Nimita Fifadara v. Ashok Goyal

• Court: Court of Appeals of Georgia
• Decided: October 25, 2012
• Docket: A12A1046
• Status: Published

Opinion

SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, 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. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

October 25, 2012

In the Court of Appeals of Georgia A12A1046. FIFADARA v. 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 SE2d 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 SE2d 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 SE2d 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 SE2d 637) (1987); Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 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

2 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.

3 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.

4 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.

5 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 SE2d 109) (2005); see OCGA §

5-5-23.

6 “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 SE2d 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). See also Medical

Staffing Network v. Connors, 313 Ga. App. 645, 647 (1) (722 SE2d 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 were boyfriend/girlfriend until July 7, 2011. She visited Goyal in

November 2010 and observed him with A. G. According to Bansal, Goyal bought the

child a Lego set with which A. G. played for “10, 12, 15 hours at a time, not doing

anything else.” Also, Goyal kept A. G. up until 1:00 or 2:00 a.m. while Goyal talked

on the phone or internet to different women. Bansal acknowledged that she had come

7 to testify and paid her own way because Goyal had promised her a good life but had

hurt her instead and she wanted to teach him a lesson.

Although counsel for Fifadara stated that she had other witnesses regarding

newly discovered evidence, no affidavits of these witnesses were filed as required,

nor did she make any proffer of what newly discovered evidence they possessed.

Failure to fulfill one of the requirements for a new trial based on newly discovered

evidence is sufficient to deny a motion on that ground.1 Timberlake v. State, 246 Ga.

488, 491 (1) (271 SE2d 792) (1980).

Despite Fifadara’s argument to the contrary, it was not incumbent upon the trial

court to make inquiry regarding the identity of these witnesses or the content of their

testimony. See Flowers, supra.

We find that the trial court’s conclusion that Bansal’s testimony did not meet

the criteria for the grant of a motion for new trial was not an abuse of discretion nor

was its conduct of the hearing in any way improper.

2. Fifadara contends, in her second enumeration, that the trial court abused its

discretion in the original trial of the case “by admitting evidence of acts that were

1 Fifadara argues here that the trial court erred in limiting the hearing to 20 minutes. During the hearing, however, Fifadara did not raise any objection to this limitation and, in fact, acquiesced to the trial court’s limitation.

8 alleged to have occurred before the most recent order concerning child custody

[June 5, 2009].”

First, we note that Fifadara’s trial counsel began the hearing of December 10,

2010, by requesting permission to go into evidence that occurred prior to the June 5,

2009 order concerning child custody, although he had previously filed a motion in

limine seeking to restrict evidence to facts after that date. “It is a well-settled

appellate rule that one cannot complain about a ruling of the trial court which the

party’s own trial tactics or conduct procured or aided in causing.” Wallace v. Swift

Spinning Mills, 236 Ga. App. 613, 617 (2) (511 SE2d 904) (1999). “[A party] cannot

now complain of a result he aided in causing, because induced error is not an

appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Shaver

v. Kawasaki Motors Corp., 273 Ga. App. 140, 141-142 (614 SE2d 240) (2005).

Further, even considering the claimed errors, the first record citation to

improper evidence by Fifadara is to colloquy between the trial court and Goyal’s

counsel regarding counsel’s effort to impeach Fifadara on her filing of her June 16,

2009 Petition for Protective Order, which occurred after June 5th. The other evidence

objected to by Fifadara went to the issues of contempt, not change of custody. Also,

9 no objection was made below by Fifadara to introduction of Plaintiff’s Exhibit 17,

now cited as improper evidence.

Finally, “[i]n determining the best interests of the child, the judge may consider

any relevant factor.” (Emphasis supplied.) OCGA § 19-9-3 (a) (3). Price v. Wingo,

306 Ga. App. 283, 284 (701 SE2d 904) (2010).

Therefore, no abuse of discretion has been shown.

3. Fifidara also contends that the trial court erred in modifying custody because

it was not based on any reasonable evidence.

In its order, the trial court found that Fifadara “repeatedly interfered with

Plaintiff-Father’s visitation and prevented the exercise of Plaintiff-Father’s parenting

time under the June 5, 2009 Parenting Plan” and concluded that “the most suitable

way to rectify Mother’s interference with Father’s visitation is by way of a change of

custody and the entry of a new Parenting Plan.”

As recently noted by our Supreme Court, the fact that a parent has interfered

with the other parent’s visitation supported the trial court’s finding that it was “more

likely [that the other parent] will provide visitation and abide by the Court’s Orders,”

and its conclusion that it was in the best interest of the child to modify custody.

Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). See also Shotwell v.

10 Filip, 314 Ga. App. 93, 96-97 (1) (722 SE2d 906) (2012); Lynch v. Horton, 302 Ga.

App. 597, 601 (4) (692 SE2d 34) (2010).

Here, the trial court also noted in its oral pronouncement at the close of the

evidence that Fifadara had gotten a modification in Gwinnett County basically under

false pretenses and that her credibility had been completely impeached. There was

also evidence that she had twice used Petitions for Temporary Protective Orders to

interfere with Goyal’s visitation and made a false report to police. Cf. Lynch, 302 Ga.

App. at 602 (4) (use of forged court order to attempt to abscond with child was valid

factor in modification of custody).

Considering the evidence here, “we are mindful that the Solomonic task of

assigning the custody of children lies squarely upon the shoulders of the judge who

can see and hear the parties and their witnesses, observe their demeanor and attitudes,

and assess their credibility.” Lynch, supra. We will not second-guess the trial court

in this regard. Id.

There was no error.

Judgment affirmed. Barnes, P. J., and McFadden, J., concur.