Krystal D. Ruemker A/K/A Krystal D. Stanley v. Raymond Ruemker , 339 Ga. App. 680 ( 2016 )

FIRST DIVISION
DOYLE, C. J.,
ANDREWS, P. J., and RAY, J.
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
November 2, 2016
In the Court of Appeals of Georgia
A16A1200. RUEMKER v. RUEMKER. DO-046
A16A1201. RUEMKER v. RUEMKER. DO-047
A16A1202. STANLEY v. RUEMKER. DO-048
A16A1203. STANLEY v. RUEMKER. DO-049
DOYLE, Chief Judge.
Krystal D. Ruemker a/k/a Krystal D. Stanley (“mother”) and Raymond
Ruemker (“father”), the biological parents of Leah Ruemker (“ward”), an
incapacitated adult, are seeking appointment as her guardian and conservator.1 On
December 21, 2015, the trial court entered an order requiring the mother and her
husband, Gregory Stanley (“stepfather”), to appear in court the following morning
and produce the ward for travel as directed by the emergency guardian appointed for
1
The ward, who was born on March 6, 1994, is developmentally disabled, and
it is undisputed that she is in need of a guardian.
the pendency of the case. The mother and stepfather failed to appear for the hearing,
and on December 22, 2015, the trial court entered an order requiring their immediate
incarceration. In Case No. A16A1200, the mother appeals the superior court’s
December 21, 2015 order; in Case No. A16A1201, the mother appeals the court’s
December 22, 2015 order; in Case No. A16A1202, the stepfather appeals the court’s
December 21, 2015 order; and in Case No. A16A1203, the stepfather appeals the
court’s December 22, 2015 order. We have consolidated these cases on appeal, and
for the reasons that follow, we dismiss all four appeals.
Pursuant to a May 2010 Missouri family court order, the parents had joint
physical and legal custody of the ward.2 On February 22, 2012, shortly before the
ward’s eighteenth birthday, the mother filed a guardianship petition in the Houston
County Probate court, and the father objected. The probate court appointed the
parents as co-guardians and established a visitation schedule; the mother appealed
that order to the Superior Court of Houston County.
While the guardianship case proceeded, the superior court appointed an
emergency guardian of the ward pursuant to OCGA §§ 29-4-70 (d) and 29-4-16.
2
The father lives in Missouri and the mother lives with the ward in Houston
County, Georgia.
2
Following a jury trial, the court entered a final judgment appointing the parents as co-
guardians and establishing alternating periods of visitation and domicile in
accordance with the verdict. The mother filed a motion for new trial, and in
November 2015, the court granted the motion because the ward was not represented
by counsel at trial. On October 6, 2015, the superior court entered an order
reappointing the same emergency guardian, giving the mother physical custody, and
granting the father visitation as directed by the emergency guardian.3
On December 21, 2015, the father filed a motion to show cause alleging that
he arrived at the mother’s home on December 18, 2015, to retrieve the ward for his
holiday visitation as directed by the emergency guardian. According to the father, the
mother was home but refused to come to the door, and she ignored his attempts to
schedule a time to pick up the ward the following day. On December 21, 2015, the
superior court entered an order directing the mother and stepfather to appear in court
the following day at 9:00 a.m. and produce the ward, along with her clothing and
belongings for travel to Missouri with the father. The order stated that “[f]ailure to
3
In the order reappointing the guardian, the court noted that it had considered
the affidavit of a physician, the deposition of a neuropsychologist, the parties’
stipulation that the ward was in need of a guardian, and the parties’ and witnesses’
testimony at trial.
3
appear or to produce [the ward] shall result in an immediate order for incarceration
of [the mother and stepfather],” and it scheduled a December 28, 2015 hearing to
address whether the mother and stepfather should be held in contempt for their
alleged failure to comply with the visitation directed by the emergency guardian.
On December 22, 2015, the mother and the stepfather filed separate notices of
appeal of the December 21, 2015 order. Also on December 22, 2015, the superior
court entered an order finding that the mother and stepfather had failed to appear as
ordered in the preceding show cause order and directing that the mother and
stepfather “be found and immediately incarcerated for failing to produce the ward. .
