McCarthy v. Ashment

• Decision Date: 30 October 2019
• Docket Number: A19A0788
• Citation: 353 Ga.App. 270,835 S.E.2d 745
• Court: Georgia Court of Appeals
• Parties: MCCARTHY v. ASHMENT.

353 Ga.App. 270

835 S.E.2d 745

MCCARTHY

v.ASHMENT.

A19A0788

Court of Appeals of Georgia.

October 30, 2019

Certiorari Denied August 10, 2020

Reconsideration Denied November 18, 2019

Joseph B. McCarthy, pro se.

Dupree Kimbrough & Carl, Hylton B. Dupree Jr., Blake Robert Carl, Marietta, for Appellee.

Coomer, Judge.

Following a hearing, the trial court found Joseph McCarthy in contempt of court for violating a divorce decree by failing to pay child support. McCarthy appeals the contempt order as well as several other orders that preceded the contempt ruling. McCarthy, who is pro se, has been particularly litigious following his divorce from Annie Ashment.¹ In the present appeal, McCarthy raises 13 enumerations of error, which this Court will address in turn.² For the following reasons, we affirm.

"On appeal from an order finding a party in civil contempt, if there is any evidence from which the trial court could have concluded that its order had been violated, this Court is without power to disturb the judgment absent an abuse of discretion." In re Singleton , 323 Ga. App. 396, 403 (2) (b), 744 S.E.2d 912) (2013) (citation and punctuation omitted). The relevant facts show that Ashment and McCarthy divorced in 2012. Ashment was given primary physical custody of the couple's four young children, and the decree obligated McCarthy to pay $800 per month in child support. McCarthy appealed, and the Georgia Supreme Court found that McCarthy was barred from challenging the amount of child support; vacated the attorney fee award and remanded for a new hearing; and broadly rejected McCarthy's additional claims of error in which he attacked the discretion of the trial court. See McCarthy , 295 Ga. at 231, 758 S.E.2d 306. On June 5, 2015, the trial court entered an order awarding Ashment $42,599.06 in attorney fees, which it apportioned under OCGA § 9-15-14 (b) and OCGA § 19-6-2.

McCarthy was found to be in arrears in his payments and twice in 2013 McCarthy was found in contempt and ordered jailed until he purged himself. In November 2016, Ashment filed a contempt motion based upon McCarthy's failure to pay over $50,000 in child support and the attorney fee award. McCarthy had the case removed to federal court, and the case was remanded to superior court in December 2016.

McCarthy filed multiple motions to recuse the trial judge and the entire Cobb County Judicial Circuit. The second motion was heard by Judge Sutton, who did not preside over the divorce. On July 5, 2017, Judge Sutton entered an order denying the recusal motion, finding McCarthy had not shown good cause for recusal and that the motion was untimely. McCarthy again filed a motion to recuse the trial judge and the entire Cobb County Judicial Circuit, and the motion was later denied.

McCarthy then filed: (1) a motion to dismiss the contempt citation; (2) a motion to disqualify Ashment's attorney; and (3) a demand for a jury trial. The trial court denied these motions. On June 28, 2018, following a hearing, the trial court entered an order finding McCarthy to be in contempt for: failing to pay child support; failing to pay medical and school expenses; failing to obtain medical insurance for the children; and failing to pay attorney fees in accordance with the June 2015 order. The trial court ordered McCarthy incarcerated until he purged himself by paying $10,000 toward his arrearage and paying an additional $800 per month.

Although the court noted that McCarthy was unemployed, the court found McCarthy was capable of working, but refused to look for employment since he was living with a fiancée who provided for all of his needs. The court also found that McCarthy had borrowed substantial sums from his mother and fiancée, which he did not use toward his support obligations. Although he claimed to be destitute, McCarthy opened credit card accounts and purchased his fiancée an expensive watch. The trial court also ordered McCarthy to pay $7,566.54 in attorney fees under OCGA § 19-6-2. This appeal followed.

1. McCarthy first argues the trial court erred by failing to dismiss Ashment's contempt motion because it failed to comply with the express language of OCGA § 19-6-28 (b). Specifically, McCarthy contends Ashment's motion failed to comply with the rule nisi and time requirements of OCGA § 19-6-28 (b) and thus he was entitled to a dismissal of the motion for contempt. We disagree.

