Bazan v. Bazan. , 347 Ga. App. 204 ( 2018 )

THIRD DIVISION
ELLINGTON, P. J.,
BETHEL and GOBEIL, JJ.
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.
http://www.gaappeals.us/rules
August 22, 2018
In the Court of Appeals of Georgia
A18A1476. BAZAN v. BAZAN.
ELLINGTON, Presiding Judge.
Rosa Ramos (formerly Rosa Bazan) filed this action against Leonzo Bazan in
the Superior Court of Whitfield County seeking to modify the child custody and child
support provisions of the parties’ divorce decree. Following a hearing, the trial court
granted Ramos legal and physical custody of the parties’ two minor children and
directed that Bazan have supervised visitation. The trial court denied Bazan’s motion
for a new trial, and Bazan appeals, contending that the trial court denied him the
opportunity to introduce evidence and present a defense to Ramos’s petition thereby
denying him due process. For the reasons explained below, we affirm.
The record shows the following facts, which are undisputed unless otherwise
noted. The parties divorced in April 2010. The divorce decree provided that the
parties have joint legal and physical custody of their daughters, then aged five and
four years old. The decree provided that Bazan had primary physical custody and
Ramos would have the children at all times when Bazan was at work, as well as other
specified visitation. Neither party was ordered to pay child support to the other.
Ramos filed a petition for modification of these provisions in July 2011. In
February 2014, the court sent the parties notice of a “Special Set Final Hearing” to
be held May 19, 2014. Bazan was represented by attorney Katherine O’Gwin. Ramos
and the children’s therapist testified. The trial court adjourned the hearing before
Ramos rested and announced that the hearing would be completed at a later date. The
evidence being incomplete, the trial court did not enter a final order, but entered a
temporary order in September 2014 giving Ramos primary physical custody of the
children and providing for visitation and child support.
After the May 2014 hearing, Bazan hired Raymond Bates to represent him. The
court again gave the parties notices of a “Special Set Final Hearing,” which was first
scheduled for February 19, 2015, rescheduled multiple times, and finally convened
on November 11, 2015. Again, court was adjourned before Ramos rested.
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The court last heard evidence on September 9, 2016, by which time Bazan was
no longer represented by counsel.1 At the September 2016 hearing, Ramos’s counsel
cross-examined Bazan and then called the children’s therapist on direct; Bazan cross-
examined the therapist. The trial court offered Bazan the opportunity to testify on his
own behalf. Bazan addressed the court under oath, concluding, “that’s all I have,
Your Honor.” After further cross-examination by Ramos’s counsel, the trial court
asked Bazan, “did you have any other witnesses you wish to call?” Bazan answered,
“no,” and the court moved on to the issue of Ramos’s request for attorney fees.
After Ramos’s counsel presented evidence and argument on the issue of
attorney fees, the court asked Bazan if he wanted to ask any questions about the fees
requested and, receiving no direct answer, asked whether the parties wanted to make
any closing argument. Bazan responded that he wanted to call Ramos to the stand.
The court replied, “I believe the evidence is closed. You told me you didn’t have any
more witnesses.” Bazan stated that he had misunderstood the question and reiterated
his desire to cross-examine Ramos. The court refused to hear any more evidence. The
1
In a pleading filed May 27, 2016, Bazan consented to Raymond Bates’s
motion to withdraw as Bazan’s counsel, and the trial court granted the motion to
withdraw. Ramos’s counsel then served notice of the final hearing set for September
9, 2016, upon Bazan personally.
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court announced its decision from the bench and, in November 2016, issued its final
judgment giving Ramos legal and physical custody of the children, providing for
supervised visitation and child support, and awarding Ramos attorney fees.
In related claims of error, Bazan challenges the modification order, arguing that
the trial court denied him the opportunity to present evidence in opposition to
Ramos’s petition to modify custody. Bazan does not contend that the trial court erred
in excluding any evidence he offered. Rather he argues that he was never afforded an
opportunity to tender his witnesses and other evidence. Bazan contends that the trial
court failed “to accommodate his pro se status.”
With regard to the May 2014 and November 2015 hearings, Bazan contends
that the trial court improperly “closed” those hearings without giving him an
opportunity to present evidence although his counsel at the time was prepared to do
so. As detailed above, however, in both instances, court was adjourned before the
petitioner, Ramos, had rested. Nothing in the record shows that the trial court limited
the scope of Bazan’s attorneys’ cross-examination of Ramos or any other witness.
