Lesson 22

The Honorable Robert E. Flournoy, Jr.

"Conspiracy's root" 

Judge Number 1


"There are a thousand hacking at the branches of
evil to one who is striking at the root." 
                                                       - Henry David Thoreau


At the time he ascended to the bench, Robert E. Flournoy, Jr. had the unwavering support of many Cobb County attorneys. Judge “Bob” Flournoy had built a reputation as an accomplished Marietta attorney, with an exceptional grasp and total recall of the intricacies of the Law. His law office at 236 Washington Avenue had grown to include his two sons, Robert “Rob” E. Flournoy, III and Matthew Flournoy. 

Note: Because Robert E. Flournoy, III is now a Cobb County Superior Court judge (appointed to the bench by long time friend, Governor Roy Barnes), it is prudent to use “Judge Bob Flournoy” and “Judge Rob Flournoy” to distinguish between father and son.

___________

 

When Judge Bob Flournoy moved his office to the Courthouse, his namesake, Rob took over his father’s law office and became trustee of his father’s financial holdings. Judge Bob Flournoy owned the office building at 236 Washington Avenue, a house that was listed on the historical registry in Marietta, GA. Adjoining the original structure was additional office space with a front entrance at 237 Roswell Street. The two buildings shared restroom, kitchen, and library facilities, as well as a large parking lot. As an independent attorney, Matt Flournoy, maintained his own law practice in this adjoining building for about a year after Judge Bob Flournoy moved to the courthouse.

During that year, 1987, M. Portman worked as an administrative legal assistant to a young associate attorney employed by Rob Flournoy to handle the real estate closings. (Lesson 23)

Seven years later, in August of 1994, M. Portman learned that Judge Bob Flournoy was assigned as trier of her divorce. She immediately shared her concerns with her attorney but was assured that Judge Bob Flournoy would recuse himself if the situation warranted it. The advice was that if M. Portman revealed her employment with Rob Flournoy, that alone was not sufficient to guarantee recusal. And, by explaining her request for recusal, she might actually be telling the judge something that could hurt her case. 

During the year long pendency of the pre-trial proceedings, both M. Portman and G. Portman changed attorneys. January 6, 1995, G. Portman’s new attorney, Larry Yarbrough, took M. Portman’s deposition, at Yarbrough’s office, 237 Roswell Street. 

Yes, you are right……something is familiar about the address! But why would anyone question if Judge Bob Flournoy owned this building……his financial holdings were all in a blind trust. Was Larry Yarbrough aware that he was renting office space from the Judge? Possibly. Did the Judge know he was renting to Larry Yarbrough? Absolutely.

M. Portman’s only method of keeping Judge Bob Flournoy from determining the divorce case was to seek a jury trial, which she did. A jury would adjudicate the divorce, but Judge Bob Flournoy would still determine the child custody. It had been agreed between the parties that the youngest son, age 14, would continue to live with M. Portman, as had been his choice at the time of separation. A jury trial was scheduled for July. 

 

When her own attorney failed to handle necessary pleadings and depositions in a timely and thorough manner, she sought additional legal advice and changed attorneys in May. Through a series of manipulative moves (Lesson 21) by both her new attorney, Daryl Kidd, and Judge Bob Flournoy, she was eventually denied the jury trial and placed on Judge Bob Flournoy’s bench trial calendar for October. 

The divorce trial commenced on October 2 and continued through the morning of October 4. (The O. J. Simpson trial was concluded during the same few days.) During the divorce trial, it became obvious that attorney Daryl L. Kidd (lesson 21) was actually sabotaging M. Portman's case, but there was no concrete evidence of why he was doing it. Even the opposing attorney, Larry Yarbrough, later said that what Mr. Kidd did to M. Portman on the stand was "tantamount to rape."  M. Portman certainly knew of no way to stop the disaster or to control her own attorney. But, at one point, Judge Bob Flournoy must have also made the same conclusion. The following took place during the trial. However, the meaning and relevance was obscured until more than a year later. 

While M. Portman was in the witness box, Judge Flournoy briefly took over the role of questioner. He picked up M. Portman's resume (which had been submitted by G. Portman as evidence, claiming that M. Portman was capable of earning as much as G. Portman) and he pointed directly to the notation of previous employment as a legal assistant. His question was, "Who'd you work for?"

 

M. Portman answered, "An attorney here in Marietta." 

 

Important Note:   Daryl Kidd had made it very clear to M. Portman prior to trial that if, at any time during the trial, she revealed that she had worked for the judge's son, the result would be a mistrial and SHE would be held financially accountable for all court costs and both attorney's fees. If Judge Flournoy had previous knowledge about the employment history, he would have recused himself earlier. Since he "obviously" did not know about the employment history, to reveal it after the commencement of the trial would be grievous error for M. Portman.

 

Judge Flournoy then responded, "That's not what I asked! I said, who'd you work for?"

 

More fearful than ever of both Judge Flournoy's anger and the financial responsibility of a mistrial, M. Portman responded, "An attorney just a few blocks from the courthouse square."

