Dunn v. Dunn

• Decision Date: 09 March 2022
• Docket Number: A21A1776, A21A1777, A21A1778
• Parties: DUNN v. DUNN.
• Court: Georgia Court of Appeals

363 Ga.App. 132

871 S.E.2d 30

DUNN

v.DUNN.

A21A1776, A21A1777, A21A1778

Court of Appeals of Georgia.

March 9, 2022

Kevin Mammola, Atlanta, for Appellant in A21A1776.

Kevin Mammola, Atlanta, Jeremy Craig Penland, Ringgold, for Appellant in A21A1777 and A21A1778.

Lawrence Alan Stagg, Ringgold, for Appellee.

Barnes, Presiding Judge.

After their divorce, Caryn Dunn (the wife) procured against Danny Dunn (the husband) a protective order and two contempt orders. In these appeals, the husband contests those orders. Because the protective order lacked sufficient evidence and the contempt orders were precluded by the husband's pending motion for new trial, we reverse the judgments.

The underlying divorce complaint was filed in 2019. After a hearing on October 28, 2020, the trial court entered on December 15, 2020 a Final Order of Divorce ("Final Order"). Relevant here, the Final Order granted the wife physical custody of the parties’ four minor children; granted the husband visitation; specified child support to be paid by the husband; awarded the marital residence to the wife; and provided for the sale of other real property.

Within 30 days of the entry of the Final Order, the husband filed on January 8, 2021 a motion for new trial. Among other things, he contended that the trial court's determinations and awards were contrary to law and against the weight of the evidence; that the trial court failed to provide necessary parameters of child custody/visitation;¹ and that the trial court failed to rule on his claim of premarital interest in various real estate.

Meanwhile, as a separate action, the wife petitioned the court on January 7, 2021 for a family violence protective order against the husband, asserting claims of "abuse." Two weeks later, the wife filed on January 21, 2021 a motion to hold the husband in contempt, alleging that he had violated the Final Order by falling in arrears of his child support obligations and by withholding the children from her during the Thanksgiving and Christmas time periods. The wife's petition for a protective order and her contempt motion were heard at an evidentiary hearing conducted on February 4, 2021. The next day, the trial court entered two of the three orders contested here: (i) one, granting the wife a 12-month family violence protective order; and (ii) the other, granting the wife's motion to hold the husband in contempt for failure to pay child support and for retaining the parties’ children contrary to terms of the Final Order.

Two months later, and while the husband's motion for new trial was still pending, the wife filed another motion to hold the husband in contempt; among her allegations, she claimed that in violation of the Final Order, the husband had failed to pay child support and had transferred certain real property. After an evidentiary hearing on April 8, 2021, the trial court entered on that same day the third order contested here, which order held the husband in contempt in connection with his failure to pay child support and his sale (or transfer) of certain real estate.

With respect to each of the three orders, the husband filed an application for discretionary review. Docketed here as A21D0284, A21D0285, and A21D0331, this Court granted each application, giving rise to Case Nos. A21A1776, A21A1777, and A21A1778, respectively. We turn first to the husband's challenges to the contempt orders.

Case No. A21A1777, Contempt Order Entered February 5, 2021

1. Regarding the first contempt order, the husband advances the following arguments.

(a) The husband contends that, pursuant to OCGA § 9-11-62, his motion for new trial acted as an automatic supersedeas that precluded the trial court from holding him in contempt for violating the child support and the custody/visitation provisions of the Final Order. We agree.

OCGA § 9-11-62 (b) provides, "The filing of a motion for a new trial or motion for judgment notwithstanding the verdict shall act as supersedeas unless otherwise ordered by the court; but the court may condition supersedeas upon the giving of bond with good security in such amounts as the court may order." In this case, the husband filed a timely motion for new trial after the Final Order was entered. And nothing in the Final Order exempted any of its provisions from the automatic supersedeas provided by OCGA § 9-11-62 (b) ; nor did the Final Order place any condition on the supersedeas.² Hence, at the time of the contempt ruling, the relevant provisions of the Final Order were stayed pending resolution of the husband's motion for new trial. See Hunnicutt v. Hunnicutt , 248 Ga. 516, 519 (3), 283 S.E.2d 891 (1981) (explaining that where the divorce judgment was superseded by the pending motion for new trial, the former spouse could not be held in contempt for violating that judgment);³ McLaws v. Drew , 355 Ga. App. 162, 170 (1), 843 S.E.2d 440 (2020) ("[M]otion for a new trial operated as a supersedeas, barring the enforcement of the contempt order."); Payne v. Myatt , 351 Ga. App. 678, 679-680 (2), 832 S.E.2d 663 (2019) (explaining that the father's pending motion for new trial stayed enforcement of order to pay mother's attorney fees and thus precluded trial court's contempt ruling, where the order did not provide any exemptions from or conditions on the automatic supersedeas). Cf. Franklin v. Franklin , 294 Ga. 204, 208 (3), 751 S.E.2d 411 (2013) (rejecting wife's argument that, under OCGA § 9-11-62 (b), her filing of a motion for new trial acted as an automatic supersedeas that prevented the trial court from enforcing its judgment with respect to her child support obligation, because by "specifying that a new temporary order would take effect in the event of an appeal, the trial court properly ensured that [w]ife's obligation to pay child support would remain in force and effect even if [w]ife challenged the [f]inal [d]ecree").

