Justia.com Opinion Summary: This case arose after a divorce decree between Husband and Wife. After a hearing, the trial court entered a final order granting primary physical custody of the children to Husband and visitation to Wife. Thereafter, Wife filed a motion for a new trial, which the trial court denied. Wife then appealed this ruling, contending, among other things, that the trial court erred by relying on evidence adduced at the temporary hearing. The court held that the record and the trial court's final order explicitly showed that the trial court relied on evidence from the temporary hearing to reach its final decision regarding custody of the children and there was no indication that the parties were notified in advance that this was going to happen. As a result, pursuant to Pace v. Pace, the court reversed the trial court's final order and remanded for further proceedings.
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In the Supreme Court of Georgia
Decided: January 9, 2012
S11A1950. VAUGHN v. DAVIS.
MELTON, Justice.
Michelle Vaughn (Wife) and David Davis (Husband) were divorced on
November 24, 2004, and they received joint legal and physical custody of
Victoria, their child together, and Thomas, who is Wife’s child. Neither party
was ordered to pay child support, but they were required to split expenses. In
November 2010, Wife filed a motion for contempt in which she alleged that
Husband had not properly reimbursed her for the children’s medical expenses,
and a conference was held at which both parties represented themselves. On
January 18, 2011, Wife filed a pro se motion for change of custody and child
support, and an interim hearing was held on January 25, 2011. Again, both
parties appeared pro se. After hearing testimony from both parties and receiving
financial affidavits, the trial court entered a temporary order awarding primary
physical custody to Husband and visitation to Wife. In addition, Wife was
ordered to pay child support, offset by amounts Husband owed Wife for the
children’s medical expenses.
After Wife retained an attorney, a final hearing on the matter was set for
March 31, 2011. After this hearing, the trial court entered a final order once
again granting primary physical custody to Husband and visitation to Wife.1
Thereafter, Wife filed a motion for new trial, which the trial court denied. Wife
now appeals this ruling, contending, among other things, that the trial court
erred by relying on evidence adduced at the temporary hearing.
In Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010), we stated:
[T]he nature and quality of the evidence presented at a temporary
hearing is likely to be different than that which is ultimately
presented at the final hearing, and parties should ordinarily expect
that only that evidence which their opponent sees fit to offer at the
final, more formal hearing will be relied on to support the
permanent custody award. See Alford v. Alford, 190 Ga. 562, 564
(9 SE2d 895) (1940) (“[a] rule that would permit the judge to base
his judgment on knowledge gained elsewhere than on the trial at
which it is rendered would . . . deprive[ ] [the other party] of the
legal right to cross-examine, and otherwise try to controvert such
alleged facts”). Accordingly, we now hold that, absent express
notice to the parties, it is error for a trial court to rely on evidence
from the temporary hearing in making its final custody
determination.
We do not reach the propriety of the trial court’s decision to grant
Husband custody of Thomas, whom Husband had not yet legally adopted.
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2
In this case, the record and the trial court’s final order explicitly show that
the trial court relied on evidence from the temporary hearing to reach its final
decision regarding custody of the parties’ children, and there is no indication
that the parties were notified in advance that this was going to happen. As a
result, as in Pace, we must reverse the trial court’s final order and remand for
further proceedings.
Judgment reversed and case remanded with direction. All the Justices
concur.
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