In re J.D.

• Decision Date: 18 May 2012
• Docket Number: No. A12A0426.,A12A0426.
• Citation: 12 FCDR 1709,728 S.E.2d 698,316 Ga.App. 19
• Parties: In the Interest of J.D., a child.
• Court: Georgia Court of Appeals

316 Ga.App. 19

728 S.E.2d 698

12 FCDR 1709

In the Interest of J.D., a child.

No. A12A0426.

Court of Appeals of Georgia.

May 18, 2012.

Richard C. Metz, Savannah, for Appellant.

Larry Chisolm, Diane Morrell McLeod, Savannah, for Appellee.

MILLER, Judge.

Sherwanda Stallworth, the mother of J.D., appeals from the order of the juvenile court finding her in contempt for wilful violation of two juvenile court orders and sentencing her to a total of 40 days for both acts of contempt. Specifically, Stallworth contends that (1) the juvenile court erred in failing to designate the convictions for contempt as either criminal or civil; (2) her second conviction for contempt was in error because her action did not constitute an additional contempt of court, and because the juvenile court's findings of fact were contrary to the weight of the evidence; and (3) her second conviction for contempt was in error because she was issued an unenforceable subpoena. For the following reasons, we affirm the juvenile court's findings of contempt.

“The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.” (Citation omitted.) In re Hughes, 299 Ga.App. 66, 67–68(2), 681 S.E.2d 745 (2009).

The evidence shows that in 2010, J.D. was placed on probation by order of the juvenile court. In December 2010, the juvenile court put Stallworth under a protective order that required her to do the following things in furtherance of her son's delinquency probation:

1. ensure that she keep her home in a clean, appropriate manner;

2. cooperate in good faith with the juvenile court, case workers, or any other agency entrusted by the juvenile court;

3. refrain from acts that might make the child's home an inappropriate place for her children;

4. ensure that the child attends school;

5. participate with the child in any counseling or treatment deemed necessary;

6. attend all appointments with the juvenile court and ensure that the child has transportation to all appointments.

On June 17, 2011, a contempt hearing was scheduled in regard to J.D.'s failure to comply with certain terms of his probation. Stallworth admitted that she had received a subpoena to appear at J.D.'s contempt hearing. Although J.D. appeared, Stallworth did not. The juvenile court sent deputies to Stallworth's home in an attempt to locate her. As Stallworth was unable to be located, the juvenile court indicated that it would conduct a show cause hearing where Stallworth would have an opportunity to explain why she should not be held in contempt of court. Following the June 17, 2011, hearing, the State filed a motion for wilful contempt against Stallworth for her failure to appear. The State subsequently filed an amended motion for contempt against Stallworth for her wilful failure to comply with the terms of the trial court's prior protective order-specifically, that she failed to cooperate in good faith with the juvenile court, case workers, or other agency entrusted by the juvenile court, and that she failed to participate with J.D. in any counseling or treatment deemed necessary.

The juvenile court considered these two motions as a single contempt of court charge at a hearing on July 28, 2011. Although Stallworth admitted to the contempt charge, she also testified that she had not been able to attend the June 17, 2011, hearing because she was in the hospital for chest pains. Later during the hearing, however, she provided conflicting testimony regarding her whereabouts on June 17, 2011, indicating on one hand that she had been at a friend's house to get a ride to the doctor, and on the other hand, that she was actually at home and did not have transportation where she lived. Stallworth's counsel nevertheless advised the juvenile court that Stallworth had proof of her time in the hospital, but had failed to bring the paperwork with her to court. The juvenile court granted a continuance of several hours and ordered Stallworth, both verbally and by subpoena, to return to court at 4:30 p.m. that day. The juvenile court stated on the record that if Stallworth was not back by 4:30 p.m., she would serve 20 days for the first contempt charge—based upon her failure to appear at the June 17, 2011, hearing and her failure to comply with the protective order regrading J.D.'s probation—and another 20 days for failing to appear at 4:30 p.m. on July 28, 2011. When court reconvened at 4:30 p.m., Stallworth failed to appear. The juvenile court postponed the disposition of the first contempt charge and indicated that there would be another show cause hearing as to why Stallworth should not be held in contempt for failing to appear at 4:30 p.m. on July 28, 2011. The State subsequently filed a motion for contempt against Stallworth for her failure to appear at 4:30 p.m. on July 28, 2011. Both the first and second contempt charges were continued until August 22, 2011.

At the August 22, 2011, hearing, Stallworth again admitted to the first contempt of court charge, but denied wilful contempt in the second charge. She indicated that she had been unable to secure transportation to return to court by 4:30 p.m. The juvenile court found her in wilful contempt on both charges and sentenced her to 20 days for each conviction; the juvenile court further provided, however, that after Stallworth's service of the first 20 days in detention, the balance would be suspended upon Stallworth's compliance with the terms and conditions of the protective order. Stallworth was taken from the courtroom immediately to begin her sentence. She timely filed her notice of appeal to challenge the juvenile court's contempt order.

1. Stallworth argues that the juvenile court erred in failing to designate the convictions for contempt as either criminal or civil. We discern no reversible error.

“Once an act has been determined to constitute contempt of court, the action the court takes to deal with the contempt determines whether the contempt is deemed ‘criminal’ contempt or ‘civil’ contempt, a distinction historically made by both appellate courts in this state.” (Citation and punctuation omitted.) Rhone v. Bolden, 270 Ga.App. 712, 714(2), 608 S.E.2d 22 (2004). “The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” (Citation omitted.) Cabiness v. Lambros, 303 Ga.App. 253, 255(1), 692 S.E.2d 817 (2010). Thus, where a trial court does not specify whether a contemnor is in civil or criminal contempt, this Court must examine the purpose of the contempt order to make such determination. See, e.g., Phillips v. Tittle, 261 Ga. 820, 411 S.E.2d 871 (1992); Thedieck v. Thedieck, 220 Ga.App. 764, 765–766(1), 470 S.E.2d 265 (1996).

[T]he conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period (not to exceed 20 days under OCGA § 15–6–8(5) [ ¹] ), the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.

(Citations and punctuation omitted.) Thedieck, supra, 220 Ga.App. at 766(1), 470 S.E.2d 265; see also In re Earle, 248 Ga.App. 355, 358(1)(b), 545 S.E.2d 405 (2001) (“When the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil.”) (citations and punctuation omitted).

Here, although the juvenile court did not specify whether it found Stallworth in civil or criminal contempt, the purpose of the contempt order was to impose a prison sentence upon Stallworth for her prior acts of contumacy. See Cabiness, supra, 303 Ga.App. at 255(1), 692 S.E.2d 817. Notably, her sentence for the first contempt charge was for a specified unconditional period of 20 days. Thus, the first contempt was clearly criminal. Stallworth's sentence for the second contempt charge was also for a specified period of 20 days, but could be suspended upon her compliance with the juvenile court's protective order. The fact that Stallworth could suspend her sentence, however, did not render this second contempt civil. Significantly, her sentence was not “for an indefinite period” until she in fact complied with the protective order or performed any other specified act. See Earle, supra, 248 Ga.App. at 358(1)(b), 545 S.E.2d 405. Rather, according to the juvenile court's order, even if Stallworth failed to comply with the protective order, she was nevertheless to be released after she served a total of 40 days (20 days for each contempt conviction) in prison. Accordingly, the convictions of contempt imposed upon Stallworth were both criminal, and the trial court did not commit reversible error by failing to specify the nature of the contempt.

2. With respect to the second contempt conviction, Stallworth contends that the juvenile court erred...