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On the Rise: Randall M. Kessler

By Richmond Eustis

A list of Randall M. Kessler’s clients reads like a roster of people who claim celebrities have done them wrong.

Kessler represented R&B star Keith Sweat’s former girlfriend in a custody action. He has helped the ex-wife of Atlanta Hawks all-star Eddie Johnson pursue $144,000 in overdue child support. He even handled a personal injury suit against Atlanta Falcons tackle Bob Whitfield by Whitfield’s ex-girlfriend.

Most recently, the 39-year-old Kessler succeeded in persuading DeKalb Superior Court Judge Cynthia J. Becker to hold former Falcons receiver Andre Rison in contempt for failing to make $52,000 in back child support payments to his former girlfriend, Raycoa Handley (Daily Report, June 20, 2001).

But Kessler, who practices with his partner Barry Schwarz at Kessler/Schwarz, doesn’t limit himself to helping celebrities open their wallets to former spouses and lovers. He also takes cases that involve unknown people, and aspects of family law he considers important.

Most recently, he represented Decatur resident Carnell A. Smith in his fight to change Georgia’s law requiring men to support children whose mothers have tricked them into believing they fathered another man’s offspring. The case has failed in the trial court, state Court of Appeals, and state Supreme Court, but Kessler thinks it may be on its way to the U.S. Supreme Court. (Daily Report, May 6, 2002).

In another recent case, Kessler won a $1.7 million alimony award for a man whose wife didn’t want to share her $15 million Georgia Lottery winnings. Atlanta lawyer R. Keegan Federal Jr., who was on the other side of that case, said Kessler won his respect. “He does things the old-fashioned way-as a gentleman,” Federal said. “I could take him on his word and a handshake.”

Kessler graduated from Brandeis University with a degree in political science, and received his law degree from Emory University School of Law. He is chairman of the American Bar Association Family Law Section’s Family Law Committee. Kessler has written several articles and participated in scores of seminars on the subject of family law and divorce litigation.

Kessler began work with Weinstock & Montalto, and when that firm split, joined Montalto. He left that firm to go out on his own in 1991, and shared office space with Atlanta lawyer Benjamin Landey for a few years before forming his own firm.
In law school Kessler focused on international law, but eventually discarded that pursuit in favor of family practice.

“I knew there were only so many jobs open at the U.N.,” he said.

Family law drew Kessler’s attention, he said, because “you get to help the best people when they’re at their worst.”


Georgia Top Lawyers on the Rise, 2002

By Richmond Eustis Fulton County Daily Report May 28, 2002

A list of Randall M. Kessler’s clients reads like a roster of people who claim celebrities have done them wrong.

Kessler represented R&B star Keith Sweat’s former girlfriend in a custody action. He has helped the ex-wife of Atlanta Hawks all-star Eddie Johnson pursue $144,000 in overdue child support. He even handled a personal injury suit against Atlanta Falcons tackle Bob Whitfield by Whitfield’s ex-girlfriend.

Most recently, the 39-year-old Kessler succeeded in persuading DeKalb Superior Court Judge Cynthia J. Becker to hold former Falcons receiver Andre Rison in contempt for failing to make $52,000 in back child support payments to his former girlfriend, Raycoa Handley (Daily Report, June 20, 2001).

But Kessler, who practices with his partner Marvin Solomiany, at Kessler & Solomiany Family Law Attorneys doesn’t limit himself to helping celebrities open their wallets to former spouses and lovers. He also takes cases that involve unknown people, and aspects of family law he considers important.

Most recently, he represented Decatur resident Carnell A. Smith in his fight to change Georgia’s law requiring men to support children whose mothers have tricked them into believing they fathered another man’s offspring. The case has failed in the trial court, state Court of Appeals, and state Supreme Court, but Kessler thinks it may be on its way to the U.S. Supreme Court. (Daily Report, May 6, 2002).

