Simmons v. Wilson.
343 Ga. App. 857
| Ga. Ct. App. | 2017Background
- Simmons and Wilson divorced in 2010: joint legal custody originally, Wilson primary physical custodian; Simmons had scheduled visitation. Divorce referenced Simmons’ admitted methamphetamine abuse.
- Wilson obtained a family violence protective order in 2011 (extended to 2014/2015), which suspended Simmons’ visitation and required counseling and psychological evaluation; Wilson later sought modification alleging Simmons failed to comply and remained dangerous.
- Temporary hearing (Jan 23, 2015) produced testimony (including from Simmons’ ex‑girlfriend) and court-ordered a hair follicle drug test; Simmons agreed to testing and was later ordered to produce results to the court.
- At a June 4, 2015 hearing the court received a positive methamphetamine hair test (faxed to the court); Simmons objected and court recessed and ordered another test and the subpoenaable identity of the tester; subsequent July 20, 2015 hearing transcript was not in the record.
- Final order (Aug 12, 2015) awarded Wilson sole legal and physical custody, denied Simmons visitation, and permitted only non‑inperson communications; findings included positive drug test, noncompliance with protective order, obsessive/strange behavior, lack of meaningful bond, and inappropriate communications with children.
- Simmons moved for new trial (claimed multiple errors including reliance on temporary hearing evidence, GAL appointment/notice, hearsay admission of drug test, and insufficient change of circumstances); motion denied and Simmons appealed.
Issues
| Issue | Plaintiff's Argument (Simmons) | Defendant's Argument (Wilson) | Held |
|---|---|---|---|
| Whether the court improperly relied on evidence from the temporary hearing without express notice | Trial court relied on temporary‑hearing testimony (ex‑girlfriend, texts, noncompliance) without giving required express notice | Trial court argued it routinely relies on sworn, cross‑examined temporary testimony and omission of express notice was harmless because that evidence was a small, non‑determinative part of the record | Court affirmed: transcript gap requires assuming record supported findings; omission harmless where temporary evidence was minor and not outcome‑determinative |
| Whether appointment of a guardian ad litem without notifying parties violated rights | GAL was appointed but not notified or present; Simmons lacked opportunity to cross‑examine or confront GAL evidence | Wilson/record show Simmons never objected at hearings; failure to object waived the claim on appeal | Waived for failure to timely object; not a reversible error |
| Admissibility of the positive hair follicle drug test (hearsay) | Positive test was hearsay; test results were faxed to court, not presented through tester’s testimony | Trial court suspended hearing when objected, ordered new testing and that tester be named and subpoenaed; subsequent proceedings (not in record) likely addressed the issue | Affirmed: absence of transcript of later hearing means appellate court assumes evidence supported trial court’s determination |
| Whether there was insufficient evidence of a material change in circumstances to modify custody and deny visitation | No substantial change warranted altering custody/denying visitation from original decree | Trial court pointed to post‑decree methamphetamine use, noncompliance with protective order, obsessive behavior, poor bond, and inappropriate discipline/communications — all relevant to children’s best interests | Affirmed: some evidence supported findings; trial court did not abuse discretion in modifying custody and denying visitation |
Key Cases Cited
- Smith v. Pearce, 334 Ga. App. 84 (2015) (trial judge’s advantage in observing witnesses in custody decisions)
- Carr-MacArthur v. Carr, 296 Ga. 30 (2014) (best interest of the child controls custody modification)
- Roberts v. Kinsey, 308 Ga. App. 675 (2011) (appellate review limited where trial court awards custody to one fit parent)
- Marks v. Soles, 339 Ga. App. 380 (2016) (trial court generally must give express notice before relying on temporary‑hearing evidence at final custody hearing)
- Kennedy v. Kennedy, 309 Ga. App. 590 (2011) (when transcript is omitted, appellate court assumes evidence supported trial court)
- Taylor v. Taylor, 282 Ga. 113 (2007) (trial court has broad discretion in custody/visitation and may deny visitation in exceptional circumstances)
- Woodruff v. Woodruff, 272 Ga. 485 (2000) (trial court may impose visitation restrictions as circumstances warrant)