MURPHY Et Al. v. MURPHY ( 2014 )

SECOND DIVISION
DOYLE, P. J.,
MCFADDEN and BOGGS, 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/
November 17, 2014
In the Court of Appeals of Georgia
A14A1137. MURPHY v. MURPHY.
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 been held in contempt for failure to have Nancy Michelle
Murphy present at the contempt hearing. But as she was not under subpoena and had
not been ordered to appear in person, she was entitled to appear through counsel; so
that ruling must be reversed.
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
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recuse. We dismissed on the basis the order was not appealable as a collateral order
and was not appealable under the version of OCGA § 5-6-34 (a) (11) adopted in
2013, which authorizes direct appeals from “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 child custody judgment or orders.”
Our Supreme Court granted Nancy Michelle Murphy’s petition for certiorari
to address whether we erred when we concluded that the 2013 amendment of OCGA
§ 5-6-34 (a) (11) applied retroactively. In Murphy v. Murphy, 295 Ga. 376 (761 SE2d
53) (2014), the Supreme Court ruled that the amendment did not apply retroactively
but nonetheless affirmed the dismissal of Nancy Michelle Murphy’s appeal on the
ground that, “even under the prior version of OCGA § 5-6-34 (a) (11), there was no
right of direct appeal from the recusal order at issue.” Id. at 379.
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, __ Ga. App. __ (759 SE2d 909) (2014), we affirmed that order. We imposed
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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.
2. Facts underlying the present appeal.
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.
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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.
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Because this is an appeal from a contempt order, the appellants were not
required to follow the interlocutory appeal procedure. OCGA § 5-6-34 (a) (2); Massey
v. Massey, 294 Ga. 163, 164-165 (2) (751 SE2d 330) (2013) (citations omitted); see
also OCGA § 5-6-34 (a) (11) (making “[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 child custody judgment or orders”
immediately appealable); OCGA § 5-6-37 (“Unless otherwise provided by law, an
appeal may be taken to the Supreme Court or the Court of Appeals by filing with the
clerk of the court wherein the case was determined a notice of appeal.”).
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.
OCGA § 5-6-35 (j). So we do not decide if they were so entitled, and we deny John
Murphy’s motion to dismiss the appeal.
4. Deficiencies in the appellants’ brief.
As a threshold matter, we address the deficiencies in the appellants’ brief.
The Appellate Practice Act, at OCGA § 5-6-40, provides that enumerations of
error are to be concise and “shall set out separately each error relied upon.” “It is
desirable that each enumeration be explicit, precise, intelligible, unambiguous,
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unmistakable, and unequivocal.” MacDonald v. MacDonald, 156 Ga. App. 565, 569
(1) (d) (275 SE2d 142) (1980) (physical precedent). Our rules direct that, “[t]he
sequence of arguments in the briefs shall follow the order of the enumeration of
errors, and shall be numbered accordingly.” Court of Appeals Rule 25 (c) (1). As to
each enumeration of error, an appellant is to specify how the error was preserved and
to state concisely the applicable standard of review. Court of Appeals Rule 25 (a).
Briefs and enumerations of errors that do not conform to those requirements hinder
our ability to determine the basis and substance of an appellant’s appeal. Williams v.
State, 318 Ga. App. 744, 744-745 (734 SE2d 745) (2012).
Appellants’ brief does not conform to those requirements. Their brief and
enumerations of error is 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 in the margin.1
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“Whether the court erred in holding Michelle Murphy in contempt for not
cooperating, within the time provided by the Court, with the custody evaluator, who
presented an illegal condition for Michelle Murphy to perform in order to “cooperate”
by requiring that Michelle Murphy execute the psychologist’s contract. (V17 p.3627)
The contempt adjudication was not supported with proof beyond a reasonable doubt
of Michelle Murphy’s violation of the Order. If proven beyond a reasonable doubt
that Michelle Murphy violated any directive of the custody evaluator, the directive
placed an illegal condition upon Michelle Murphy that is being appealed. In order to
accomplish what Judge Baldwin ordered, Michelle Murphy would have had to be
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As to some of the issues that appellants attempt to raise, these deficiencies
constitute abandonment. Appellants do not address each enumeration of error in the
argument section of their brief, and their arguments in that section do not follow the
order of the enumeration of errors. And many of the alleged errors referenced in the
enumeration of errors, are not supported with arguments, citations to the record, or
citations of authority. Court of Appeals Rule 25 (c) (2) provides, “Any enumeration
of error which is not supported in the brief by citation of authority or argument may
subjected to the following, illegal conditions: Michelle Murphy would have been
required to execute a contract that is void against the public policy of the State of
Georgia, in that: (a) the contract that requires Michelle Murphy to grant the
psychologist full immunity from liability, not just the immunity from liability
provided by statute that exempts immunity to the psychologist resulting from her bad
faith; (b) the contract requires that Michelle Murphy become financially liable for
fees that she cannot afford, as it requires that she pay expensive fees to obtain
discovery and production, testimony at trial, or be deprived of this evidence that
could be necessary to her defense of the psychologist’s findings or for use by her as
evidence against the plaintiff; (c) the contract provides that the psychologist be paid
18% interest for late payments of fees; (d) unless Michelle Murphy executed the
contract, the psychologist would not inform her counsel of the method to be used for
the “custody evaluation,” and would not provide other information about the scope
of the investigation of John Harold Murphy and Renee L. Haugerud that would be
conducted before rendering an opinion to the Court; (e) unless Michelle Murphy
executed the contract, the psychologist stated that she would not talk to counsel for
Michelle Murphy or Michelle Murphy; and, (f) Michelle Murphy would have been
subjected to a psychologist who was selected by the guardian ad litem, who was
exposed by counsel for Michelle Murphy for converting to her personal use trust
funds provided to her in the case, in violation of USCR 24.9 (8)(g).”