Because Ramos had not completed her case-in-chief, the trial court was not required
to give Bazan an opportunity to do more than cross examine Ramos’s witnesses and
confront them with evidence relevant to their testimony. We discern no impropriety.
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With regard to the September 2016 hearing, during which Ramos rested, the
record supports Bazan’s assertion that he failed to understand that, if he answered
“no” when the trial court asked whether he had any other witnesses he wished to call,
the trial court would declare the evidence closed and he would lose the ability to call
witnesses and tender evidence. And the record shows that, when Bazan realized his
mistake, he promptly asked the court to allow him to present additional evidence. It
was within the court’s discretion to reopen the evidence and allow Bazan to cross
examine Ramos, as he requested, or to introduce other evidence.2 Holder v. J. F.
Kearley, Inc., 153 Ga. App. 843, 845 (5) (267 SE2d 266) (1980) (Under Georgia law,
whether to reopen the evidence after both parties have rested is a matter committed
to the trial court’s discretion.). As we have explained, a trial court should exercise its
discretion to re-open the evidence after the parties have rested, “if and when it
2
At the hearing on Bazan’s motion for a new trial, he testified that, in declaring
the evidence closed, the trial court prevented him from offering evidence to rebut
Ramos’s case-in-chief. Specifically, Bazan testified that he wanted to present the
following: six months of call logs from his cell phone account, to rebut the charge
that he had been harassing Ramos by calling frequently; photographs of Ramos being
around Bazan at school activities and holidays, to rebut the charge that Ramos
thought Bazan was “a dangerous person;” a screen shot of a communication with a
certain doctor’s office, to show that his possession of a photograph of one of his
daughter’s genitals was for the innocent purpose of making sure that his child had not
been “touched;” and proof that he had submitted to a court-ordered drug test and was
“clean.”
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appears to [the court] that it would be a manifest injustice to refuse it.” Maloy v.
Dixon, 127 Ga. App. 151, 162 (4) (193 SE2d 19) (1972).
The record supports Bazan’s argument that the trial court failed to
accommodate his pro se status by reopening the evidence after Bazan stated that he
did not intend to rest when the trial court asked about other witnesses. But this was
not improper.
Georgia law makes clear that a litigant’s pro se status does not entitle
him to any deferential treatment. It is true that . . . pro se litigants are
held to less stringent standards than attorneys with respect to their
pleadings. Other than this exception for pleadings, however, a court
cannot apply different standards to a pro se civil litigant and one
represented by counsel.
Howard v. GMAC Mortgage, 321 Ga. App. 285, 289 (1) (739 SE2d 453) (2013).
“One who knowingly elects to represent himself assumes full responsibility for
complying with the substantive and procedural requirements of the law.” (Citation
and punctuation omitted.) Campbell v. McLarnon, 265 Ga. App. 87, 90 (3) (593 SE2d
21) (2003). See also Higdon v. Higdon, 321 Ga. App. 260 (739 SE2d 498) (2013) (A
litigant’s pro se status did not relieve him of the obligation to comply with the
substantive and procedural requirements of the law, including court rules.); Turner
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v. Mize, 280 Ga. App. 256, 259 (1) (633 SE2d 641) (2006) (A civil defendant’s pro
se status and ignorance of the consequences of the failure to timely respond to the
plaintiff’s requests for admissions provided no basis for relief from such
consequences because a trial court cannot hold a pro se litigant to a different standard
in complying with procedural rules than a litigant represented by counsel.). Although
the trial court could have been more lenient under the circumstances, we cannot say
the trial court manifestly abused its discretion in refusing to reopen the evidence or
grant a new trial. Howard v. GMAC Mortgage, 321 Ga. App. at 289 (1); Higdon v.
Higdon, 321 Ga. App. at 260; see Bruner v. Bruner, 240 Ga. 159 (1) (240 SE2d 48)
(1977) (A trial court’s decision to deny a party permission to reopen the evidence will
not be reversed by an appellate court “absent a manifest abuse of discretion.”); Maloy
v. Dixon, 127 Ga. App. at 162 (4) (It was for the plaintiff and his counsel to decide
when to close his case, and whether to close it before calling the opposite party for
cross-examination. Having made the decision to rest and having announced it to the
court, the plaintiff was bound by it and could be released from it only in the judge’s
discretion.).
Judgment affirmed. Bethel and Gobeil, JJ., concur.
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