Lacy v. Lacy

• Decision Date: 25 March 2013
• Docket Number: Nos. A12A2261,A12A2262,A12A2341.,s. A12A2261
• Citation: 740 S.E.2d 695,320 Ga.App. 739
• Parties: LACY v. LACY (three cases).
• Court: Georgia Court of Appeals

320 Ga.App. 739

740 S.E.2d 695

LACY

v.LACY (three cases).

Nos. A12A2261, A12A2262, A12A2341.

Court of Appeals of Georgia.

March 25, 2013.

James Russell Oxford, Jr., for Appellant.

Brenda Holbert Trammell, Madison, for Appellee.

McFADDEN, Judge.

These three appeals, which we have consolidated for review, arise out of a custody dispute in which there has not yet been a final hearing. The rulings on appeal were by three different judges of the Superior Court of Morgan County. The dispute is between James Lacy (the father) and Emily Lacy (the mother), who are in the midst of divorce proceedings. Judge Hulane E. George of the Morgan Superior Court conducted a two-day hearing in late April, 2012 and then issued a temporary order giving the parties joint legal custody and the mother primary physical custody of their three minor children. On May 4, 2012 the father filed an emergency motion for change in custody.

In Case No. A12A2261, the father appeals from an order in which Judge John Lee Parrott denied his emergency motion for a change in custody, enjoined the father from contact with the children until further review by Judge George, enjoined the parents from directly contacting each other, and ordered the father to pay the mother's attorney fees. In Case No. A12A2262, the father appeals from an order in which Chief Judge William A. Prior, Jr. denied the father's motion to vacate or for new trial on the emergency change-in-custody motion, denied the father's motion to recuse all the superior court judges in the Ocmulgee Circuit, voluntarily recused himself, and directed that all further motions be filed with Judge George. And in Case No. A12A2341, the father appeals from an order in which Judge James L. Cline, Jr. continued the injunction barring the father from contact with the children, extended that bar to include social networking websites, and enjoined both parents from engaging in certain behavior on social networking websites.

As detailed below, we find as follows. In Case No. A12A2261, we affirm in part and vacate in part. We find that the father has not shown that Judge Parrott was required to recuse himself sua sponte or that he abused his discretion in denying the father's motion for emergency change-in-custody and temporarily restricting the father's contact with the children; accordingly we affirm those parts of Judge Parrott's order. We find, however, that the order fails to specify the statutory basis for the attorney fee award and we vacate that portion of the order and remand Case No. A12A2261 to the trial court for further proceedings.

In Case No. A12A2262, we affirm Chief Judge Prior's order in its entirety, finding that he was not disqualified from entering the order, that he was correct in denying the father's motion to recuse as untimely and lacking the necessary supporting affidavit, and that the father has not shown he was entitled to a hearing before the judge entered that order.

In Case No. A12A2341, we affirm Judge Cline's order in its entirety, finding that he was not required to recuse himself sua sponte and that he was authorized to impose the restrictions on internet behavior contained in that order.

1. Facts and procedural posture.

The father filed a complaint for divorce in March 2012. Judge Hulane E. George of the Morgan County Superior Court conducted a hearing on April 24 and 30, 2012, and then issued a temporary order (signed on May 3, 2012, nunc pro tunc to April 30, 2012, and filed on May 9, 2012) giving the parties joint legal custody and the mother primary physical custody of the children.

On May 4, 2012, the father filed a motion for emergency hearing in which he sought a change in custody on the ground that, two days earlier, the mother had driven under the influence of alcohol with one of the children in the car. Judge John Lee Parrott of the Morgan County Superior Court conducted the emergency hearing. At that hearing, evidence was presented that the father and a law enforcement officer smelled alcohol on the mother's breath shortly after she had driven her car with one of the children inside. No other evidence was presented, however, regarding whether the mother was intoxicated. The law enforcement officer testified that he did not perform any field sobriety tests or other tests on the mother, and he testified that her demeanor was calm and that she showed no signs of intoxication other than the smell of alcohol on her breath. Judge Parrott held the evidence was insufficient to support the father's emergency motion for change in custody, and he denied the motion in a May 9, 2012 order.

Judge Parrott also held in the May 9 order that the father had admitted having “negative conversations and actions with the children,” and he enjoined the father from any contact with the children until further ruling by Judge George (to whom the divorce action was assigned). He also enjoined each party from contacting the other, except through their attorneys, and he ordered the father to pay the mother's attorney fees.