. .”4 The stepfather appeared before the trial court that same day, and he explained
that the sheriff had picked him up from his home that morning. He was not permitted
to take his cell phone with him, and he could not recall any of the mother’s phone
numbers; the stepfather assured the court, however, that he would assist in locating
the mother. That same day – December 22, 2015 – the trial court issued an order
stating that the stepfather
4
The superior court also concluded that the mother’s and stepfather’s notices
of appeal of the December 21, 2015 order were meritless and failed to divest the court
of jurisdiction because the show cause order “in no way [found] the parties in
contempt.”
4
shall be released to a member of the investigation division of the
Houston County Sheriff’s Office. Said officer will transport [the
stepfather] to his home where he will attempt to locate [the mother] and
[the ward]. He will be released from custody on his own recognizance
upon his good faith effort to assist law enforcement in locating [the
ward].”
The stepfather was released from jail that same day.
Both the mother and stepfather filed notices of appeal of the December 22,
2015 order.5 On December 28, 2015, the Superior Court of Houston County entered
a kidnapping warrant for the mother, who was arrested on January 5, 2016, in Texas;
she was later released from jail. Also on December 28, 2015, the trial court entered
an order directing the mother and stepfather to appear before the court on January 14,
2016 “to show cause why they should not be held in contempt and confined to . . .
[j]ail for their failure to comply with the [c]ourt’s order to release the ward to her
father’s care on Friday, December 18, 2015.” On January 19, 2016, the superior court
in the instant case entered an order titled “ORDER DISMISSING CONTEMPT AND
5
Thereafter, on January 6, 2016, the trial court entered a third emergency order
of guardianship, reappointing the same guardian again and vesting her with decision-
making authority regarding visitation, noting that the appointment met the statutory
criteria set forth in OCGA §§ 29-4-70 and 29-4-16.
5
DENYING RAY REU[M]KER’S MOTION TO SHOW CAUSE.” Therein, after
concluding that “there is no further action that the [c]ourt can take to ensure
compliance with its December 21, 2015 and December 22, 2015 Orders” and noting
that the ward was currently residing with the father, the court dismissed its “prior
[o]rders finding [the mother and stepfather] in contempt.”
Case No. A16A1200
1. The mother appeals the superior court’s December 21, 2015 show cause
order. We do not have jurisdiction to consider this appeal.
“Two Code sections determine the method for pursuing appeals to this Court:
OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be
appealed directly, and OCGA § 5-6-35, which lists cases in which an application for
appeal is required.”6 OCGA § 5-6-34 (a) (11) provides a right of direct appeal from
“[a]ll judgments or orders in child custody cases awarding, refusing to change, or
modifying child custody or holding or declining to hold persons in contempt of such
6
Collins v. Davis, 318 Ga. App. 265, 266 (1) (733 SE2d 798) (2012).
6
child custody judgment or orders.”7 OCGA § 5-6-34 (a) (2) provides that a direct
appeal may be taken from “contempt cases.”
Here, the superior court’s December 21, 2015 show cause order did not include
any decision as to custody, nor did it hold or decline to hold any party in contempt of
a child custody or any other order. Thus, it is an interlocutory ruling and not directly
appealable.8 Accordingly, this appeal is dismissed.9
7
OCGA § 5-6-34 (a) (11). This Court has applied this Code section to a
guardianship case involving custody of a 19-year-old woman requiring care and
supervision for her life. See Brabant v. Patton, 315 Ga. App. 711, 712-713 (728 SE2d
244) (2012).
8
See OCGA § 5-6-34 (a) (11); Hulsey v. Smith, 223 Ga. 522 (156 SE2d 353)
(1967) (“a rule nisi ordering the appellant to show cause” is not a final judgment);
Barfield v. Butterworth, 323 Ga. App. 156, 157 (1) (746 SE2d 819) (2013) (physical
precedent only) (because “the trial court’s order is not an order ‘awarding, refusing
to change, or modifying child custody or holding or declining to hold persons in
contempt’ of such an order, it is not subject to direct appeal”); Fagala v. Morrison,
161 Ga. App. 655, 656 (2) (289 SE2d 528) (1982) (“the order requiring the
appellant’s attorney to show cause is not subject to direct appeal because it is not
final”).
9
We note that in this appeal (as in the other three appeals), the appellant
challenges the trial court’s appointment of the emergency guardian and, in doing so,
vesting her with decision-making authority regarding visitation, arguing that the trial
court failed to ensure compliance with certain statutory requirements including
OCGA §§ 29-4-14 (d); 29-4-15 (c) (3); 29-4-16; and 29-4-70 (d). But OCGA § 29-4-
70 (d), which permits the appointment of an emergency guardian for a ward pending
the appeal of a probate court’s final order to superior court, specifically provides that
“[t]he appointment of an emergency guardian is not appealable.”
