Ronald I. Powers v. Joan S. Powers ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
RONALD I. POWERS
MEMORANDUM OPINION * BY
v. Record No. 3095-96-2 JUDGE RICHARD S. BRAY
JUNE 17, 1997
JOAN S. POWERS
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Thomas V. Warren, Judge
Jeremy C. Sharp for appellant.
No brief or argument for appellee.
Ronald I. Powers (father) appeals an order of the trial
court awarding custody of his five-year-old daughter, Cassie
Powers, to Joan S. Powers, the child's paternal grandmother
(grandmother). Father complains that the trial court erroneously
conducted an ex parte evidentiary hearing, without proper notice,
and later denied father's motion to reopen the cause. We agree
and remand for further proceedings and reconsideration.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
"After a court has concluded an evidentiary hearing 'during
which each party had ample opportunity to present evidence, it
[is] within the court's discretion to refuse to take further
evidence on this subject.'" Holmes v. Holmes, 7 Va. App. 472,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
480, 375 S.E.2d 387, 392 (1988) (quoting Morris v. Morris, 3 Va.
App. 303, 307, 349 S.E.2d 661, 663 (1986)); see also Hughes v.
Gentry, 18 Va. App. 318, 326, 443 S.E.2d 448, 453 (1994). To
prove "entitlement to a rehearing, a petitioner must show either
an 'error on the face of the record, or . . . some legal excuse
for his failure to present his full defense at or before the time
of entry of the decree.'" Holmes, 7 Va. App. at 480, 375 S.E.2d
at 392 (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9, 141
S.E. 134, 136-37 (1927)).
Here, the record clearly discloses that father was not
afforded an "ample opportunity to present evidence" before the
trial court. Father was not properly served with notice of the
pending hearing and misunderstood grandmother's continuance
motion filed with the court several days prior to the scheduled
hearing date. With neither father nor the child's guardian ad
litem present, the court denied grandmother's motion, conducted
an ex parte hearing, and decided the issue. Manifestly, both
father and guardian were entitled to reasonable notice and an
opportunity to be heard at such significant proceedings. See,
e.g., Eddine v. Eddine, 12 Va. App. 760, 762-63, 406 S.E.2d 914,
915-16 (1991), cert. denied, 505 U.S. 1221 (1992). Under such
circumstances, the court's award of custody of the child to
grandmother, together with the court's subsequent denial of
father's reasonable and timely request for rehearing, constituted
an abuse of discretion. See National Linen Serv. v. Parker, 21
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Va. App. 8, 19, 461 S.E.2d 404, 410 (1995) (discussing abuse of
discretion standard).
Accordingly, we reverse the disputed order and remand for
the trial court to undertake further proceedings, attended by
proper notice and a right afforded all parties to present
evidence and otherwise fully participate.
Reversed and remanded.
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