Murphy v. Murphy

• Decision Date: 17 November 2014
• Docket Number: No. A14A1137.,A14A1137.
• Citation: 767 S.E.2d 789,330 Ga.App. 169
• Court: Georgia Court of Appeals
• Parties: MURPHY et al. v. MURPHY.

330 Ga.App. 169

767 S.E.2d 789

MURPHY et al.

v.MURPHY.

No. A14A1137.

Court of Appeals of Georgia.

Nov. 17, 2014.

Denied Dec. 4, 2014.

Certiorari Denied March 2, 2015.

Millard Farmer, Jr., Atlanta, Larry King, for Appellants.

Kilpatrick Townsend & Stockton, Stephen Earl Hudson, William R. Poplin Jr., Atlanta, Glover & Davis, Taylor Bridges Drake, Newnan, Michael Williams Warner, for Appellee.

Opinion

McFADDEN, Judge.

Although this is our third opinion in this custody modification action, we are still not presented with a final order on the petition to modify. Instead we are presented with a series of rulings holding appellant Nancy Michelle Murphy and her attorneys, Millard Farmer and Larry King, in contempt of court.

Farmer has been held in contempt of an earlier order that prohibited the parties from discussing the case with their children. As Farmer signed a brief to which he exhibited affidavits of the children echoing their mother's anger at John Murphy, there is sufficient evidence to support that ruling; and we find that Farmer received sufficient notice and opportunity to be heard before he was held in contempt. Nancy Michelle Murphy has been held in contempt of another provision of that order which required her to cooperate with a custody evaluator. Any insufficiency of the evidence presented on that charge at the contempt hearing was supplied by her own brief in opposition to the motion for contempt. In that brief she announced that she deemed herself to be entitled to defy the provision directing her to cooperate with the evaluator. And again we find sufficient notice and opportunity to be heard. Finally Farmer and King have been held in contempt for failure to have Nancy Michelle Murphy present at the contempt hearing. But as she was not under subpoena and had not been ordered to appear in person, she was entitled to appear through counsel; so that ruling must be reversed.

We therefore affirm the trial court's contempt order in part and reverse it in part.

1. Prior appeals.

Nancy Michelle Murphy and John Murphy were divorced in 2006. They have two children, born in November 1998 and January 2001. In April 2012, John Murphy filed this action, seeking to modify the child custody provisions of the divorce decree.

Nancy Michelle Murphy has repeatedly moved to recuse the trial court judge. Murphy v. Murphy, 322 Ga.App. 829, 747 S.E.2d 21 (2013), her first appeal in this case, was a direct appeal from an interlocutory order denying one of her motions to recuse. We dismissed on the basis the order was not appealable as a collateral order and was not appealable under the version of OCGA § 5–6–34(a)(11) adopted in 2013, which authorizes direct appeals from “judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders.”

Our Supreme Court granted Nancy Michelle Murphy's petition for certiorari to address whether we erred when we concluded that the 2013 amendment of OCGA § 5–6–34(a)(11) applied retroactively. In Murphy v. Murphy, 295 Ga. 376, 761 S.E.2d 53 (2014), the Supreme Court ruled that the amendment did not apply retroactively but nonetheless affirmed the dismissal of Nancy Michelle Murphy's appeal on the ground that, “even under the prior version of OCGA § 5–6–34(a)(11), there was no right of direct appeal from the recusal order at issue.” Id. at 379, 761 S.E.2d 53.

In the meantime, on August 23, 2013, the trial court entered an order that, among other things, denied John Murphy's motion to temporarily change physical custody of the children, directed the parties not to discuss the case with the children, ordered a custody evaluation, and directed the parties to cooperate with the custody evaluator. In Nancy Michelle Murphy's second appeal to our court, Murphy v. Murphy, 328 Ga.App. 767, 759 S.E.2d 909 (2014), we affirmed that order. We imposed a frivolous appeal penalty against Nancy Michelle Murphy's counsel, finding that the appeal was frivolous and dilatory and rife with violations of Court of Appeals Rule 10, which forbids oral or written personal remarks that are discourteous or disparaging to any judge, opposing counsel, or any court.

