Arnold v. McKibbins, A93A1253

• Decision Date: 20 August 1993
• Docket Number: No. A93A1253,A93A1253
• Citation: 210 Ga.App. 262,435 S.E.2d 685
• Parties: ARNOLD v. McKIBBINS.
• Court: Georgia Court of Appeals

Page 685

435 S.E.2d 685

210 Ga.App. 262

ARNOLD v. McKIBBINS.

No. A93A1253.

Court of Appeals of Georgia.

Aug. 20, 1993.

Reconsideration Denied Sept. 15, 1993.

Certiorari Denied Dec. 3, 1993.

Ann R. Arnold, pro se.

Mohr & Farnham, Bill M. Mohr, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Annie Rae Arnold appeals the contempt order of the superior court. Plaintiff/appellee Rupearllar McKibbins initiated suit averring claims to quiet title, and claims for trespass and damage to shrubs, intentional infliction of emotional distress, and tortious interference with contract relations. Appellant Arnold answered and filed a counterclaim for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414. The trial court entered a consent order, finding, inter alia, that (a) the hedges were the property of appellee and her successors; (b) appellee had the responsibility for maintenance of the hedges at a height not to exceed five feet; (c) appellee had the responsibility for trimming the hedges except on the side fronting appellant's property. It also ordered both appellant and appellee "to have no contact of a harassing, intimidating, molesting or annoying nature, included but not limited to words or gestures." The order further provided: "The parties acknowledge that they have been admonished in open court that failure to comply with any term of this agreement shall be deemed a contempt of court and may be punished by fine and/or incarceration," and held "all remaining claims of the parties are dismissed without prejudice."

Thereafter, appellee filed a petition for contempt averring that appellant had violated the consent order by directing a young man in her employ to cut the top of the hedges despite appellee's admonition that such action was in violation of the consent order, and that the employee cut the top of the hedges. Appellee/petitioner further averred that this action was taken for the purpose of harassing, intimidating, molesting and annoying said appellee. Appellant, pro se, filed a response and "counter petition" asserting, inter alia, that appellee was in contempt of court, seeking to deter appellee from future harassing-type conduct, and praying for damages for the infliction of mental anguish and emotional stress, "prompted by [appellee's] frivolous, harassing, intimidating, molesting and annoying petition to cite in contempt." Held:

1. Appellant's assertion that the trial court erred in issuing a rule nisi, bearing a date of December 11, 1992 (apparently due to clerical error), and filed November 13, 1992, is without merit. Appellant claims the rule nisi is invalid because appellee's contempt petition was not supported by citation of authority as required by USCR 6.1; the trial court considered the petition without the requisite showing of the legal standard required for a holding of contempt; and appellee failed to present evidence to the court sufficient to shift the burden to appellant to show cause why she should not be held in contempt. USCR 6.1 on its face pertains to motions "made prior to trial." A petition of contempt is not a "motion made prior to trial" within the meaning of USCR 6.1. Moreover, a trial judge is presumed to know the law, Rowe v. Rowe, 195 Ga.App. 493(2), 393 S.E.2d 750, and would not abuse his discretion by declining to dismiss a motion for failure to comply with the citation provisions of USCR 6.1. Moreover, the record does not establish that the trial judge prejudicially applied an erroneous legal standard. Further, appellant's contention that there was no stipulation to the facts contained in appellee's affidavit accompanying her petition is without merit; assuming arguendo USCR 6.1 had been applicable, it does not require that facts contained in affidavits be stipulated. Also, appellant by his factual assertion in his brief that "no evidence other than [appellee's] unstipulated allegations of fact accompanied said petition," is an admission in judicio that the petition was accompanied by an affidavit of fact. Weir v. McGill, 203 Ga.App. 431, 432, 417 S.E.2d 57; Bannister v. State, 202 Ga.App. 762, 766, 415 S.E.2d 912; West v. Nodvin, 196 Ga.App. 825, 397 S.E.2d 567. Appellant's other assertions in support of this enumeration likewise are without merit.

2. The superior court did not err in not finding appellee and her attorney in contempt of its order of August 26, 1992. No response was required of appellee to appellant's response and counter petition, as the trial court did not require one. OCGA § 9-11-12(a). Moreover, averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Chan v. W-East Trading Corp., 199 Ga.App. 76, 80(5), 403 S.E.2d 840. The trial judge in this case was the factfinder. The transcript of evidence does not establish, as a matter of law, that appellee was in contempt of the consent order. " ' " 'A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury' " ' " (Collier v. South Carolina Ins. Co., 205 Ga.App. 323, 324, 422 S.E.2d 52); accordingly, it would be inappropriate for this court to substitute its judgment for that of the trial court regarding the weight of evidence and witness credibility.

3. Appellant asserts " '[a]n order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings.' " Ogletree v. Watson, 223 Ga. 618, 619(2), 157 S.E.2d 464. We accept this as a correct statement of law; however, the order in this case does contain an "express command or prohibition" within the meaning of Ogletree, supra.

4. Contrary to appellant's contentions, the trial court did not capriciously issue summary punishment. Compare Jackson v. State, 225 Ga. 553, 557(4), 170 S.E.2d 281 and Young v. Champion, 142 Ga.App. 687,...