Wallace v. Laughlin, A95A0377

• Decision Date: 17 May 1995
• Docket Number: No. A95A0377,A95A0377
• Citation: 217 Ga.App. 444,459 S.E.2d 556
• Parties: WALLACE v. LAUGHLIN.
• Court: Georgia Court of Appeals

Page 556

459 S.E.2d 556

217 Ga.App. 444

WALLACE v. LAUGHLIN.

No. A95A0377.

Court of Appeals of Georgia.

May 17, 1995.

Larry L. Duttweiler, Lawrenceville, for appellant.

Stephen L. Noel, Monroe, for appellee.

BIRDSONG, Presiding Judge.

On February 1, 1994, the juvenile court dismissed this petition for modification of child custody for failure to prosecute and awarded attorney fees and costs to defendant Donna Laughlin f/k/a Donna Wallace. The trial court denied appellant's motion to set aside and motion to reconsider. We then granted appellant's application for discretionary appeal.

The record is not chronologically compiled according to acceptable form. In the circumstances of this case, however, we have elected to review it. The record shows this case was actively prosecuted by appellant Paul Wallace. He filed his petition on April 28, 1993, alleging, as material changes in circumstances, refusals of visitation rights by Laughlin, a pattern of harassment of him at his workplace wherein Laughlin would leave "irrational, vile, and often times obscene messages about [Wallace] and his wife at the business where they both work, including threats to kill [Wallace's] wife." Laughlin filed an answer and counterclaim and amended her counterclaim on November 9, 1993. The parties embarked on discovery, and the attorneys conducted correspondence to resolve the parties' ongoing personal disputes, including Laughlin's repeated calls to Wallace's employer's "800" telephone number which provoked the employer and appellant to seek a restraining order against Laughlin, her alleged threats to commit suicide, and her denials of visitation.

On November 9, 1993, Judge Hearn, sitting as the trial court, set the case for trial on February 1, 1994. On November 11, 1993, appellant Paul Wallace's attorney filed a motion to require the parties to submit to psychological evaluations. On November 15, 1993, Judge Hearn signed an order requiring a certain psychologist to submit a comprehensive report of his findings and recommendations to the court. It appeared the psychological evaluations could not be scheduled by the psychologist until after the scheduled date for trial. On December 3, 1993, Wallace's attorney corresponded with Laughlin's attorney about this conflict. On January 12, 1994, Wallace's attorney inquired of the court whether a continuance had been granted. The trial court's clerk responded on January 21, 1994, that no motion for continuance had been filed with the court but the court would entertain such motion, "especially if these appointments need to be completed before the hearing. The hearing is on the court's calendar for Tuesday, February 1, 1994." On January 28, 1994, Laughlin's attorney filed a motion to modify the order requiring psychological examinations, asserting the right to cross-examine or depose the psychologist at the hearing. On January 28, 1994 Laughlin's attorney filed a request for production of documents. On February 1, 1994, Judge Costley, sitting for Judge Hearn, called the calendar and dismissed appellant's petition because neither he nor his attorney was present.

In his motion to set aside, Wallace showed that at the pretrial conference held by Judge Hearn in November 1993 and at the time he ordered psychological evaluations, Judge Hearn acknowledged that scheduling of the evaluations might require the case to be heard...