In another recent case, Kessler won a $1.7 million alimony award for a man whose wife didn’t want to share her $15 million Georgia Lottery winnings. Atlanta lawyer R. Keegan Federal Jr., who was on the other side of that case, said Kessler won his respect. “He does things the old-fashioned way-as a gentleman,” Federal said. “I could take him on his word and a handshake.”

Kessler graduated from Brandeis University with a degree in political science, and received his law degree from Emory University School of Law. He is chairman of the American Bar Association Family Law Section’s Family Law Committee. Kessler has written several articles and participated in scores of seminars on the subject of family law and divorce litigation.

Kessler began work with Weinstock & Montalto, and when that firm split, joined Montalto. He left that firm to go out on his own in 1991, and shared office space with Atlanta lawyer Benjamin Landey for a few years before forming his own firm.

In law school, Kessler focused on international law, but eventually discarded that pursuit in favor of family practice.

“I knew there were only so many jobs open at the U.N.,” he said.

Family law drew Kessler’s attention, he said, because “you get to help the best people when they’re at their worst.”


Courts: Man Must Support Child Despite DNA Results

By Richmond Eustis

Although the Georgia courts haven’t recognized what he considers a man’s right not to support a child he didn’t father, Decatur resident Carnell A. Smith hopes the U.S. Supreme Court will do so.

For 10 years Smith believed his former girlfriend, Toni W. Odom, when she said that he was the man who fathered her daughter. From 1989 to 1998 he voluntarily paid $375 a month in support of the girl. However, in 2000 Smith acted on a hunch and got a DNA test. It showed he was not the child’s father.

He unsuccessfully sought a new trial from DeKalb Superior Court Judge Edward A. Wheeler, who had presided over a paternity suit Odom brought. The state Court of Appeals denied his petition for discretionary appeal. Then the state Supreme Court denied him certiorari. But Smith said he won’t stop until he has done everything he can to resolve what he considers the rulings’ injustice.

“They forced me to declare war on this child support system,” he said. “They’re telling me ‘It’s your fault for trusting her,’ ” he said.

Divorce lawyer Randall M. Kessler, of Kessler/Schwartz, said he thinks Smith has a legitimate shot at persuading the court to hear his case. Kessler represented Smith at the trial level, and though Smith drafted his petition to the high court pro se, Kessler said he will represent him pro bono if the court grants cert.

“I think the Supreme Court is probably more inclined to look at national trends than the state courts,” Kessler said. “This is something they can set a bright-line rule for.”

Lack of Jurisdiction Cited

Part of what makes Smith’s case interesting, Kessler said, is the way he couched his challenge-basing it on the lower court’s lack of subject matter jurisdiction in the case.
“I think it’s pretty clever,” Kessler said. “I think that is the hook.”

According to Smith’s petition, O.C.G.A. ‘ 19-7-40 grants superior courts the power to force a child’s father to pay child support. The statute, however, does not extend to non-parents, Smith wrote.

“Since petitioner is not a biological parent of the subject child, the Paternity Statutes do not vest the Superior Court with subject matter jurisdiction to order the non-parent Petitioner to pay child support,” he wrote. “The Court of Appeals or State Supreme Court should not be permitted to sub silentio ratify the trial court’s jurisdictionally defective exercise of power to continue application of a mistaken child support order against a non-father.”

Once he demonstrated to the court that he was not the child’s father, Smith argued, the court should have been forced to admit it did not have subject matter jurisdiction over the case.

“Granting a new trial is not discretionary in such circumstances, to rectify the mistaken previous judgments and orders; it is necessary in the interests of justice,” Smith wrote.

Consent Order Signed

Though Smith paid child support voluntarily for nearly 10 years, in 1998 the girl’s mother filed the paternity action in Judge Wheeler’s court to increase the monthly amount. A year later, Smith and Odom signed a consent order legitimating the child and declaring Smith the legal father. In 2000, the court increased the monthly support payment to $750 a month.

That’s when Smith, an engineer at Scientific Atlanta, decided to take a DNA test. The results showed no possibility that he was the father of the child. Smith then moved for a new trial. Accusing Odum of fraud, Smith asked the court to set aside the child support order and to award him the approximately $40,000 he had paid in support over the last 10 years. Odum v. Smith, No. CV98127449 (DeKalb Super. Dec. 17, 1998).

