333 Ga. App. 326
Ga. Ct. App.2015Background
- Father John Mulkey filed a petition (Sept. 13, 2013) to vacate a permanent guardianship of his then-17-year-old daughter S.M., asserting changed circumstances and compliance with reunification requirements.
- The child’s legal guardian answered and counterclaimed, alleging Mulkey willfully failed to pay child support under the guardianship order.
- The juvenile court continued the matter on Dec. 5, 2013, ordering Mulkey’s attorney to notify the court by March 1, 2014, if the case needed rescheduling or dismissal; no explicit dismissal-for-failure-to-act clause appeared in the continuance order.
- On June 19, 2014, the juvenile court issued a Final Order dismissing Mulkey’s petition for failure to comply with the continuance order and, on the guardian’s counterclaim, ordered Mulkey to pay child-support arrearage (finding lack of proof of willfulness but requiring arrearage payments).
- Mulkey appealed, arguing (a) the continuance order did not authorize dismissal for the acts cited, (b) he was denied due process of a hearing, and (c) he should not owe arrearage because he continued paying insurance premiums after the child was reaccepted to Medicaid and was not notified.
Issues
| Issue | Plaintiff's Argument (Mulkey) | Defendant's Argument (Guardian/Trial Court) | Held |
|---|---|---|---|
| 1. Validity of arrearage order | Guardianship order plainly required DFACS to notify Mulkey when child reentered Medicaid; no notification led him to continue paying premiums, so he should not owe arrearage | Court treated parties as having stipulated that guardianship order language about Medicaid notification was unclear; nevertheless ordered arrearage payment | Affirmed: appellate court presumes trial-court findings supported by the record (no transcript/stipulation challenge not preserved) |
| 2. Dismissal of petition for failure to comply with continuance order | Continuance did not state dismissal would follow; dismissal denied due process and was improper without a wilfulness finding or hearing | Trial court characterized Mulkey as noncompliant and dismissed petition | Reversed: continuance did not impose the duty the court cited; dismissal without finding wilfulness or recorded hearing improper; remand for recorded in-court hearing on wilfulness and merits of amended petition |
| 3. Denial of recorded hearing / due process | Mulkey contends he was denied a hearing on dismissal and amendment | Court acted without recorded hearing in chambers; trial record did not show hearing | Reversed in part: remand ordered for recorded in-court hearing; hearing required before imposing dismissal sanction unless wilfulness is obvious from record |
| 4. Challenges to earlier 2010/2011 orders and constitutionality of statute | Mulkey sought review of prior judgments and constitutional challenge | Trial court below did not rule on constitutionality; prior orders were not appealed within time | Dismissed as untimely/not preserved: appellate court lacks jurisdiction to review those claims |
Key Cases Cited
- Freeman v. State, 215 Ga. App. 341 (Ga. Ct. App. 1994) (appellate court will assume trial-court findings are supported when transcript is absent)
- Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265 (Ga. Ct. App. 1990) (burden on appellant to affirmatively show record error; briefs cannot substitute for the record)
- Rouse v. Arrington, 283 Ga. App. 204 (Ga. Ct. App. 2007) (dismissal for failure to comply requires a finding of willfulness; hearing generally required)
- Wilson v. Home Depot USA, 288 Ga. App. 582 (Ga. Ct. App. 2007) (dismissal is extreme sanction for contumacious or willful noncompliance)
- Gropper v. STO Corp., 276 Ga. App. 272 (Ga. Ct. App. 2005) (dismissal for discovery noncompliance requires conscious or intentional failure to act)