In Re the Estate of George Edward Samuel

FIRST DIVISION
BROWN, C. J.,
BARNES, P. J., and WATKINS, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules

March 9, 2026

In the Court of Appeals of Georgia
A25A1573. IN RE THE ESTATE OF GEORGE EDWARD
SAMUEL, DECEASED.

WATKINS, Judge.

This action arises from a petition to determine heirs filed by Devon Samuel,

claiming to be acting in the capacity of the executor of the estate of his late father

George Edward Samuel.1 At issue is whether Delores Bowers (f/k/a Delores Samuel)

or Rosemary Dailey Samuel was George’s legal wife at the time he died. Following a

three-day jury trial, the jury returned a verdict finding that George’s marriage to

Delores had been dissolved by divorce, which had the effect of recognizing Rosemary

1
For ease of reference given the number of individuals sharing the same last
name, we will refer to everyone by their first name.
as George’s widow. Devon appealed. For the reasons contained herein, because there

was some evidence to support the jury’s verdict, we affirm.

“There is a presumption in favor of the validity of verdicts. And after rendition

of a verdict, all the evidence and every presumption and inference arising therefrom,

must be construed most favorably towards upholding the verdict.”2

So viewed, the record shows that George and Delores married in 1963. The

couple had two children, including Devon. Delores moved out of the marital home

with the two children and settled in Boston, and the children continued to have a

relationship with and visit their father. George and Delores never lived together after

1969. Delores petitioned for divorce in Connecticut in 1970, but no evidence was

presented that she further pursued that filing.

George met Rosemary in 1971, and the relationship turned romantic in 1972,

even though both parties were married at the time. George and Rosemary then lived

together until he died. They also worked together as truck drivers, driving the same

truck cross-country.

2
Dillard v. Schilke, 352 Ga. App. 158, 158 (2) (834 SE2d 278) (2019) (citation
and punctuation omitted).
2
In 1973, Delores filed for separation and custody in Massachusetts. In 1981,

Delores petitioned for divorce in Massachusetts. The parties dispute whether either

of these actions resulted in the entry of a divorce decree, and as discussed further

below, even different clerks of the probate court of Suffolk County, Massachusetts

have provided conflicting accounts.

Rosemary’s children from her prior marriage saw George and his children as

family. George and his children would take trips with Rosemary and her children.

Rosemary eventually divorced her husband in 1989. Tennessee issued a certificate of

marriage to George and Rosemary in 2003, the legal import of which is at issue in this

case.

After George’s death in 2021 , Devon, claiming to be executor of George’s

estate, filed a petition to probate will in solemn form, which petition identified

Rosemary as George’s “spouse.” Devon subsequently amended the petition to

identify Delores as George’s “spouse.” As a result of these conflicting claims, Devon

filed a petition to determine heirs through which he sought a determination that

Rosemary was not an heir of George. Rosemary opposed the petition. Devon moved

for summary judgment, which the court denied.

3
The court held a jury trial on the petition to determine heirs, at which Devon,

Delores, and Rosemary testified, as well as other family members of both George and

Rosemary. Representatives of the law firms representing both Devon and Rosemary

also testified about certifications they received from different employees of the Suffolk

County, Massachusetts probate court. In the certificate proffered by Rosemary, the

“Register of Probate” stated that in 1973 “a Judgment of Divorce Nisi was entered

by the Court” in the proceeding Delores filed. Attached to that certificate was a

petition for child support and an order awarding custody of the children to Delores.

The attached order did not mention divorce. In the “Clerk’s Certificate” proffered

by Devon, a different “Register of Probate” certified that no judgment of divorce

existed in the records for the 1973 or 1981 filings. Neither Rosemary nor Devon

introduced testimony from any employee at the Suffolk County probate clerk’s office

explaining these contradictory documents.

The jury found that George’s marriage to Delores was dissolved by divorce.

Devon immediately moved for a judgment notwithstanding the verdict, which the trial

court denied. Devon timely appealed.

4
1. Devon contends that the trial court erred in denying its motion for summary

judgment.3 “After 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.”4 Accordingly, this claim of error presents nothing

for us to review.

2. Devon also contends that the trial court erred in admitting the probate clerk’s

certificate proffered by Rosemary. According to Devon, the trial court should have

excluded this certificate because it was “a facially and legally false document” that

was presented by “a surprise witness.”