7
Case No. A16A1201
2. We also dismiss the mother’s appeal of the December 22, 2015 order. This
case is not directly appealable under OCGA § 5-6-34 (a) (11) because the December
22, 2015 order did not include a decision as to custody, nor did it hold or decline to
hold any party in contempt of a custody order. The mother, however, argues that the
order constituted a contempt order pursuant to OCGA § 15-6-8 (5)10 and was
therefore directly appealable under OCGA § 5-6-34 (a) (2).11 The father, in contrast,
argues that the order was analogous to a bench warrant, the primary purpose of which
“is to secure the presence of the defendant in court. [And o]nce the defendant appears
in court, the bench warrant is no longer necessary and has no force and effect.”12 In
10
See American Med. Security Group, Inc. v. Parker, 284 Ga. 102, 104 (5)
(663 SE2d 697) (2008) (“criminal contempt imposes unconditional punishment for
prior acts of contumacy”); OCGA § 15-6-8 (5) (limiting a superior court’s power to
impose fines not exceeding $1,000 or imprisonment not exceeding 20 days for
contempt).
11
OCGA § 5-6-34 (a) (2) provides a right of direct appeal from judgments
“involving . . . contempt cases.”
12
(Punctuation omitted.) Allen v. State, 244 Ga. App. 377, 379 (535 SE2d 347)
(2000), quoting State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988). See also
Martin v. Waters, 151 Ga. App. 149, 150 (2) (259 SE2d 153) (1979) (explaining that
“the normal procedure when a party or witness who has been ordered to appear does
not do so is to arrest [her] under a bench warrant at which time the cause of the delay
can be inquired into” and that sentencing the party to 20 days in jail without holding
8
considering this argument, we recognize that “the appealability of an order is
determined, not by its form or the name given to it by the trial court, but rather by its
substance and effect.”13 Here, the December 22, 2015 order found that the mother and
stepfather had failed to appear in court with the ward as required and ordered their
immediate incarceration. The order did not, however, decide the penalty for the
parties’ failure to appear as directed.
Pretermitting whether the December 22, 2015 order constituted a bench warrant
to secure the appearance of the mother or a directly appealable contempt order, this
appeal is moot. The mother has been released from custody for her actions in this
case, no additional punishment was imposed by the instant court for her failure to
appear as directed in the December 21, 2015 order, and, pursuant to the trial court’s
subsequent order dismissing any contempt finding, the December 22, 2015 order no
longer subjects the mother to jeopardy. Therefore, we dismiss this appeal.14
a contempt hearing is erroneous).
13
(Punctuation omitted.) American Med. Security Group, Inc., 284 Ga. at 104
(4), quoting First Christ Holiness Church, Inc. v. Owens Temple First Christ
Holiness Church, Inc., 282 Ga. 883, 885 (655 SE2d 605) (2008).
14
See OCGA § 5-6-48 (b) (3) (an appeal shall be dismissed “[w]here the
questions presented have become moot”); Higdon v. Higdon, 321 Ga. App. 260, 265-
266 (2) (739 SE2d 498) (2013) (appeal moot where “there is nothing for this Court
9
Case No. A16A1202
3. For the same reasons set forth in Division 1, the stepfather’s appeal of the
superior court’s December 21, 2015 order is dismissed.
Case No. A16A1203
4. For the same reasons set forth in Division 2, the stepfather’s appeal of the
superior court’s December 22, 2015 order is dismissed as moot.15
Appeals dismissed. Andrews, P. J. and Ray, J., concur.
to review, because the activity sought to be enjoined has already ceased”)
(punctuation omitted); Cagle v. PMC Dev. Co., 233 Ga. 583, 584 (212 SE2d 765)
(1975) (appeal from an order holding the appellant in contempt for trespass was
dismissed as moot because “once a contempt judgment has been complied with, or
has been vacated, or has been rendered moot in any other manner, there is no
remaining case or controversy for adjudication in the appellate court”); Brochin v.
Brochin, 294 Ga. App. 406, 407 (1) (669 SE2d 203) (2008).
15
As aforementioned, the stepfather was released the same day he was taken
into custody after he agreed to make a good faith effort to assist law enforcement in
locating the mother and the ward.
10