Devlin v. Devlin ( 2016 )

SECOND DIVISION
BARNES, P. J.,
BOGGS and RICKMAN, 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 14, 2016
In the Court of Appeals of Georgia
A16A0913. DEVLIN v. DEVLIN.
BOGGS, Judge.
Margaret Devlin (“the grandmother”), pro se, appeals from a superior court
order denying her request for an established schedule of grandparent visitation under
OCGA § 19-7-3 (d). She contends that the trial court erred in: (1) denying her
requests to present telephonic testimony under OCGA § 19-9-50 (b); (2) denying her
request to participate in a mediation by telephone; (3) failing to determine whether
she could “travel to Georgia without financial harm”; (4) allowing the daughter-in-
law “to enter testimony without legitimate evidence”; (5) failing to discover
“conclusively that the [mother]’s testimony was true”; and (6) concluding “that the
grandparent visitation would cause harm to the children.” For the reasons explained
below, we find no merit in these contentions and affirm.
The record shows that the grandmother first sought visitation through a
Pennsylvania court following the death of her son, the minor children’s father, in July
2013. In June 2014, a Pennsylvania court awarded sole physical and legal custody of
the children to their mother, allowed limited grandparent visitation, and approved the
mother’s relocation to Georgia with the children. In February 2014, the mother moved
to Georgia, obtained a Georgia driver’s license, employment, leased a home, and
enrolled the children in a Georgia school.
In December 2014, the mother filed an action in Georgia to enforce and modify
the custody and visitation order entered by the Pennsylvania court. She alleged that
the grandmother failed to cooperate with her efforts to establish a schedule for
grandparent visitation time, and asked the court
to provide for an established schedule regarding visitation upon the
showing required by OCGA § 19-7-3 (c). Alternatively, the timing,
duration and conditions of any visitation should be determined
exclusively by Petitioner. Any Court-Ordered visitation should take
place in Georgia and at times and dates approved by Petitioner.
Following a hearing in which the Georgia court allowed the grandmother to
participate pro se in a limited manner by telephone, it concluded that the mother and
children had been continuous residents of the State of Georgia for six months before
2
the Georgia proceeding was filed and that it had “exclusive jurisdiction as to all
issues of custody and visitation.”
Two months after this order was entered, the trial court scheduled a mediation
for the parties to take place in Georgia in mid-July 2015, almost one month later. The
grandmother promptly filed another request to participate by telephone, alleging that
she did “not have the funds to travel to Georgia solely for the purposes of this
mediation.” The mother opposed this request, asserting that the history between the
parties made “it unlikely that the parties could reach a mediated settlement, and
Respondent’s request to remotely participate makes the prospect of settlement even
less likely.” The record before us does not include a written order on the
grandmother’s request to participate in the mediation by telephone, but a later order
references that this request was denied. A subsequently-filed brief by the mother
states that she appeared for the court-ordered mediation, while the grandmother did
not do so.
Shortly after the date for the scheduled mediation, the grandmother filed a
motion for an emergency hearing with regard to her request for unsupervised
visitation with the children in Pennsylvania for two weeks out of each year. In the
same motion she alleged that the mother had committed “perjury by not being truthful
3
throughout this process.” She also asked that she be allowed to testify by telephone
in the hearing because she did “not have the funds to travel to Georgia solely for the
purpose of this Hearing.” The mother opposed her request to testify by telephone,
arguing that “live testimony will aid the Court in determining which party is telling
the truth and help the Court understand the true motivations for Respondent’s
continued frivolous litigation tactics. This is particularly true since it was clear that
Respondent was receiving coaching from an unknown person during her previous
telephonic testimony at the jurisdictional hearing.”
On October 15, 2015, the trial court denied the grandmother’s request to testify
telephonically, stating:
Respondent has filed a Motion for Emergency Hearing. Included in that
motion, is Respondent’s requests that she be permitted to testify
telephonically. A review of the record shows that Respondent failed to
attend mediation as ordered by the Court. At that time, the Court denied
Respondent’s request to mediate telephonically. Additionally the
primary purpose of the instant motion appears to be an attempt by
Respondent to re-litigate issues that were resolved in a previous hearing
and Order by this Court.
IT IS ORDERED that Respondent’s Motion for Emergency Hearing is
DENIED WITH REGARD TO HER REQUEST TO TESTIFY
TELEPHONICALLY.