As mentioned above, the parties each entered into evidence conflicting

certificates, each received from a different “Register of Probate” of the Suffolk

County, Massachusetts probate and family court regarding the marital status of

George and Delores. The document submitted by Rosemary was titled “Certificate

of Divorce Absolute” and stated that on May 8, 1973, “ninety days having expired

3
We remind counsel of Court of Appeals Rule 25(a)(7), which provides that
argument “should generally follow the order of the enumeration of errors”as it makes
review by this Court easier.
4
City of College Park v. City of Sandersville, 361 Ga. App. 529, 531 (1) (864 SE2d
680) (2021) (citation and punctuation omitted).
5
since the entry of the divorce nisi and the Court not having otherwise ordered, said

Judgment of Divorce became Absolute.” Attached to the certificate were a petition

and order dated in 1973 for custody of the children.

Rosemary introduced this clerk’s certificate at trial through the testimony of a

law firm administrator who had spoken with someone in the Suffolk County probate

court clerk’s office “who confirm[ed] that there was a decree on file” which the

“gentleman” then mailed to the witness. Upon learning that Rosemary intended to

introduce the evidence this way, Devon initially objected on the grounds that the

documents attached to the certificate were not filed in a divorce proceeding and that

the proffering witness had not been previously disclosed. The trial court overruled the

objection.5 When Rosemary tendered the certificate, however, Devon did not renew

his objection. Instead, Devon’s attorney stated “I think it’s properly authenticated,

and I’ll have questions about it, Your Honor. No objection.”

A party cannot acquiesce in a trial court’s ruling below and then
complain about that ruling on appeal. Acquiescence deprives [Devon] of
the right to complain further; thus the issue is waived for purposes of
appeal. ... [A]lthough a party may have initially objected to an exhibit,

5
Notably, in doing so, the trial court acknowledged that it had allowed Devon
to introduce the Massachusetts certificate he was relying on in a similar fashion.
6
that party’s failure to make a contemporaneous objection at the time the
exhibit is re–tendered waives the objection. For these reasons, [Devon]
waived the right to assert [his] objection to [the admissibility of] this
exhibit on appeal.6

3. Devon contends that the trial court erred in denying his motion for new trial

because there was no probative evidence to support the verdict. We disagree.

At the outset, we recognize that

[u]nder Georgia law, to be able to enter into a marriage, a person must
have no living spouse of a previous undissolved marriage. The
dissolution of a previous marriage in divorce proceedings must be
affirmatively established and will not be presumed. Where a party to a
ceremonial marriage has been previously married and the validity of the
second marriage is challenged, a presumption arises that the second
marriage is valid until evidence is adduced that the spouse of the first
marriage is living, and only then does the law place the burden on the
party contending that the second marriage is valid to go forward with the
evidence and show that the first marriage was dissolved by divorce.7

6
Ahmed v. Clark, 301 Ga. App. 426, 428 (688 SE2d 361) (2009) (citations and
punctuation omitted).
7
Dillard, 352 Ga. App. at 161-162 (2) (citations and punctuation omitted).
7
Here, it is undisputed that Delores is alive, so the burden shifted to Rosemary

to establish that Delores and George were legally divorced. Devon contends that she

failed to do so, but we find that the jury was authorized to find that Rosemary met her

burden. There was ample evidence presented that George and Rosemary subjectively

believed themselves to be married, as did many other members of their respective

families. Devon is correct, however, that evidence of these subjective beliefs is legally

irrelevant.8

It is also undisputed that Rosemary did not introduce a divorce decree as direct

evidence of George’s marital status. As we have previously held, however, that was

not the only way for her to meet her burden.

[A]ny fact can be proven through circumstantial evidence. ... The
standard for relying on circumstantial evidence is well settled: When a
party is relying on inferences from circumstantial evidence to prove a
point, not only must those inferences tend in some proximate degree to
establish the conclusion sought, but they must also render less probable
all inconsistent conclusions. Stated differently, [w]here a [party] in a civil
case supports [her] case solely by circumstantial evidence, before [she]

8
Id. at 164 (2) n.1.
8
is authorized to have a verdict in [her] favor the testimony must be such
as to reasonably establish the theory relied on.9

Because “[t]here must be more than a scintilla of circumstances to carry the

case to the jury[,]” the trial court then had to decide if “the circumstances reasonably

establis[ed] the hypothesis relied on by [Rosemary].”10 Here, the trial court implicitly

made such a decision by permitting admission of the certificate proffered by

Rosemary.

After the trial court made this decision it was “then for the jury to say, either

that [Rosemary had] not carried [her] burden of proof because the evidence equally

[supported her] hypothesis and some other reasonable hypothesis, or that [Rosemary

had] carried [her] burden of proof in that the evidence preponderate[d] to [her]

hypothesis as against all other reasonable but less probable hypotheses.11

Here, Rosemary introduced a document from a “Register of Probate” certifying

that Delores obtained a divorce from George in 1973. She also introduced a marriage

9
Dillard, 352 Ga. App. at 162-163 (2).
10
Id. at 163 (2).
11
Id. at 162-163 (2) (citations and punctuation omitted).
9
certificate issued by Tennessee which, on its own may have not been sufficient to

establish proof of George’s divorce,12 but which demonstrates a government agency’s

recognition of George as someone legally capable of entering into a marriage. Devon

attacked Rosemary’s evidence and presented his own conflicting evidence, but

viewing all the evidence and every presumption and inference arising therefrom in the

light most favorable to the verdict, we hold that the jury was authorized to find that

the evidence preponderated to Rosemary’s hypothesis that George was legally

divorced.

