Griggs v. Griggs
| Decision Date | 20 May 1975 |
| Docket Number | No. 29728,29728 |
| Citation | 234 Ga. 451,216 S.E.2d 311 |
| Parties | James D. GRIGGS v. Shirley June GRIGGS. |
| Court | Georgia Supreme Court |
Aynes, Burger, Genins & Kirby, Richard B. Kirby, Atlanta, for appellant.
Rich, Bass, Kidd & Witcher, R. Hopkins Kidd, Decatur, for appellee.
Syllabus Opinion by the Court
Appellant James D. Griggs and Shirley June Griggs were granted a divorce on May 30, 1973, in the Superior Court of Fulton County. Their agreement as to property rights, child custody and other matters, which was made a part of the final decree, awarded custody of the four minor children to the mother and obligated the father to pay $80 a week as child support.
Upon the father's failure to return the children to the mother from a weekend visit, the mother filed an action for contempt in Fulton Superior Court, alleging that the father had failed and refused to return the four minor children to her and had failed to make payments under the decree in the amount of $2,167.
The father filed an answer and motion to dismiss the contempt action claiming waiver of child support payments and denying that he was in arrears in the sum of $2,167, alleging that there was a suit between the same parties in regard to custody of the children then pending in the Juvenile Court of Cobb County, and contending that the children were living in Cobb County and were not subject to the jurisdiction of the Fulton Superior Court. (For the decision of the suit filed in the Juvenile Court of Cobb County, see Griggs v. Griggs, 233 Ga. 752, 213 S.E.2d 649.)
The contempt hearing was held on November 14, 1974. No transcript of the proceedings was requested by either party and consequently the hearing was not reported. The court found the father to be in contempt for being in arrears in the amount of $1,705 in child support payments and for his refusal to return the children to the mother. It ordered him to be held in jail until he purged himself by returning the children and by paying $300 instanter and $300 a month thereafter until the balance of the arrearage was paid. It also awarded $250 as attorney fees to the mother's attorney to be paid within 60 days. The father paid $300, delivered the children to the mother and was released from custody the same day.
The father filed his notice of appeal. Both parties drew up summaries of the proceedings and evidence adduced at the November 14 contempt hearing, but they were unable to agree on a transcript prepared from recollection. The father also submitted an affidavit as to what had transpired. On January 2, 1975, the trial judge who had presided at the contempt hearing heard motions from the parties and issued an order stating his recollection of the evidence presented at the contempt hearing.
The father appeals from the order holding him in contempt of court and denying his motion to dismiss the mother's complaint because the action was one in the nature of habeas corpus which would require it to be brought in the Juvenile Court of Cobb County. He enumerates thirteen errors, a majority of which relate, directly or indirectly, to the January 2 order and to the absence of a court reporter's verbatim transcript of the November 14 contempt hearing.
1. The father contends that the evidence did not support the finding that he was in arrears in child support payments. This contention cannot be sustained.
'Where a trial is not reported . . . and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter . . . in case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review, and if the trial judge is unable to recall what transpired he shall enter an order stating that fact.' Code Ann. § 6-805(g) (Ga.L.1965, pp. 18, 24). (Emphasis supplied.)
The trial judge stated in his January 2 order 'That both parties agreed that (the father) was in arrears in the amount of $1705.00 in child support payments since the final decree was ordered.'
Since there is no verbatim transcript of evidence and the parties could not agree upon a transcript prepared from recollection, the judge's determination under Code Ann. § 6-805(g), supra, is final and not subject to review. Thus, the evidence supports the finding that the father was in arrears in child support payments in the sum of $1705.
The trial court also stated in the order of January 2 'that both parties agreed that (the father) had physical custody of the 4 minor children of the marriage.' The divorce decree gave custody of the children to the mother. For the reasons stated above, the enumeration contending that the trial court erred in finding the husband in contempt for failing to return the children is without merit.
2. The father, a construction worker, argues that the amount ordered to be paid in child support was greatly in excess
of the gross amount he could earn even if there were sufficient work in his trade, and that the order confining him in jail until he purged himself by payment of the alleged arrearage thus amounted to imprisonment for debt.
This enumeration of error, at least the latter part thereof, became moot when the father complied with the order and obtained his release from custody. Thompson v. Thompson, 172 Ga. 165(1), 157 S.E. 628.
The father also complains that the trial court erred in refusing to allow him, his present wife and his four children to testify in his behalf, and in allowing the mother's attorney to question him in regard to confidential attorney client matters over objection of his counsel.
The trial court's transcript summary does not show any basis for these enumerations.
Without a more complete, approved transcript of evidence we are unable to consider these enumerations of error and we will not presume that error was committed. O'Gorman v. O'Gorman, 227 Ga. 468, 181 S.E.2d 490; Taylor v. Taylor, 228 Ga. 173(1), 184 S.E.2d 471.
3. Another enumeration recites that the trial court erred in refusing to certify the father's summary of testimony and proceedings 'or to make any record of its own as to what transpired, knowing that an appeal was being filed, since the defendant relying upon the integrity of the court, has a right to have the court protect his right of appeal by preserving the record of what transpired, instead of waiting two months and then saying it doesn't recall what happened as far as testimony.'
This assertion is without merit. In the absence of agreement by the parties, the trial court is under no obligation to certify either party's summary of testimony unless it be in accord with his own recollection of the evidence and the court did indeed specifically set forth its recollections of the trial proceedings in its order of January 2. The fact that the trial court's transcript of evidence was not as complete as the father would like it to be is due to the failure of the parties to have the hearing reported and their subsequent failure to agree upon a transcript prepared from recollection.
4. The father complains that the summaries of evidence presented by the father and mother should have been compared by the trial court and the agreed upon testimony should have been certified.
When the trial judge acts under Code Ann. § 6-805(g) to recreate a transcript, he may do so by comparing the submissions of the parties, or by approving (with changes in accord with the court's recollection) the submission of one party or the other, or he may recreate a transcript by his own composition as was done here. Although an appellant...
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