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Simmons v. Wilson

Court of Appeals of Georgia, First Division

October 20, 2017

SIMMONS
v.
WILSON.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Following 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.

         We 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 changes).

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) (2011).

         Here, at the time of their 2010 divorce, Simmons and Wilson were awarded joint legal custody, and Wilson was given primary physical custody.[1] 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.

         The 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.

         A 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.

         A final 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.

         Wilson 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.[2]

         On 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.

         1. 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 this case.

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 ...

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