Avren v. Garten
289 Ga. 186
| Ga. | 2011Background
- Mother and Father divorced in 2003; April 2010 trial court contempt finding against Mother, dismissal of Mother's contempt petition against Father, and denial/dismissal of Mother's modification petitions (custody, visitation, child support) with guardian ad litem fees ordered; May 2010 attorney-fee award to Father and October 2010 motion to set aside denied; appeals and discretionary-review proceedings were pursued related to these orders.
- Contempt relied on Mother taking the child to a therapist disapproved by Father, who had final authority on health/medical issues under a 2006 modification order; Mother acknowledged taking the child to the therapist and sending bills to Father.
- Three of Mother's four post-judgment actions were dismissed under OCGA § 19-9-24(b) for withholding visitation; child-support modification was dismissed under OCGA § 19-6-15(k)(2) due to the two-year bar following a prior final order.
- Consent-order limitations restricted the guardian ad litem from interviewing the therapist without both parents' consent or a court order; this limitation was binding on Mother as a party to the consent order.
- The trial court awarded Father attorney fees in May 2010; Mother challenged this and argued jurisdiction/complete supersedeas issues given pending discretionary review; the Court held the supersedeas did not deprive the trial court of jurisdiction to enter the attorney-fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Contempt for taking child to therapist | Mother | Father had final authority; Mother wilfully disobeyed order | Supported contempt |
| Dismissal of contempt/custody/visitation petition under 19-9-24(b) | Mother argues merits should be heard | Visitation was withheld; proper dismissal | upheld dismissal under 19-9-24(b) |
| Two-year bar on modification of child support | Mother sought modification within two years | Final order in 2008 triggered bar | Dismissal proper under OCGA 19-6-15(k)(2) |
| guardian ad litem interview restrictions | Mother opposed consent-order limitations | Consent order binding; no error | No error; order binding on party |
| Attorney-fee award jurisdiction/supersedeas | Notice of appeal/app for discretionary review affected jurisdiction | Supersedeas limited to judgment appealed | Trial court had jurisdiction; supersedeas did not prevent award |
Key Cases Cited
- Pate v. Pate, 280 Ga. 796 (Ga. 2006) (test for wilful disobedience of a prior order in contempt)
- Prater v. Wheeler, 253 Ga. 649 (Ga. 1984) (child desires not alone controlling visitation rights)
- Welch v. State, 251 Ga. 197 (Ga. 1983) (rule of sequestration; discretion of trial court when witness not testifying)
- Davis v. Harpagon Co., 281 Ga. 250 (Ga. 2006) (supersedeas limits jurisdiction to matters affecting judgment on appeal)
- Scroggins v. State, 288 Ga. 346 (Ga. 2010) (supersedeas limitations in appeals)
- Upton v. Jones, 280 Ga. 895 (Ga. 2006) (supersedeas effect of appeal on trial-court orders)
- Southeastern Wholesale Furniture Co. v. Atlanta etc. Co., 84 Ga.App. 271 (Ga. App. 1951) (supersedeas scope; limits on effect of appeal on other issues)
- Norman v. Ault, 287 Ga. 324 (Ga. 2010) (direct appeal considerations for post-judgment custody matters)
- Mitcham v. Blalock, 268 Ga. 644 (Ga. 1997) (when underlying judgment pending, certain fee awards may be appealed without 5-6-35(a) requirement)