MURPHY et al. v. MURPHY.
A14A1137
Court of Appeals of Georgia
NOVEMBER 17, 2014
DECEMBER 4, 2014
767 SE2d 789
McFADDEN, Judge.
Judgment affirmed. Andrews, P. J., and McFadden, J., concur.
DECIDED OCTOBER 2, 2014 —
RECONSIDERATION DENIED DECEMBER 4, 2014.
Clark & Towne, Jessica R. Towne, for appellant.
Daniel J. Porter, District Attorney, Samantha Routh, Assistant District Attorney, for appellee.
A14A1137. MURPHY et al. v. MURPHY.
(767 SE2d 789)
McFADDEN, Judge.
Although this is our third opinion in this custody modification action, we are still not presented with a final order on the petition to modify. Instead we are presented with a series of rulings holding appellant Nancy Michelle Murphy and her attorneys, Millard Farmer and Larry King, in contempt of court.
Farmer has been held in contempt of an earlier order that prohibited the parties from discussing the case with their children. As Farmer signed a brief to which he exhibited affidavits of the children echoing their mother‘s anger at John Murphy, there is sufficient evidence to support that ruling; and we find that Farmer received sufficient notice and opportunity to be heard before he was held in contempt. Nancy Michelle Murphy has been held in contempt of another provision of that order which required her to cooperate with a custody evaluator. Any insufficiency of the evidence presented on that charge at the contempt hearing was supplied by her own brief in opposition to the motion for contempt. In that brief she announced that she deemed herself to be entitled to defy the provision directing her to cooperate with the evaluator. And again we find sufficient notice and opportunity to be heard. Finally, Farmer and King have
We therefore affirm the trial court‘s contempt order in part and reverse it in part.
1. Prior appeals.
Nancy Michelle Murphy and John Murphy were divorced in 2006. They have two children, born in November 1998 and January 2001. In April 2012, John Murphy filed this action, seeking to modify the child custody provisions of the divorce decree.
Nancy Michelle Murphy has repeatedly moved to recuse the trial court judge. Murphy v. Murphy, 322 Ga. App. 829 (747 SE2d 21) (2013), her first appeal in this case, was a direct appeal from an interlocutory order denying one of her motions to recuse. We dismissed on the basis the order was not appealable as a collateral order and was not appealable under the version of
Our Supreme Court granted Nancy Michelle Murphy‘s petition for certiorari to address whether we erred when we concluded that the 2013 amendment of
In the meantime, on August 23, 2013, the trial court entered an order that, among other things, denied John Murphy‘s motion to temporarily change physical custody of the children, directed the parties not to discuss the case with the children, ordered a custody evaluation, and directed the parties to cooperate with the custody evaluator. In Nancy Michelle Murphy‘s second appeal to our court, Murphy v. Murphy, 328 Ga. App. 767 (759 SE2d 909) (2014), we affirmed that order. We imposed a frivolous appeal penalty against Nancy Michelle Murphy‘s counsel, finding that the appeal was frivolous and dilatory and rife with violations of Court of Appeals Rule 10, which forbids oral or written personal remarks that are discourteous or disparaging to any judge, opposing counsel, or any court.
Six days after the August 23, 2013 order was entered, John Murphy filed a motion seeking to hold Nancy Michelle Murphy in contempt for violating its visitation provisions. In response Nancy Michelle Murphy filed affidavits from the children, testifying that the motion for contempt had been read to them in the presence of their mother, that their mother had not interfered with their father‘s visitation as alleged in the motion for contempt, and that they were extremely angry at their father for not telling the truth to the court.
John Murphy then amended his motion for contempt. He alleged that Nancy Michelle Murphy and “her lawyer” were in contempt of the order‘s provision prohibiting the parties from discussing the case with the children. He also alleged that Nancy Michelle Murphy was violating the requirement of the August 23 order that she cooperate with the custody evaluator in that she had refused to complete the paperwork the custody evaluator required before beginning the evaluation.
The trial court conducted a hearing on the contempt motion on October 3, 2013. Nancy Michelle Murphy and Farmer did not appear, but King did appear on behalf of Nancy Michelle Murphy. After hearing testimony from John Murphy and the driver hired to transport the children from Nancy Michelle Murphy‘s residence to John Murphy‘s residence, the trial court found Nancy Michelle Murphy, Farmer, and King to be in contempt. The trial court found Farmer to be in contempt for discussing the case with the children in violation of the August 23 order. It found Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order. And it found King and Farmer to be in contempt because of Nancy Michelle Murphy‘s failure to appear at the contempt hearing.
