Baca v. Baca
| Decision Date | 25 June 2002 |
| Docket Number | No. A02A0119.,A02A0119. |
| Citation | 256 Ga. App. 514,568 S.E.2d 746 |
| Parties | BACA v. BACA. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Paul S. Weiner, Jonesboro, for appellant.
Renata D. Turner, for appellee.
Rossana Baca filed a petition seeking relief from family violence, alleging that her husband, Jesus Baca, was abusive. Following a hearing, the trial court found in favor of Mrs. Baca and entered a six-month temporary protective order pursuant to the Georgia Family Violence Act.1 In eight enumerations of error, Mr. Baca challenges the protective order. For reasons that follow, we affirm.
In her petition, Mrs. Baca alleged that Mr. Baca has a history of physical and verbal abuse. Specifically, she averred that her husband had accused her of stealing money, threatened her, and kicked her in the leg. Mr. Baca responded, denying the allegations of abuse and accusing his wife of misconduct, including, among other things, alcoholism, drug abuse, theft, perjury, and violence.
During the hearing on the petition, the parties presented evidence supporting their various allegations. Mrs. Baca testified that, on June 16, 2001, her husband accused her of stealing $1,000 from his briefcase. When she denied the charge, he kicked her in the leg, causing a bruise, and threatened to kill her. Mrs. Baca tendered a picture of the bruise in evidence. Mrs. Baca also claimed that her husband had been an alcoholic and had used cocaine in the past.
Mr. Baca took the stand and denied the allegations. According to Mr. Baca, his wife was the one with a drug and alcohol problem. Mr. Baca testified that, on one occasion, his wife had pointed a shotgun at him and their two children. Mr. Baca also stated that his wife had a history of stealing and had recently converted one of his credit cards to her own use.
Following the hearing, the trial court found in favor of Mrs. Baca and entered a six-month protective order. In its order, the trial court (1) prohibited the husband from contacting his wife; (2) awarded the wife temporary custody of the couple's two children; (3) ordered the husband to pay temporary child support; (4) awarded the wife exclusive possession of the family residence; and (5) designated those items the husband was permitted to take from the house.
On appeal, Mr. Baca contends that the trial court erred in several evidentiary rulings. Specifically, Mr. Baca asserts that the trial court erred in finding that: (1) evidence of Mrs. Baca's violence was irrelevant; (2) evidence of Mrs. Baca's drug use was irrelevant; and (3) evidence that Mrs. Baca had previously made false allegations against her husband was irrelevant. Mr. Baca also argues that the trial court erred in failing to consider him as a candidate for an award of temporary custody. In a related enumeration of error, Mr. Baca asserts that the trial court erred in failing to inquire into its own jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA) prior to entering a custody award. In two enumerations of error, Mr. Baca maintains that the trial court improperly rendered judgment based upon an ex parte submission. Finally, Mr. Baca contends that the trial court erred in awarding excessive child support.
1. As a threshold matter, we must address our jurisdiction to entertain this appeal. The trial court entered the six month protective order on June 27, 2001, and it expired on December 27, 2001. Thus, the issues raised arguably are moot, and "mootness is a mandatory ground for dismissal."2 However, if "an issue ... is capable of repetition yet evades review," we do not view that issue as moot.3 This is true for "those matters in which there is `intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers.'"4 This case involves a six-month protective order, which is the maximum length of time such order may remain in effect.5 Given the time constraints of appellate courts, it often is not feasible to reach the merits of this type of appeal during the six-month window.6 Accordingly, we must address whether the various issues are common to an existing class, yet tend to evade review.
As an initial matter, we find that the evidentiary issues are moot. In the three enumerations involving evidentiary complaints, Mr. Baca contends that the trial court erred in concluding that certain evidence was irrelevant. These evidentiary rulings were germane only to the temporary order, which has expired. There is no reason to suppose another court would rule the same way in a subsequent proceeding.7 Thus, the evidentiary issues are not capable of repetition, and the expiration of the protective order renders them moot.8
Similarly, we find the enumerations of error relating to an alleged ex parte submission moot. At the crux of Mr. Baca's argument is his contention that his attorney and opposing counsel were supposed to confer over which personal items Mr. Baca would be permitted to retrieve from the family house. Mr. Baca contends that opposing counsel submitted an incomplete list of personalty to the trial judge without first obtaining the signature or permission of his attorney. In a related enumeration of error, Mr. Baca contends the trial court erred in failing to correct this discrepancy. Again, the order has expired and no longer governs Mr. Baca's entitlement to property. Thus, this issue is moot.9
Nonetheless, we find the remaining issues are not moot given that they involve issues that both affect an existing class of sufferers and tend to evade review.10
2. Mr. Baca contends that the trial court erred in failing to consider him as a candidate for an award of temporary custody. Mr. Baca cites OCGA § 19-9-3(a)(3)(A) for the proposition that, in resolving custody issues, a child's safety and well-being are the primary concerns. Implicit in Mr. Baca's argument is the assertion that the trial court did not address the children's best interests.
