Stanford v. Pogue
340 Ga. App. 86
| Ga. Ct. App. | 2017Background
- Parents had paternity and joint legal custody established in April 2009; father granted visitation.
- In September 2015 the parties entered a consent order modifying visitation ("Consent Order").
- Father moved for contempt in February 2016, alleging mother willfully violated the Consent Order and frustrated his visitation.
- After a contempt hearing (mother proceeded pro se and no transcript is in the record), the trial court found the mother willfully in contempt.
- Court modified visitation to permit father to pick the child up from school on visitation days and ordered the mother incarcerated for 20 days to purge her contempt.
- Mother appealed only the modification and the unconditional 20-day incarceration (she did not contest the contempt finding itself on appeal).
Issues
| Issue | Stanford's Argument | Pogue's Argument | Held |
|---|---|---|---|
| Whether trial court erred by modifying visitation without finding a material change or best interests showing | Stanford: modification unlawful because prior order was recently modified and no change-in-condition or best-interests findings were made | Pogue: Court may modify visitation in contempt proceedings under OCGA § 19-9-3(b); no special findings required | Modification allowed; trial court may modify visitation during contempt proceedings and record supports change (no abuse of discretion) |
| Whether absence of transcript/preparation of record defeats modification on appeal | Stanford: no transcript so cannot show error from hearing where she was unrepresented | Pogue: appellant bears burden to compile record; absence requires presumption the evidence supported the ruling | Court presumes record supports trial court; appellant failed to show error due to meager record |
| Whether unconditional 20-day incarceration constituted permissible contempt punishment | Stanford: court should have imposed conditional (civil) confinement or otherwise not impose unconditional jail time | Pogue: court has authority to punish contempt up to 20 days under OCGA § 15-6-8(5) | Unconditional 20-day jail is permissible; indicates criminal contempt but within statutory limit, so no error |
| Whether Easley requires making contempt civil/conditional in visitation cases | Stanford: relies on Easley to argue confinement must be conditional | Pogue: Easley does not bar criminal contempt for visitation violations; Easley merely found facts supported civil contempt there | Court rejects Easley-based argument; Easley did not mandate conditional sentence in all visitation contempt cases |
Key Cases Cited
- Cross v. Ivester, 315 Ga. App. 760 (trial court may modify visitation during contempt proceedings)
- Hopkins v. Hopkins, 244 Ga. 66 (no findings required in ancillary contempt proceedings)
- Alexander v. Mosley, 271 Ga. 2 (appellant’s duty to compile complete record/transcript)
- Bonds v. Bonds, 241 Ga. App. 378 (presumption that evidence supported trial court in absence of transcript)
- Fields v. Fields, 240 Ga. 173 (trial court may order unconditional short-term imprisonment for contempt)
- Easley v. Easley, 238 Ga. 180 (civil vs. criminal contempt distinction explained; does not preclude criminal contempt in visitation contexts)