Nancy Michelle Murphy, Farmer, and King filed an application for discretionary appeal of the contempt order. We granted the application, and this latest appeal followed. We first address John Murphy‘s motion to dismiss the appeal, then turn to the deficiencies in the appellants’ brief, and finally, address the merits of the challenges to the contempt order.
3. Motion to dismiss the appeal.
Because this is an appeal from a contempt order, the appellants were not required to follow the interlocutory appeal procedure.
Because they filed an application for discretionary appeal, we have jurisdiction regardless of whether or not they were entitled to follow the direct appeal procedure.
4. Deficiencies in the appellants’ brief.
As a threshold matter, we address the deficiencies in the appellants’ brief.
The Appellate Practice Act, at
The appellants’ brief does not conform to those requirements. Their brief and enumerations of error are rambling and difficult to follow; several enumerations contain multiple allegations of error. These deficiencies are illustrated by enumeration of error four, which is set out below.1
In spite of these deficiencies, we will review the claims of error that we are authorized to reach to the extent that we can ascertain the appellants’ arguments, Williams, 318 Ga. App. at 744-745, and to the extent they have not abandoned them.
5. Claim that trial judge is disqualified.
The appellants argue that the Honorable A. Quillian Baldwin, Jr., was disqualified from adjudicating the contempt motion for two reasons: because another judge‘s transfer of the case to Judge Baldwin was illegal and because unadjudicated disqualification motions were pending against Judge Baldwin at the time that he decided the
The appellants argue that Judge Baldwin was deprived of jurisdiction to consider the contempt motion because the August 23 order was currently on appeal and subject to supersedeas. Under
6. Contempt citations.
Having addressed these preliminary matters, we now turn to the trial court‘s order finding Farmer to be in contempt for discussing the case with the children in violation of the August 23 order, finding Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order, and finding both attorneys to be in contempt because of Nancy Michelle Murphy‘s failure to appear at the contempt hearing.
(a) Violation of the prohibition of discussing this case with the children.
The trial court held attorney Farmer in contempt after finding that he was “discussing the issues, allegations, and claims in this case with the children and that such discussions are not necessary to implement the terms of the August Order.” The appellants argue that this judgment of contempt must be reversed because Farmer did not receive adequate notice and because the evidence does not support it.
(i) Notice.
The appellants argue that the trial court erred in finding that they had sufficient notice of the contempt allegations against them and the hearing on the contempt. We conclude that the notice was reasonable.
Farmer was charged with indirect contempt and therefore was entitled to reasonable notice of the allegations against him. “[T]he notice must be reasonably calculated to inform persons of the charges against them and their opportunity for a hearing at a specific time and place to present their objections.” Hedquist v. Hedquist, 275 Ga. 188, 189 (563 SE2d 854) (2002) (citation omitted). The notice here met those requirements.
The appellants were adequately informed of the charges. The amended motion for contempt sufficiently specified the allegedly contumacious conduct. It sought to hold counsel in contempt for discussing the issues in the case with the parties’ children.
The appellants argue that referring to “Defendant‘s lawyer” instead of “Millard Farmer” rendered the motion insufficient. They cite no supporting authority for that argument, and we reject it.
The appellants were adequately notified of their opportunity to be heard at a specific time and place. On September 12, 2014, counsel for John Murphy served upon counsel for Nancy Michelle Murphy a “Notice of Hearing” that specified the date, time, and location of a hearing before the trial court “in order for [the trial court] to consider the relief requested in Plaintiff‘s Motion for Contempt filed in the above captioned matter on August 29, 2013.” Counsel served that “Notice of Hearing” by United States mail and by e-mail. Additionally the trial court issued a calendar to counsel for the parties, confirming that a hearing was scheduled for October 3, 2013. The appellants do not deny receiving the notice of hearing or the calendar. Counsel for John Murphy served the amended motion for contempt upon counsel for Nancy Michelle Murphy on September 27, 2013, six days before the scheduled hearing. Under these facts, we find that the trial court
(ii) Sufficiency of the evidence.
Farmer argues that the contempt must be reversed because the evidence does not support the finding of contempt. Our standard of review is dictated by the nature of the contempt, whether criminal or civil. In re Waitz, 255 Ga. App. 841, 842 (567 SE2d 87) (2002). The trial court sentenced Farmer to “be incarcerated in the Coweta County, Georgia jail for a period of 20 days or until he pa[id] One Thousand Dollars ($1,000.00) to the Court.” Because he was sentenced to imprisonment for a specified, unconditional period, Farmer‘s contempt was criminal. See In the Interest of J. D., 316 Ga. App. 19, 21 (1) (728 SE2d 698) (2012) (“If the contemnor is imprisoned for a specified unconditional period... the purpose is punishment and thus the contempt is criminal.“) (citation and punctuation omitted).
