Carlson v. Carlson
324 Ga. App. 214
Ga. Ct. App.2013Background
- Deniz Carlson appeals a criminal-contempt judgment arising from a May 3, 2012 custody modification order in her divorce from Robert Carlson.
- The May Order gave Robert primary physical custody; Deniz had visitation and joint legal custody.
- Robert filed a contempt motion on Aug. 29, 2012 alleging Deniz failed to return their 15-year-old daughter after visitation, plus sought an emergency hearing.
- At a Sept. 21, 2012 hearing, Deniz testified her daughter preferred to live with her; an affidavit of election was signed but no ongoing custody proceedings existed.
- The trial court found Deniz wilfully violated the May Order, jailed her for five hours, and issued the Contempt Order on Sept. 25, 2012.
- On appeal, Deniz contends Fifth Amendment rights, sufficiency of evidence, jury-trial right, evidentiary sufficiency, and public-policy concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deniz’s Fifth Amendment rights were properly appraised | Deniz; waivers decided by her and counsel | — | Waiver decision entrusted to counsel; no error; any violation not appealable. |
| Whether the evidence supports wilful contempt beyond a reasonable doubt | Deniz ignored the May Order due to daughter's affidavit | She acted in reliance on daughter's stated wishes | Sufficient evidence supports wilful, beyond-reasonable-doubt contempt. |
| Whether Deniz had a jury-trial right | Contempt could involve OCGA 16-5-45; concern for jury | No jury right under contempt or waived; non-jury permissible | No jury trial right; waiver by conduct; no constitutional contravention. |
| Whether five-hour incarceration violated public policy or children’s interests | OCGA 16-5-45 allows incarceration for willful violations | Incarcération potentially harmful to children | Five-hour incarceration not against public policy or children's best interests. |
Key Cases Cited
- Murtagh v. Emory Univ., 321 Ga. App. 411 (Ga. Ct. App. 2013) (distinguishes civil vs. criminal contempt; procedural stance)
- Garland v. State, 253 Ga. 789 (Ga. 1985) (criminal contempt; punishment authorities)
- Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (U.S. 1911) (due process in criminal-contempt proceedings)
- Codispoti v. Pennsylvania, 418 U.S. 506 (U.S. 1974) (no jury trial right for certain contempt punishments)
- Burton v. State, 263 Ga. 725 (Ga. 1994) (awareness and waiver of Fifth Amendment rights in contempt)
- Coonce v. State, 171 Ga. App. 20 (Ga. App. 1984) (judge need not advise of privilege; tactical waiver)
- In re Woodall, 241 Ga. App. 196 (Ga. App. 1999) (waiver of jury-trial right where no assertion)