Re-typed text of transcript, originally prepared by Pamela D. Mutuku, CCR, Cobb County Superior Court:

Three errors in the transcript are noted in brackets [ ]. 

Transcript of motion proceedings held before the Honorable Rufe McCombs, Judge, in the Superior Court of Cobb county, 30 Waddell Street, Marietta, Georgia, taken before Pamela D. Mutuku, Georgia Certified Court Reporter on Tuesday, February 20, 2001, commencing at the hour of 1:30 p.m.

APPEARANCES OF COUNSEL:

For the Plaintiff:  Pro se'

For the Defendants:  Mr. Robert Donovan, Attorney at Law

PROCEEDINGS

The Court:  All right, sir, if you will state your motion.

Mr. Donovan:  My name is Robert Donovan and I represent Gregory R. Portman, Larry Yarbrough and R. Wynette Kennedy Portman.

Judge, as you may recall in this case, this is an action that is headed up as being a declaratory judgment action filed by Mrs, Marquitta Portman against several individuals.

Judge, she has asked for declaratory relief from this court and we have filed a motion to dismiss alleging in that motion that this is not the appropriate method by which she might seek or obtain relief. That is, it appears that from her pleadings that the -- she complains about Judge Flournoy not recusing himself in the original divorce case.

Judge, as has been said many times, the appropriate relief for her at that point is to have her motion for new trial heard and if she is unsatisfied with the response of that, then in that event to appeal that decision. She seeks instead to file this declaratory judgement action.

And, Judge, as we go through each of these motions to dismiss, we would adopt each and every one of the arguments made by each of the other -- each of the other Defendants other than the judicial or official immunity arguments which none of those three Defendants would be entitled to.

Going first, Judge, to probably the one that has the least right to be inthis action as a party defendant is Larry Yarbrough.

Mr. Yarbrough was the attorney -- the second attorney in the divorce action. And when I went over the complaint, it would appear that Mrs. Portman has made him a party defendant only because of the fact that she, in reading the statute, anticipates or probably concludes that Mr. Yarbrough has some involvement in the divorce, the original divorce action or the ancillary divorce action.

Judge, I went through the entire complaint and the amendments to the complaint and every time I saw Mr. Yarbrough's name, I got the impression or I looked at the surrounding documentation -- and I would invite the court to do likewise -- but it basically makes no claim or cause of action nor are there any rights that Mrs. Portman -- the Plaintiff and Mr. Yarbrough neither of them have anything that is indicative of joint obligations or responsibilities to each other in law or in equity.

So as it relates to Mr. Yarbrough's case, Judge, we feel that she has not stated a claim of action and that there is no -- I mean, certainly not under the declaratory judgement action. And I don't think as indicated in her remarks this morning that she is seeking any type of damages from Mr. Yarbrough.

So looking at it from the standpoint a declaratory judgement action as against Mr. Yarbrough would not be appropriate because they really have no union or interest together.

She's not -- She says she's seeking a declaration of the judgement that Judge Flournoy entered in the divorce action is void. However, Mr. Yarbrough has no rights or responsibilities other than as a lawyer.

So we would seek from this court to grant our motion to dismiss.

Going next to Wynette Kennedy Portman, the new wife of Mr. Portman, again I -- Judge, I again went through the entire complaint and the amendments to the complaint. And as it relates for declaratory judgement, she again has probably no nexus with Miss -- the Plaintiff, Mrs. Portman except that Wynette Portman is now married to the Defendant -- excuse me, to her former husband.

As it is relates to Gregory Russell Portman, Judge, that, of course, is her former spouse and from the standpoint as it relates to a declaratory judgement action, Judge, you have heard and I would again state to you as support or an authority for the fact or the provision that declaratory judgemnet is inappropriate to seek some type of redress in a divorce suit.

And I would submit to you Royal v. Royal which is located at 246 GA 229 which is a 1980 case. And in that case, Judge, it indicated to the Court -- the Supreme Court in that case reversed the trial court saying that a declaratory judgement action is appropriate but only if the order that they were seeking some instruction or declaration about is vague or ambiguous.

Mr. Portman, the Plaintiff in this case, has not alleged that there is some ambiguity in the divorce order. She alleges that it is void.

So we would submit under Royal v. Royal, Judge, since there is no ambiguity in the divorce decree that it would be inappropriate for the declaratory judgement action.

