Martin v. Waters

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; SHULMAN
• Citation: Martin v. Waters, 259 S.E.2d 153, 151 Ga.App. 149 (Ga. App. 1979)
• Decision Date: 04 September 1979
• Docket Number: No. 58130,58130
• Parties: MARTIN v. WATERS.

Page 153

259 S.E.2d 153

151 Ga.App. 149

MARTIN v. WATERS.

No. 58130.

Court of Appeals of Georgia.

Submitted July 2, 1979.

Decided Sept. 4, 1979.

B. Wayne Phillips, Marietta, for appellant.

W. Edmond Waters, Marietta, pro se.

DEEN, Chief Judge.

Waters brought a habeas corpus action against Martin alleging that the latter was illegally withholding custody of his minor daughter. By a rule nisi the hearing was set for March 16, 1979. On that date the trial judge entered an order reciting that the case was called in open court, the respondent failed to appear, that the failure was contemptuous, and respondent was sentenced to 20 days in jail. There was no hearing and no statement that the case was called at or before 11:00 a. m. Another order published the same day recited that the respondent had been ordered to appear at 11:00 a. m. on March 16, that he failed to appear as ordered, and that the case was set over to March 21. A third order on the same day set bond and granted a supersedeas for purposes of appeal. On March 21 the court noted that the respondent appeared as ordered, found there was no justification for withholding the minor from petitioner's control, and remanded her to Waters' custody. The defendant appeals the contempt sentence.

1. The classification of contempt proceedings as civil or criminal is one depending on the facts of each case. City of Macon v. Massey, 214 Ga. 589, 590, 106 S.E.2d 23 (1958). This is true of direct and indirect contempts, a direct criminal contempt being one involving misbehavior in the presence of the court or so near thereto as to obstruct the administration of justice. Code § 24-105. Courts have inherent power to punish direct criminal contempts committed in their presence summarily and without a hearing, the judge being aware by use of his own senses of what has transpired. "(W)here a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court. On the other hand the court may . . . act on its own knowledge of the facts and proceed to impose punishment for the contempt. While the court may in its discretion allow such a hearing, the refusal to do so does not deprive the defendant of the due process of law guaranteed by the State and Federal constitutions." Garland v. State, 99 Ga.App. 826, 830, 110 S.E.2d 143, 146 (1959).

2. Where, however, the act is not in the court's immediate presence, due process requires that the accused be given an opportunity to be heard. Anthony v. Anthony, 240 Ga. 155, 157, 240 S.E.2d 45 (1977). Where a witness or litigant who has been ordered to appear at a given time is tardy in his arrival, or does not make an appearance as ordered, the question arises whether the delay or nonappearance was a wilful and contumacious flaunting of the appearance ordered by the rule nisi, whether it was accidental, or whether it was due to some unavoidable cause. The normal procedure when a party or witness who has been ordered to appear does not do so is to arrest him under a bench warrant at which time the cause of the delay can be inquired into. Moody v. State, 131 Ga.App. 355(2), 206 S.E.2d 79 (1974). Moody was reversed because no hearing had been granted to a recalcitrant witness. Contempt is a drastic remedy which "ought not to deprive one of his liberty unless it rests upon a firm and proper basis." Sorrells v. Cole, 11 Ga.App. 136, 143, 141 S.E.2d 193, 200 (1965); and cf. Atlanta Newspapers, Inc. v. State, 101 Ga.App. 105, 113 S.E.2d 148 (1960). The burden of establishing the fact of contempt is on the party asserting it. Colley v. Tatum, 227 Ga. 294, 180 S.E.2d 346 (1971). This was particularly emphasized in Auto Highball Co. v. Sibbett, 11 Ga.App. 618, 620, 75 S.E. 914, 915 [151 Ga.App. 151] (1912) where the appellant twice refused to appear after being summoned and was then as here sentenced to imprisonment for contempt of court. This court held the contempt sentence to be absolutely void because "the judge had no power to impose sentence in the absence of the respondent. The proper course to have pursued would have been to have issued an...