1

IN THE COURT OF APPEALS OF GEORGIA

ELISA M. LOWE, )Appellant, )

)) CASE NUMBER:

v. ) A11A2129)

MICHAEL L. LOWE, )Appellee. )

MOTION TO CORRECT SUPPLEMENTAL RECORDTRANSMITTED SEPTEMBER 1, 2011

Comes now, Elisa M. Lowe, Appellant in the above action, and files this

Motion to Correct the Supplemental Record transmitted to the Georgia Court of

Appeals on September 1, 2011.

Appellant timely filed a notice of appeal, and the Appellate court has not yet

decided the appeal. The notice included a request that the clerk omit nothing from

the record on appeal. .

Upon review of the documents transmitted to this Honorable Court by the Clerk

of Paulding Superior Court identified as “Supplemental Records,” it is imperative

that the following corrections are made in order for the Court of Appeals to base

their decision on the true and complete facts as they occurred in the trial court.

2

To Wit,

1) Exhibit “A” corrected to Exhibit “E” to coincide with the true and correct facts

as they occurred in the trial court.

Exhibit “A” as filed is a mislabeled copy of the missing Exhibit “E” previously

identified by the Appellee as an attachment to his original complaint for custody

(R-6,7), Further, this missing document has been a point of contention for Ms.

Lowe in her previous Motion to Supplement the Record on July 25, 2011 to wit,

Exhibit “E” was not included as part of the official file forwarded by the

Clerk of Paulding Superior Court to the Clerk of the Court of Appeals of

Georgia. Exhibit “E” is necessary as the Paulding Superior Court

considered this unsigned purported order as a basis to assume jurisdiction

during the initial ex parte hearing resulting in an emergency change of

custody of the minor children to Appellee’s custody and control. The

existence of the unsigned order is not only necessary for the jurisdictional

issues but also the errors of the court concerning attorneys fees, fraud and

Rule 12 Sanctions.

Upon finding that this record was not filed by the Plaintiff’s attorney, Ms. Lowe’s

3

Motion was denied. Adding to the significance of the error, the true and correct

Exhibit “A” attached to the Appellee’s Complaint is the parties’ Final Divorce

Decree. (R-13).

2) Certificates of Service of the Minor Children Election Corrected to show the

true and correct facts as they occurred in the trial court by replacing “elections”

with “un-executed elections”

On July 16, 2010, Mr. Valbuena responded to Ms. Lowe’s inquiry, made after

filing her first responsive pleadings on July 13, 2010 (R-64-77), for additional

information regarding the Rule Nisi (R-55) and Mr. Valbuena’s Entry of

Appearance (R-56)filed on July 6, 2010. Mr. Valbuena did not have access to the

signed, notarized, and filed affidavits at that time and attached two blank affidavit

files from his computer which someone had drafted for the minor children to sign.

(See Attachment 1)

Due to the unclear and generic labeling of Appellee’s certificates of service, (R-

57) whether it pertained to the Elections, this document was also included in Ms.

Lowe’s July 25, 2011 Motion to Supplement the Record to wit,

On the Index for Record, Page 58, “Children’s Elections” the Clerk has

4

omitted the certificate of Service filed by Appellee’s attorney, Martin E.

Valbuena, verifying that he had sent these elections to your Appellant. This

Certificate of Service is necessary to show bad faith and failure to give

adequate notice of the reason for a temporary hearing involving the minor

children of the parties.

Upon a previous finding that this record was not filed by the Plaintiff’s attorney,

Ms. Lowe’s Motion was denied in regards to this record on August 9, 2011.

RELEVANT FACTS

On July 25, 2011, Ms. Lowe filed a Motion to Supplement the record which

included the aforementioned documents. Upon filing this motion this Honorable

Court contacted the Clerk of Paulding Superior Court to correct the record.

On August 4, 2011, the Clerk of Paulding Superior Court responded to the

Court of Appeals correcting certain misstatements and errors. Attached to the

Supplemented records was a statement regarding these two documents to wit,

“As to the Exhibit “E” that Mrs. Lowe is referring to in her Motion to

Supplement Record this was never provided to our office by the

Plaintiff’s Attorney. And “As to the Certificate of Service for the Minor

5

Childs Election, that was never provided to our office by the Plaintiff’s

Attorney.”

On August 9, 2011, this Honorable court issued a ruling on Ms. Lowe’s Motion

to Supplement the Record which stated in pertinent part: (See Aug. 9 order)

Following the receipt of the Appellant’s motion to supplement the record

dated July 25, 2011, this Court contacted the Clerk of the Superior Court of

Paulding County. It appears that two of the items requested in the motion

have never been filed in the trial court record: those are Exhibit E to the

Complaint and any certificate of service for the “Children’s Elections”

beginning on page 58 of the Appellate record. With regard to those two

items, therefore, the motion is denied.

On August 15, 2011, Ms. Lowe filed her Appellant Brief in a timely manner.

Prohibited from citing to these records, she was unable to cite to the integrity of

Exhibit “E” the unsigned “final order” nor the Certificate of Service, which further

supported her enumerations of error.