4. Devon contends that the trial court erred in charging the jury. We disagree.

At the request of Rosemary, the probate court charged the jury “[w]hile the

divorce decree would be direct evidence of the dissolution of the first marriage, any

fact can be proven through circumstantial evidence.” The jury had previously been

charged on the definition of circumstantial evidence. Devon takes issue with both the

substance of the charge and the timing of Rosemary’s request for the charge.

[W]e review de novo an allegedly erroneous jury instruction,
which is a question of law. And in assessing the assertion of an erroneous

12
The record is silent as to what, if any, evidence was necessary to obtain the
marriage certificate in Tennessee.
10
jury instruction, the instruction must be evaluated in the context of the
trial court’s jury instructions as a whole. Indeed, the only requirement
regarding jury charges is that they were, as given, correct statements of
the law and, as a whole, would not mislead a jury of ordinary
intelligence.13

As to the substance of the charge, the charge was a correct statement of the law,

as discussed in Division 3 above, and thus giving it was not error.

As to the timing, Rosemary first requested this specific charge after closing

arguments, which undisputedly did not comport with the scheduling order entered by

the court. The trial court had the authority, however, to modify the scheduling order

at the trial,14 which it effectively did by permitting the late jury charge submission.

Devon also argues that Rosemary’s request was untimely pursuant to OCGA § 5-5-

24(b), which provides:

In all cases, at the close of the evidence or at such earlier time during the
trial as the court reasonably directs, any party may present to the court
written requests that it instruct the jury on the law as set forth therein.
Copies of requests shall be given to opposing counsel for their

13
Scott v. Turner, 375 Ga. App. 396, 399 (915 SE2d 704) (2025) (citations and
punctuation omitted).
14
See OCGA § 9-11-16(b).
11
consideration prior to the charge of the court. The court shall inform
counsel of its proposed action upon the requests prior to their arguments
to the jury but shall instruct the jury after the arguments are completed.

According to [Devon], OCGA § 5–5–24(b) requires us to find error in
the giving of [the challenged] charge. The Code section provides ... that
the trial court should inform counsel of the charges it intends to give
before closing argument. It would elevate form over substance, however,
to preclude the trial court from giving an additional jury charge when the
court believes it is necessary to clarify an issue of which the parties were
clearly aware prior to trial.15

The record clearly demonstrates that the parties were aware of this legal issue prior

to trial, as Rosemary did not have direct evidence to establish her claim. Accordingly,

we find no error with the timing of the trial court’s acceptance of this requested

charge.

15
Swanson v. Hall, 275 Ga. App. 452, 455 (2) (620 SE2d 576) (2005) (citations
omitted).
12
5. Devon contends that the trial court erred by not ruling on which party had

the burden of proof before the presentation of evidence. Devon provided no argument

or case citations to support this claim of error; thus, it is abandoned.16

6. Lastly Devon claims that the trial court erred by allowing “improper and

prejudicial” argument for sympathy in Rosemary’s closing argument. Devon waived

this argument by failing to object at trial.

It has long been held that “[w]hen improper argument to the jury is made by an

attorney for one of the parties, it is necessary, in order to make the same a basis for

review, that opposing counsel should make objection to such argument or invoke some

ruling or instruction with reference thereto by the court.”17

Judgment affirmed. Brown, C. J., and Barnes, P. J., concur.

16
Healthcare Staffing, Inc. v. Edwards, 360 Ga. App. 131, 135 (2) (860 SE2d 874)
(2021) (“The rules of this Court are clear that any enumeration of error that is not
supported in the brief by citation of authority or argument may be deemed abandoned.
It is not the job of this Court to find legal authority to support a party’s claim of error,
nor would it be appropriate for us to do so.”) (citations and punctuation omitted);
Court of Appeals Rule 25(d)(1).
17
Ehrlich v. Mills, 203 Ga. 600, 601 (4) (48 SE2d 107) (1948). “The reason for
requiring a contemporaneous objection [is because a] party cannot during the trial
ignore what [it] thinks to be an injustice, take [its] chance on a favorable verdict, and
complain later.” Williams v. Harvey, 311 Ga. 439, 448(1)(b) (858 SE2d 479) (2021)
(citation and punctuation omitted).
13