In the Supreme Court of Georgia



                                     Decided: May 23, 2016


                S16F0279. DAVENPORT v. DAVENPORT.


      NAHMIAS, Justice.

      Dustin Davenport (Husband) and Keisha Davenport (Wife) were divorced

by final decree in the Union County Superior Court. Husband appeared pro se

in the divorce proceeding. Wife, who had counsel, paid for a court reporter to

record the bench trial on May 5, 2014; Husband did not participate in paying for

the takedown. After the trial, Husband hired a lawyer, who filed a motion for

new trial and a motion to compel production of the trial transcript (which

Husband was now willing to pay for), asserting that the trial court failed to make

a ruling at the start of the trial that Husband expressly refused to share the

takedown expense. In response, Wife claimed that Husband had expressly

refused to participate in the takedown after being given an opportunity to do so.

      At the hearing on the motion to compel in August 2014, no transcript of

the trial or of the discussion of the takedown was presented. Wife’s counsel said
that he believed, but could not recall with certainty, that the trial court asked

Husband whether he wanted to participate in the takedown and Husband

“voluntarily decided and indicated that he would not participate in the

takedown.” Wife’s counsel said that he did not know if the trial court made a

ruling on that issue. The trial court said:

       It is this Court’s policy any time I have a pro se defendant,
       especially in civil cases, number one, I specifically inquire as to
       takedown. I can’t think of a case I haven’t done that. . . . Both
       counsels sitting in the courtroom today have seen me do that many,
       many times, both of you having handled cases against pro se
       defendants in the past. That is my policy. I do it as protection of all
       parties and in furtherance of due process of law. . . . The Court
       goes on its recollection, as have counsel in this case, as to the pro
       se warnings I give to all defendants in the case . . . . I’m going to
       deny the motion at this time.

The court said nothing, however, about whether it ruled on the takedown issue

at the beginning of the trial. On August 22, 2014, the court entered an order

summarily denying Husband’s motion to compel. Husband filed a notice of

appeal directed to the Court of Appeals, which dismissed the appeal on January

14, 2015, due to Husband’s failure to comply with the interlocutory appeal

procedures.1

       1
         The Court of Appeals initially transferred the case to this Court, but we returned it because
the takedown issue on interlocutory appeal did not involve divorce or alimony. See Case No.

                                                  2
      On May 4, 2015, the trial court held a hearing on Husband’s motion for

new trial, and on May 22, the court denied that motion. Husband filed a timely

application for discretionary appeal in this Court, which we granted under our

Rule 34 (4), indicating that we were particularly concerned with the following

question:

      Did the trial court err in denying Husband’s motion to compel
      production of the trial transcript in the absence of a finding that the
      court made a ruling at the start of the trial that Husband refused to
      participate in paying takedown costs?

Husband then filed a timely notice of appeal.

      In Kent v. Kent, 289 Ga. 821 (716 SE2d 212) (2011), this Court reiterated

the long-standing, bright-line procedural rule that a party’s right to a transcript

of a civil proceeding is not waived “unless the [trial] court makes a ruling ‘at the

commencement of the hearing’ that the party ‘expressly refused,’ by ‘“direct and

appropriate language,”’ to share in the costs of the takedown.” Id. at 824

(quoting Giddings v. Starks, 240 Ga. 496, 496-497 (241 SE2d 208) (1978)).

See also id. at 826 & n.1 (overruling several Court of Appeals cases to the extent

that they affirmed the denial of a motion for a transcript where the appellant had


S15A0337 (Dec. 2, 2014).

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expressly refused to participate in the takedown, but there was no ruling by the

trial court to that effect at the beginning of the proceeding); Beringer v. Emory,

326 Ga. App. 260, 262-263 (756 SE2d 329) (2014) (relying on Kent to reverse

the denial of the mother’s motion to compel the transcript of a contempt hearing,

where the record showed that she expressly refused to participate in the

takedown, but did not show that the trial court made a ruling on the issue at the

start of the hearing). The burden is on the party seeking to benefit from the rule

to show that its requirements were met. See Kent, 289 Ga. at 823. Because the

trial court’s error in denying the husband’s motion for a transcript prevented him

from citing the transcript to support his challenges to the divorce decree, this

Court remanded the case “to allow entry of an appropriate order granting

Husband a transcript, after which he may seek review of the decree.” Id. at 826.

      In this case, the record on appeal would support a finding that Husband

refused to participate in the reporting of the divorce trial. But the record does

not include or support a finding that the trial court ruled on the takedown costs

issue at the start of the trial. Thus, Wife failed to show that Husband was not

entitled to a transcript, and the trial court’s order denying Husband’s motion to

compel production of the trial transcript must be reversed. See Kent, 289 Ga.

                                        4
at 824-825; Beringer, 326 Ga. App. at 262-263. Moreover, as a result of the

trial court’s erroneous denial of Husband’s motion to compel, he was unable to

cite the trial transcript in raising challenges to the divorce decree in his motion

for new trial. We therefore vacate the trial court’s denial of Husband’s motion

for new trial and remand the case with direction to enter an appropriate order

granting Husband a transcript at his expense, after which he may seek review of

the divorce decree by amending his new trial motion to reflect the contents of

the trial transcript. See Kent, 289 Ga. at 826.

      Judgment reversed in part and vacated in part, and case remanded with

direction. All the Justices concur.




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