Hill v. Davis

THIRD DIVISION
MILLER, P. J.,
MCFADDEN and MCMILLIAN, 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
June 30, 2016
In the Court of Appeals of Georgia
A16A0692. HILL v. DAVIS
MCFADDEN, Judge.
Alonzo Q. Hill appeals from a temporary order of the trial court that held him
in contempt. Hill enumerates multiple errors on appeal. As to contempt, Hill’s
arguments are without merit. But we vacate the award of attorney’s fees because the
trial court did not specify a statutory basis for the award.
Hill and Chanestia Davis are the parents of a minor child, born out of wedlock
in 2005 and legitimated in 2006. Davis had joint legal and primary physical custody
of the minor. Hill filed numerous contempt actions against Davis. On June 2012,
ruling on one such motion, the trial court ordered the parties to receive joint
psychological counseling, and wrote out a schedule for visitation.
In September 2012, after Hill filed another contempt action, the court held Hill
in contempt, finding that “[t]he sheer volume of text messages [sent by Hill to Davis]
. . . demonstrates to the [c]ourt an excessive compulsion to control every aspect of the
child’s life.” The court ordered that Hill send no more than ten text messages to Davis
each month.
Hill filed yet another motion for contempt in November 2014, arguing that
Davis had failed to adhere to the visitation schedule and failed to attend the
counseling mandated in the prior order. Davis filed a counterclaim, asking that Hill
be held in contempt for his continuous harassment of Davis in violation of the prior
court order. In an order entered on August 25, 2015, the trial court denied Hill’s
motion for contempt, but granted Davis’s. He found Hill in contempt and awarded
Davis attorney’s fees. This appeal followed. Although the trial court also granted
Davis full legal and full physical custody of the minor, Hill appeals only the trial
court’s holding of contempt.
1. Deficiencies in Hill’s brief
As a threshold matter, we address the deficiencies in Hill’s brief, which fails
to comply with our rules. Notably, Hill’s brief does not contain proper citations to the
specific page numbers of the record or transcript that are essential to consideration
2
of the enumerated errors, nor does he include a concise statement of the applicable
standard of review. See Court of Appeals Rule 25 (a) (1), (a) (c) (2) (ii). In the
absence of proper record citations, we need not “search for or consider such
enumeration.” Court of Appeals Rule 25 (c) (2) (i). “Briefs that do not conform to our
rules hinder our ability to determine the basis and substance of an appellant’s appeal.
Nonetheless, we will review [Hill’s] claims of error to the extent that we can ascertain
his arguments.” Gary v. Dollar Thrifty Auto. Group, 329 Ga. App. 320, n. 1 (763
SE2d 354) (2014) (citation omitted).
2. Refusal to hold Davis in contempt.
In his first enumeration of error, Hill contends that the trial court erred by
finding that Davis was not in contempt of the June 2012 order. Hill first argues that
Davis had previously been held in contempt of that order. But the record is devoid of
any orders holding Davis in contempt. “The party asserting error on appeal has the
burden to show it affirmatively by the record.” McClaskey v. Jiffy Lube, 197 Ga. App.
537 (398 SE2d 825) (1990) (citation omitted). “This court is a court for the correction
of errors and its decision must be made on the record sent to this court by the clerk
of the court below and not upon the briefs of counsel.” Sheffield v. Zilis, 170 Ga. App.
62, 65 (2) (316 SE2d 493) (1984) (Citation and punctuation omitted). It therefore
3
must be assumed that the evidence supported the trial court’s finding that Davis had
not previously been held in contempt.
Hill also argues that the trial court erred because he made a factual finding that
both parties failed to comply with the court order by not attending the joint
psychological counseling sessions and by not following the visitation schedule, yet
did not find Davis in contempt. Trial courts have “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.” Baker v. Schrimsher, 291 Ga. 489, 491
(731 SE2d 646) (2012) (Citations omitted.) Here the trial court did not find that either
party’s failure to adhere to the prior court order rose to the level of contempt, and Hill
fails to show any abuse of the trial court’s discretion in failing to hold Davis in
contempt. See Higdon v. Higdon, 321 Ga. App. 260, 262 (b) (739 SE2d 498) (2013).