I would also cite to the Court -- Judge, Peoples Industry vs. Parker Henafen which Ms. Allen quoted. And I'll quote in that case it quotes from Lawrence vs. Lawrence, 87 GA App 150, 1952 case the Declaratory Judgement Act of this State is not intended to be used to set aside, modify or interpret judicial decrees or judgments of course having jurisdiction of the subject matter and parties but it is to be used to obtain a declaration of right snot already adjudicated.

Again, Judge, all of those rights and obligations are responsibilities in the divorce action must be done on their merits. And I won't belabor that point.

I would also submit to the Corut, Judge, Renshaw, R-e-n-s-h-a-w, v. Feagin 199 GA App 148, a 1991 case which also provides, Judge, that the declaratory judgement actions are not appropriate in order to attack or to modify any type of judgement issued when there is subject matter and personal jurisdiction over the parties, which I believe is not objected to by Mrs. Marquitt Portman.

Consequently, Judge, we would submit that as it relates to all three of these Defendants that the motion to dismiss is predicated upon the fact that first of all, there's probably no -- first of all that the declaratory judgement action is not the appropriate method in which to attack anything.

Secondly, that when you look at the complaint there is no cause of action stated. There are mere conclusions as it relates to facts. All of those facts are contained in the divorce proceeding and that her right of review still needs and is probably appropriate via the motion for new trial and/or any appellate relief that may be appropriate in that.

Consequently, Judge, we would submit to you that you should grant this motion and ask that you do so.

The Court:  All right. Mrs. Portman.

Mrs. Portman:  Yes, Your Honor. I would like to do the same thing that Mr. Donovan has done with his filing as to the motion to dismiss on behalf of Defendants Larry W. Yarbrough, Greg Portman and Wynette Kennedy by combining and use of the term, piggy-backing on what has been filed and set forth in the motion to dismiss on behalf of Defendants George H. Kreeger and the succeeding parties, that the same is held that rather than go through a long afternoon of motion here that everything that was presented in this morning's issue as it relates to counter estoppel, estoppel res judicata, valid orders be submitted.

My argument's been submitted in this motion also. Is that permissible by the Court?

The Court:  Do you have any objections to that?

Mr. Donovan:  No, Your Honor.

The Court:  All right. We will incorporate your arguments in the case of Portman -- the motion to dismiss that was filed by --

Mrs. Portman:  On behalf of the six judges.

The Court:  -- by the six judges by Ms. Allen. And that argument will be incorporated as your argument in this case.

Mrs. Portman:  Okay. I would like to simply --

The Court:  -- of the three other Defendants.

Mrs. Portman:  I appreciate that. I would simply like to dispense with a waste of the Court's time if we were to do that.

The Court:  All right.

Mrs. Portman:  I would like to address a couple of issues directly according to Mr. Donovan's comments. He said that declaratory relief is not the appropriate method, that the correct application is a motion for a new trial, Your Honor.

I do have a motion for a new trial, however, I have no judge in that case because I don't know who the judge is as a result of the movement of that divorce action.

The Court:  Who was the judge in your divorce action, the last judge?

Mrs. Portman:  Judge Flournoy was, Your Honor. However, there is an order on the record by Judge Ingram saying that she has taken control of that case.

The Court:  Well, then --

Mrs. Portman:  And then she recused herself, then it was sent back to be assigned to another judge. And I did not have a verification of who's assigned to that case.

The Court:  I would suggest that you ask the clerk's office.

Mrs. Portman:  I have asked, Your Honor, and they cannot identify that. And consequently, my only recourse for an answer on that was to bring it to the Court's attention and ask for the Court to make a decision because it required discretionary --

The Court:  Well, my hands are tied because my professional opinion there's no grounds for a declaratory action.

What your steps would be on your divorce action would be a new trial, carry out your motion for a new trial. If you did not get the relief that you are seeking and wanted to appeal it, then you could appeal that. And that would be all under the divorce action.

Mrs. Portman: And I understand what you're saying. I have had some time to think about it since this morning and I do understand what you're saying.

I continue to disagree with the Court on that. This is not a -- what -- I thought was a valid order. I truly thought it was a valid order for a long period of time until actions by the Court, the Juvenile Court, this Superior Court, the State Bar, those actions exposed the fact that they were not abiding by the divorce decree in this action.

And it is -- it's a law that the judicial -- I mean, that the Juvenile Court must abide by rulings of the Superior Court yet the Juvenile Court did not follow the rules of the Superior Court. That was one of my first clues that there was something wrong with this judgement that it wasn't -- it couldn't be enforced or it wouldn't be enforced.

As I pursued it further, I came to realize there were a lot of things being handled that were against the law.

