Fifadara v. Goyal

• Decision Date: 25 October 2012
• Docket Number: No. A12A1046.,A12A1046.
• Citation: 318 Ga.App. 196,733 S.E.2d 478
• Parties: FIFADARA v. GOYAL.
• Court: Georgia Court of Appeals

318 Ga.App. 196

733 S.E.2d 478

FIFADARA

v.GOYAL.

No. A12A1046.

Court of Appeals of Georgia.

Oct. 25, 2012.

Gerald Ashland Griggs, Regina Jeanette Matthews, for Fifadara.

Douglas Nathan Fox, Lawrenceville, for Goyal.

ADAMS, Judge.

Nimita Fifadara appeals the superior court's order denying reconsideration of, or the grant of a new trial on, its order changing custody of her and Ashok Goyal's only child, A.G., to Goyal, her ex-husband. She contends the court erred by allowing Goyal to present irrelevant evidence at the custody hearing, by modifying custody without reasonable evidence, and by limiting her presentation at the hearing on her motion for new trial.

In reviewing a denial of a motion for new trial on the general grounds, as here, an appellate court can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported. Cook v. Huff, 274 Ga. 186(1), 552 S.E.2d 83 (2001).

“A trial court is authorized to modify an original custody award upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child.” (Citations and punctuation omitted.) Todd v. Casciano, 256 Ga.App. 631, 632(1), 569 S.E.2d 566 (2002). Any change in custody is subject to the trial court's discretion based on the best interests of the child. Bodne v. Bodne, 277 Ga. 445, 446, 588 S.E.2d 728 (2003). We view the evidence in favor of upholding the trial court's order and will affirm if there is any reasonable evidence to support the decision. Lifsey v. Lifsey, 256 Ga. 613, 351 S.E.2d 637 (1987); Mitcham v. Spry, 300 Ga.App. 386, 685 S.E.2d 374 (2009).

So viewed, the evidence was that Fifadara and Goyal were divorced in February 2009, and the terms of the divorce agreement included joint legal and physical custody of their child, born November 8, 2005, with the parties continuing to reside together for the purpose of co-parenting. Within a few months, however, Fifadara had moved out and, on April 7, 2009, she filed a motion to modify custody in the Superior Court of Gwinnett County, the child's county of residence. On April 21, 2009, Fifadara filed a request to dismiss her petition. Despite this dismissal, however, both Fifadara and Goyal appeared before the judge who, following a 30–minute hearing on June 5, 2009, entered an order modifying child support and visitation and naming Fifadara as the primary physical custodian under the terms of a new parenting plan and custody arrangement.

Barely one month later, Goyal filed his own motion to change custody and to modify his support obligations in DeKalb County where Fifadara had moved with the child; he also sought contempt on various grounds and raised other claims. With regard to custody, Goyal alleged that a change of material circumstances occurred after the June hearing in three ways: Fifadara had proven incapable of honoring his court-ordered rights and had engaged in ploys to cut off his contact with A.G.; she had physically and psychologically abused A.G., causing DFACS to become involved; and she had stated an intent to re-locate with A.G. to another state. He argued that her behavior affected A.G. because each event was an attempt to impede his bond with the child. Seventeen months later, following a two-day hearing held on September 24 and December 10, 2010, the court entered its order placing legal and physical custody of A.G. with Goyal. The court held that after the June 5, 2009 order, Fifadara repeatedly interfered with Goyal's visitation and prevented him from exercising his court-ordered parenting time. The court denied Goyal's assertions of contempt of court.

The evidence presented during the September and December hearings was that, following the entry of the June 5th order, Goyal and Fifadara, with a couple of her friends, met at a TGIF restaurant on June 11, 2009, to discuss various matters, including Fifadara's desire to move out of state with A.G., to which Goyal objected. Following this meeting, during which Fifadara consumed wine, she got in the car with Goyal and they spent the night at her apartment. Fifadara said she woke up the next morning in bed with Goyal and determined she had been raped. On June 16, 2009, Fifadara filed a Petition for a Protective Order in Gwinnett County, alleging that she had been raped and requesting permission to move out of state with A.G. Fifadara obtained a Temporary Protective Order pending a hearing. Following that hearing on June 25, 2009, the trial court dismissed the petition, finding that “[p]laintiff got drunk with her ex-husband blacked out—I woke up naked the next day with him.”

