337 Ga. App. 683
Ga. Ct. App.2016Background
- Hill and Davis are parents of a child born out of wedlock (2005) and legitimated (2006); Davis had joint legal and primary physical custody.
- The trial court in June 2012 ordered joint psychological counseling and set a visitation schedule; later limited Hill to ten text messages a month after finding excessive messaging.
- Hill filed multiple contempt motions against Davis; Davis counterclaimed in 2014 that Hill violated prior orders by harassing her.
- In an August 25, 2015 order, the trial court denied Hill’s contempt motion, found Hill in indirect criminal contempt for violating the texting restriction, awarded Davis attorney’s fees, and changed custody (Hill appeals only the contempt finding).
- Hill challenges several aspects of the contempt finding and the award of attorney’s fees on appeal; the Court of Appeals affirms contempt but vacates the fee award for lack of a stated statutory basis.
Issues
| Issue | Hill's Argument | Davis' Argument | Held |
|---|---|---|---|
| Whether the trial court erred by refusing to hold Davis in contempt of the June 2012 order | Davis previously held in contempt and she failed to follow counseling/visitation orders | Trial court found no contempt by Davis; discretion to determine contempt | Affirmed: Hill failed to show error; record does not support prior contempt and no abuse of discretion in not holding Davis in contempt |
| Whether trial court erred in holding Hill in indirect criminal contempt without witnessing contumacious conduct | Contempt requires disrespectful conduct witnessed by the court | Indirect contempt may be based on willful disobedience of court orders outside court’s presence (e.g., excessive texts) | Affirmed: texting violated the court’s order and supported indirect contempt |
| Whether trial court’s order lacked sufficient findings of fact to support contempt | Order failed to set out findings of fact | Trial court specifically found willful violation (excessive texts beyond ten/month) | Affirmed: finding of willful disobedience was sufficient |
| Whether hearsay evidence improperly influenced the contempt finding | Principal’s testimony and Hill’s blog were hearsay and were relied upon | Contempt finding was based solely on the text-message violation; no showing hearsay affected result | Affirmed: no evidence court relied on the alleged hearsay |
| Whether the award of attorney’s fees was proper | Fees were awarded without stating statutory basis | Davis sought fees but did not identify statutory basis; various statutes could apply | Vacated and remanded: trial court must state which statute it relied on and enter supporting findings |
Key Cases Cited
- Gary v. Dollar Thrifty Auto. Group, 329 Ga. App. 320 (appellate review despite briefing defects)
- McClaskey v. Jiffy Lube, 197 Ga. App. 537 (appellant bears burden to show error by record)
- Sheffield v. Zilis, 170 Ga. App. 62 (courts decide on the record sent up on appeal)
- Baker v. Schrimsher, 291 Ga. 489 (trial court discretion in contempt determinations)
- Higdon v. Higdon, 321 Ga. App. 260 (standard for reviewing contempt determinations)
- Ramirez v. State, 279 Ga. 13 (distinguishing direct and indirect contempt procedures)
- Dogan v. Dep’t of Human Res., 278 Ga. App. 905 (indirect contempt may be willful disobedience of court orders)
- Beckham v. O’Brien, 176 Ga. App. 518 (willful disobedience required for contempt)
- Cothran v. Mehosky, 286 Ga. App. 640 (attorney fees allowed only if statute or contract authorizes)
- Viskup v. Viskup, 291 Ga. 103 (statutory bases for fees in custody actions)
- Hall v. Hall, 335 Ga. App. 208 (when multiple statutory bases exist, trial court must state which it relied on)