For instance, I would like to present to you 15-6-14 Code Section: When from any cause the judge of the Superior Court and a city court is disqualified from presiding in a civil case and has failed to procure the services of a judge to try the case and the parties litigant by consent may select an attorney of the state to preside in the state.

The attorney so selected when a consent is entered in minutes shall exercise all the functions of the judge in that case. Any senior judge of Superior Court may likewise be selected.

I present this along with another, 15-6-13 which is from when -- from any cause a judge of the Superior Court is disqualified from presiding in a matter he shall procure the services of another Superior Court judge to try the matter even if he has to call for a special term of court for that purpose.

It goes on with Section B, failure of a judge to comply with subsection A of this code section within a reasonable time when it is in his power to do so is a ground of impeachment.

And I present to you that that happened in several cases -- several instances as it has moved from judge to judge to include the judicial qualifications Rule 220 which states, no judge can act as a trier in a case where a judge from the same circuit is one of the parties. Yet Judge Nix held this case over six months and has denied me access to discovery.

I will -- I would like to state on the record Mr. Yarbrough and Mr. Stevenson have been two individuals who have been far more open with their interrogatories, more complete and although I disagree with some of the answers and I have evidence to show that they are incorrect, I would like to give them credit for at least presenting an ethical viewpoint of what needs to be presented to the Court.

I would like to submit that because Judge Nix held the case for six months and he should never have even received the case, it should have gone to a Superior Court judge outside the county before it went to Judge Nix, that I have been denied due process, that I have been denied access to discovery.

I've been denied access to discovery from day one all along. When I asked for information from Juvenile court officers, I'm denied it. Even when my husband signs a police report on my son and says mother unknown.

I live [should have been "lived"]  two miles from him. I'm in the same home that we lived in for 20 years. He knew where I was. He could have stated it. He had a duty and a responsibility under joint custody to share that information with me.

When Juvenile Court officers -- I contacted them, they said that, yes, they would contact me. They didn't. They are bound by the rules and the rulings of the Superior Court, yet they did not contact me.

If I hadn't taken the initiative to follow through, I would never have known that they were proceeding.

They required of me to give up my rights, to present anything in evidence in a court of law about my son.

I have every reason to respect my son's privacy but at the same time I know that there are ways to present things to the court in camera that would not violate my son's privacy.

I simply wanted to participate as a parent and, excuse me, I was being denied that. I think Mr. Yarbrough is fully aware of what I was being denied from before the divorce even took place.

He was fully aware of it after the divorce when my husband was told by Judge Flournoy that my son was supposed to move back with me. And my husband challenged me on did I really want the house because I didn't ask for the house but Judge Flournoy put me back in the house.

And then when my husband realized that my son really wanted to live in that house, he attempted to try and change the ruling of the Court. And I wanted to support what the Court had stated. I was even denied that.

Mr. Donovan:  Excuse me, Mrs. Portman.

Judge, I'm going to object to this testimony. We're here on a motion to dismiss.

The Court:  She's testifying instead of --

Mr. Donovan:  She's just stating --

The Court:  -- presenting any law.

Mr. Donovan:  Right, Judge. I would object to her ramblings as it relates to all of this stuff and ask the Court to direct her to the issue of, is there any authority that she's aware of that allows her to file a motion to declaratory judgement. Thank you.

The Court:  Yes. I will have to sustain that. I thought maybe you would get to that in a few minutes, but you don't seem to be getting to it, so I will have to ask you --

Mrs. Portman:  I understand. My intention was to show you that there is a lot of evidence that's out there that I would like to present to the Court.

The Court:  I can't hear it until and if such time the Court of Appeals sends it back for further hearing or something that I've done wrong then I would hear it.

Mrs. Portman:  I understand. And I present to you that I have already gone through the Court of Appeals and it is evident that the system of justice in this state is -- I want to be careful with my words, Your Honor. I don't want to offend the Court, but it's easily brushed aside.

The Court:  Well, I have often been reversed by the Court of Appeals but I've never questioned their authority because I feel that they do what they feel is the law and just as I do what I think is the right thing to do in the law.

Mrs. Portman:  I can respect that. I can respect that on your part and on the Court of Appeals.

I have not gone before the Court of Appeals. I have gone before the Georgia Supreme Court.

The Court: Well, I meant both of them. They are the final word in all of this.

Mrs. Portman:  I understand that. And I also would like to submit to the Court that I have a right to a final judgment from this Court that [should be "yet"] you have made the statement that that is a question for the Court of Appeals as to whether it's valid or void judgment or a void order.