4
In the same order, the trial court scheduled a final hearing on the merits of the
grandmother’s request for custody for December 1, 2015, and expressly required the
grandmother “to appear in person at the hearing, if she wishes to be heard on this
motion.”
On November 10, 2015, the grandmother filed a pro se “motion for an appeal”
of the trial court’s denial of her request to appear by telephone. She asserted that she
was “a retired Pennsylvania Correctional Officer surviving on an earned Pension or
‘fixed income’” and that she qualified for free legal services but could not receive
them in Georgia as a non-resident. The mother opposed the grandmother’s request for
an appeal because it was filed 26 days after the trial court’s order, well after the 10-
day time period for a party to request a certificate for immediate review of an
interlocutory matter under OCGA § 5-6-34 (b). The trial court construed the
grandmother’s request for an appeal as a motion for reconsideration and denied it.
The grandmother did not appear for the final hearing at which the trial court
heard evidence on the issue of visitation. A transcript of this hearing is not a part of
the record before us. The day after the hearing held on December 2, 2015, the trial
court issued an order in which it made the following findings of fact:
5
(1) Respondent has failed to appear for Court-Ordered mediation after
receiving notice and after being ordered by the Court to appear in
person; (2) Respondent has failed to appear for the Final Hearing after
receiving notice and after being ordered by the Court to appear in
person; (3) Respondent carries the burden of proof to show that
visitation under OCGA § 19-7-3 (d) is in the best interests of the Minor
Children; (4) in light of Respondent not appearing at the hearing,
Respondent has failed to present any evidence that such visitation is in
the best interests of the Minor Children and has otherwise failed to carry
her burden of proof; (5) Petitioner presented evidence at the hearing in
the form of testimony and documents showing the circumstances
surrounding the death of the Minor Children’s father, instances of
inappropriate and unsupported accusations by Respondent’s family
members directed at Petitioner and her Minor Children that could be
harmful to the Minor Children if they were exposed to such, and
Respondent’s failure to intervene to protect the Minor Children from
this harmful conduct; (6) Petitioner presented testimony that in her
judgment visitation under OCGA § 19-7-3 (d) was not in the best
interests of the Minor Children, and, while not conclusive, the Court
pursuant to the statute, defers to that based upon its review of the record
and the evidence presented. Based upon the lack of evidence presented
by Respondent and based upon evidence presented at the Final Hearing
by Petitioner and the findings of fact above, the Court finds that
visitation between the Minor Children and Respondent is not in the best
interests of the Minor Children, and the Court hereby DENIES
grandparent visitation under OCGA § 19-7-3. Any grandparent
visitation with the Minor Children shall occur only at such times, places,
6
and under such conditions as Petitioner deems advisable in her
discretion.
On December 28, 2015, the grandmother filed a pauper’s affidavit for the first
time in connection with her request for a waiver of the filing fee for an appeal in this
court. According to her affidavit, her household received a total of $4,669 per month
through pensions and social security. The trial court denied her request based upon
the amount of monthly income.
1. As the grandmother’s claims of error regarding her requests to appear by
telephone and her financial ability to travel to Georgia are related, we will consider
them together.
Georgia has adopted the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”), OCGA § 19-9-40 et seq., which provides: “A court of this state
may permit an individual residing in another state to be deposed or to testify by
telephone, audiovisual means, or other electronic means before a designated court or
at another location in that state.” (Emphasis supplied.) OCGA § 19-9-50 (b).
Although there are no Georgia decisions interpreting this Code section, other states
have concluded that this portion of the UCCJEA permits, but does not require, a trial
court to allow telephonic testimony. See In re the Marriage of Neubauer, 815 NW2d
7
410 (IV) (Iowa App. 2012); In re Marriage of Tamasy, 929 NE2d 820, 830 (II) (B)
(Ind. App. 2010); Schwier v. Bernstein, 734 So.2d 531 (Fla. App. 1999). In Georgia,
“[a] trial judge has broad discretion in regulating the conduct of counsel, parties and
witnesses, and in prescribing the manner in which the business shall be conducted.”