On August 19, 2011, four (4) days after Ms. Lowe filed her brief, Mr. Valbuena

sent Ms. Lowe an email stating: “I have asked Jennifer to forward a copy of

6

Exhibit E to you. We will also file it and the certificate of service for the minor

children’s elections on Monday.” (Attachment 2)

August 22, 2011, Ms. Lowe replied suggesting they stipulate to the facts in

order for the record to be supplemented with these records. (Attachment 3) Mr.

Valbuena did not respond, nor did Ms. Lowe receive the records as promised.

On August 26, 2011, Without a motion, order, stipulation, notation of

disallowance, or even a cover letter, Mr. Lowe’s attorney, Martin Valbuena,

casually filed these two documents with the Paulding Superior Court Clerk.

Appellee and his attorney choose to wait nine (9) days after the Appellant brief

was filed to address the missing documents, disregarding all previous attempts.

Complicating matters further, the document was mislabeled Exhibit “A” instead of

the correct Exhibit “E”

August 26, 2011 The Clerk of Paulding Superior Court accepted the newly filed

documents, files stamped them and on September 1, 2011she transmitted them to

this Honorable Court as a“Supplemental Record.” Attached to a cover letter

explaining (See letter dated August 31, 2011 from the Clerk of Paulding Superior

7

Court to the Georgia Court of Appeals) which stated:

“Please find the attached Supplemental Record to Civil Action File

08-CV-1124-JO, Michael L. Lowe Vs. Elisa L. Smith. This record should

have been included with the original record for page 6 (Exhibit “A” which

should have been attached to the complaint but was not filed by the

Plaintiff’s attorney) and original record for page 58-61 (Certificate of Service

which should have been filed along with the Minor’s Child Election but was

not filed by the Plaintiff’s attorney). If you have any further questions please

don’t hesitate to contact me.”

Appellee’s brief was due on or about September 5, 2011 as of the filing of this

motion, the brief has not been filed.

O.C.G.A §5-6-41(f) provides in pertinent part:

If anything material to either party is omitted from the record on appeal or is

misstated therein, the parties by stipulation, or the trial court, either before or after

the record is transmitted to the appellate court, on a proper suggestion or of its own

initiative, may direct that the omission or misstatement shall be corrected and, if

necessary, that a supplemental record shall be certified and transmitted by the clerk

8

of the trial court.

Pursuant to the Georgia Court of Appeals Rule 41c, Once the appeal is

docketed, counsel should file a motion for permission to file a supplemental record

appendix and it should be granted before a supplemental record appendix or

amendment to the record appendix may be filed with the Court of Appeals.

The Appellee and the Clerk of Paulding Superior Court have blatantly

circumvented Georgia statutory law and the Rules of the Georgia Court of

Appeals. Supplementing the Record without permission does not lend itself for an

order from which Ms. Lowe can easily respond. Due to the misstatements on the

Supplemental Record, she is unable to file a supplemental brief regarding these

documents until they are corrected.

The actions of the Appellee have once again, caused Ms. Lowe undue and

necessary effort and expense to correct this record that she has meticulously

attempted to perfect. Valuable resources of this Honorable Court are squandered

to correct this improper action.

Your Appellants suggested resolution of this matter and further attempts to

correct this Record with the Paulding Clerk of Court are fruitless.

9

O.C.G.A. § 5-6-48(d) authorizes the appellate courts to order supplementation

or perfection of the record, it appears such corrections will only be made with

direction and order from this Honorable Appellate Court.

WHEREFORE, your Appellant requests that this Honorable Court issue a

directive or order to the Clerk of Paulding Superior Court and Appellee to make

said corrections, and transmit them to the Court of Appeals by following the proper

Appellate procedure. If said corrections cannot be made, prepare a statement as to

why said record cannot be perfected and allow Ms. Lowe to file a supplemental

brief once the record is finally perfected.

This 30th day of September, 2011

Respectfully Submitted,

___________________________Elisa M. LoweAppellantPro Se

279 Crossroad Estates DriveNewnan, GA 30265(404) 704-7058

Michael Lowe vs. Elisa Lowe & Martin Valbuena

Elisa Lowe <elisa404@gmail.com>

Martin Enrique Valbuena, Esq. <martinvalbuenapc@bellsouth.net> Fri, Jul 16, 2010 at 3:19 PMTo: Elisa Lowe <elisa404@gmail.com>

Here are the unexecuted election affidavits. Martin Enrique Valbuena, Esq. Martin Enrique Valbuena, P.C. 113 Village Walk, Ste. B P.O. Box 1125 Dallas, Georgia 30132 (770) 443-2204 Fax (770) 443-6613

From: Elisa Lowe <elisa404@gmail.com> To: martin.valbuena@paulding.gov; martinvalbuenapc@bellsouth.net Sent: Thu, July 15, 2010 6:03:03 PM Subject: Michael Lowe vs. Elisa Lowe & Martin Valbuena [Quoted text hidden]

2 attachments

Minor Child Election Evan.pdf77K

Minor Child Election Zach.pdf76K

Page 1 of 1Gmail - Michael Lowe vs. Elisa Lowe & Martin Valbuena

9/30/2011https://mail.google.com/mail/?ui=2&ik=045905f287&view=pt&as_from=martinvalbuenapc%40bellsout...