I find myself still confused by the ruling. And everything that I read shows me, everything that I read shows me that there is a strong distinction, a complete distinction between a void order and a valid judgment, that a void order --

The Court:  The thing that the State asked on the motion to dismiss is the fact you filed a declaratory --

Mrs. Portman:  Exactly. And declaratory action requires no damages from the parties. It requires a declaration only to establish my legal status.

The Court:  I can understand that but it is not the appropriate action in this kind of case.

Mrs. Portman:  And I beg to differ with the Court on that.

The Court:  That's why we have the Court of Appeals.

Mrs. Portman:  Okay.

The Court:  Is there anything else that you want to argue on Mr. Yarbrough's motion for -- to dismiss?

Mrs. Portman:  My greatest concern is the issue of res judicata. And I feel like I'm repeating myself again, but res judicata does not apply in the case of a void order. It does apply in the case of a valid judgment. I agree with that.

I have no argument with res judicata in the case of a valid judgment. And because I was not claiming damages, I was not going after relief from any of the parties but because all of the parties had something to lose, they had a liability issue in it. The motion for declaratory judgment requires I include them as a defendant party or offer them the opportunity to include themself as a defendant party which is what I did with the State Attorney General's office.

The Court:  I think you understand the ruling that the declaratory judgment is not appropriate to modify and that's what your argument is ad he has cited the appropriate law. And I'm willing to hear anything that you want to say o that and cite me any law that you have that says otherwise.

Mrs. Portman:  And I -- I stand firm again that I am arguing substantive -- substantive law and that I am not looking for an attack on a valid judgment. I am not going for a motion on a -- to retry the divorce case on the basis of it was a valid judgement, That is not my claim.

My claim is that it's a void order because of the issues and therefore, I'm afraid what's happening is we're arguing two different things.

The Court:  Let me ask Mr. Yarbrough.

Would it make any difference in your motion to dismiss if -- you say this was a void order. I'm not saying it wasn't a void order because I haven't looked into that.

Mr. Donovan:  Well, Judge, I understand your position in regards to that.

As it relates to a void order, I'm not sure you have to do anything. If it's void, it's void.

What she seeks to do is she's seeking this court to declare that it is void.

The Court:  And I can't do that.

Mr. Donovan:  I don't think that you can do that and you cannot attack a previous judgment except through the statute 9-11-52 through a motion to set aside, a motion for extraordinary new trial or one of those methods, all of which she has ignored and gone about it by filing this petition for declaratory judgment.

These cases that you've heard probably two days worth all indicate that it is not the manner in which it is to be done.

Andy many lawyers before you have argued that the appropriate relief for Mrs. Portman, the Plaintiff in this case, is for her to go on the divorce.

She states here today that she doesn't want to retry the divorce,. I don't understand that position because why is it that she's going through this?

Does she not realize that if you even had the authority or even if you exceeded your authority which by all respectful means we think that you could probably do but we don't agree with it, but fro the standpoint if you declared it void, then that would make her unmarried, it would make the consequences of making that a void order are tremendous.

I would submit, judge, that by her not addressing it she is in the original divorce petition.

She's got a lot of complaints about a lot of things but it seems like her major complaint was somehow Judge Flournoy had -- Well, first of all, she indicates that she knows that he does know that she was somehow employed by his son some four or five years before the divorce action was actually tried and that she insinuates that he knew that and that he somehow used it against her.

But as I understand the record in that case, she did to file a motion for disqualification or recusal by the Judge and she certainly had to know.

But all of that aside, our point, Judge, is if she wants to complain, she has to do it in the proper method and she has not done that.

The Court: That is true.

Mrs. Portman:  May I respond to what he has said, please?

The Court:  Sure.

Mrs. Portman:  He said that I had a responsibility to show that I worked for the Judge. [should be "Judge's son."]

Mr. Donovan:  Judge, she misquotes me.

The Court:  I don't think he said that.

Mr. Donovan:  I said you knew that you worked for Robert Flournoy, III and you knew that Judge Flournoy was trying your divorce action and you yourself did not bring up any motion to recuse Judge Flournoy.

Mrs. Portman:  Correct. Correct.

Mr. Donovan:  So she is estopped from complaining about whatever he did.

The Court: You can't sit by and let him go ahead --

Mr. Donovan:  That's what she read this morning>

Mrs. Portman:  No. My counter estoppel is --

Mr. Donovan:  I'm not talking about counter estoppel.

Mrs. Portman:  Your Honor, I submit that I did not have the duty to disclose it. I also submit that originally I believed Judge Flournoy was acting in my best interest when he asked me questions on the stand about where I worked. He pointed to my resume' and asked me where I worked. That testimony was missing from the transcript.