We conclude that "[t]he trial court's contempt ruling, therefore, was error and must be reversed." Payne , 351 Ga. App. at 680 (2), 832 S.E.2d 663 ; see Hunnicutt , 248 Ga. at 519 (3), 283 S.E.2d 891. And no merit lies in the wife's claim that the husband's failure to assert the automatic supersedeas at the trial court level waived the issue. The record shows that the trial court acknowledged at the hearing that the husband's motion for new trial remained pending. And as recited above, OCGA § 9-11-62 (b) provides that "[t]he filing of a motion for a new trial ... shall act as supersedeas unless otherwise ordered by the court." (Emphasis supplied.) "Under the circumstances of this case wherein the trial court's order was superseded [upon the filing of the husband's motion for new trial], [the husband] was not, as a matter of law , in contempt" of the Final Order, which was automatically stayed. (Emphasis supplied.) Hunnicutt , 248 Ga. at 519 (3), 283 S.E.2d 891.⁴ It follows that the trial court had no authority to hold the husband in contempt of the stayed order. See Imperial Body Works v. Natl. Claims Svc. , 158 Ga. App. 241, 243 (2), 279 S.E.2d 534 (1981) ("[D]efendant was insulated from execution on the instant judgment by the automatic supersedeas flowing from defendant's filing of its ... motion for new trial[.]"); see also Adair v. Adair , 236 Ga. 443, 444 (1), 224 S.E.2d 21 (1976) (recounting that the mother moved for a new trial after the father was awarded custody of their child; noting that "the motion for new trial ... is still pending"; and holding that "until it is acted upon[,] the [custody order in favor of the father] is superseded") (emphasis supplied); Exum v. Long , 157 Ga. App. 592, 593 (1), 278 S.E.2d 13 (1981) ("[T]he filing of plaintiff's motion for new trial acted as a supersedeas in the absence of a contrary order by the trial court."). See generally Tolbert v. Toole , 296 Ga. 357, 361 (2), 767 S.E.2d 24 (2014) (concluding that the "jurisdictional defect due to supersedeas cannot be waived," and holding further that "[a]ny proceeding so conducted in the trial court ‘is coram non judice,’ and the resulting want of jurisdiction cannot be waived ... so as to give effect to the void judgment"). Cf. Horn v. Shepherd , 292 Ga. 14, 17 (3), 732 S.E.2d 427 (2012) (concluding that the trial court was not precluded from ruling on contempt motion, where counsel for party held in contempt stated at the contempt hearing that there was no pending motion for new trial against the order, and where "the record is devoid of any evidence of a valid, pending motion for new trial").⁵

(b) The husband alternatively claims that the trial court erred in its calculation of child support arreages at $4,320. But our holding in Division 1 (a) renders this claim of error moot.

Case No. A21A1778, Contempt Order Entered April 8, 2021

2. Among his several arguments challenging the second contempt order, the husband contends that "the trial court was without authority to enter an order of contempt, as [his] Motion for New Trial acts as supersedeas to enforcement of the final order." For reasons explained above, the trial court's contempt order was error and is thus reversed. See Division 1 (a), supra.

3. Given our holding in Division 2, supra, we do not reach the husband's remaining challenges to the second contempt order.

Case No. A21A1776, Family Violence Protective Order Entered February 5, 2021

4. The husband contests the family violence protective order,⁶ claiming that the record is devoid of any evidence to find that he committed any alleged act of family violence.⁷

Pursuant to OCGA § 19-13-1,

[T]he term "family violence" means the occurrence of one or more of the following acts between past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household:

(1) Any felony; or

(2) Commission of offenses of battery, simple battery, simple assault, assault, stalking, criminal damage to property,

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