In 2003, Anthony Keith Moore (Husband) brought this divorce action against Anne Gibbs Moore (Wife), who filed an answer and counterclaim for divorce. Wife later moved
At trial, Crisp Farms moved for a directed verdict, which the trial court granted. The jury made findings with regard to alimony and equitable division of property, found that Husband made fraudulent conveyances to Ms. Minshew, and awarded Wife $28,733.50 against her. The trial court entered a final judgment of divorce on the jury’s verdict. In Case Numbers S06F0927 and S06F0928, Husband and Ms. Minshew, respectively, appeal pursuant to the grant of their applications for discretionary appeal under this Court’s Pilot Project for divorce cases. Wife and Crisp Farms cross-appeal in Case Numbers S06F0929 and S06F0930, respectively.
Case Number S06F0927
1. Husband contends that the trial court erred by realigning the parties so as to change his status from plaintiff to defendant.
Pursuant to OCGA § 9-11-21, “ ‘at any stage of the action and on such terms as are just,’ ” a trial court has the discretion to realign parties, as by changing the status of a party from defendant to plaintiff.
Cawthon v. Waco Fire & Casualty Ins. Co.,
Husband argues that the trial court’s realignment order deprived him of these rights. As the trial court stated, however, both parties sought a divorce and equitable division of marital assets, but Wife made additional claims and had the burden of proof regarding alimony, adultery, attorney’s fees, and fraudulent transfers. Thus, Wife had a significantly heavier burden of proof than did Husband. The procedural rights which a plaintiff typically exercises at trial, including the important right to opening and concluding arguments, actually belong to whichever party bears the burden of proof. These rights are neither allocated on the basis of the denomination of the parties, nor logically conferred upon a defendant only when he bears the entire burden of proof. This analysis is confirmed by the language of statutory and case law in Georgia. “ ‘ “The party on whom the burden of proof rests has the right to open and conclude the cause before the jury.” ’ [Cit.]”
Hussey v. Hussey,
Therefore, we conclude that a trial court has the discretion to realign a plaintiff as a defendant where, as here, an opposing party with legitimate claims has a more extensive burden of proof. If, on appeal, certain claims or parties are eliminated or reinstated, then realignment can be reconsidered on remand. William Goldberg & Co. v. Cohen, supra.
2. Husband urges that the trial court erroneously granted Wife’s motion to add Crisp Farms as a third-party defendant, because in this case, unlike
Gardner v. Gardner,
3. Husband enumerates as error the denial of Crisp Farms’ motion for summary judgment. However, Husband does not have standing to complain of this ruling as to another party’s motion. See
Management Compensation Group/Southeast v. United Security Employee Programs,
This conclusion is not altered by the fact that Husband would not have been required to share peremptory challenges with Crisp Farms if its motion for summary judgment had been granted. It is not the denial of that motion, but rather the trial court’s decision declining to award additional peremptory strikes, which prevented Husband from gaining the sole right to exercise all six strikes to which each side is ordinarily entitled. See
Naimat v. Shelbyville Bottling Co.,
supra;
Keller Indus, v. Summers Roofing Co.,
4. Husband also contends that the trial court erred in denying his motion to strike for cause a prospective juror who is a client of Wife’s attorney in an ongoing litigated matter.
We have been reluctant to extend the automatic disqualification rules for jurors beyond the statutorily prohibited relationships and, in criminal cases, full-time law enforcement officers and employees of the prosecutor’s office.
Floyd v. State,
Trial courts are often faced with jurors who have close relationships with parties in both civil and criminal cases. We have confidence that trial courts can ascertain whether a juror is partial because of a [lawyer-client] relationship with [one party’s attorney] just as well as the trial court can determine bias arising from other sources. A per se rule cuts too broadly and is inconsistent with the traditional discretion given trial courts in this area. Furthermore, there are various close and confidential relationships that a juror may have with a party [or attorney] and the establishment of a per se rule to the [lawyer-client] relationship will open the door to the expansion of the per se rule to these other numerous categories. Finally, a [broader] per se rule may render it extremely difficult to obtain a full panel... in some rural counties.
Accordingly, Husband had the burden of rebutting the presumption of impartiality, by showing that the prospective juror held an opinion so fixed and definite that he would be unable to set it aside and to decide the case based upon the evidence and the trial court’s instructions.
Elliott v. Home Depot U.S.A.,
Case Number S06F0928
5. Ms. Minshew complains that the trial court added her as a party. However, that decision was authorized for the same reason as was the joinder of Crisp Farms. DeGarmo v. DeGarmo, supra.
6. The denial of Ms. Minshew’s motion for summary judgment is enumerated as error. However, “ ‘ “[a]fter verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” (Cit.)’ [Cit.]”
Kicklighter v. Woodward,
7. Ms. Minshew further contends that the trial court abused its discretion in realigning the parties so that she, who was originally a third-party defendant, became a defendant along with Husband. Ms. Minshew’s argument regarding realignment is identical to Husband’s, which is disposed of in Division 1 above. Having no burden of proof, she was without question properly aligned on the defendants’ side.
8. Ms. Minshew urges that the trial court abused its discretion in denying her motion for a separate trial for the purpose of avoiding prejudice from the appearance of an alleged adulterer and his paramour at the divorce trial together.
“ ‘[Severance of issues for trial pursuant to OCGA § 9-11-42 (b) is generally within the discretion of the trial judge and will not be reversed on appeal absent clear and manifest abuse of that discretion. (Cit.)’ [Cit.]”
Troutman v. B.C.B. Co.,
Evidence of a close relationship is relevant in determining the level of scrutiny to which an alleged fraudulent conveyance must be subjected.
S.T. & W.A. Dewees Co. v. Paul B. Carter & Co.,
Because the adulterous relationship between Husband and Ms. Minshew would be admissible at a separate trial, she has not shown any prejudice to herself, and the trial court did not manifestly abuse its discretion in denying her motion for separate trial.
9. In Wife’s cross-appeal, she contends only that the trial court erred as a matter of law by directing a verdict in favor of Crisp Farms on her fraudulent conveyances claim.
As to that claim, Wife was required to identify and prove specific conveyances from Husband to Crisp Farms, including the time of the transfers and the instruments by which they were accomplished.
Gwinnett Property v. G+H Montage GmbH,
Because Wife failed to present any evidence from which the jury could have reasonably inferred that a specific conveyance from Husband to Crisp Farms was fraudulent, we conclude that, with respect to this claim, there was no conflict in the evidence as to any material issue, and the evidence, with all reasonable deductions therefrom, demanded a verdict in favor of the corporation. See
Gwinnett Property v. G+H Montage GmbH,
supra at 893 (1) (finding error in the denial of a motion for judgment n.o.v.). Therefore, the trial court correctly granted Crisp Farms’ motion for directed verdict. See OCGA § 9-11-50 (a);
St. Paul Mercury Ins. Co. v. Meeks,
Case Number S06F0930
10. “The sole issue asserted in [Crisp Farms’] cross-appeal is the propriety of the . . . denial of [its] summary judgment motion. . . . Accordingly, the cross-appeal is dismissed as moot.” Kicklighter v. Woodward, supra.
Judgments affirmed in Case Numbers S06F0927, S06F0928, and S06F0929. Appeal dismissed in Case Number S06F0930.