3. Hill’s contempt.
Hill argues that the trial court erred by holding him in indirect criminal
contempt because trial court did not witness any disrespectful or contumacious
conduct from Hill during the hearing. But whether Hill engaged in conduct that was
disrespectful or contumacious is irrelevant to whether he was properly held in indirect
criminal contempt. “[T]he procedure[s] that a trial court must follow to hold a person
4
in contempt depend upon whether the acts alleged to constitute the contempt are
committed in the court’s presence (direct contempt) or are committed out of the
court’s presence (indirect contempt).” Ramirez v. State, 279 Ga. 13, 14 (2) (608 SE2d
645) (2005) (Citations omitted). Indirect contempt “may involve some form of wilful
disrespect toward the court; it may involve intentional disregard for or disobedience
of an order or command of the court, or it may involve conduct which interferes with
the court’s authority to administer justice.” Dogan v. Dep’t of Human Res., 278 Ga.
App. 905, 907 (1) (630 SE2d 140) (2006) (Citations and punctuation omitted). Here,
the trial court based his decision to hold Hill in indirect criminal contempt on Hill’s
failure to adhere to the prior court order by sending hundreds of texts to Davis. Such
conduct was an intentional violation of a prior court order, and the trial court was
authorized to hold Hill in indirect contempt for these actions.
4. Failure to set out findings of fact.
Hill argues that the trial court erred by failing to set out findings of fact in his
order. This contention is without merit. The trial court specifically found that Hill was
in violation of a prior court order when he failed to limit his texts to ten per month.
That was sufficient. “To hold in contempt, the court must find that there was a wilful
5
disobedience of the court’s decree or judgment.” Beckham v. O’Brien, 176 Ga. App.
518, 522 (336 SE2d 375) (1985) (citations omitted).
5. Hearsay.
Hill argues that hearsay evidence which was excluded at the hearing was used
to find that he was in contempt. Hill claims that the testimony of the school’s
principal “who stated that [a] teacher told her [Hill] had berated her at school and
intimidated her,” was hearsay that the trial court used to find Hill in contempt. At the
hearing, the principal testified about an incident that occurred when Hill confronted
a teacher after his son was disciplined. At the hearing, Hill did not object to this
testimony. Assuming without deciding that the testimony was hearsay, there is no
evidence that the alleged hearsay evidence cited by Hill was considered by the trial
court. The order shows that Davis was found in contempt solely because of his
violation of the text message provision of the previous order. This contention is
therefore without merit.
Hill also argues that “the court allowed [Hill’s] blog to be admitted into
evidence despite the fact that said blog was hearsay.” Once again, the trial court’s
contempt holding was based solely on the excessive text messages sent from Hill to
6
Davis, and there is no evidence that the blog was considered by the trial court. This
contention is also without merit.
6. Attorney Fees
Hill contends that the trial court erred by awarding attorney fees. Because the
trial court did not specify the statutory basis for the award, we agree. Davis sought
the award of attorney fees in her counterclaim without stating a statutory basis for the
award, and the trial court’s order states no statutory basis for his award of attorney
fees to Hall.
“As a general rule, Georgia law does not provide for the award of attorney fees
even to a prevailing party unless authorized by statute or by contract.” Cothran v.
Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007) (Citation and punctuation
omitted). Since Hill originally brought this action to modify child custody, the trial
court was authorized to award attorney fees under OCGA § 19-9-3 (g) or OCGA §
19-6-15 (k) (5). See Viskup v. Viskup, 291 Ga. 103, 106-107 (1) (727 SE2d 97)
(2012). And because the record shows multiple statutory bases for the attorney fees
award, “it was incumbent upon the trial court to indicate which statute was relied
upon in making its award.” Hall v. Hall, 335 Ga. App. 208, 212-213 (2) (780 SE2d
787) (2015).
7
Georgia appellate courts have repeatedly held: When there is more than
one statutory basis for the attorney-fee award and neither the statutory
basis for the award nor the findings necessary to support an award is
stated in the order and a review of the record does not reveal the basis
of the award, the case is remanded for an explanation of the statutory
basis for the award and the entry of any findings necessary to support it.
Id. at 210 (citations omitted).
We therefore must vacate the award of attorney fees and remand the case for
the trial court to explain the statutory basis for the award and to enter any necessary
factual findings.
Judgment affirmed in part, vacated in part and case remanded. Miller, P. J.,
concurs. McMillian, J., concurs fully in Divisions 1, 2, 3, 4, 5, and in the judgment
only in Division 6.
8