Suarez v. Halbert, No. A00A1240.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPOPE, Presiding.
Citation246 Ga. App. 822,543 S.E.2d 733
PartiesSUAREZ et al. v. HALBERT et al.
Decision Date16 November 2000
Docket NumberNo. A00A1240.

543 S.E.2d 733
246 Ga.
App. 822

SUAREZ et al.

No. A00A1240.

Court of Appeals of Georgia.

November 16, 2000.

543 S.E.2d 734
Sanders, Haugen & Sears, Robin G. Mayer, Newnan, for appellants

Bogart & Bogart, Jeffrey B. Bogart, Christine C. Bogart, George R. Ference, Atlanta, for appellees.

POPE, Presiding Judge.

Ernesto and Beatriz Suarez, as maternal grandparents, filed a petition under the Family Violence Act, OCGA § 19-13-1 et seq., seeking to halt their son-in-law from committing further acts of violence against their minor grandchildren. After a hearing, the court found merit to the petition and placed the grandchildren in the grandparents' care and custody. Subsequently, the parents filed a motion for attorney fees under OCGA § 19-13-4(a)(10), and the trial court assessed 10,440.55 in attorney fees against the prevailing grandparents, giving as the sole reason the disparity of income between the parties. We granted the grandparents' application for discretionary appeal to consider their contention that the attorney fees provision contained in the Family Violence Act was not intended to reward the perpetrators or the abettors of domestic violence.

On February 23, 1998, on behalf of themselves and their grandchildren, Ernesto and Beatriz Suarez filed a petition under the Family Violence Act solely against Michael J. Halbert. This petition alleged that Michael Halbert had committed and was continuing to commit multiple acts of violence which included: grabbing, dragging, and throwing his son; fighting with the children's mother; tying up his son in a bedroom and leaving him there; and making threats while in the children's presence to kill them, their mother, and himself. After an ex parte hearing, the trial court issued a temporary protective order to ensure the children's safety. Later, the trial court amended the order to add Beatriz Halbert as a party respondent to [246 Ga. App. 823] the petition.

Evidence presented at a hearing on March 4, 1998, showed that eight years earlier, Beatriz Halbert had filed her own petition under the Family Violence Act seeking protection from Michael Halbert. This petition alleged that Halbert had threatened to kidnap the children and to kill her and the children. The record also shows that in another incident occurring in May 1997, Beatriz Halbert summoned police after Halbert had engaged in a violent confrontation with their son.

After being informed that the son had been communicating his extreme fearfulness regarding his father to a close relative via e-mail, the trial court decided to conduct an in camera hearing with the children. In that hearing, both children confided that they were afraid to return home. After speaking privately with the children, the court noted, "[y]ou can't really from a transcript tell the fear that I saw in this little guy's eyes, but he's very afraid. It came across to me that he's afraid and he does not want to come back home." Based on all the evidence including the testimony of psychologists and other witnesses, the trial court ordered a two-month extension of the initial protective order and directed that visitation by the parents occur only under supervision.

On May 6, 1998, the trial court conducted a second evidentiary hearing. The court again spoke privately with the children and decided that based on the "rancor and animosity" shown, supervised visitation by the parents involving the son should not continue. The trial court refused to return the children to a situation where the court believed a threat of violence continued to exist. The order entered on June 10, 1998, extended the placement of the two children in their grandparents' custody and care, until midnight August 24. The court ordered psychological evaluations and gave specific instructions on schooling, telephone calls, personal possessions,

543 S.E.2d 735
and pets and required the grandparents to transport the children to certain school and church activities

While this protective order remained...

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    • September 23, 2009, we owe no deference to the trial court's ruling and apply the `plain legal error' standard of review. [Cit.]" Suarez v. Halbert, 246 Ga.App. 822, 824(1), 543 S.E.2d 733 (2000). The rule of lenity entitles the accused to the lesser of two penalties where the same conduct would support ......
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