Dee v. Sweet

• Decision Date: 17 January 1997
• Docket Number: No. A96A2508,A96A2508
• Citation: 224 Ga.App. 285,480 S.E.2d 316
• Parties: , 97 FCDR 142 DEE et al. v. SWEET et al.
• Court: Georgia Court of Appeals

Page 316

480 S.E.2d 316

224 Ga.App. 285, 97 FCDR 142

DEE et al. v. SWEET et al.

No. A96A2508.

Court of Appeals of Georgia.

Jan. 17, 1997.

McKenney & Froelich, William J. McKenney, Atlanta, for Appellants.

Kilpatrick & Cody, James F. Bogan, III, Matthew H. Patton, for Appellees.

BIRDSONG, Presiding Judge.

Appellants/defendants William V. Dee and Arthur H. McMahon appeal from the order granting appellees/plaintiffs' motion to execute judgment against registry funds and denying appellant Dee's motion for appointment of guardian ad litem.

In January 1992, following the acrimonious termination of the parties' business relationship, appellees sued appellants seeking damages for various business-related tortious conduct (Civil Action Case No. D-96405). A temporary restraining order (TRO) was granted preventing destruction of evidence by appellants; subsequently, another TRO was granted restraining appellants from disposing of certain corporate and personal assets of appellants. Expedited discovery commenced. During the taking of the deposition of appellant Dee's wife, Janet, it was discovered she had transferred $142,000 in her own name into out-of-state banks. At trial of Case No. 96405, Mrs. Dee testified that appellant Dee had directed her to transfer these funds. Mrs. Dee's actions caused appellees to file suit (Civil Action Case No. D- 96953) against her requesting a TRO. In February 1992, in Case No. D-96953, Mrs. Dee was ordered to transfer instanter into the superior court registry the $142,000 she had transferred to out-of-state bank accounts. Mrs. Dee complied and transferred the monies into the court registry in Case No. D-96953.

Mrs. Dee subsequently filed for divorce. In June 1993, in Civil Action Case No. D-98878, the trial court entered a final judgment and decree of divorce between appellant Dee and his wife. The funds transferred by Mrs. Dee were to be held in the registry pending the outcome of the " 'Sweet and Wright' " tort litigation (Case No. 96405), and were to be given to appellant Dee only to the extent that any of said funds, plus any accrued interest, were thereafter awarded to appellant in Case No. 96405. The decree also ordered appellant Dee to pay certain debts and obligations of the parties, including any debts arising out of final litigation in Case No. 96405. Further, pursuant to the decree, appellant Dee was required to pay child support, all medical, psychological, and dental (including orthodontic) expenditures, and one-half of certain tuition costs for his minor children.

In July 1993, in Case No. D-96405, appellant Dee filed a motion for withdrawal of the funds which had been transferred to the registry pursuant to the February 1992 order entered in Case No. D-96953. The trial court denied the motion without prejudice. On October 8, 1993, the trial court entered an order dismissing the complaint against Mrs. Dee in Case No. D-96953, and transferring the funds being held pursuant to the February 1992 order in Case No. D-96953 to Case No. D-96405.

In March 1994, after a jury trial in Case No. D-96405, a special verdict was returned against appellants as to appellees' claims of fraud and Georgia RICO; the special verdict also found against appellant McMahon on the claim of libel and in favor of appellee Wright on the claim of tortious interference with commissions. Dee v. Sweet, 218 Ga.App. 18, 19, 460 S.E.2d 110. The jury awarded appellees a judgment of $724,776 and appellants appealed. (In July 1994, fi. fas. were issued showing appellant Dee's joint and several liability in the amount of $339,363 principal as to appellee Sweet and $305,413 principal as to Wright.)

The issue of entitlement to the registry money was not expressly adjudicated during the trial of Case No. D-96405, notwithstanding the order of the superior court, filed on October 8, 1993 in Case No. D-96953, which transferred the registry funds to Case No. D-96405 to be "held there until the issue of entitlement to the funds is decided in that case."

In August 1994, the trial court ordered appellants to post a joint supersedeas bond, reduced (by the amount of all principal and interest then in the court's registry) to an amount of $517,087.27. The order placed appellants on notice that if the bond was not timely posted, the notice of appeal filed by appellants in Case No. D-96405 would not serve as supersedeas with respect to their adjudged joint and several liability to appellees. Appellant Dee failed to post the required bond. The appeal proceeded and in July 1995, judgment was affirmed by this Court in Dee v. Sweet, supra.

In September 1994, while the tort suit appeal was still pending, appellees filed a motion to execute their judgment against the registry funds due to appellant Dee's failure to post supersedeas bond. This motion was the first claim made by any creditor of appellant Dee to levy upon the registry funds. In response, appellant Dee moved for the appointment of a guardian ad litem for his children and opposed appellees' motion to execute. Appellant Dee basically contends that the registry funds constitute marital assets which should be used to satisfy the arrearage of his prior court-imposed child support obligation and that his children have a paramount claim over the funds in the registry. In February 1996 a hearing was held on appellees' motion; the trial court granted appellees' motion to withdraw and pay registry funds to the appellees and denied appellant Dee's motion for appointment of a guardian ad litem. Held:

1. The trial court did not err in denying appellant's motion for appointment of a guardian ad litem. OCGA § 29-4-7 pertinently provides: "When a minor is interested in any litigation pending in any court in this state and he has no guardian or his interest is adverse to that of his guardian, such court may appoint a guardian ad litem for the minor." (Emphasis supplied.) A trial court exercises discretion whether to appoint a guardian ad litem pursuant to the provisions of OCGA §§ 29-4-7 and 9-11-17(c). See Munford v. Maclellan, 258 Ga. 679, 681(2), 373 S.E.2d 368; O'Neil v. Moore, 118 Ga.App. 424, 428(2), 164 S.E.2d 328. Pursuant to the final judgment and decree of divorce, both appellant Dee and Mrs. Dee were awarded joint custody of the two children; however, Mrs. Dee was designated as the primary physical custodian of the children and, in instances of dispute, was granted "the sole power and responsibility for making the final decision regarding [all major decisions concerning the children, including but not limited to matters of education, health care, and religious training,] and other issues concerning the raising of the minor children." The divorce decree in its four corners reflects that Mrs. Dee, as the children's mother and primary physical custodian, is the natural guardian of the children (see generally OCGA §§ 29-4-1; 29-4-2(a)), and also was vested with broad power to make final decisions regarding their persons and property. Appellant has failed to raise any issue as to the mother's lawful authority to act on behalf of her children in regard to their property rights. Further, as affirmatively recognized by the trial court, there exists no admissible evidence of record that Mrs. Dee's interests in the matters here at issue are adverse to that of her children. The clear import of OCGA §§ 9-11-17(c) and 29-4-7 when construed in pari materia is that "a guardian ad litem need not be appointed for a minor who has a regular guardian, except in case the interest of the minor is adverse to that of his guardian." Marshall v. C&S Nat. Bank, 54 Ga.App. 123, 128(1), 187 S.E. 240. Mosley v. Lankford, 244 Ga. 409, 260 S.E.2d 322 is distinguishable. Under the attendant circumstances, the trial court did not abuse its discretion in denying appellant's motion for the appointment of a guardian ad litem for the children.

2. Appellants assert the trial court erred in failing to follow the lien priority established pursuant to OCGA §§ 44-14-321 and 44-14-323. Appellants' enumeration, as crafted, is without merit....