Praveen Jha v. Summer Menkee ( 2019 )

FOURTH DIVISION
DOYLE, P. J.,
COOMER and MARKLE, 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
September 25, 2019
In the Court of Appeals of Georgia
A19A1180. JHA v. MENKEE.
COOMER, Judge.
Praveen Jha appeals from a trial court order denying his motion to vacate a
family violence 12-month protective order entered against him and in favor of
Summer Menkee, his wife. On appeal, Jha contends, among other things, that the
hearing procedure did not afford him due process because he was not allowed to
cross-examine Menkee. We agree and reverse.
On August 7, 2018, Menkee filed a petition for a temporary protective order
against Jha. The DeKalb County Superior Court issued a family violence ex parte
protective order on August 7, 2018, and held a hearing on Menkee’s petition on
October 17, 2018. After the hearing, the trial court issued a family violence 12-month
protective order, which was dated October 17, 2018.
On October 25, 2018, Jha filed a motion to vacate the family violence 12-
month protective order, which the trial court denied. Jha filed an application seeking
discretionary review of the trial court order denying his motion to vacate, which we
granted. This appeal followed.
1. Jha contends that the hearing procedure for the family violence 12-month
protective order did not afford him due process because he was not allowed to cross-
examine Menkee. We agree.
Pursuant to OCGA § 19-13-3 (a), a person may seek a family violence
protective order by filing a petition asserting an act of family violence. “Upon the
filing of a verified petition in which the petitioner alleges with specific facts that
probable cause exists to establish that family violence has occurred in the past and
may occur in the future, the court may order such temporary relief ex parte as it deems
necessary to protect the petitioner[.]” OCGA § 19-13-3 (b). Thereafter, a hearing shall
be held, at which “the petitioner must prove the allegations of the petition by a
preponderance of the evidence as in other civil cases.” OCGA § 19-13-3 (c). A trial
court enjoys discretion in granting or denying a protective order, and we will not
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interfere with the court’s ruling absent an abuse of that discretion. Quinby v. Rausch,
300 Ga. App. 424, 424 (685 SE2d 395) (2009).
The trial court indicated in its order denying Jha’s motion to vacate the
protective order that Jha, who proceeded pro se,
was not allowed to “cross examine” or engage in a “thorough and sifting
cross-examination of [Menkee]” or otherwise question [Menkee], who
was represented by counsel, in violation of OCGA § 15-19-51 that
prohibits an unauthorized practice of law.1
The court further noted that it refused to “subject [Menkee] to further intimidation
and harassment through ‘cross-examination’ or ‘thorough [and] sifting cross-
examination’” because it had a responsibility to safeguard individuals and the judicial
process “from further re-victimization, harm, abuse, harassment and menacing
attack.” However, the Georgia Supreme Court has held that a victim’s sworn
statement in support of a temporary protective order is testimonial in nature,
providing the party against whom the protective order is sought the Sixth Amendment
right to confrontation. Brown v. State, 288 Ga. 404, 408 (3) (703 SE2d 624) (2010).
1
The record on appeal does not contain a transcript of the October 17, 2018
hearing. However, under the unusual circumstances of this case, a transcript is not
necessary for us to review the issue of whether Jha was denied his due process rights
because the trial court’s order denying Jha’s motion to vacate states that Jha was not
allowed to cross-examine Menkee.
3
It is well-established that the right of a thorough and sifting cross-examination
belongs to every party as to the witnesses called against him. See OCGA § 24-6-611
(b); Farley v. State, 314 Ga. App. 660, 665 (3) (725 SE2d 794) (2012). Although
cross-examination may be limited by the trial court to relevant matters by proper
questioning,2 the trial court in this case refused Jha any right of cross-examination
because, according to the trial court, Jha’s cross-examination would have been an
“unauthorized practice of law” and re-victimized Menkee. The trial court’s reliance
on OCGA § 15-19-51 to support its finding that Jha’s cross-examination would
constitute an unauthorized practice of law is misplaced. OCGA § 15-19-51 only
prohibits an individual from practicing or appearing to practice as an attorney at law
“for any person other than himself in any court of this state or before any judicial
body[.]” It does not prohibit an individual proceeding pro se from representing
himself and employing his right to a thorough and sifting cross-examination of a
witness called against him.
For the foregoing reasons, we find that the trial court’s refusal to allow Jha to
cross-examine Menkee was an abuse of discretion. Consequently, we reverse the trial
2
See OCGA § 24-6-611 (a).
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court’s order denying Jha’s motion3 and remand with instructions for the trial court
to hold a new hearing on Menkee’s petition.
2. In light of our holding in Division 1, we need not reach Jha’s remaining
enumerations.
Judgment reversed and case remanded for new hearing. Doyle, P. J., and
Markle, J., concur.
3
On appeal, Menkee asserts that Jha’s arguments do not support a motion to
set aside under OCGA § 9-11-60 (d). In his motion, Jha does not cite OCGA § 9-11-
60 or raise any OCGA § 9-11-60 arguments. Rather, he argues that the trial court
should vacate the protective order because the trial procedure denied him due process
and Menkee failed to meet her burden of proof. “[S]ubstance, rather than
nomenclature, governs pleadings[.]” Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 590 (690
SE2d 397) (2010) (citations omitted). Looking to the substance of Jha’s motion, it is
essentially a motion for new trial, filed approximately a week after the court entered
the 12-month protective order, which the trial court denied, and from which Jha filed
a timely appeal.
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