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Long v. Truex

Court of Appeals of Georgia, Fifth Division

April 10, 2019

LONG
v.
TRUEX (two cases).

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          MCFADDEN, PRESIDING JUDGE.

         Cherie Long and Duane Truex divorced in 2014. These related appeals, in which Long is acting pro se, concern trial court rulings in two subsequent proceedings arising out of the divorce: a proceeding to modify child custody and a contempt proceeding.

         In Case No. A19A0038, Long challenges an August 4, 2016 order modifying child custody and an April 11, 2018 order denying Long's timely motion for new trial. We have jurisdiction notwithstanding Long's ineffective attempt to dismiss her motion for new trial. The evidence authorized the trial court's rulings, so we affirm.

         In Case No. A19A0749, Long challenges a July 6, 2018 order awarding Truex attorney fees related to Long's filing of an untimely motion for new trial after the trial court found her in contempt of the parties' divorce decree. Because that order does not specify the person or persons obligated to pay the award, we vacate it and remand the case for further proceedings. We also deny Truex's motion for sanctions for frivolous appeal in Case No. A19A0749.

         1. Child custody order (Case No. A19A0038).

         When the parties divorced in the fall of 2014, the trial court awarded them joint legal custody and the father primary physical custody of their son, C. T. The following spring, Long petitioned to modify child custody to obtain primary physical custody of C. T., alleging that there had been material changes in the conditions and circumstances that warranted this modification. Truex filed a separate modification petition, seeking to obtain sole legal custody of C. T. and to change Long's visitation. The trial court consolidated the proceedings. The trial court temporarily awarded sole custody of C. T. to Truex during the pendency of the proceedings.

         After an evidentiary hearing, the trial court awarded Truex sole legal and physical custody of then-12-year-old C. T. and held that Long's visitation must be supervised. Long appeals from this ruling and from the trial court's denial of her motion for new trial, arguing that the evidence did not support the modification.

         (a) Appellate jurisdiction.

         As an initial matter, we consider our jurisdiction over the appeal in Case No. A19A0038. See generally Ford v. Ford, 347 Ga.App. 233 (818 S.E.2d 690) (2018) (appellate court has duty to inquire into its jurisdiction to review errors enumerated on appeal). "A notice of appeal shall be filed within 30 days of the entry of the appealable decision or judgment complained of; but when a motion for new trial . . . has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion." OCGA § 5-6-38 (a).

         After the trial court entered the order modifying custody, Long filed a timely motion for new trial. She subsequently filed a notice to dismiss that motion. But "OCGA § 5-6-38 requires a trial court order granting, denying, or otherwise finally disposing of a party's motion for new trial[.] A party's voluntary withdrawal of its motion for new trial, standing alone, is not the statutorily-required court order finally disposing of the motion for new trial." Heard v. State, 274 Ga. 196, 197 (1) (552 S.E.2d 818) (2001) (citations omitted; emphasis in original). The record in this case does not contain a trial court order connected with Long's notice to dismiss her timely motion for new trial. So, under the rule articulated in Heard, the that motion remained pending. The trial court finally disposed of the motion later, when he entered an order that denied Long a new trial. At that point, Long had 30 days in which to file her notice of appeal under OCGA § 5-6-38 (a), and she filed her notice of appeal within the 30-day period. We therefore have jurisdiction to review the order modifying custody.

         (b) Sufficiency of evidence supporting custody modification.

         A decision on child custody includes visitation rights. See OCGA § 19-9-22 (1); Vines v. Vines, 292 Ga. 550, 551 (2) (739 S.E.2d 374) (2013). When ruling on a petition for modification of child custody, the trial court

is charged with exercising its discretion to determine what is in the child's best interest. A trial court's decision regarding a change in custody/visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion. Where there is any evidence to support the trial ...

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