Roberts v. Roberts. ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 21, 2018
In the Court of Appeals of Georgia
A18A1163. ROBERTS v. ROBERTS.
BARNES, Presiding Judge.
Brandon Ladale Roberts (Hereinafter “the father”) appeals the trial court’s
order finding him in willful contempt of a previous contempt order and ordering that
he be incarcerated until the contempt is purged by giving Tom Ladale Roberts, the
paternal grandfather, 40 consecutive days of visitation and paying $1850.00 in
attorney fees. For the reasons that follow, we affirm in part and reverse in part.
A trial court’s ruling on a motion for contempt will be affirmed on appeal if
there is any evidence to support it. Earle v. Earle, 312 Ga. App. 139, 140 (717 SE2d
720) (2011). See Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011) (“[A]
trial court has broad discretion to determine if a party is in contempt of its order, and
the exercise of that discretion will not be reversed on appeal unless grossly abused.”)
(citation omitted). So viewed, the evidence demonstrates that in March 2017, by final
order of the juvenile court, and upon finding clear and convincing evidence of a
“substantial preexisting relationship” between the grandfather and the child and harm
should the relationship be interrupted, and that visitation was in the best interest of
the child, the grandfather was awarded grandparent visitation pursuant to OCGA §
19-7-3.1 The visitation schedule included visits every second and fourth weekend,
two weeks during the summer, alternating years for Spring Break and several hours
during Thanksgiving and Christmas.
Subsequently, on June 7, 2017, after the father denied the grandfather visitation
and upon his filing of a motion for contempt, the trial court entered an order finding
the father in contempt and granting the grandfather, in addition to the scheduled
visitation, “compensatory visitation” and attorney’s fees of $850.00. The order further
provided that the failure to comply “could result in the [father’s] incarceration.” On
August 25, 2017, the grandfather filed a second motion for contempt in which he
alleged that the father had failed to comply with the provisions in the final order
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The statute provides, among other things, that the court may grant reasonable
visitation rights “if the court finds by clear and convincing evidence that the health
or welfare of the child would be harmed unless such visitation is granted and if the
best interests of the child would be served by such visitation.” OCGA § 19-7-3 (c)
(1).
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awarding visitation and contempt order, and had “absconded with the child and . . .
denied any contact whatsoever with Paternal Grandfather.” Following a hearing on
the motion, on November 3, 2017, the trial court entered an order finding the father
“in willful contempt of the Final Order on Contempt and Order[ing] him
incarcerated.” To purge himself of the contempt, the father was ordered to release the
child to the grandfather for “forty consecutive days of visitation to make up for
visitation [denied to the grandfather],” and to pay $1850.00 in attorneys fees,
representing the $850 in attorneys fees awarded in the first contempt action, and
another $1000.00 incurred in bringing the most current contempt action. It is from
that order that the father appeals.
1. The father first contends that the trial court erred in holding him in contempt
for relocating to another state, and that there was no provision in the final order
preventing him from relocating. Contrary to the father’s contention, the trial court did
not find him in contempt for moving out of state with the child, but rather for
willfully failing to comply with earlier orders, specifically the final order of visitation
and the first contempt order. See Higdon v. Higdon, 321 Ga. App. 260, 263 (1) (c)
(739 SE2d 498) (2013) (“the court must find that there was a willful disobedience of
the court’s decree or judgment.”) And “[i]f there is any evidence in the record to
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support the trial judge’s determination that a party either has or has not willfully
disobeyed the trial court’s order, the decision of the trial court will be affirmed on
appeal.” Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153, 168 (7) (666
SE2d 683) (2008).
The father did not attend, but was represented by counsel at the November
2017 hearing on the underlying contempt motion. At that hearing, the evidence
revealed that the father was present at the May 19, 2017 hearing on the first contempt
petition and, at that time, still lived in Georgia. Further, the trial court found that
despite being found in contempt of the final order of visitation, and being ordered to
comply with the terms of visitation in the final order and the first contempt order, the
father continued to withhold visitation from the grandfather. The grandfather testified
that, other than one visitation on the weekend of March 24, 2017, he had been refused
all other visitation with the child. He also testified that, despite the first contempt
order granting him three additional weekends of compensatory visitation beginning
on Friday, May 26, 2017, Memorial Day weekend, when he went to pick up the child,
he discovered that the father had moved away from Georgia without any notice. There
was also evidence that the father had not paid the $850.00 in attorneys fees as
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directed by the first contempt action. Hence, there was evidence that the father
willfully disobeyed the trial court’s prior orders.
We are also unpersuaded by the father’s contention that there was no evidence
that he refused to permit the grandfather to exercise his visitation rights after June 7,
2017, the date the first contempt order was actually entered. Contrary to the father’s
contention, the order was entered nunc pro tunc to May 19, 2017, the day of the first
contempt hearing. “A nunc pro tunc entry is for the purpose of recording some action
that was taken or judgment rendered previously to the making of the entry, which is
to take effect as of the former date. Thus, the [trial] court is authorized to cause the
written order to relate back the date of the hearing and its oral ruling.” In the Interest
of I. L. M., 2018 __Ga.__ (816 SE2d 620) (2018). Thus, this contention fails.
Accordingly, the trial court did not err in finding the father in contempt in this
regard.
2. The father also contends that the trial court erred in awarding the grandfather
40 consecutive days of visitation to make up for the missed visitation without
considering the best interest of the child. Pretermitting whether the trial court was
required to consider such,
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no argument was made below that the trial court failed to consider the
best interest of the child in issuing this order, nor did the [father] present
any evidence at the hearing on this issue. It is well settled that issues
presented for the first time on appeal furnish nothing for us to review,
for this is a court for correction of errors of law committed by the trial
court where proper exception is taken.
(Citations and punctuation omitted.) Rimmer v. Tinch, 324 Ga. App. 65, 69 (2) (749
SE2d 236) (2013).
3. We agree with the father that the trial court erred in requiring him to pay the
additional attorney fees of $1000.00 incurred in the second contempt action in order
to purge himself of contempt. “[A] trial court does not have the authority to make
payment of a new attorney fees award a condition for purging contempt of a previous
order.” Horn v. Shepherd, 292 Ga. 14, 21 (11) (732 SE2d 427) (2012) (emphasis
supplied.) Therefore, we reverse that portion of the trial court’s order.
Judgment affirmed in part, reversed in part. McMillian and Reese, JJ., concur.
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