On appeal of a criminal contempt conviction the appropriate standard of appellate review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
In re Waitz, 255 Ga. App. at 842 (citation and punctuation omitted).
After viewing the evidence in the light most favorable to the prosecution, we conclude that the trial court could have found the essential elements of the crime beyond a reasonable doubt. Farmer signed the brief to which the affidavits reflecting the children‘s knowledge of the case were attached. Also attached to that brief is an affidavit of Farmer himself, notarized on the same day by the notary who notarized the children‘s affidavits.
To the extent Farmer argues that he cannot be held in contempt for violating a provision directed at the parties rather than himself, his argument is unavailing. The violation of a court‘s order by one who was not a party to the proceedings can be punished as a contempt if the contemnor had actual notice of the order and is in privity with, aided and abetted, or acted in concert with the named party in acts constituting a violation of the order. The Bootery v. Cumberland Creek Properties, 271 Ga. 271, 271, 272 (2) (517 SE2d 68) (1999). It is undisputed
(b) Failure to cooperate with the custody evaluator.
The trial court held Nancy Michelle Murphy in contempt after finding that she had not cooperated with the custody evaluator. The appellants argue that this judgment of contempt must be reversed because Nancy Michelle Murphy did not receive adequate notice and because the evidence does not support it.
(i) Notice.
Nancy Michelle Murphy was entitled to reasonable notice related to the allegations of indirect contempt for violating the August 23, 2013 court order. For the reasons discussed in Division 6 (a) (i), supra, we conclude that she received such notice.
(ii) Sufficiency of the evidence.
The trial court sentenced Nancy Michelle Murphy to incarceration “until she compli[ed] with the August Order by signing the documents previously submitted to her by [the custody evaluator‘s] office.” This was a civil contempt. See In the Interest of J. D., 316 Ga. App. at 21-22 (1) (“If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.“) (citations omitted). “In civil contempt appeals, if there is any evidence from which the trial court could have concluded that its order had been violated, we are without power to disturb the judgment absent an abuse of discretion.” In re Waitz, 255 Ga. App. at 842 (citation omitted).
We hold that some evidence supported the conclusion that Nancy Michelle Murphy violated the August 23 order by refusing to cooperate with the custody evaluator. The August 23 order set an October 15, 2013 deadline for completion of the custody evaluation. John Murphy testified that he had done everything the custody evaluator required in order to begin the evaluation, yet the evaluation had not proceeded. It is not disputed that as of November 19, 2013, the date of the trial court‘s contempt order, that evaluation had not occurred. And, in a response to the amended motion for contempt which she filed on October 22, 2013, Nancy Michelle Murphy expressly defied the August 23 order and declared herself justified in refusing to sign the documents that were a prerequisite to the custody evaluation. The trial court was therefore authorized to conclude that she had not signed those documents. See
This is sufficient evidence to authorize the trial court to conclude that Nancy Michelle Murphy violated the August 23 order by refusing
(c) Nancy Michelle Murphy‘s failure to appear at the hearing.
We agree with the appellants that the trial court erred in holding Farmer and King in contempt because of Nancy Michelle Murphy‘s failure to appear at the contempt hearing.
Absent a properly served subpoena or court order requiring a party to appear in person, a party may choose not to be present at the trial of the case and to be represented solely by counsel. This rule accords with the long-established principle that there is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person.
In re Estate of Coutermarsh, 325 Ga. App. 288, 290 (1) (752 SE2d 448) (2013) (citations and punctuation omitted). See also Masonry Standards v. UPS Truck Leasing, 257 Ga. 743, 743-744 (363 SE2d 553) (1988) (trial court erred in sanctioning defendant for failing to appear in person at trial). John Murphy has pointed to nothing that required Nancy Michelle Murphy to appear in person at the contempt hearing. And because Nancy Michelle Murphy was not required to appear in person, Farmer and King could not be held in contempt for her failure to appear.
Judgment affirmed in part and reversed in part. Doyle, P. J., and Boggs, J., concur.
DECIDED NOVEMBER 17, 2014 —
RECONSIDERATION DENIED DECEMBER 4, 2014.
Millard C. Farmer, Jr., Larry King, for appellants.
Glover & Davis, Taylor B. Drake, Michael W. Warner, Kilpatrick Townsend & Stockton, Stephen E. Hudson, William R. Poplin, Jr., for appellee.