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be deemed abandoned.” See also Court of Appeals Rule 25 (c) (2) (i) (“Each
enumerated error shall be supported in the brief by specific reference to the record or
transcript. In the absence of such reference, the Court will not search for or consider
such enumeration.”).2
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 contempt motion. However, the appellants have cited no authority for the
2
Finally as noted above, our previous opinion rebuked appellants for repeated
violations of Court of Appeals Rule 10 which provides, “Personal remarks, whether
oral or written, which are discourteous or disparaging to any judge, opposing counsel,
or any court, are strictly forbidden.” Murphy v. Murphy, __ Ga. App. __, __ (4) (759
SE2d 909) (2014). Their present brief is only somewhat better. It includes, for
example, repeated unsupported and irrelevant assertions that a particular witness has
substance abuse problems. We again rebuke appellants. This lack of professionalism
does less than nothing to advance their cause.
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proposition that the transfer of the case to Judge Baldwin was illegal. On the contrary,
Uniform Superior Court Rule 3.3 authorizes “an assigned judge [to] transfer an
assigned action to another judge with the latter’s consent in which event the latter
becomes the assigned judge.” And there are no unadjudicated disqualification
motions. Judge Baldwin orally denied all such motions before hearing the contempt
motion. See Uniform Superior Court Rule 25.1 (“In no event shall the motion [for
disqualification] be allowed to delay the trial or proceeding.”).
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 OCGA § 5-6-34 (e), however, when a party appeals
an order granting nonmonetary relief in a child custody case, the order stands until
reversed or modified by the reviewing court unless the trial court states otherwise in
its judgment or order. The trial court did not state otherwise in the August 23 order,
so that order stood and remained enforceable through contempt proceedings
notwithstanding the pending appeal. See Walker v. Walker, 239 Ga. 175, 176 (236
SE2d 263) (1977) (custody award that is not subject to supersedeas is enforceable
through contempt; decided before July 1, 2011 effective date of OCGA § 5-6-34 (e)).
6. Contempt citations.
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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.
Whether or not a party is entitled to notice of the charges of contempt and a
hearing on those charges depends on the type of contempt he is charged with. “Acts
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of contempt are either direct, meaning they are committed within the sensory
perception of the judge, or they are indirect, meaning they occur outside the sensory
perception of the judge.” In re Shook, 254 Ga. App. 706, 707 (563 SE2d 435) (2002)
(citation and punctuation omitted). When a party is charged with committing direct
contempt, no advanced notice is required and due process is satisfied “by simply
giving [the party charged] an opportunity to speak on her own behalf.” Johnson v.
State, 258 Ga. App. 33, 36 (2) (b) (572 SE2d 669) (2002) (citation omitted). When
a party is charged with committing indirect contempt, the party is “entitled, among
other things, to reasonable notice of the charges, to counsel of his own choosing, and
to the opportunity to call witnesses.” Ramirez v. State, 279 Ga. 13, 16 (3) (608 SE2d
645) (2005).
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.
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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.
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 email. 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 did not err in concluding that the
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appellants received reasonable, sufficient notice. See Gibson v. Gibson, 234 Ga. 528,
529-530 (3) (216 SE2d 824) (1975) (notice less than five days before hearing, which
appellant did not dispute receiving, was reasonable). Compare Hedquist, 275 Ga. at
190 (notice of hearing that did not specify that trial court would hear the contempt
motions at pretrial conference was inadequate).
(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, footnote, 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
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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 Props., 271
Ga. 271, 272 (2) (517 SE2d 68) (1999). It is undisputed that Farmer had actual notice
of the order and acted as Nancy Michelle Murphy’s representative when obtaining the
affidavits from the children.
(b) Failure to cooperate with the custody evaluator.
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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) (1), 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
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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 OCGA § 24-8-821 (“Without offering the same in evidence, either
party may avail himself or herself of allegations or admissions made in the pleadings
of the other.”).
This is sufficient evidence to authorize the trial court to conclude that Nancy
Michelle Murphy violated the August 23 order by refusing to cooperate with the
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custody evaluator. See Edwards v. Edwards, 254 Ga. App. 849, 854 (563 SE2d 888)
(2002) (a person who simply ignores a court order that she believes is erroneous
“does so at [her] own peril and must assume the risk of being held in contempt”)
(citation and punctuation omitted).
(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
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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.
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