In the Supreme Court of Georgia
Decided: May 23, 2016
S16F0279. DAVENPORT v. DAVENPORT.
NAHMIAS, Justice.
Dustin Davenport (Husband) and Keisha Davenport (Wife) were divorced
by final decree in the Union County Superior Court. Husband appeared pro se
in the divorce proceeding. Wife, who had counsel, paid for a court reporter to
record the bench trial on May 5, 2014; Husband did not participate in paying for
the takedown. After the trial, Husband hired a lawyer, who filed a motion for
new trial and a motion to compel production of the trial transcript (which
Husband was now willing to pay for), asserting that the trial court failed to make
a ruling at the start of the trial that Husband expressly refused to share the
takedown expense. In response, Wife claimed that Husband had expressly
refused to participate in the takedown after being given an opportunity to do so.
At the hearing on the motion to compel in August 2014, no transcript of
the trial or of the discussion of the takedown was presented. Wife’s counsel said
that he believed, but could not recall with certainty, that the trial court asked
Husband whether he wanted to participate in the takedown and Husband
“voluntarily decided and indicated that he would not participate in the
takedown.” Wife’s counsel said that he did not know if the trial court made a
ruling on that issue. The trial court said:
It is this Court’s policy any time I have a pro se defendant,
especially in civil cases, number one, I specifically inquire as to
takedown. I can’t think of a case I haven’t done that. . . . Both
counsels sitting in the courtroom today have seen me do that many,
many times, both of you having handled cases against pro se
defendants in the past. That is my policy. I do it as protection of all
parties and in furtherance of due process of law. . . . The Court
goes on its recollection, as have counsel in this case, as to the pro
se warnings I give to all defendants in the case . . . . I’m going to
deny the motion at this time.
The court said nothing, however, about whether it ruled on the takedown issue
at the beginning of the trial. On August 22, 2014, the court entered an order
summarily denying Husband’s motion to compel. Husband filed a notice of
appeal directed to the Court of Appeals, which dismissed the appeal on January
14, 2015, due to Husband’s failure to comply with the interlocutory appeal
procedures.1
1
The Court of Appeals initially transferred the case to this Court, but we returned it because
the takedown issue on interlocutory appeal did not involve divorce or alimony. See Case No.
2
On May 4, 2015, the trial court held a hearing on Husband’s motion for
new trial, and on May 22, the court denied that motion. Husband filed a timely
application for discretionary appeal in this Court, which we granted under our
Rule 34 (4), indicating that we were particularly concerned with the following
question:
Did the trial court err in denying Husband’s motion to compel
production of the trial transcript in the absence of a finding that the
court made a ruling at the start of the trial that Husband refused to
participate in paying takedown costs?
Husband then filed a timely notice of appeal.
In Kent v. Kent, 289 Ga. 821 (716 SE2d 212) (2011), this Court reiterated
the long-standing, bright-line procedural rule that a party’s right to a transcript
of a civil proceeding is not waived “unless the [trial] court makes a ruling ‘at the
commencement of the hearing’ that the party ‘expressly refused,’ by ‘“direct and
appropriate language,”’ to share in the costs of the takedown.” Id. at 824
(quoting Giddings v. Starks, 240 Ga. 496, 496-497 (241 SE2d 208) (1978)).
See also id. at 826 & n.1 (overruling several Court of Appeals cases to the extent
that they affirmed the denial of a motion for a transcript where the appellant had
S15A0337 (Dec. 2, 2014).
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expressly refused to participate in the takedown, but there was no ruling by the
trial court to that effect at the beginning of the proceeding); Beringer v. Emory,
326 Ga. App. 260, 262-263 (756 SE2d 329) (2014) (relying on Kent to reverse
the denial of the mother’s motion to compel the transcript of a contempt hearing,
where the record showed that she expressly refused to participate in the
takedown, but did not show that the trial court made a ruling on the issue at the
start of the hearing). The burden is on the party seeking to benefit from the rule
to show that its requirements were met. See Kent, 289 Ga. at 823. Because the
trial court’s error in denying the husband’s motion for a transcript prevented him
from citing the transcript to support his challenges to the divorce decree, this
Court remanded the case “to allow entry of an appropriate order granting
Husband a transcript, after which he may seek review of the decree.” Id. at 826.
In this case, the record on appeal would support a finding that Husband
refused to participate in the reporting of the divorce trial. But the record does
not include or support a finding that the trial court ruled on the takedown costs
issue at the start of the trial. Thus, Wife failed to show that Husband was not
entitled to a transcript, and the trial court’s order denying Husband’s motion to
compel production of the trial transcript must be reversed. See Kent, 289 Ga.
4
at 824-825; Beringer, 326 Ga. App. at 262-263. Moreover, as a result of the
trial court’s erroneous denial of Husband’s motion to compel, he was unable to
cite the trial transcript in raising challenges to the divorce decree in his motion
for new trial. We therefore vacate the trial court’s denial of Husband’s motion
for new trial and remand the case with direction to enter an appropriate order
granting Husband a transcript at his expense, after which he may seek review of
the divorce decree by amending his new trial motion to reflect the contents of
the trial transcript. See Kent, 289 Ga. at 826.
Judgment reversed in part and vacated in part, and case remanded with
direction. All the Justices concur.
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