OCGA § 19-6-28 (b) provides, in pertinent part:

In any proceeding to enforce a temporary or permanent grant of alimony or child support by attachment for contempt, the petitioner may serve the motion and rule nisi by mailing a copy of the motion and rule nisi by first-class mail, postage prepaid, to the respondent. ... A child support contempt motion shall be served upon a respondent with a notice that contains a date certain for hearing which shall be no later than 30 days from the date of service of the motion, unless good cause for a later date is found by the court, in which event the time for a hearing may be extended for up to 30 days.

The record shows that Ashment filed a motion for citation for contempt on November 11, 2016. The motion was served on McCarthy on November 14, 2016. McCarthy was later served with a Rule Nisi on December 7, 2016, which set the matter down for trial on January 10, 2017. Thus, our review of the record reveals that McCarthy was served with the Rule Nisi within 30 days of the date of service of Ashment's motion and this enumeration of error lacks merit.

2. McCarthy next argues the trial court erred by not disqualifying Ashment's attorney after an alleged conflict of interest was established. We disagree.

The right to counsel is an important interest which requires that any curtailment of the client's right to counsel of choice be approached with great caution. In determining whether to disqualify counsel, the trial court should consider the particular facts of the case, balancing the need to ensure ethical conduct on the part of lawyers against the litigant's right to freely chosen counsel. We review the court's ruling for abuse of discretion.

Befekadu v. Addis Intl. Money Transfer , 332 Ga. App. 103, 106 (1) (c), 772 S.E.2d 785 (2015) (citation and punctuation omitted). Here, McCarthy filed a motion to disqualify Ashment's current attorney, Hylton Dupree, on the grounds that during the pendency of their divorce, McCarthy's mother called Dupree regarding McCarthy's pending divorce action to inquire as to whether Dupree's firm could represent McCarthy. McCarthy alleged that his mother spoke with Dupree for 37 minutes, and during the call Dupree was provided privileged information by McCarthy's mother about McCarthy. Dupree denied there was a conflict and filed an affidavit from his law firm's administrator to that effect. Following a hearing, the trial court denied the motion. Despite McCarthy's contentions to the contrary, he has failed to show the trial court abused its discretion in its refusal to disqualify Ashment's attorney. Consequently, we affirm the trial court's judgment in this regard.

3. McCarthy next argues the trial court erred in refusing to allow a jury trial pursuant to OCGA § 15-1-4 (b) regarding the contempt action relating to a child support and attorney fee arrearage. We disagree.

OCGA § 15-1-4 (b) provides that:

No person shall be imprisoned for contempt for failing or refusing to pay over money under any order, decree, or judgment of any court of law or any other court of this state when he denies that the money ordered or decreed to be paid over is in his power, custody, or control until he has a trial by jury in accordance with the following provisions:

(1) The allegation of the plaintiff, receiver, referee, or any other person or persons that the defendant accused of contempt has a certain sum of money within his power, custody, or control, which he is withholding or refuses or fails to pay over, and the denial of the defendant that he has the power, custody, or control of the money shall form the issue to be tried by the jury, and the jury shall decide the issue of fact;

(2) The issue being made, a bond may be required in the discretion of the court for the appearance of the defendant for trial, which bond shall be of sufficient size to ensure the attendance of the defendant to appear and answer the final judgment or decree in the case and shall be approved by the judge. On failure of the defendant to appear, the bond shall be forfeited as in criminal cases. If bond is required but not posted the defendant may be committed to jail for safekeeping until trial; and

(3) The judge presiding shall cause questions to be propounded in writing to the jury and every question propounded shall be answered by the jury in its verdict.

Upon the answers made, the judge shall adjudge or decree whether the defendant is in contempt. Either party shall have the right to move for a new trial and to appeal as in other civil cases.

However, our Supreme Court "has long held that a person is not entitled to a jury trial on the issue of ability to pay or contempt for failure to pay alimony and child support." Bernard v. Bernard , 347 Ga. App. 429, 433 (2), 819 S.E.2d 688 (2018).³

And while none of our Supreme Court's opinions appear to address the plain meaning of OCGA § 15-1-4 (b) or its similarly worded predecessor statutes, this is ultimately of no consequence. We are bound by these decisions and must apply them in this case. Thus, because [McCarthy] was not entitled to a jury trial under binding Supreme Court precedent, the trial court did not err in denying his request.

Id. at 433-434 (2), 819 S.E.2d 688 (footnotes omitted).

4. In his fourth, fifth, and sixth enumerations, McCarthy argues the trial court erred in granting Ashment's motion for contempt because he was not provided notice that Ashment was seeking to have the trial court hold him in contempt for (1) failing to provide medical insurance for his minor children, (2) failing to pay 50% of his minor...