Roberts v. Roberts, s. 25617

• Decision Date: 05 March 1970
• Docket Number: 25618,Nos. 25617,s. 25617
• Citation: 226 Ga. 203,173 S.E.2d 675
• Parties: Frank N. ROBERTS v. Julia F. ROBERTS. Julia F. ROBERTS v. Frank N. ROBERTS.
• Court: Georgia Supreme Court

Page 675

173 S.E.2d 675

226 Ga. 203

Frank N. ROBERTS v. Julia F. ROBERTS.

Julia F. ROBERTS v. Frank N. ROBERTS.

Nos. 25617, 25618.

Supreme Court of Georgia.

March 5, 1970.

Syllabus by the Court

1. Personal service of a contempt citation and rule nisi upon the attorney of record of the alleged contemnor, the defendant wife in a pending divorce action out of which the contempt arose, was valid.

2. The evidence authorized the adjudication of the defendant wife in contempt.

3. The issue of the propriety of the requirement of the appellant husband's filing a supersedeas bond is moot.

4. The order adjudicating the plaintiff in contempt was sufficient as a matter of law.

5. The restraining order was phrased so as to preclude indirect molestation and harassment of the defendant wife by such actions against her attorney of record and children.

6. Constitutional questions which should have been raised as affirmative defenses in the trial court cannot be raised for the first time in this court on appeal.

7. No harmful error is shown in the sentence of the plaintiff in the order adjudicating him in contempt.

8. The court did not abuse its discretion in awarding the defendant wife attorneys' fees.

9. The court properly made third-parties defendant to the divorce action parties to a conveyance of realty by which the plaintiff allegedly fraudulently concealed his assets.

To the plaintiff husband's petition for divorce, the defendant wife filed an answer and cross-action with prayers for temporary and permanent alimony and rule nisi. Following a hearing, the trial court entered an order awarding the defendant temporary alimony and providing as follows: 'The parties hereto are hereby enjoined and restrained from communicating with, molesting in any manner, or harasing each other. The defendant shall not harass, telephone or make any calls of any kind to the employees of the plaintiff.' The defendant filed a motion to make third-party defendants the plaintiff's father and a Mrs. Helms, which motion was subsequently granted, and to set aside an allegedly fraudulent conveyance of the home in which the plaintiff and Mrs. Helms live, from the plaintiff's father to Mrs. Helms, allegedly made to conceal the plaintiff's assets from the defendant and the court. The defendant and the plaintiff both filed citations for contempt against each other for violation of the court's injunctive order. After a hearing, the court found the plaintiff in contempt of court for violation of the order on three counts, sentencing him to 20 days in jail for each count, and found the defendant also guilty, with a 5 days' jail sentence, from which order both original parties appeal.

Davis & Stringer, Robert H. Stringer, Decatur, for appellant.

Herbert O. Edwards, Decatur, for appellee.

FELTON, Justice.

Case No. 25618 (wife's appeal).

1. Enumerated error 1 of the defendant wife's appeal claims failure of service on her of the plaintiff's contempt citation. 'The divorce and alimony suit was 'a cause pending' in court * * * and service of the citation for contempt for a violation of the order in that case could properly be made on the attorney of record.' Brewer v. Brewer, 206 Ga. 93(2), 55 S.E.2d 593; Ga.L.1966, pp. 609, 615; as amended, Ga.L.1967, pp. 226, 229 (Code Ann. § 81A-105(b); C.P.A. § 5). Service of the citation and rule nisi is claimed by the plaintiff's attorney to have been made by delivering a copy thereof personally to the defendant's attorney of record, as required by the trial court's order and authorized by § 81A-105(b), supra. The only proof of service in the record is the plaintiff's attorney's verbal statement in his place, which was contested by the defendant's attorney, who stated that, 'I don't remember what Mr. Stringer handed me or if he handed me anything. I will yield to his memory, saying his memory may be better than mine, but I still contend we were never served with a citation for contempt.' Code § 81A-105(b), the constitutionality of which was not attacked, provides in part: 'Proof of service may be made by certificate of an attorney or of his employee, or by written admission, or by affidavit, or other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.' (Emphasis supplied.) As we construe the above language, it virtually eliminates the requirement of proof of service, except such as will satisfy the trial court in its discretion. This means, in the present case, that the mere averment of service, even though contradicted by opposing counsel, evidently constituted sufficient basis for the trial court's finding of valid service, since he considered it satisfactory enough upon which to proceed with the husband's citation. If it is deemed desirable for proof of service to consist of more than the contradicted word of the serving counsel, this is a matter to be legislatively effected. This enumerated error is without merit.

2. The appellant wife's second enumerated error, the court's adjudicating her to be in contempt, is not meritorious for any reason urged. The count of contempt of which the court found the defendant guilty was making telephone calls to the plaintiff's place of business. Although most of the witnesses could not testify positively as to the fact that some such calls were made after the July 12, 1968 order, there was some evidence to this effect. Employee Chuck Sexton testified that the defendant called him at the office in November, 1968. The plaintiff testified that he had heard the defendant make abusive calls to employee Mrs. Johnson, '* * * and Mrs. Johnson left (in April, 1969) and she (defendant) attacked the other secretary, Mrs. Nichols.' On cross-examination, testimony was elicited from Mrs. Johnson as follows: 'Q. I would like to ask you, since the separation, and since this order, have you had occasion to receive a telephone call from Mrs. Roberts or Sandra? A. Yes, I have * * * Q. Did you recognize the voice or voices? A. I did. Q. Whose voice was it? A. Mrs. Roberts * * * Q. How recent would that have been before you left? (in April, 1969) A. Just before I left, the last few weeks I was there, there wasn't hardly any calls.' The court did not err in its judgment adjudicating the defendant in contempt of court on this count.

Case No. 25617 (husband's appeal). 3. The issue of the propriety of the trial court's requiring a supersedeas bond on the appeal is moot. The record does not reveal that the bond was in fact paid. If it was, the rule is that '(m)atters eliminated either by the parties or by order of the trial court constitute no part of the case in the Supreme Court.' Woods v. State of Ga., 219 Ga. 503, 504, 133 S.E.2d 865, 867, and cit. The appellant husband's first enumerated error is without merit.

4. Enumerated error 2 is the failure of the trial court to state in the contempt order that he found the plaintiff's acts were wilful and the failure to set forth therein his findings of fact and law. The trial court is presumed to have known the law that the basis of the contempt judgment is some wilful disobedience of his order. The cases cited by appellant to this effect, Biggers v. Biggers, 222 Ga. 139, 140(1), 149 S.E.2d 98 and Atlanta Printing Specialties & Paper Products Union No. 527 v. Zell, 215 Ga. 732, 113 S.E.2d 401, do not require that the finding of wilful disobedience be expressly stated in the order, but merely that such finding be authorized by the evidence and not expressly negatived in the order. As to the other findings of law and fact, the order sufficiently specified the facts upon which the contemnor was adjudged in contempt, each of which had been either admitted by contemnor or proven by evidence. This enumerated error is not meritorious.

5. enumerated errors 3, 4, 6, 7, 8, 9 and 10 all raise the point that the restraining order names only the wife and therefore affords no protection to her counsel and her children, who are third parties not named therein. The order was purposely drawn to include and preclude the wide range of contemptuous...