2. Facts underlying the present appeal.

Six days after the August 23, 2013 order was entered, John Murphy filed a motion seeking to hold Nancy Michelle Murphy in contempt for violating its visitation provisions. In response Nancy Michelle Murphy filed affidavits from the children, testifying that the motion for contempt had been read to them in the presence of their mother, that their mother had not interfered with their father's visitation as alleged in the motion for contempt, and that they were extremely angry at their father for not telling the truth to the court.

John Murphy then amended his motion for contempt. He alleged that Nancy Michelle Murphy and “her lawyer” were in contempt of the order's provision prohibiting the parties from discussing the case with the children. He also alleged that Nancy Michelle Murphy was violating the requirement of the August 23 order that she cooperate with the custody evaluator in that she had refused to complete the paperwork the custody evaluator required before beginning the evaluation.

The trial court conducted a hearing on the contempt motion on October 3, 2013. Nancy Michelle Murphy and Farmer did not appear, but King did appear on behalf of Nancy Michelle Murphy. After hearing testimony from John Murphy and the driver hired to transport the children from Nancy Michelle Murphy's residence to John Murphy's residence, the trial court found Nancy Michelle Murphy, Farmer, and King to be in contempt. The trial court found Farmer to be in contempt for discussing the case with the children in violation of the August 23 order. It found Nancy Michelle Murphy to be in contempt for wilfully refusing to cooperate with the custody evaluator in violation of the August 23 order. And it found King and Farmer to be in contempt because of Nancy Michelle Murphy's failure to appear at the contempt hearing.

Nancy Michelle Murphy, Farmer, and King filed an application for discretionary appeal of the contempt order. We granted the application, and this latest appeal followed. We first address John Murphy's motion to dismiss the appeal, then turn to the deficiencies in the appellants' brief, and finally, address the merits of the challenges to the contempt order.

3. Motion to dismiss the appeal.

Because this is an appeal from a contempt order, the appellants were not required to follow the interlocutory appeal procedure. OCGA § 5–6–34(a)(2) ; Massey v. Massey, 294 Ga. 163, 164–165(2), 751 S.E.2d 330 (2013) ; see also OCGA § 5–6–34(a)(11) (making “[a]ll judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders”immediately appealable); OCGA § 5–6–37 (“Unless otherwise provided by law, an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.”).

Because they filed an application for discretionary appeal, we have jurisdiction regardless of whether or not they were entitled to follow the direct appeal procedure. OCGA § 5–6–35(j). So we do not decide if they were so entitled, and we deny John Murphy's motion to dismiss the appeal.

4. Deficiencies in the appellants' brief.

As a threshold matter, we address the deficiencies in the appellants' brief.

The Appellate Practice Act, at OCGA § 5–6–40, provides that enumerations of error are to be concise and “shall set out separately each error relied upon.” “It is desirable that each enumeration be explicit, precise, intelligible, unambiguous, unmistakable, and unequivocal.” MacDonald v. MacDonald, 156 Ga.App. 565, 569(1)(d), 275 S.E.2d 142 (1980) (physical precedent). Our rules direct that “[t]he sequence of arguments in the briefs shall follow the order of the enumeration of errors, and shall be numbered accordingly.” Court of Appeals Rule 25(c)(1). As to each enumeration of error, an appellant is to specify how the error was preserved and to state concisely the applicable standard of review. Court of Appeals Rule 25(a). Briefs and enumerations of error that do not conform to those requirements hinder our ability to determine the basis and substance of an appellant's appeal. Williams v. State, 318 Ga.App. 744, 744–745, 734 S.E.2d 745 (2012).

The appellants' brief does not conform to those requirements. Their brief and enumerations of error are rambling and difficult to follow; several enumerations contain multiple allegations of error. These deficiencies are illustrated by enumeration of error four, which is set out in the margin.¹

As to some of the issues that the appellants attempt to raise, these deficiencies constitute abandonment. The appellants do not address each enumeration of error in the argument section of their brief, and their arguments in that section do not follow the order of the enumeration of errors. And many of the alleged errors referenced in the enumeration of errors, are not supported with arguments, citations to the record, or citations of authority. Court of Appeals Rule 25(c)(2) provides, “Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” See also Court of Appeals Rule 25(c)(2)(i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”).²

In spite of these deficiencies, we will review the claims of error that we are authorized to reach to the extent that we can ascertain the appellants' arguments, Williams, 318 Ga.App. at 744–745, 734 S.E.2d 745, and to the extent they have not abandoned them.

5. Claim that trial judge is...