A.L.L., In Interest of

• Decision Date: 28 January 1994
• Docket Number: No. A93A2345,A93A2345
• Parties: In the Interest of A.L.L. et al., children.
• Court: Georgia Court of Appeals

Page 517

440 S.E.2d 517

211 Ga.App. 767

In the Interest of A.L.L. et al., children.

No. A93A2345.

Court of Appeals of Georgia.

Jan. 28, 1994.

John W. Knapp, Jr., Jackson, for appellant.

Alan C. Manheim, Lewis P. Perling, Atlanta, for appellee.

ANDREWS, Judge.

Lankford, the natural father of two daughters, Am. L.L. and Al. L.L., appeals the judgment of the juvenile court which found the children deprived and placed temporary custody in Koziarz, the natural mother and former wife of Lankford.

1. Although not raised by the parties, we first consider the issue of our jurisdiction and whether this matter is one involving child custody, requiring an application to appeal. OCGA § 5-6-35(a)(2).

Lankford and Koziarz were divorced in May 1992 and legal custody of the two daughters was placed in Lankford with regularly scheduled visitation by Koziarz. In November 1992, Koziarz filed a document with the juvenile court which formed the basis for the issuing of a petition by the court intake officer alleging that the children were deprived. Based on that petition, the juvenile court held a deprivation hearing on February 25 and 26, 1993. Although not contained in the record before us, an earlier hearing apparently had been held at which "probable cause" regarding deprivation was found by the court and Lankford was directed not to physically discipline the children and to engage in family counseling.

"A deprivation proceeding is to determine whether the child is a deprived child. OCGA § 15-11-33(a). If the child is found to be deprived, the court is authorized to allow the child to remain with his parents, or other custodian, or transfer temporary legal custody to another individual or agency. OCGA § 15-11-34(a). Although the juvenile court is authorized to determine who will exercise custody over a 'deprived' child, the proceeding itself is to determine whether the child is deprived and is not an action brought to decide custody matters concerning the child." (Emphasis supplied.) Anderson v. Sanford, 198 Ga.App. 410, 411, 401 S.E.2d 604 (1991).

Therefore, this court has jurisdiction to consider this appeal.

2. In his first enumeration, Lankford contends that the juvenile court was without jurisdiction to consider the issue of a modification of the final divorce decree by a change in the custody of the children.

This, however, is not what the juvenile court considered. The issue before it was whether or not the children were deprived. "The juvenile court had exclusive original jurisdiction over the deprivation proceedings, OCGA § 15-11-5(a)(1)(C), and it had the authority to order disposition best suited to the needs of the children, [including the transfer of temporary legal custody] OCGA § 15-11-34(a)(2)(A)." Edgar v. Shave, 205 Ga.App. 337, 338(1), 422 S.E.2d 234 (1992).

3. Lankford contends the court erred in finding him in contempt and fining him $50 for his violation of the rule of sequestration "in the midst of the case in chief."

At the beginning of the trial, which was conducted by the judge without a jury, Lankford, through his trial counsel, invoked the rule of sequestration and this request was joined by the prosecutor. OCGA § 24-9-61. ¹

Lankford testified and during cross-examination was asked if his mother had been beaten by his father. Part of the State's theory was that Koziarz had been abused by Lankford and that abusing husbands were more likely to become abusing parents. There was expert testimony to this effect and also to the effect that children who grew up in abusing families were more likely to abuse than those who did not. Lankford denied any such abuse. Later, his mother testified in his behalf. As she was being cross-examined, she acknowledged that she had spoken to Lankford and his trial attorney outside the courtroom after he had testified and before she testified. She was asked: "Q. What did [Lankford] tell you was said in here today about you? A. Only thing he said that they accused--my husband had been accused of beating me and that is not so." The prosecutor stated "Judge, we have a little problem here." The court agreed and asked Lankford if he had discussed his testimony with his mother. Lankford denied "discussing" it with her, but acknowledged that "[s]he heard me say something to the effect that my dad was accused of being a wife beater." His mother acknowledged having heard that and the judge asked Lankford if he had understood the rule of sequestration. He stated that "You said not to discuss testimony at all, but I was not discussing it with her." After further inquiry, the court found Lankford in contempt for violating the rule and fined him $50.

Pretermitting the question of whether the rule prohibits only witnesses being examined in court in the presence of each other or also prohibits out-of-court communications between witnesses, compare Boyd v. State, 168 Ga.App. 246(5), 308 S.E.2d 626 (1983) with Lackey v. State, 246 Ga. 331(5), 271 S.E.2d 478 (1980) and O'Kelley v. State, 175 Ga.App. 503(1), 333 S.E.2d 838 (1985), Lankford acknowledged awareness of the court's direction that testimony should not be discussed among witnesses. Such a ruling was within the discretion of the court. Barber v. Barber, 257 Ga. 488(1), 360 S.E.2d 574 (1987).

Juvenile courts are authorized to punish for contempt for disobedience of an order of the court or for obstructing or interfering with its proceedings. OCGA §§ 15-11-62; 15-1-4.

Lankford argues that he was denied due process because the contempt matter was taken up in the midst of the case-in-chief and no rule nisi issued providing for notice of the charges and an opportunity to be heard. At the time the matter of violating the rule was brought up, no objection was voiced by Lankford or his counsel to proceeding at that time with the inquiry. In fact, Lankford defended himself by arguing that what he engaged in was not "discussing" the testimony. "[W]here a party charged with contempt voluntarily appears and defends against the contempt proceedings, it is not required that he be served with a rule nisi. [Crocker v. Crocker, 132 Ga.App. 587, 590(1), (208 SE2d 602) (1974) ]." Mijajlovic v. State, 179 Ga.App. 506, 507(1), 347 S.E.2d 325 (1986). Therefore, there is no merit to this argument.

While conducted at the time the incident was discovered instead of waiting until after the case-in-chief concluded, the opportunity provided for defense complied with due process requirements and the error, if any, in not waiting until completion of the case-in-chief was harmless. See Dowdy v. Palmour, 251 Ga. 135, 141(2), 304 S.E.2d 52 (1983); In re Spruell, 200 Ga.App. 218, 229, 407 S.E.2d 451 (1991) (special concurrence); Moody v. State, 131 Ga.App. 355, 358, 206 S.E.2d 79 (1974).

The evidence was sufficient for a finding of contempt. Arnold v. McKibbins, 210 Ga.App. 262, 265(6), 435 S.E.2d 685 (1993); In re Gouge, 206 Ga.App. 462, 425 S.E.2d 882 (1992).

4. The fifth and sixth enumerations are considered together and assert that the court erred in not sua sponte recusing itself after finding Lankford in contempt and expressing opinions regarding his truthfulness which, "were they expressed before a jury, would have been grounds for mistrial."

The latter contention presents nothing for our review since this trial was not conducted before a jury and no motion for mistrial was made.

No authority is cited for the proposition that the court should sua sponte recuse itself and we are aware of none. No motion to recuse having been made, there was no error. Stoddard v. Tax Assessors, 173 Ga.App. 467, 469(3), 326 S.E.2d 827 (1985).

5. The third and fourth enumerations are that the court erred by not articulating...