THIRD DIVISION
ELLINGTON, P. J.,
BETHEL and GOBEIL, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 20, 2018
In the Court of Appeals of Georgia
A18A0914. WILDES v. CLARK.
ELLINGTON, Presiding Judge.
On August 17, 2017, the Superior Court of Floyd County granted Melissa
Clark’s petition for a family violence twelve-month protective order against her
husband, Andrew Wildes. We granted Wildes’s application for a discretionary appeal
from the protective order. Wildes contends, inter alia, that the trial court abused its
discretion in conducting a hearing on Clark’s motion when he was without the benefit
of his retained counsel.1 For the reasons explained below, we find that the trial court
1
Wildes also asserts that the trial court erred in discounting his attorney’s
conflict notice, in denying a requested continuance, in interfering in his cross-
examination of Clark, in discouraging him from testifying and otherwise preventing
him from presenting evidence, and in granting Clark’s petition for a twelve-month
protective order.
abused its discretion, and, therefore, we reverse.2
The record shows that Clark filed her petition on August 7, 2017. The trial
court entered an ex parte protective order that day, scheduled the hearing on Clark’s
petition for 9:00 a.m. on August 17, 2017, and ordered that the ex parte order be
served on Wildes. Wildes retained counsel, but his counsel had a conflict on the
scheduled hearing date. Therefore, on August 16, the day before the hearing, the
parties submitted a joint request that the hearing be continued to August 31, a date
Wildes asserts was provided by the judge’s office.3 The August 31 date was also
2
The grant or denial of a motion for a protective order
generally lies within the sound discretion of the trial court.
We therefore will not reverse absent an abuse of discretion.
The trial court is in the best position to make
determinations on these issues, and we will not overrule its
judgment if there is any reasonable evidence to support it.
(Citation and punctuation omitted.) Perlman v. Perlman, 318 Ga. App. 731, 733 (2)
(734 SE2d 560) (2012).
3
No document in the appellate record memorializes this communication
regarding scheduling. Pursuant to Court of Appeals Rule 25 (b) (1), however, we
accept Wildes’s assertion as being prima facie true. That Rule provides:
Part One [of appellee’s brief] shall point out any material inaccuracy or
incompleteness of appellant’s statement of facts and any additional
statement of facts deemed necessary, plus citations to additional parts of
the record or transcript deemed material. Failure to do so shall constitute
consent to a decision based on the appellant’s statement of facts. Except
2
within the 30-day period during which the court must conduct a hearing.4 The trial
court denied the consent request for a continuance on the afternoon of August 16.
Immediately before the hearing was scheduled to begin on August 17, Wildes filed
in the clerk’s office his attorney’s entry of appearance, a special appearance
challenging the sufficiency of service of process, and a conflict notice for the
scheduled hearing. He also provided service copies of these pleadings to Clark’s
attorney by hand delivery before the hearing.
The trial judge called the case at 10:04 a.m. on August 17. Clark and her
as controverted, appellant’s statement of facts may be accepted by this
Court as true.
Clark failed to file a responsive brief in this appeal, and we therefore accept Wildes’s
representation of the facts as being prima facie true. Daniel v. Allstate Ins. Co., 290
Ga. App. 898, 900 (1) (660 SE2d 765) (2008); Southern Gen. Ins. Co. v. Davis, 205
Ga. App. 274, 275-276 (421 SE2d 780) (1992).
4
The process for obtaining a family violence protective order is set forth in the
Family Violence Act, OCGA § 19-13-1 et seq. Once a proper petition has been filed,
the Act requires the trial court to hold a hearing within 30 days after the filing of the
petition, at which the petitioner must prove the allegations of the petition by a
preponderance of the evidence as in other civil cases. OCGA § 19-13-3 (c).
Although the 30-day deadline cannot be ignored, it can be extended under
certain circumstances. OCGA § 19-13-3 (c) (“If a hearing is not held within 30 days,
the petition shall stand dismissed unless the parties otherwise agree.”) (emphasis
supplied); Foster v. Gidewon, 280 Ga. 21, 22-23 (1) (622 SE2d 357) (2005).
3
attorney were present, as was Wildes. When the judge inquired about the location of
Wildes’s attorney, Clark’s attorney stated that he had heard from Wildes’s attorney
and he anticipated arriving at 11:30 a.m. He also showed the service copies to the
judge. The judge refused to “recognize” Wildes’s attorney’s entry of appearance and
conflict notice, stating that they were “too late” and that “apparently, [Wildes does
not] have a lawyer this morning,” so the court was “proceeding as if he had no
lawyer.” The judge directed Wildes to sit at counsel table.