Lowe v. Lowe -- Appellate Brief & Filing of Exhibit E & Cert of Service

Elisa Lowe <elisa404@gmail.com>

Martin Enrique Valbuena, Esq. <martinvalbuenapc@bellsouth.net> Fri, Aug 19, 2011 at 12:25 PMTo: Elisa Lowe <elisa404@gmail.com>

Elisa, Thank you for e-mailing the brief. I have not received anything by mail yet. I have asked Jennifer to forward a copy of Exhibit E to you. We will also file it and the certificate of service for the minor child elections on Monday. Martin Martin Enrique Valbuena, Esq. Martin Enrique Valbuena, P.C. 113 Village Walk, Ste. B P.O. Box 1125 Dallas, Georgia 30132 (770) 443-2204 Fax (770) 443-6613

From: Elisa Lowe <elisa404@gmail.com> To: "Martin Enrique Valbuena, Esq." <martinvalbuenapc@bellsouth.net> Sent: Thu, August 18, 2011 10:32:34 PM Subject: Appellate Brief I have not recieved a confirmation of delivery on the appeallate brief mailed to you. I am attaching a copy for your review. -- Best Wishes, Elisa Lowe

Page 1 of 1Gmail - Lowe v. Lowe -- Appellate Brief & Filing of Exhibit E & Cert of Service

10/4/2011https://mail.google.com/mail/?ui=2&ik=045905f287&view=pt&as_from=martin&as_to=me&as_subset=...

Lowe v Lowe

Elisa Lowe <elisa404@gmail.com>

Elisa Lowe <elisa404@gmail.com> Mon, Aug 22, 2011 at 12:17 PM To: "Martin Enrique Valbuena, Esq." <martinvalbuenapc@bellsouth.net>

Martin: Thank you for your e-mail on Friday, August 19, 2011 regarding Exhibit "E" and the Certificate of Service for the Minor Child Elections. It is my understanding that the Paulding Clerk cannot accept your "new" filings as the case has been forwared to the Court of Appeals. As both the Paulding Clerk of Court and the Clerk of the Court Appeals have already made a diligent search of the trial record and were unable to find the above-referenced documents, they will not be a part of the appellate record. I had also sent an email to yourself and Jenniffer requesting the same on August 8, 2011. The Clerk of the Court of Appeals has already issued an order to that effect. (See August 9, 2011 Order.) In order to add these documents to the appellate record, you will have to make a Motion to Supplement the Trial Record with the Clerk of the Court of Appeals. Ready the law and rules of this issue, it is unlikely that you will be allowed to supplement this record by adding these pleadings. However, the rules of the Court of Appeals allows the parties to stipulate to facts not contained in the trial record. I propose that we stipulate to the following: That the unsigned document you intend to proffer as Exhibit "E" is what should have been properly filed with the Paulding Court. As you know, I never received the Minor Child Elections via mail. I believe you sent me a document where you stated that it was "your fault" or words to that effect that the Elections were never sent. We can put that letter in the supplement. Of course, as your Exhibit "E" is an proposed draft written by Mike's former attorney, Dee Crouch to my former attorney, Gus Wood. As you know, your Exhibit "E" draft was never agreed to by former counsel, and in fact, there were three subsequent drafts and letters traded between Ms. Crouch and Mr. Wood. None of these drafts were agreed to and none were presented to the Court for approval and execution by Judge Byron Smith. The bottom line is that if you want to proffer a known "first draft" of a proposed order, all of the proposed drafts should be considered by the Court of Appeals. If you do not agree to including these subsequent proposed drafts and you decide to only attempt to supplement the appellate record with the first draft you purport to be Exhibit "E", I will have no choice to file a Motion to Strike with the Court of Appeals. Of course, this will only bring more attention to your failure to file these required documents, cause me more time and expense and prepare the Motion to Strike and require the Court of Appeals to spend valuable judicial resources to consider your extraordinary relief. My proposal to you will allow you to get your Exhibit "E" and Certificate of Service before the Court of Appeals and will allow me to show the true nature of the status of your Exhibit "E." If you desire to proceed with my proposed stipulation, please let me know on Monday morning, and certainly before you attempt to file the disputed pleadings with either the Paulding Clerk or the Clerk of the Court of Appeals. As you are well aware, I am not comfortable with you drafting the stipulation, so I will handle that task if you chose to proceed with a stipulation. I will also take the responsbility of having Judge Osborne approve and execute the stipulation. And while we are are at it, if you want to file the certificate of service on the Final Order we could include that as well. I received it on January 12, 2011 via fax.

-- Best Wishes, Elisa Lowe

Page 1 of 1Gmail - Lowe v Lowe

9/30/2011https://mail.google.com/mail/?ui=2&ik=045905f287&view=pt&as_to=martinvalbuenapc%40bellsouth.n...