We are unaware of any case specifically addressing the standard for an award of temporary custody in connection with a protective order. Accordingly, we take the opportunity to clarify this issue on appeal. We agree with Mr. Baca that any award of temporary custody should be predicated on the best interest of the child.11 Nonetheless, we find no basis for reversal.
At the crux of Mr. Baca's complaint is the fact that the trial court neglected to include findings of fact regarding the children's best interests in its award. According to Mr. Baca, the absence of such findings shows the trial court did not consider the issue. We disagree.
During the hearing, Mr. Baca expressly stated his desire to retain custody of his children while the protective order was in effect. The trial court, nonetheless, awarded temporary custody to Mrs. Baca. Implicit in the trial court's ruling is a finding that such award would be in the best interests of the children. In making such ruling, the trial court retains broad discretion, and we will not interfere with its discretion absent abuse.12 We find no abuse here.
It is readily apparent upon reviewing the briefs of the parties and the transcript from the hearing that the Bacas have had a tumultuous relationship. Both Mr. and Mrs. Baca accused the other of egregious conduct, and the trial court was responsible for choosing which party to believe. Here, the trial court clearly was swayed by the photograph of Mrs. Baca's leg, which showed the bruise. Given this evidence of physical violence against Mrs. Baca, the trial court ruled in her favor.
It is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. 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.13
The trial court clearly found Mrs. Baca to be the more credible witness, and we will not gainsay that finding on appeal. Given the evidence—albeit conflicting—that Mr. Baca was abusive toward his wife, we cannot say that the trial court erred in concluding that it was in the best interests of the children to remain with Mrs. Baca.14
The fact that the trial court did not include specific findings of fact in its order regarding the best interests of the children does not alter this result. Mrs. Baca filed a motion seeking temporary custody. Thus, the trial court was not required to include findings of fact or conclusions of law in its order.15 Although the better practice may be to include such findings, we will not simply presume the trial court misapprehended the law unless the record clearly reflects such misapprehension.16
3. Mr. Baca also asserts that the trial court erred in concluding that an "abated divorce proceeding ... in Fort Bend County, Texas, was irrelevant to the award of temporary custody." Specifically, he argues that the trial court erred in failing to inquire into its own jurisdiction under the UCCJA.17 As we have not had an opportunity to address the interplay between the UCCJA and the Family Violence Act, we take the opportunity to do so.
According to Mr. Baca, the trial court should have directed an inquiry under the UCCJA upon learning that there was an abated divorce proceeding in Fort Bend County, Texas. Again, we disagree.
Under the express language of the UCCJA, a court is required to...
To continue reading
Request your trial
-
Inserection v. City of Marietta
...is not feasible to reach the merits of an appeal where the maximum window of time for litigation is six months. Baca v. Baca, 256 Ga.App. 514, 515(1), 568 S.E.2d 746 (2002). See also Buchheit v. Stinson, 260 Ga.App. 450, 452(1), 579 S.E.2d 853 (2003). Although the majority cites a few cases......
-
Hall v. Nelson
...228 Ga. 610, 612(1), 187 S.E.2d 249 (1972); Brankovic v. Snyder, 259 Ga.App. 579, 583, 578 S.E.2d 203 (2003); Baca v. Baca, 256 Ga.App. 514, 518(2), 568 S.E.2d 746 (2002). 3. Appellant contends that the trial court erred in granting mandamus because an adequate remedy at law was available. ......
-
Hall v. Hall, A15A1032.
...information required by OCGA § 19–6–15(c)(2). However, this issue already has been decided adversely to Keith. In Baca v. Baca, 256 Ga.App. 514, 519(4), 568 S.E.2d 746 (2002), this Court specifically found that " [OCGA] § 19–6–15 applies only to final verdicts or decrees, and this case invo......
-
Little v. Booker
...raised arguably are moot, and mootness is a mandatory ground for dismissal." (Citation and punctuation omitted.) Baca v. Baca , 256 Ga. App. 514, 515 (1), 568 S.E.2d 746 (2002) ; see also OCGA § 5-6-48 (b) (3). But appeals are not moot where they involve "matters in which there is intrinsic......