In response, the woman’s lawyer, DeKalb County Assistant Public Defender Corinne M. Mull, argued that her client had no idea that the child wasn’t Smith’s. Without knowledge of the lie, she wrote, there’s no fraud. She also noted that Smith had missed his chance to challenge the girl’s paternity. Smith had acknowledged in court that he was the child’s father. Smith could have asked for a blood test when he moved for legitimation and named himself the child’s father, Mull said, but he didn’t (Daily Report, March 8, 2001.)
Smith relied heavily on Smith v. Ga. Department of Human Resources, 226 Ga. App. 491, 493 (1997), in which the Court of Appeals allowed a man to challenge a child support consent order by showing that he was not the child’s biological father. The man had signed a consent order affirming that he was the father of two children conceived while he and his girlfriend were living together. Years later a DNA test showed he was not the father of one of the children.

Writing for the court, Judge G. Alan Blackburn noted, “The law should not punish a purported father for failing to insist on a paternity test when he has no reason to believe that he is not the father.”

Mull cited Ghrist v. Fricks, 219 Ga. App. 415 (1995), in which the court refused to terminate William Ghrist’s parental rights to the son born during his marriage to Gina Fricks, but whom Matthew Fricks fathered.

“Public policy will not permit a mother and an alleged father to enlist the aid of the courts to disturb the emotional ties existing between a child and his legal father after sitting on their rights for the first three years of the child’s life,” Judge Edward H. Johnson wrote for the court.
In Smith’s case, Mull noted, he took no action for 12 years.

Lack of Due Diligence Cited

Judge Wheeler denied Smith’s motion May 14, 2001, saying Smith’s lack of due diligence was one of the reasons he didn’t find out the girl’s parentage until after the court’s order. Therefore, Wheeler, reasoned, Smith did not meet the threshold for an extraordinary motion for a new trial based on new evidence. The Court of Appeals declined to hear the case on discretionary appeal, Smith v. Odom, No. A01D0340 (Ct. App. Ga. petition denied July 10, 2001), and six months later the state Supreme Court denied cert. Smith v. Odom, No. S01C1628 (Sup. Ct. Ga. cert. denied Jan. 9, 2002).
Kessler and Smith said this kind of ruling is routine, in which courts decline to hear scientific evidence that certainly would have affected the outcome of the earlier proceeding had anyone been aware of it. Often courts simply refuse to reopen the issue. In his petition, Smith argued that the practice hurts the man who has been fooled as well as the child.

14th Amendment Cited

“[T]he maintenance of a manifest fiction in order to perpetuate a financial obligation and avoid ‘delegitimization’ of a child violates the 14th Amendment rights not only of the non-father, but also the substantive rights of the child,” he wrote.

It also encourages men not to trust partners who claim they fathered a child, Smith said.
“We’re effectively saying there’s no reason for a guy ever to believe the mother,” he said.

In another Georgia case, Department of Human Resources v. Pinter, 241 GA. App. 10; 525 S.E. 2nd 715 (1999), Blackburn addressed that issue, remarking on “the absurdity of the present state of the law that requires a putative father to pay child support after he has scientifically proven he is not the father.”

“Not only has the putative father been cuckolded, the law adds injury to insult by requiring him to pay child support even after he establishes that he is not the biological father,” he wrote. “To create a fiction in this matter does not make the male the biological father of the child; it simply makes him a victim of the law. It also makes an ass of the law.”

“The legislature should address this issue,” he concluded.

New Legislative Act

The Legislature addressed the issue during its last session by passing HB 369, setting out the procedure for someone like Smith to use conclusive scientific evidence to challenge a legal finding of paternity. The bill, which would become O.C.G.A. ‘ 19-7-53, directs the courts to grant petitioners relief “if genetic testing conclusively shows that the alleged father is not the biological father of the child and certain other conditions are met.”

