BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
the denial of his motion for new trial, William Calvin
Simmons, pro se, appeals from the order of the trial court
modifying custody by granting sole legal and physical custody
of their four children to his ex-wife, Crecia Kimberly
Wilson. Simmons contends multiple errors on appeal, and, upon
our review, we affirm the trial court's order.
first note "that the Solomonic task of making custody
decisions lies squarely upon the shoulders of the judge who
can see and hear the parties and their witnesses, observe
their demeanor and attitudes, and assess their
credibility." (Citations and punctuation omitted.)
Smith v. Pearce, 334 Ga.App. 84, 92 (3) (778 S.E.2d
248) (2015). And, above all, "[a] trial court faced with
a petition for modification of child custody is charged with
exercising its discretion to determine what is in the
child's best interest."(Citations and punctuation
omitted) Carr-MacArthur v. Carr, 296 Ga. 30, 31 (1)
(764 S.E.2d 840) (2014). See OCGA § 19-9-3 (a) (2) (the
best interest of the child is controlling as to custody
Where … the trial court has exercised its discretion
and awarded custody of children to one fit parent over the
other fit parent, this Court will not interfere with that
decision unless the evidence shows the trial court clearly
abused its discretion. Where there is any evidence to support
the decision of the trial court, this Court cannot say there
was an abuse of discretion.
(Citation and punctuation omitted) Roberts v.
Kinsey, 308 Ga.App. 675, 678 (6) (708 S.E.2d 600)
at the time of their 2010 divorce, Simmons and Wilson were
awarded joint legal custody, and Wilson was given primary
physical custody. Simmons had weekly visitation, shared
visitation during holiday and school breaks, and two weeks of
visitation during the summer. In June 2011, Wilson sought and
was granted a six month family violence protection order
because of Simmons' alleged methamphetamine use and
violent behavior, which following a hearing, was extended to
three years by order of the trial court on December of 2011.
The order suspended Simmons' visitation, but allowed
regular telephone, email or text message contact. Simmons was
also ordered to undergo a certified family violence
intervention program and submit to a psychological evaluation
and any recommended treatment.
protective order was set to expire on December 16, 2014, and
following a hearing on December 8, 2014, the trial court
ordered that the protective order remain in effect for
another "30 days from December 8, 2014." On January
16, 2015, Wilson filed the subject petition to modify
visitation, in which she alleged, among other things, that
Simmons had failed to obtain a mental health evaluation, drug
testing or counseling, presented a "continuing danger to
his children, " and continued to engage in activities
that made him unfit for any visitation with his children. She
requested that the visitation provisions of the final divorce
decree be modified in the best interests of the children, and
any other relief the trial court deemed appropriate.
temporary hearing was held on January 23, 2015, at which
Simmons' former girlfriend testified about Simmons'
behavior, including his stalking at the end of the their
relationship, drug use, and other bizarre behavior. At the
conclusion of the hearing, the trial court ordered Simmons to
submit to an "extended panel hair follicle test in the
next five days with the results directed to me, " and if
the drug test was negative, Simmons would be permitted to
have supervised visitation with his children. Simmons, who
was represented by counsel at the hearing, agreed.
hearing was then held on June 4, 2015, at which Simmons
appeared pro se. When Simmons complained that he had not been
allowed visitation, the trial court indicated that, per the
January order, visitation was conditioned upon a negative
drug test, and Simmons' drug test was positive. The drug
test results were faxed directly to the trial court, as
agreed to at the temporary hearing. After Simmons complained
that he did not receive a copy of the test results, the trial
court directed that he be given a copy.
testified at the hearing about Simmons' erratic behavior
since their 2010 divorce that she believed was a result of
his continued drug use, his inappropriate disciplining and
threatening of the children via text message, and his use
social media to engage in conflict with her. During his
testimony, Simmons disputed the positive test results,
methamphetamine use, and other behavior. When Simmons
objected to the admission of the positive test result, and
argued that it was hearsay, the trial court suspended the
hearing, and issued an order directing Simmons to get another
drug test, after which he could subpoena the person who
performed the test to testify as to the results. A final
hearing was held on July 20, 2015, but a transcript was not
included with the record on appeal.
August 12, 2015, the trial court entered a final order
modifying custody. The trial court awarded sole legal and
physical custody to Wilson and granting Simmons no
visitation, but permitting him to send letters, emails,
texts, gifts or cards to the children. The trial court found,
among other things, that Simmons tested positive for
methamphetamine, failed to get the mental health and family
violence counseling as directed by the family violence
protective order, displayed a pattern of obsessive and
strange behavior, had no meaningful bond with the children,
and was inappropriate in his communication with and
disciplining of the children. Simmons filed a motion for new
trial, which following a hearing, the trial court denied, and
this appeal ensued.
Simmons first contends that in making its final decision on
the petition to modify custody, the trial court improperly
relied on evidence from the temporary hearing, including
testimony from his ex-girlfriend, information about his non-
compliance with the family violence order, and text messages
between Simmons and his children. Simmons maintains that the
evidence could not be relied on without the trial court's
express notice of intent to do so, and no notice was given in
The nature and quality of the evidence presented at a
temporary hearing is likely to be different than that which
is ultimately presented at the final hearing. Parties should
ordinarily expect that only that evidence which their
opponent sees fit to offer at the final, more formal hearing
will be relied on to support the permanent custody award.
Thus, absent express notice to the parties, it is error for a
trial court to rely on evidence from the temporary hearing in
making its final custody ...