Murray v. Hooks
313 Ga. App. 485
| Ga. Ct. App. | 2011Background
- Murray, pro se, appeals from a trial court order granting Hooks’s petition for legitimation and awarding him physical custody of their son.
- Hooks filed the petition for legitimation in Oct 2007; in Jan 2008 the court granted temporary custody to Hooks due to Murray’s incarceration.
- In Mar 2008 the court entered final order of legitimation and awarded Hooks physical custody; Murray failed to appear for a hearing.
- The court later vacated the final order but kept the temporary custody in effect and scheduled a status conference and bench trial for 2011.
- In Feb 2011 Murray filed an emergency motion; the bench trial on Hooks’s amended petition occurred on Feb 28, 2011, resulting in joint legal custody but Hooks obtaining physical custody.
- The appellate court affirmed, noting Murray appeared at the bench trial and that absence of a transcript requires assuming the hearing supported the court’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Murray’s due process rights were violated by notice or opportunity to be heard | Murray | Hooks | No reversible error; she had notice and opportunity to be heard and absence of transcript presumed supportive findings |
| Whether earlier 2008 hearings held in Murray’s absence violated due process | Murray | Hooks | No reversible error; any error cured by the February 2011 hearing |
| Effect of absence of a transcript from the bench trial | Murray | Hooks | Presumed findings supported by evidence; due process not shown without transcript |
| Whether failure to include a transcript requires reversal or harm cannot be shown | Murray | Hooks | Harm not shown; record supports upholding custody decision |
Key Cases Cited
- Nodvin v. State Bar of Ga., 273 Ga. 559, 560 (3) (544 SE2d 142) (2001) (Ga. 2001) (due process requires notice and opportunity to be heard, but not a fixed form)
- In the Interest of P. N., 291 Ga. App. 512, 514 (1) (662 SE2d 287) (2008) (Ga. App. 2008) (due process does not guarantee consideration of all arguments at a hearing)
- Baugh v. Robinson, 179 Ga. App. 571, 572 (346 SE2d 918) (1986) (Ga. App. 1986) (absence of transcript leads to assumption of adequate hearing)
- Chariot v. Goldwire, 310 Ga. App. 463, 464 (1) (713 SE2d 667) (2011) (Ga. App. 2011) (absence of custody hearing transcript; evidence supports court’s findings)
- Pryor Organization, Inc. v. Stewart, 274 Ga. 487, 491 (3) (554 SE2d 132) (2001) (Ga. 2001) (initial procedural violation can be cured by a subsequent remedy)
- In the Interest of B. B., 267 Ga. App. 360, 362 (2) (599 SE2d 304) (2004) (Ga. App. 2004) (harm-based reversal principle; lack of harm defeats reversal)