Clark testified under oath. After five questions by Clark’s attorney about
Wildes’s abusive conduct, the judge stated, “That’s enough, I don’t need to hear any
more.” After directing Clark’s counsel to maintain his position at the lectern, saying,
“let’s block” Clark’s and Wildes’s views of each other, the judge directed Wildes to
tell her any questions he had for Clark, saying, “I’m not going to let you question her
directly.” As Wildes posed questions, the judge would “rephrase [the questions] in
a way that’s more appropriate.” The judge relayed one question, stated that it
“technically” called for hearsay “but I’m going to go ahead,” and allowed Clark to
answer. With regard to another question, the judge sua sponte raised (and sustained)
an “asked and answered” objection and demanded the next question. After Wildes
posed one question, the judge declined to put it to Clark, saying, “she can explain
4
that, but I already know the answer,” declaring the question both asked-and-answered
and irrelevant, and added, “I think we’ve put her through enough, actually.” The
judge rejected or interrupted many of Wildes’s remaining questions as irrelevant or
argumentative and finally cut off the examination, saying, “I don’t need to hear any
more testimony,” and told Clark to step down.
The judge then advised Wildes that he was not required to testify, because
Clark’s testimony could provide the basis for criminal charges. Wildes made “a
continuous objection to being subjected to [the] proceeding [that day] without [his]
representation.” The judge questioned why Wildes would even contest Clark’s
petition, given that he had relocated to Florida and that, in her opinion, a protective
order was of such little legal significance that “later on down the road” no one would
care that the order had been entered against him. The judge mused, “maybe it’s just
in your personality that you need to contest this.” Wildes explained his reasons for
objecting to the petition.5 The judge commented that the only purpose of some of
5
One of Wildes’s concerns was that the entry of the order would exist on the
record and could be discovered by potential employers. The judge responded that
family violence proceedings are civil in nature and are not placed on the Georgia
Crime Information Center report that is available to employers. Under the Family
Violence Act, the Georgia Crime Information Center maintains the Georgia
Protective Order Registry. OCGA § 19-13-52. Every family violence protective order
must be transmitted to the Registry, without exception. Birchby v. Carboy, 311 Ga.
5
Wildes’s questions seemed to be to “distress” Clark, adding “I’m not going to put up
with it. I’m just going to enter the order.” The judge then granted Clark’s petition and
ordered Wildes to have no form of contact with Clark.
The record shows that the trial court refused to honor Wildes’s attorney’s
conflict letter and request to continue the hearing for just two weeks, even though
Clark had consented to the delay and even though the requested hearing date would
have been within 30 days after Clark filed her petition, as required. The record also
shows that the trial court refused to wait 90 minutes so that Wildes could be
represented by counsel, forcing him to proceed pro se. The court exacerbated this
situation by actively interfering with Wildes’s attempt to represent himself,
apparently out of sympathy for Clark’s emotional distress during the hearing. In
addition, the record shows that Wildes had left the family home before Clark filed her
App. 538, 544 (6) (716 SE2d 592) (2011). “Access to the registry is intended to aid
law enforcement officers, prosecuting attorneys, and the courts in the enforcement of
protective orders and the protection to victims.” OCGA § 19-13-52 (a). “Any
individual, agency, or court which obtains information from the registry shall keep
such information or parts thereof confidential, and shall not disseminate or disclose
such information, or parts thereof, except as authorized in this article or otherwise by
law. Violation of this Code section shall be a misdemeanor.” OCGA § 19-13-55.
6
petition and had stayed away from her.6 Based on all of the foregoing and our review
of the record, we conclude that there was no evidence that would support a
conclusion that Clark’s substantive rights would have been prejudiced by the short
delay requested or that other extenuating circumstances required proceeding without
any delay. Given these facts, the trial court abused its discretion in conducting a
hearing on Clark’s petition without affording Wildes a meaningful opportunity to be
heard and to present a defense. Foster v. Gidewon, 280 Ga. 21, 22-23 (1) (622 SE2d
357) (2005) (reversing a family violence protective order where the trial court failed
to honor the respondent’s attorney’s conflict letter and where there was “no evidence
that [the petitioner’s] substantive rights would have been prejudiced by a short delay,
that [the petitioner] would have been placed in any danger because of a delay, or that
any other extenuating circumstances existed”); Williams v. Jones, 291 Ga. App. 395,
398 (662 SE2d 195) (2008) (reversing a protective order to the extent it imposed
conditions on the party seeking protection, where nothing put the petitioner on notice
that a mutual protective order might be issued and she had no opportunity to prepare
6
Clark testified that Wildes left the family home about two weeks before the
August 17 hearing and had not returned. As far as the record shows, their last contact
before the hearing was a Skype conversation not long before Clark filed her petition,
during which they discussed getting Wildes’s sons to school the following Monday
morning.
7
a defense before appearing at the hearing on her petition).7
Judgment reversed. Bethel and Gobeil, JJ., concur.
7
See Cobb County Sch. Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126)
(1999) (“The principles of due process extend to every proceeding judicial or
administrative or executive in its nature at which a party may be deprived of life,
liberty, or property.” Generally, due process is satisfied if a party has reasonable
notice and an opportunity to be heard, and to present its claim or defense. What
particular process is due in a proceeding depends on the nature of the proceeding and
the character of the rights which may be affected by it. ) (citations and punctuation
omitted); Williams v. Jones, 291 Ga. App. at 398 (The respondent to a petition for a
family violence protective order is entitled to notice and an opportunity to prepare a
defense and to be heard.).
8