 

With frustration, Judge Flournoy leaned back in his chair and threw his arms up. "I was trying to help. Go on!"

 

At the time, this was simply a frightening moment when she was obviously angering the judge, yet unable to answer his questions firectly. This "little line of questioning" from the judge didn't have any significance for M. Portman until much later, when she learned more about judicial procedure and the Code of Judicial Conduct. (see Lesson 15, The Honorable Dorothy Robinson)

 

Findings of Fact and Conclusions of Law

 

When Judge Bob Flournoy concluded the trial and made his decisions, M. Portman was shocked. Because his findings were so obviously prejudicial, M. Portman was encouraged by family and friends to seek Findings of Fact and Conclusions of Law. Mr. Kidd advised against such a request, stating that it would simply anger Judge Bob Flournoy, because it indicated an intent to appeal.  She clearly instructed her attorney to get the FOF & COL in preparation for a possible appeal. Mr. Kidd's office reported that Judge Flournoy had denied the request for FOF & COL. (Not until much later, M. Portman learned that a judge is statutorily bound to provide Findings of Fact and Conclusions of Law if requested.) 

 

Judge Bob Flournoy instructed Mr. Kidd to draft and sign the divorce decree, have Mr. Yarbrough sign it, and then forward it to the judge's office for signature and filing. 

 

By the time Mr. Kidd had a draft available for Mr. Yarbrough, M. Portman and Mr. Kidd were embroiled in a disagreement over his legal fees. (see Lesson 21 and Lesson 19) Although Mr. Kidd drafted a decree, Mr. Yarbrough returned the draft with additional language concerning child custody, conditions never determined by Judge Bob Flournoy. M. Portman vehemently disagreed with the additional language because it placed the child in an extremely detrimental and compromised position. By proper notice, she informed Mr. Kidd that he was no longer authorized to take any action on her behalf without her express permission. However, both Mr. Kidd and Mr. Yarbrough apparently felt compelled to respond to Judge Bob Flournoy's directive, so each one submitted a different version of a divorce decree. 

 

When communications over the legal fees broke down, M. Portman sought advice from attorney Lawrence (Larry) B. Custer. (Lesson 20) Mr. Custer called Judge Bob Flournoy's administrative assistant and was assured that no divorce decree would be signed without notifying Custer first. 

 

However, without any notification to Custer's office, Judge Bob Flournoy signed and filed Yarbrough's version of the divorce decree December 11, 1995. The one submitted by Kidd was probably destroyed. Copies of the filed decree were apparently given to the two attorneys, Kidd and Yarbrough, who were expected to notify their clients. M. Portman was unaware of a filed decree until receiving it in the mail on January 13, 1996. Consequently, her window of opportunity to appeal was lost, for 30 days had already passed. (Read more about the intricacies of this in Lesson 21.)

 

Bench Order or Settlement Agreement?


SideBar: There are two very different kinds of divorce decrees in Georgia: a settlement agreement and a bench decree. A settlement agreement is the result of decisions made jointly by the husband and wife. A bench order can be appealed. A settlement agreement cannot. Granted, very few divorces are ever reviewed by the Georgia Supreme Court, simply because appeal is only available by discretion (permission) of the appellate court. But, it should be noted that a settlement agreement doesn't even have a A bench order can be appealed. A settlement agreement cannot. Granted, very few divorces are ever reviewed by the Georgia Supreme Court, simply because appeal is only available by discretion (permission) of the appellate court. But, it should be noted that a settlement agreement doesn't even have a chance of appeal.

 

If a judge does not want his decisions to be reviewed by a higher court, he need only ensure that the decree appears to be a settlement agreement, rather than a bench order. How can a judge accomplish this? By simply requiring that the parties, or their attorneys, sign the drafted divorce decree. A close study of the Georgia statutes and case law reveals that a decree bearing the signatures of both parties, or of the parties' attorneys, even when signed "as to form only" becomes equivalent to a settlement decree, and is thereby a waiver of appeal. (see Appendix A-2, O.C.G.A. 9.11.52, _______) A judge that does not fear review by a high court will not impose such a requirement on the parties or attorneys. 

But Judge Bob Flournoy directed attorneys Kidd and Yarbrough to sign it, as this was his routine procedure in divorce cases. Such a requirement by a judge has the power to hide judicial misconduct and deprive the parties of due process. 

 

Oh, the tangled web we weave, when we practice to deceive. Judge Flournoy got caught in his own web of deceit, for he failed to notice that the draft he filed was NOT signed by M. Portman or her attorney! Instead, he filed the decree submitted by Larry Yarbrough for G. Portman, which did not contain signatures from both sides of the litigation. Although the Judge had INTENDED that it appear to be a settlement agreement, it slipped by his inspection and was clearly, as it should have been, filed as a bench decree of divorce. Why is this important? Because even now, there is an Extraordinary Motion for a New Trial, waiting to be heard. A settlement agreement would have WAIVED the right to such action, but a bench decree clearly does not. 

This chapter (lesson) is presently in early draft stage. 

Stay tuned to learn the rest of the story.

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Chapter 23 The Honorable Robert "Rob" E. Flournoy, III

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