I filed an affidavit, I did due diligence, I did due diligence to show that it had been removed from the Court transcript.

However, I also asked for an oral hearing. I subpoenaed witnesses to show on my disqualification of Judge Flournoy that was -- I don't mean to get off on another track, Your Honor. I simply want to address the issue that he said that I had the duty to speak up at the time of trial.

I don't have any more duty to tell my child of the reason for my divorce than I had a duty to expose something that would eventually prejudice my own case in a divorce case.

It would have prejudiced me because simply working for his son is not enough to demand his disqualification. Asking for his recusal is an entirely another thing. That is a voluntary recusal.

What he knows in his mind prior to the beginning of the trial does have merit. And that is what he's claiming that I had a duty to disclose.

I am arguing that he had the duty. I had the right if -- I had no way of learning what he knew. I had no way. My attorneys knew that I had worked for his son. That was a matter of discussion with Mr. Yarbrough just as there are things in their interrogatories that they answer.

Mr. Yarbrough claims in his answer that he doesn't know how he found out about the $10,000 that my husband received from the land that we had in West Cobb. He doesn't know. He learned it from me. I -- There are indiscrepencies in just the answers that I have received.

Mr. Donovan:  Judge, I'm going to object. She again goes into matters that are not before this Court today.

The Court:  Yes.

Mr. Donovan:  And I would ask for a ruling in regard to that and ask the Court to go through the --

The Court:  I want to give you every chance to address the issues in the motion, what he has brought up, but --

Mrs. Portman:  And --

The Court:  But you cannot -- This action does not set aside the divorce.

Mrs. Portman:  Correct. I never intended it to be a motion to set aside.

The Court:  It was a declaratory action.

Mrs. Portman:  Correct.

The Court:  And that is not appropriate. And that's what the law says and that's what I am bound to say. Because if I don't say it, the higher court will certainly say it for me. Now --

Mrs. Portman:  And I submit that that is the appropriate action and declaratory judgement is not barred by any other remedy I may have. It's appropriate and it's available to me. And I don't seek money.

The Court:  You need some of the citations of the cases he has cited, I have read them in the past, and you will understand where he's coming from on that.

But that is the law as I know it and that is the law I have to --

Mrs. Portman:  And, Your Honor, I respect hat is how you see the law.

The Court:  And I'll state that and, of course, you have the appellate courts to go to.

Mrs. Portman:  And I would like permission --

The Court:  If I'm wrong, they will certainly tell me. They have told me in the past and they will certainly tell me again.

Mrs. Portman:  I understand that.

The Court:  All right. Court will grant your motion.

Mr. Donovan:  Is that to all three Defendants, Judge.

The Court:  Yes.

Mr. Donovan:  I have an order here and I also -- I prepared an order on the motion for recusal but didn't get it back up ere before you had left.

I would like to present that so we can make sure that the Record is clear.

Mrs. Portman: A motion --

The Court:  I will ask the clerk will you give me back my scratching he's got one typed.

(Clerk handing)

Mr. Donovan:  Would you like to see any of these before --

Mrs. Portman:  No, I just -- It's fine with me.

Mr. Donovan:  Judge, I also have the order from Ms. Allen that she e-mailed me. And I told her I would present it since I was going to be here.

May I approach the bench?

The Court:  Certainly,.

Mr. Donovan:  Let me hand these to you. This is the order denying the motion -- that is a big bench, isn't it?

The Court:  It is.

Mr. Donovan:  That is the order denying her motion to recuse you which we'd ask that you sign.

This is Miss --

The Court:  Let me just read through this.

Mr. Donovan:  Absolutely. That's Ms. Allen's.

The Court:  That will do it.

Mr. Donovan:  Those are my orders, Judge, and I will file them out this afternoon.

(the Court examining document)

The Court:  All right.

Mr. Donovan:  Thank you, Judge.

May I be excused?

The Court:  Thank you for preparing that recusal order for me.

Mr. Donovan:  Thank you, Judge. I'm sorry I didn't get it to you sooner.

The Court:  That's all right.

Mr. Donovan: May I be excused?

The Court:  Yes, sir.

Mr. Donovan:  Thank you.

Mrs. Portman:  If it's okay, I will make a notation the certificate of service was hand-delivered to three of the parties --

The Court:  All right.

Mrs. Portman:  --and mailed to the fourth.

Mr. Donovan:  The second amendment this morning?

Mrs. Portman:  Yes.

Mr. Donovan:  Okay.

(Proceedings concluded at 2:57)