(Citations and footnote omitted.) Brown v. State, 285 Ga. App. 453, 455 (2) (646
SE2d 289) (2007). See also OCGA § 15-1-3 (4); 24-6-611 (a). We will therefore
review the trial court’s ruling on the admission of telephonic testimony for an abuse
of discretion. See Baars v. Freeman, 288 Ga. 835, 842 (3) (708 SE2d 273) (2011)
(reviewing trial court’s decision to allow telephonic testimony under identical
provision of former OCGA § 19-11-135 (f)1 for abuse of discretion).
Other jurisdictions considering whether a trial court has abused its discretion
in a ruling on the use of telephonic testimony find an examination of the function
served by a personal appearance in court useful. See, e. g., Cenlar, FSB v. Moore,
2009 N.M. App. Unpub. LEXIS 87, Slip Op. at * 8-9 (B) (Case No.26,768, decided
May 8, 2009). In its oft-cited decision in In re Marriage of Bonamarte, 263 Mont.
1Former OCGA § 9-11-135 (f) provided: “In a proceeding under [The Uniform
Interstate Family Support Act, 19-11-100 et seq.], a tribunal of Georgia may permit
a party or witness residing in another state to be deposed or to testify by telephone,
audiovisual means, or other electronic means at a designated tribunal or other location
in that state.”
8
170 (866 P2d 1132) (1994), the Montana Supreme Court concluded that a witness’s
personal appearance in court served the following important policies and purposes:
1. assists the trier of fact in evaluating the witness’ credibility by
allowing his or her demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of the occasion;
4. assures that the witness is not being coached or influenced during
testimony;
5. assures that the witness is not referring to documents improperly; and
6. in cases where required, provides for the right of confrontation of
witnesses.
(Citation and punctuation omitted.) Id. at 174.
Here, the trial court allowed the grandmother to appear by telephone in a
hearing to determine its jurisdiction. After once allowing the grandmother to appear
by telephone, the trial court denied the grandmother’s subsequent requests to appear
by telephone for a mediation and the final evidentiary hearing on the issue of
grandparent visitation. As outlined above, there are numerous reasons that a personal
9
appearance is preferable, and we cannot conclude that the trial court abused its
discretion in requiring the grandmother to travel to Georgia. While the grandmother
contends that the trial court should have determined that she was able to travel to
Georgia without financial harm, our law does not mandate that the trial court make
such a finding.2 And even if such a requirement did exist,3 the grandmother failed to
provide the trial court with the necessary evidence to make such a determination, and
when she ultimately provided it in connection with the costs of her appeal, the trial
court determined that she was not indigent. See OCGA § 9-15-2 (a) (2) (“The
judgment of the trial court on all issues of fact concerning the ability of a party to pay
costs or give bond shall be final.”); Penland v. State, 256 Ga. 641, 642 (352 SE2d
385) (1987) (defendant suffers no denial of due process from provision in OCGA §
2
To the extent the grandmother relies upon OCGA § 19-7-3 (e), this Code
section does not apply as it relates only to a trial court’s discretion to require a
grandparent seeking visitation to be solely responsible for the expense of mediation,
and makes no mention of a grandparent’s financial ability to travel.
3
We note that some jurisdictions require a showing of special or exigent
circumstances necessitating telephonic testimony, Bonamarte, supra; Aqua Marine
Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (551
A.2d 195) (N.J. App.1988), and in some of these states, financial inability to travel
is not considered an adequate special or exigent circumstance. See, e. g., In re B.C.,
283 Mont. 423, 429 (942 P2d 106) (1997).
10
9-15-2 (a) (2) that trial court’s findings concerning party’s ability to pay costs or post
bond are not subject to review).
For these reasons, we find no abuse of discretion by the trial court in
connection with its denial of the grandmother’s request to appear by telephone and
its failure to determine that she could travel without financial harm.
2. The grandmother’s remaining enumerations of error relate to the evidence
before the trial court during the final hearing on the issue of grandparent visitation,
but the record before us does not include a transcript of the final hearing. “Where the
record did not contain a transcript of evidence adduced upon [an evidentiary hearing],
questions of whether or not there was any merit in the enumeration of error could not
be determined, so the judgment must be affirmed.” (Citations omitted.) Wells Fargo
Home Mtg., Inc. v. Cook, 267 Ga. App. 368, 369 (1) (599 SE2d 319) (2004).
Accordingly, the grandmother’s remaining claims of error do not require a reversal.
Judgment affirmed. Barnes, P. J., and Rickman, J., concur.
11