopez likewise moved for temporary emergency custody of the child; Brooks
3
opposed the motion, and the superior court made no further rulings. On July 31, 2018,
this Court granted Brooks’s application for interlocutory review, and Brooks filed his
notice of appeal in the superior court the next day.
At the outset, we note that Lopez has moved this Court to exclude from
consideration the documents Brooks filed after the superior court’s ruling granting
genetic testing, i.e., the affidavit, divorce petition, divorce decree, and settlement
agreement filed on July 2, 2018. Although appellate jurisdiction did not vest in this
Court until Brooks filed his notice of appeal,2 which occurred after he filed the
challenged documents in the superior court, it is undisputed that the challenged
documents were filed after the superior court entered the order at issue in this case,
so they were not before the court when it ruled. Nevertheless, Brooks earlier had filed
with the superior court exhibits including the parties’ divorce decree and settlement
agreement, and Lopez did not challenge those documents, so those documents were
before the court when it ruled. Lopez likewise makes no challenge to those particular
documents on appeal (only the later-filed documents), so any objection to
2
See Grogan v. City of Dawsonville, 305 Ga. 79, 82 (2) (823 SE2d 763) (2019)
(citing OCGA § 5-6-34 (b)) (“Once the trial court and then an appellate court grant
a party permission to appeal an interlocutory order, the party must file a notice of
appeal within a specified period to confer jurisdiction on the appellate court.”)
4
consideration of those documents is waived.3 In light of this, we need not look
beyond the record before the superior court to resolve the appeal, and we deny as
moot Lopez’s motion to exclude the late-filed documents.
1. Brooks argues that the superior court erred by granting the petition for
genetic testing because the issue of his paternity had been resolved in a prior judicial
proceeding between the parties. We agree.4
OCGA § 9-12-40 provides: “A judgment of a court of competent
jurisdiction shall be conclusive between the same parties and their
privies as to all matters put in issue or which under the rules of law
might have been put in issue in the cause wherein the judgment was
3
See Williams v. Durden, 347 Ga. App. 363, 367 n.2 (819 SE2d 524) (2018)
(holding that a party’s failure to object waived any challenge to admissibility on
authentication grounds); Tselios v. Sarsour, 341 Ga. App. 471, 474, n. 3 (800 SE2d
636) (2017) (defendant waived authentication objection to exhibit submitted at
summary judgment stage by failing to object in trial court). See also Cotton v. State,
297 Ga. 257, 259 (3) (773 SE2d 242) (2015) (holding that a defendant’s failure to
make an objection in the trial court as to authentication waived that ground for
exclusion of evidence) (citing OCGA § 24-1-103 (a) (1)). See generally OCGA § 24-
9-901 (b) (4) (the appearance and content of a document may be evidence of its
authenticity); Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 8 (679
SE2d 57) (2009) (accord).
4
In light of the ruling of the trial court below and the procedural posture of this
case, we pretermit whether the child was legitimate under OCGA § 19-7-20 (c) (“The
marriage of the mother and reputed father of a child born out of wedlock and the
recognition by the father of the child as his shall render the child legitimate; in such
case the child shall immediately take the surname of his father.”).
5
rendered until the judgment is reversed or set aside.” In the instant case,
the previous divorce [decree], which [action] was filed by appellant
[Brooks] against appellee [Lopez], recited that the [“parties shall share
joint legal custody of the parties[‘] minor child,” awarding primary
physical custody to Brooks.] The settlement agreement, which was
approved by the court and incorporated into the divorce decree, [stated
that “there is one minor child born as a result of this marriage.”] Thus,
the issue of the paternity of the minor child was effectively adjudicated
in the prior divorce proceedings, from which no appeal was taken. Since
the legitimacy of the child was recognized in the previous action, that
issue is res judicata, and cannot now be raised by those who are bound
by the prior judgment. . . . Appellant [Brooks] and appellee [Lopez], the
parties to the prior action, are bound by their own divorce decree.5
Lopez alleges no fraud or mistake on her part that would vitiate the conclusive
nature of the prior divorce action, which she neither contested nor appealed.
Therefore, consistent with a number of similar cases addressing the re-litigation of
paternity following a divorce decree settling the issue, we hold that Lopez is estopped
in this action from challenging the paternity established in her divorce.6
5
(Citations and punctuation omitted; emphasis supplied.) Macuch v. Pettey,
170 Ga. App. 467, 468 (1) (317 SE2d 262) (1984).
6
See, e.g., Dept. of Human Resources v. Fleeman, 263 Ga. 756, 757-758 (2)
(a) (439 SE2d 474) (1994) (noting that a mother would be collaterally estopped from
relitigating the paternity question settled in her divorce decree); Grice v. Detwiler,
227 Ga. App. 280, 282 (488 SE2d 755) (1997) (giving effect to paternity established
6
Lopez argues that this case should be controlled by Veal v. Veal.7 In that case,
the mother gave birth to a daughter, H., and although both parties knew that her then-
boyfriend was not the child’s biological father, he signed the birth certificate; the
couple married the next month. They went on to have three additional children during
their marriage, but a few years later, they divorced. The divorce decree made no
mention of H. The next year, the ex-husband challenged the divorce decree, and a
temporary order was entered granting joint custody of H. Thereafter, due to a change
in circumstances affecting H., the trial court awarded full custody of H. to the
husband.8 After the wife appealed, the Supreme Court held that the trial court erred
in divorce decree where “the ex-wife sought to attribute paternity to another man after
raising the child as offspring of this marriage for an extended period of time”), citing
Ghrist v. Fricks, 219 Ga. App. 415, 417 (1) (465 SE2d 501) (1995) (“‘Parties to
stipulations and agreements entered into in the course of judicial proceedings are
estopped from taking positions inconsistent therewith, and no litigant will be heard
to complain unless it be made plainly to appear that the consent of the complaining
party was obtained by fraud, or mistake.’”), overruled on other grounds by Brine v.
Shipp, 291 Ga. 376, 380 (3) (729 SE2d 393) (2012).
7
281 Ga. 128 (636 SE2d 527) (2006).
8
See id.
7
by making that award because the ex-husband had no rights to H. in light of the fact
that he had never adopted H. nor legitimated her as provided by OCGA § 19-7-22.9
Notably, in Veal, the prior divorce decree did not address paternity over the
child at issue, nor did the Veal Court engage in any res judicata or collateral estoppel
analysis. Thus, the Supreme Court in that case was not presented with the question
raised here – the adjudicative effect of the parties’ prior divorce decree with respect
to paternity over the child presently at issue – therefore Veal does not control our
decision here.
Based on the binding nature of the parties’ divorce decree and settlement
establishing Brooks’s paternity, and in light of the rule established by case law
addressing this question, the trial court erred by granting Lopez’s motion for genetic
testing for the purpose of challenging Brooks’s paternity.
2. Brooks’s remaining enumerations are moot.
Judgment reversed. Coomer and Markle, JJ., concur.
9
See id. at 128-129.
8