Ronald I. Powers v. Joan S. Powers

• Court: Court of Appeals of Virginia
• Decided: June 17, 1997
• Docket: 3095962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray Argued at Richmond, Virginia

RONALD I. POWERS MEMORANDUM OPINION * BY v. Record No. 3095-96-2 JUDGE RICHARD S. BRAY JUNE 17, 1997 JOAN S. POWERS

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY Thomas V. Warren, Judge Jeremy C. Sharp for appellant.

No brief or argument for appellee.

Ronald I. Powers (father) appeals an order of the trial

court awarding custody of his five-year-old daughter, Cassie

Powers, to Joan S. Powers, the child's paternal grandmother

(grandmother). Father complains that the trial court erroneously

conducted an ex parte evidentiary hearing, without proper notice,

and later denied father's motion to reopen the cause. We agree

and remand for further proceedings and reconsideration.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

"After a court has concluded an evidentiary hearing 'during

which each party had ample opportunity to present evidence, it

[is] within the court's discretion to refuse to take further

evidence on this subject.'" Holmes v. Holmes, 7 Va. App. 472, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 480, 375 S.E.2d 387, 392 (1988) (quoting Morris v. Morris, 3 Va.

App. 303, 307, 349 S.E.2d 661, 663 (1986)); see also Hughes v.

Gentry, 18 Va. App. 318, 326, 443 S.E.2d 448, 453 (1994). To

prove "entitlement to a rehearing, a petitioner must show either

an 'error on the face of the record, or . . . some legal excuse

for his failure to present his full defense at or before the time

of entry of the decree.'" Holmes, 7 Va. App. at 480, 375 S.E.2d

at 392 (quoting Downing v. Huston, Darbee Co., 149 Va. 1, 9, 141

S.E. 134, 136-37 (1927)). Here, the record clearly discloses that father was not

afforded an "ample opportunity to present evidence" before the

trial court. Father was not properly served with notice of the

pending hearing and misunderstood grandmother's continuance

motion filed with the court several days prior to the scheduled

hearing date. With neither father nor the child's guardian ad

litem present, the court denied grandmother's motion, conducted

an ex parte hearing, and decided the issue. Manifestly, both

father and guardian were entitled to reasonable notice and an

opportunity to be heard at such significant proceedings. See,

e.g., Eddine v. Eddine, 12 Va. App. 760, 762-63, 406 S.E.2d 914,

915-16 (1991), cert. denied, 505 U.S. 1221 (1992). Under such

circumstances, the court's award of custody of the child to

grandmother, together with the court's subsequent denial of

father's reasonable and timely request for rehearing, constituted

an abuse of discretion. See National Linen Serv. v. Parker, 21

- 2 - Va. App. 8, 19, 461 S.E.2d 404, 410 (1995) (discussing abuse of

discretion standard).

Accordingly, we reverse the disputed order and remand for

the trial court to undertake further proceedings, attended by

proper notice and a right afforded all parties to present

evidence and otherwise fully participate.

Reversed and remanded.

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