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Chalk v. Poletto

Court of Appeals of Georgia, First Division

June 21, 2018

CHALK
v.
POLETTO.

          BARNES, P. J., MCMILLIAN and REESE, JJ.

          REESE, JUDGE.

         Herschel E. Chalk, III, filed a petition to legitimate his two biological sons. Their mother, Ketty Poletto, opposed the petition, and the Superior Court of Cobb County held a bench trial on February 7, 2017. After Chalk rested his case, the court granted Poletto's motion for a directed verdict, and issued a written order denying the legitimation petition. The court subsequently entered an order denying Chalk's motion for new trial and granting Poletto's petition for attorney fees, litigation costs, and guardian ad litem fees. Chalk appeals from this order. For the reasons set forth, infra, we affirm.

         The record is undisputed that Chalk is the biological father of two minor children born to Poletto in 2011 and 2012. Chalk and Poletto lived together with the children until October 2015, when Poletto evicted Chalk from her apartment. In November 2015, Poletto obtained a six-month family violence protective order prohibiting Chalk from contacting her or the children.[1] Chalk consented to the protective order, but immediately filed a petition to legitimate the children.

         In the legitimation action, the trial court appointed a guardian ad litem for the children and required Chalk and Poletto to split the cost of the guardian ad litem's services. When Chalk failed to pay his portion, the guardian ad litem petitioned for a citation of contempt against him, and the trial court scheduled a hearing on the matter. Chalk, who was an Army reservist, asked for a continuance and provided the guardian ad litem with a copy of military orders purporting to send him to training on the date of the hearing. On the day of the scheduled contempt hearing, Chalk instead attended a marketing conference out-of-state. After holding the hearing in Chalk's absence, the trial court held Chalk in contempt for failing to pay the guardian ad litem, failing to cooperate with her investigation, and delaying the completion of the legitimation action.

         At the subsequent bench trial on Chalk's petition to legitimate in February 2017, Chalk testified that he had financially supported the children while he lived with Poletto and enjoyed a close relationship with them. On cross-examination, however, Chalk was unable to say how much support he had provided, had no documentation of any such support, and conceded that Poletto had paid for rent and childcare while they lived together. He also admitted that, after Poletto evicted him, he provided no support for the children. Chalk testified that he had received a bachelor's degree from Georgetown University, but admitted that he had not held remunerative employment since he quit his job in 2012, [2] and that he owed over $200, 000 in debt, primarily in student loans. Further, Chalk admitted that, in 2002, he had pled guilty in Virginia to the felony of making false statements to receive benefits, and he was still paying off the fine associated with his sentence for that charge when he filed the legitimation action.

         At trial, Chalk claimed to have zero assets. But, in 2016, he had taken a six-week trip to South America that included attending the Olympic Games in Brazil, hiking in Machu Picchu, and riding the "Swing of Death" and taking a dune buggy tour in Ecuador. He had also traveled to Thailand, Costa Rica, Las Vegas, Orlando, and Opryland. The exhibits introduced on cross-examination showed that Chalk had documented these travels on social media. In addition, in 2016, Chalk had paid for indoor skydiving, laser hair removal, college classes, and renewal of his private pilot's license.

         In granting Poletto's motion for directed verdict, the court ruled that Chalk had abandoned his opportunity interest to establish a relationship with his children and that legitimation was not in the children's best interests. The court stated: "If this man says today was Tuesday, I would look at my calendar. He's lucky he's not jailed now for perjury. He's a liar." The court then issued a written order denying the legitimation petition. Chalk filed a motion for new trial. After a hearing, the trial court entered an order denying that motion and awarding $30, 034.95[3] to Poletto under OCGA § 19-9-3 (g).

         We review a trial court's decision whether to award attorney fees for an abuse of discretion.[4] Similarly, "[w]e review a trial court's ruling on a legitimation petition for an abuse of discretion and will sustain the trial court's factual findings if there is any evidence to support them."[5] "In a bench trial, where there is no verdict by a jury, a motion for directed verdict is treated as a request for involuntary dismissal under OCGA § 9-11-41 (b)."[6]

A dismissal under O.C.G.A. § 9-11-41 (b) does not require the trial court to construe the evidence most favorably for the non-moving plaintiff. Since the trial court determines the facts as well as the law, it necessarily follows that an involuntary dismissal may be warranted even though plaintiff may have established a prima facie case. Thus, despite the rule that a motion for a directed verdict in a bench trial is construed to be a motion for involuntary dismissal, we cannot treat a dismissal pursuant to OCGA § 9-11-41 (b) the same as a directed verdict in a jury trial, which may be upheld only if the evidence demands a particular verdict. At a bench trial, the trial court can determine when essential facts have not been proved. The trial court's determination as a trier of fact will be reversed only where the evidence demands a contrary finding.[7]

         With these guiding principles in mind, we turn to Chalk's claims of error.

         1. Chalk argues that the trial court clearly erred when it denied his legitimation petition because his testimony was clear and undisputed on many areas of his parental involvement over a nearly five-year period, and this involvement ended only when Poletto ejected him from the home. Chalk contends he did not abandon his opportunity interest but filed to legitimate the children as soon as Poletto sought to exclude him from their lives.

In considering a petition to legitimate, the trial court must first determine whether the father abandoned his opportunity interest to develop a relationship with the child. In that respect, a biological father is afforded an opportunity to develop a relationship with his offspring. If the father grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. Unwed fathers gain from their biological connection with a child an opportunity interest to develop a relationship with their children which is constitutionally protected. This opportunity interest begins at conception and endures probably throughout the minority of the child. But it is not indestructible. It may be lost. It is an interest which can be abandoned by the unwed father if not timely pursued.[8]

         As Chalk points out, no other witnesses testified at trial. However, the court admitted multiple exhibits during Chalk's cross-examination that demonstrated his extensive travel, including his "six-week journey throughout Latin America, " all while reporting very little annual income from wages, and negative net self-employment income. As noted above, Chalk did not introduce any documentation to support his claims that he had ever provided financial support for the children.

         Giving due regard to the opportunity of the trial court to judge the credibility of the sole witness, [9] particularly given Chalk's prior felony conviction for making false statements and his attempt to perpetrate a fraud upon the court in this case, [10] the trial court was not required to believe his testimony, including his assertions that he had a close relationship with the children and had supported them financially.[11]

         Moreover, there was evidence that undermined or contradicted Chalk's testimony. Chalk did not attempt to legitimate the children until after Poletto evicted him from her apartment in October 2015, when the children were approximately two and four years old. Chalk then consented to a protective order that prevented him from having any contact with the children. Additionally, there was no documentary evidence that Chalk ever financially supported the children, either while he was living with Poletto or after she evicted him, even though he spent significant sums of money on his own travel and personal enrichment. Under these circumstances, there was evidence to support the trial court's finding that Chalk abandoned his opportunity interest, [12] and the court did not abuse its discretion in denying Chalk's legitimation petition.[13]

         2. (a) Chalk contends that the trial court erred in awarding attorney fees and costs under OCGA § 19-9-3 (g), which Chalk argues only applies to custody cases. Because ...


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