Those conditions include ensuring that the alleged father hasn’t adopted the child, married the child’s mother, or assumed responsibility for the child with the knowledge that he is not the child’s biological father. If, as in Smith’s case, a supposed father had no reason to disbelieve the child’s mother, failure to challenge the legal finding won’t bar him from reopening the case later if a DNA test contradicts her.

The bill passed the House 163-0, and the Senate 45-5. The House sent the amended bill to Gov. Roy E. Barnes April 15. The governor has taken no action on the bill, and his spokeswoman wouldn’t say if the governor will sign it.

Smith, who is married and has a 2-year-old daughter, said the new statute won’t help him, though it may give others in his situation some relief. He’s hoping the U.S. Supreme Court ensures that men in his situation nationwide can get help from the courts.
“We certainly raised the issue that it’s not an isolated case,” he said. “It’s not a Carnell issue. Carnell just happens to be one of the guys.”

 


Divorce Jury: Spouse Rates $1.7M From Lotto Winner

By Richmond Eustis

Former postal worker Rebecca Strong got her windfall from winning the lottery. Her ex-husband, John Pressley, is getting his from their divorce.

A DeKalb County jury found Friday that Strong, 43, a former postal worker must pay Pressley $1.7 million in alimony. Pressley v. Strong-Pressley No. 98-cv-49964 (DeKalb Sup. verdict Feb. 18, 2000). The award amounts to slightly more than 11 percent of the $15 million Strong won on a Georgia Lotto ticket in 1994.

Strong’s lawyer, Randall M. Kessler, a partner with Kessler & Schwarz in Atlanta, says Pressley has done well financially by divorcing his wife.

“She won the lottery and now he won his,” he says.

Pressley, a 52-year-old cabinet maker, and Strong had been dating since 1988. They married four months after Strong won what was then the largest payout ever in the Georgia Lotto game.

Strong used her annual payments of $750,000 before taxes to buy Pressley a new pickup, to pay his business debts and to pay for a home and medical care for her ailing mother, Kessler says.

But the marriage went sour and Strong left Pressley March 2, 1998, according to court documents. Pressley filed for divorce April 27, 1998, claiming that he and Strong were common-law spouses long before she won the lottery. As her husband, he claimed he deserved half the winnings.

However, DeKalb Superior Court Judge Gail C. Flake granted Strong’s motion for summary judgment which asserted that a common law marriage never existed and that the lottery prize did not constitute marital property.

To establish a common law marriage, Pressley would have had to show that he and Strong had lived together continuously, presenting themselves as a married couple with the intent to marry at the time the common law marriage began.

During a deposition, Pressley indicated the union might not have been marital until after he had the chance to marry a multimillionaire.

“The day you moved in permanently was the day you found out she had won the lottery?” Kessler had asked.

“Well, I moved in that night. I was there the night before. It was two nights before she won the Lotto. I was there,” he said.

Since the Lotto winnings were not ruled marital property, Strong will not have to share the next 14 annuity payments with her ex-husband as an equitable division. But a jury ensured that Pressley will get a chunk as alimony.

Pressley’s lawyer, R. Keegan Federal Jr. of Keegan Federal & Associates in Atlanta, says the jury awarded his client a fair amount.

“Everything’s relative,” he says. “I don’t think it’s that large, considering the sums involved.”

Kessler says it’s hard to compare this case to others because most divorce cases involving a great deal of money tend to settle quietly out of court and usually with a sealed agreement.

“People generally don’t want this kind of thing in the press,” he says. “It’s hard to gauge whether this amount is typical.”

Considering what Pressley was seeking, says Kessler, things could have turned out far worse for his client. “They were asking not only for half of what was to come, but also half of what had already come in,” he says.

Kessler’s associate, Marvin L. Solomiany, who assisted in the case, says that the size of the alimony payment blurs the line between equitable division and alimony.

The fact that Georgia has no statute governing equitable division, could make an interesting case on appeal, Kessler says. However, he says no decision has been made on whether to appeal or ask for a new trial.

