Sherrington v. Holmes

Emma L. Sherrington appeals from the trial court’s order granting custody of her son B. J. S. to his biological father, Aaron Josh Holmes. For the reasons set forth below, we reverse. B. J. S. was born on or about December 5, 2008, and Holmes filed a Petition to Legitimate on March 9, 2009. The petition asked the trial court to legitimate B. J. S., to set child support for Holmes to pay Sherrington, to award Holmes “broad and liberal” visitation rights, and to grant such other and further relief as the court deemed proper. Sherrington did not oppose the petition. The trial court set a hearing on the petition for June 29, 2009. The matter was apparently re-scheduled for Monday, July 20, 2009. Four days prior to the hearing, on Thursday, July 16, Holmes filed an amended petition requesting that the child’s last name be changed from “Sherrington” to “Holmes” and that the trial court determine custody of the child.

Sherrington represented herself pro se at the July 20 hearing, and no hearing transcript exists. On July 27, 2009, however, the trial court entered a written order granting the petition to legitimate and changing the child’s last name to Holmes. Although the trial court awarded Holmes and Sherrington joint legal custody, Holmes was named as primary custodian and Sherrington received visitation rights. After the hearing, Sherrington retained counsel and moved for a rehearing asserting lack of timely notice that the trial court would be considering the issue of custody at the July 20 hearing, but she filed a notice of appeal before the trial court could rule on that motion.