Ten days after ruling on the emergency motion, Judge Parrott resigned his position as a judge. On May 24, 2012, the father filed a motion to recuse all superior court judges in the Ocmulgee Circuit, on the ground that Chief Judge William A. Prior, Jr. was related to the mother and children and that Chief Judge Prior's son, Robert Prior, was a witness in the case. (Robert Prior is married to the mother's aunt and had submitted an affidavit attesting to the mother's character and parenting abilities.) Also on May 24, the father moved to vacate or for a new trial on his emergency motion. The next day, the mother petitioned for contempt, alleging that the father had failed to pay child support required under the April 30 temporary order or the attorney fees required under the May 9 order. It appears from the record that Judge George was not available to consider these motions.

On May 31, 2012, Chief Judge Prior issued an order in which he ruled as follows. First, he denied the father's motion to recuse the judges of the Ocmulgee Circuit on the grounds that the motion was untimely and that it failed to contain a supporting affidavit as required by the Uniform Superior Court Rules (USCR). He then voluntarily recused himself from the case because his son was a witness. Finally, he denied the father's motion for new trial and directed that “any further motions of any type should be filed with Judge Hulane E. George, who initially heard this case and who will make further decisions in regard to this case.”

The father sought a certificate of immediate review of the trial court's May 31 order, which the trial court denied. On June 7, the father filed a notice of appeal from the May 9 order. On June 18, he filed a notice of appeal from the May 31 order.

Subsequently, Judge James L. Cline, Jr. of the Superior Court of Morgan County entered an order on the mother's contempt petition. The order was filed on July 5, 2012, and was dated June 28, 2012, nunc pro tunc to June 13, 2012. Among other things, Judge Cline enjoined the father from violating the May 9 order's prohibition against contact with the children, extended that prohibition to contact with the children through social networking websites, and enjoined the parties from posting statements about each other or the case on social networking websites. The father filed a notice of appeal from this order on July 11, 2012.

2. Contents of the father's briefs.

As an initial matter, we note that the father's briefs are rife with discourteous and disparaging comments regarding the Ocmulgee Circuit judiciary in general and Judge Parrott and Chief Judge Prior in particular. The sources of the father's criticism appear in large part to be Judge Parrott's subsequent resignation (which the father has not shown to have any relevance to or connection with the divorce proceedings underlying these appeals) and Chief Judge Prior's alleged relationship with the mother and children (a relationship which, as discussed below, Georgia law does not recognize). This Court's rules forbid the disparaging personal remarks about the judges that the father has made in his briefs. See Ct.App. R. 10.

While we have not sanctioned the father for this behavior, but see Ct.App. R. 7, we take the opportunity to comment that the father's failure to present his arguments in compliance with this Court's rules has done nothing to advance his cause and has hindered our resolution of these appeals.

3. Appellate jurisdiction.

The mother has moved to dismiss all three appeals and has sought sanctions for frivolous appeal on the ground that this Court lacks appellate jurisdiction. This Court, rather than our Supreme Court, has jurisdiction because the orders on appeal were entered in a pending divorce action in which no final judgment of divorce has issued, see Egeland v. Egeland, 279 Ga. 565, 619 S.E.2d 596 (2005) (where no final judgment of divorce has issued, appeal seeking review of order awarding child custody in pending divorce action does not invoke subject matter jurisdiction of Supreme Court of Georgia). Although the orders on appeal are interlocutory, they are now subject to direct appeal under OCGA § 5–6–34(a)(11). See generally Collins v. Davis, 318 Ga.App. 265, 268–269(1) & n. 17, 733 S.E.2d 798 (2012) (holding that clear and unambiguous language of OCGA § 5–6–34(a)(11) authorizes direct appeal of any order in proceeding in which child's legal custody, physical custody or visitation is an issue, and noting that it is for the legislature to narrow scope of this right of direct appeal). Accordingly, we deny the mother's motions to dismiss and motions for sanctions in all three appeals.

Case No. A12A2261

In Case No. A12A2261, the father appeals from the May 9, 2012, order in which Judge Parrott denied the father's emergency change-in-custody motion, enjoined the father from contact with the children, and required the father to pay the mother's...