Ashley David Leone v. Melissa Griffin

FOURTH DIVISION
DILLARD, C. J.,
RAY, P. J., and SELF, J.
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 2, 2017
In the Court of Appeals of Georgia
A17A1255. LEONE v. GRIFFIN.
DILLARD, Chief Judge.
In this custody dispute, Ashley David Leone appeals from the trial court’s
denial of his motion for new trial, contending that the court erred in denying his
motion without holding a hearing. For the reasons set forth infra, we reverse the trial
court’s denial of Leone’s motion for new trial and remand the case for further
proceedings consistent with this opinion.
Leone and Melissa Griffin have one child, born in February 2014. Shortly after
the child’s birth, Leone filed a petition for legitimation. Following a lengthy hearing,
on August 26, 2015, the trial court issued a final order on legitimation and temporary
order on child custody and support, granting Leone’s petition for legitimation,
granting him visitation, and ordering him to pay child support.
In September 2015, Leone filed a timely motion for new trial or, in the
alternative, motion for reconsideration, in which he asked the court to modify his
child-support obligation. Thereafter, on May 5, 2016, without acknowledging
Leone’s September 2015 motion, the trial court issued a final order on custody and
visitation, granting Griffin primary physical custody and incorporating the visitation
schedule from the parties’ parenting plan. In June 2016, Leone filed another timely
motion for new trial or, in the alternative, motion for reconsideration, in which he
requested that the trial court modify its custody order to award him primary physical
custody or joint physical custody, modify his child-support obligation, clarify the
parenting plan, and award him attorney fees. Leone specifically asked that the trial
court “hold a hearing” on his motion for new trial and “consider witness testimony
and documentary evidence on these issues[.]”
On January 6, 2017, without holding a hearing, the trial court ordered that
Leone’s child-support obligation be modified, denied his request for attorney fees,
and denied his motion for new trial. Leone filed a timely application for discretionary
review, which this Court granted. This appeal follows.
2
Leone contends that the trial court erred in denying his motion for new trial
without holding a hearing. Griffin concedes that the trial court’s order denying
Leone’s motion for new trial must be reversed, and we agree.
As our Supreme Court has made clear, “Uniform Superior Court Rule 6.3
requires a trial court to hold an oral hearing on all motions for new trial in civil cases,
unless otherwise specifically ordered by the court.”1 And if the trial court denies a
motion for new trial “without issuing an order excepting the motion from this
procedural requirement and without holding the mandatory hearing, the error will not
be deemed harmless on appeal[.]”2 Indeed, to hold otherwise would “not encourage
1
Brown v. Brown, 294 Ga. 475, 476 (754 SE2d 362) (2014) (citation omitted);
Kuriatnyk v. Kuriatnyk, 286 Ga. 589, 592 (2) (690 SE2d 397) (2010) (noting that “a
motion for new trial ‘shall be decided’ after an ‘oral hearing’”); see also Uniform
Superior Court Rule 6.3 (“Unless otherwise ordered by the court, all motions in civil
actions, including those for summary judgment, shall be decided by the court without
oral hearing, except motions for new trial and motions for judgment notwithstanding
the verdict.”).
2
Triola v. Triola, 292 Ga. 808, 808 (741 SE2d 650) (2013) (punctuation
omitted); see PHF II Buckhead LLC v. Dinku, 315 Ga. App. 76, 80 (2) (726 SE2d
569) (2012) (“[T]he appellate courts of Georgia have consistently refused to find that
the failure to hold oral argument is harmless error[.]” (punctuation omitted)).
3
adherence to the Uniform Rules and would render the mandated hearing a hollow
right.”3
Here, the trial court did not issue an order excepting Leone’s June 2016 motion
from this procedural requirement. Nevertheless, the trial court denied the motion
without holding the mandatory hearing. Thus, the trial court erred in denying Leone’s
motion for new trial.4 Accordingly, we reverse the portion of the trial court’s January
6, 2017 order denying Leone’s motion for new trial and remand the case with
direction that the court comply with Uniform Superior Court Rule 6.3 before ruling
on the motion.5
Judgment reversed and case remanded. Ray, P. J. and Self, J., concur.
3
Kuriatnyk, 286 Ga. at 592 (2) (punctuation omitted); accord PHF II Buckhead
LLC, 315 Ga. App. at 80-81 (2).
4
Triola, 292 Ga. at 808; Kuriatnyk, 286 Ga. at 592 (2); PHF II Buckhead LLC,
315 Ga. App. at 81 (2).
5
See Brown, 294 Ga. at 476 (reversing and remanding with direction that the
trial court comply with Uniform Superior Court Rule 6.3); Triola, 292 Ga. at 808-09(same); Kuriatnyk, 286 Ga. at 592 (2) (reversing and remanding with direction that
the trial court conduct a hearing on party’s motion for new trial); PHF II Buckhead
LLC, 315 Ga. App. at 80-81 (2) (same).
4