For now, he says, Strong is just relieved to have the trial over.
Federal, Pressley’s lawyer, says he would help his client set up an annuity fund to ensure he will have enough money to live on for the rest of his life.

“This was not like the usual divorce case where there’s not enough money to go around,” he says.

Federal says that Pressley took his award in stride. After the verdict, the plaintiff met with his attorney in a library room near the courtroom.

His client, he says, wasn’t exactly celebrating. “He kind of dozed off back there, so he couldn’t have been that excited,” Federal says.23


Divorce Jury: Spouse Rates $1.7M From Lotto Winner

Former postal worker Rebecca Strong got her windfall from winning the lottery. Her ex-husband, John Pressley, is getting his from their divorce.

A DeKalb County jury found Friday that Strong, 43, a former postal worker must pay Pressley $1.7 million in alimony. Pressley v. Strong-Pressley No. 98-cv-49964 (DeKalb Sup. verdict Feb. 18, 2000). The award amounts to slightly more than 11 percent of the $15 million Strong won on a Georgia Lotto ticket in 1994.

Strong’s lawyer, Randall M. Kessler, a partner with Kessler & Schwarz in Atlanta, says Pressley has done well financially by divorcing his wife.

“She won the lottery and now he won his,” he says.

Pressley, a 52-year-old cabinet maker, and Strong had been dating since 1988. They married four months after Strong won what was then the largest payout ever in the Georgia Lotto game.

Strong used her annual payments of $750,000 before taxes to buy Pressley a new pickup, to pay his business debts and to pay for a home and medical care for her ailing mother, Kessler says.

But the marriage went sour and Strong left Pressley March 2, 1998, according to court documents. Pressley filed for divorce April 27, 1998, claiming that he and Strong were common-law spouses long before she won the lottery. As her husband, he claimed he deserved half the winnings.

However, DeKalb Superior Court Judge Gail C. Flake granted Strong’s motion for summary judgment which asserted that a common law marriage never existed and that the lottery prize did not constitute marital property.

To establish a common law marriage, Pressley would have had to show that he and Strong had lived together continuously, presenting themselves as a married couple with the intent to marry at the time the common law marriage began.

During a deposition, Pressley indicated the union might not have been marital until after he had the chance to marry a multimillionaire.

“The day you moved in permanently was the day you found out she had won the lottery?” Kessler had asked.

“Well, I moved in that night. I was there the night before. It was two nights before she won the Lotto. I was there,” he said.

Since the Lotto winnings were not ruled marital property, Strong will not have to share the next 14 annuity payments with her ex-husband as an equitable division. But a jury ensured that Pressley will get a chunk as alimony.

Pressley’s lawyer, R. Keegan Federal Jr. of Keegan Federal & Associates in Atlanta, says the jury awarded his client a fair amount.

“Everything’s relative,” he says. “I don’t think it’s that large, considering the sums involved.”

Kessler says it’s hard to compare this case to others because most divorce cases involving a great deal of money tend to settle quietly out of court and usually with a sealed agreement.

“People generally don’t want this kind of thing in the press,” he says. “It’s hard to gauge whether this amount is typical.”

Considering what Pressley was seeking, says Kessler, things could have turned out far worse for his client. “They were asking not only for half of what was to come, but also half of what had already come in,” he says.

Kessler’s associate, Marvin L. Solomiany, who assisted in the case, says that the size of the alimony payment blurs the line between equitable division and alimony.

The fact that Georgia has no statute governing equitable division, could make an interesting case on appeal, Kessler says. However, he says no decision has been made on whether to appeal or ask for a new trial.

For now, he says, Strong is just relieved to have the trial over.
Federal, Pressley’s lawyer, says he would help his client set up an annuity fund to ensure he will have enough money to live on for the rest of his life.

“This was not like the usual divorce case where there’s not enough money to go around,” he says.

Federal says that Pressley took his award in stride. After the verdict, the plaintiff met with his attorney in a library room near the courtroom.

His client, he says, wasn’t exactly celebrating. “He kind of dozed off back there, so he couldn’t have been that excited,” Federal says.