Because of the filing of this petition, Goyal was denied his visitation for Father's Day, 2009, and did not see A.G. for nine days. Fifadara also filed a report with the police seven days after the TGIF meeting, resulting in Goyal's being interviewed by a constable who determined no charges were warranted. A warrant was issued for Fifadara for a false report of a crime.

Although the parenting plan provided that visitation was to be determined by the Gwinnett County school calendar, Goyal was deprived of his December 25, 2009, through January 3, 2010, Christmas holiday visitation with A.G. because Fifadara had enrolled A.G. in a day care program which, unlike the Gwinnett County schools, did not close over the holidays.

On two occasions following entry of the June 2009 order, Fifadara came to Goyal's home during his visitation with A.G. and insisted that, pursuant to her reading of the parenting plan, she was entitled to take A.G. with her. On both occasions, Gwinnett officers were called and, after reading the parenting plan, they asked Fifadara to leave. Goyal was not consulted regarding A.G.'s schooling, nor was he provided copies of school records regarding his son's progress or his medical records. On the school record listing those authorized to pick up A.G., Goyal was listed fourth, following Fifadara and two of her friends. Even though A.G. had been raised Hindu prior to the divorce, Goyal was not consulted by Fifadara when she began taking A.G. to a Christian church.

During the two years prior to the 2010 hearings, Fifadara would not answer Goyal's phone calls seeking to speak with A.G. when she had custody of him. Even when he made contact with A.G., Fifadara limited the calls to two minutes.

On March 17, 2011, the trial court entered its order modifying custody, nunc pro tunc to December 10, 2010, awarding sole legal and physical custody of A.G. to Goyal.

On April 14, 2011, with a new attorney, Fifadara filed her Motion to Reconsider Final Modification Order and Motion for New Trial. Following a hearing on July 29, 2011, the motion was denied.

1. In her first enumeration, Fifadara contends that the trial court erred “in refusing to hear all relevant evidence at the Motion for New Trial hearing,” evidence which she argued was newly discovered.

In order to obtain a new trial on the ground of newly discovered evidence, Fifadara had to show that (1) the evidence came to her knowledge since trial; (2) its failure to come to light sooner was not the result of a lack of diligence on her part; (3) it was so material as to make a different verdict likely; (4) it is not merely cumulative; (5) the affidavit of the witness herself should be procured or its absence accounted for; and (6) it served some other purpose than mere impeachment. Flowers v. Union Carbide Corp., 271 Ga.App. 438, 443(3)(b), 610 S.E.2d 109 (2005); see OCGA § 5–5–23.

“The grant or denial of a new trial on the ground of newly discovered evidence is not favored and is addressed to the trial court's sound discretion.” (Footnote omitted.) Gill v. Spivey, 264 Ga.App. 723, 724(1), 592 S.E.2d 132 (2003). Accordingly, “[a] trial court's denial of a motion for new trial on the ground of new evidence will not be reversed absent an abuse of discretion.” (Citation omitted.) Flowers v. Union Carbide Corp., 271 Ga.App. at 443(3)(b), 610 S.E.2d 109. See also Medical Staffing Network v. Connors, 313 Ga.App. 645, 647(1), 722 S.E.2d 370 (2012).

No affidavits of any witnesses purporting to have newly discovered evidence were included with the motion for new trial filed by Fifadara. Nonetheless, at the hearing on the motion, the trial court allowed Fifadara's witness, Usha Bansal, to testify. She testified that she had first communicated with Goyal through an Indian matrimonial website in the early summer of 2010. She met him in person on July 9, 2010, and they...