Johnson v. Ware, s. A11A1559

• Decision Date: 30 January 2012
• Docket Number: Nos. A11A1559,A11A1560.,s. A11A1559
• Citation: 723 S.E.2d 18,313 Ga.App. 774,12 FCDR 399
• Parties: JOHNSON v. WARE.Johnson v. Ware.
• Court: Georgia Court of Appeals

12 FCDR 399

313 Ga.App. 774

723 S.E.2d 18

JOHNSON

v.WARE.Johnson

v.Ware.

Nos. A11A1559

A11A1560.

Court of Appeals of Georgia.

Jan. 30, 2012.

Jacquelyn F. Luther, for appellant.

William F. Todd, Jr., for appellee.

ADAMS, Judge.

This appeal arises out of a dispute between divorced parents over the particulars of custody and visitation relating to their child. The father appeals from trial court orders that, among other things, purported to modify the father's custody rights even though the mother, in her pleadings, sought changes only to the father's visitation schedule. We have consolidated two cases for the purpose of appeal.

The record shows the following basic facts. On February 10, 2004, Amanda L. Ware and Kenneth A. Johnson had a child, but by December 6, 2006, they were divorced. Neither the divorce decree nor the settlement agreement is in the record. In August 2009, Ware filed a complaint (the “Ware Action”) in which she alleged that there had been a change in circumstances materially affecting the welfare of the child, and she requested that visitation be modified to include a parenting plan “that is specific and not open to debate regarding the parties' custodial time.” Johnson answered and counterclaimed, seeking, among other things, to have primary physical custody placed with him. In October, Ware amended her complaint to seek a change or clarification of custody, as well; she requested that the court “declare or clarify her as the Primary Physical Custodian” of the child. But both parties then withdrew their claims for modification of custody from the Ware Action. Johnson reasserted his request for a change of custody in a separate action (the “Johnson Action”). In her answer in that action, Ware alleged that “it is in the best interests of the child for her to have primary physical custody but to change the current visitation schedule to provide that the child is with her during the school week.” In a prayer for relief, she requested that “she be awarded such other and further relief as the Court deems appropriate.”

By agreement of the parties, the two matters were tried together. See OCGA § 9–11–42(a). The trial took place on January 12, 2010 and February 8, 2010, but Johnson elected not to request a takedown, and there is no transcript in the record.

Following the trial, the court issued one final order in each case, as well as a “Parenting Plan & Child Visitation” order that pertained to both cases (the “Parenting Plan”). In the Ware Action, among other things, the court ordered “that [Ware] shall be the Primary Physical Custodian of the parties' minor child, with both parties having Joint Legal Custody.” In the Parenting Plan, the court ordered that Johnson “shall be entitled to reasonable and liberal rights of visitation with the minor child, ... so long as same does not interfere with the health, welfare and education of the minor child at any time(s) the parties can agree upon.” The court then laid out specific rules of visitation for Johnson in the event “the parties are unable to agree on reasonable visitation.” The court incorporated the Parenting Plan into the Ware final order and added “All provisions of the Final [Divorce] Judgment and Decree and Settlement Agreement not inconsistent with said Parenting Plan Order shall remain in full force and effect.” Finally, in the final order in the Johnson Action, the court denied Johnson's motions for a change of custody and for contempt against Ware.

Johnson then changed attorneys and, in both cases, filed three motions: a motion for new trial, reconsideration, or judgment notwithstanding the verdict; a motion for findings of fact and conclusions of law; and a motion for the court to prepare a narrative transcript of the trial. On February 4, 2011, following a hearing that was transcribed, the court issued identical orders in both cases in which it denied Johnson's request for a narrative transcript, denied Johnson's request for relief from the prior orders, and entered findings of fact and conclusions of law. On March 1, Johnson filed notices of appeal in both cases.

1. In both cases, Johnson first contends the trial court erred by modifying his custodial rights. He argues that the court's final order in the Ware Action, including the Parenting Plan, improperly modified the rights he was given in the parties' divorce decree and settlement agreement. But those documents are not in the record, and therefore Johnson cannot show error by the record. He also argues that there were no pleadings or motions pending in the Ware Action that would allow modification of his custodial rights. But for all we know, that issue was tried by express or implied consent of the parties: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings....” OCGA § 9–11–15(b). The Ware and Johnson Actions were tried together pursuant to agreement of the parties; but without a transcript, we have no information about how this issue was treated at trial. ¹ In addition, Johnson did not raise this issue at the hearing on the motion for new trial, despite the fact that his trial counsel was present and available to testify, and therefore the issue was not developed factually for our review. In sum, Johnson has not shown reversible error. “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. [Cit.]” (Citation and punctuation omitted) Roberts v. Windsor Credit Svcs., 301 Ga.App. 393, 396(2), 687 S.E.2d 647 (2009).

2. Johnson asserts in both cases that the court erred by refusing to hear all the evidence he offered, both at trial, and at the hearing on the motion for new trial. But again, without the trial transcript, Johnson cannot rightly prove his assertion, nor can he show that he raised a timely objection.

Furthermore, at the hearing on the motion for new trial, the court stated that it did not exclude any testimony: “that was an incorrect statement. I provided them the opportunity [to present character witnesses] and they chose not to because they recognized as officers of the Court and as trial lawyers [,] a trial strategy would be, don't overload this case with just stuff.” The court explained that it gave each party the opportunity to offer something other than testimony...