Roberts v. Roberts

• Decision Date: 21 September 2018
• Docket Number: A18A1163
• Parties: ROBERTS v. ROBERTS.
• Court: Georgia Court of Appeals

347 Ga.App. 360

819 S.E.2d 521

ROBERTS

v.ROBERTS.

A18A1163

Court of Appeals of Georgia.

September 21, 2018

Lance Newton Owen, Griffin, for Appellant.

Justin Buice Grubbs, Griffin, for Appellee.

Barnes, Presiding Judge.

Brandon Ladale Roberts (Hereinafter "the father") appeals the trial court’s order finding him in willful contempt of a previous contempt order and ordering that he be incarcerated until the contempt is purged by giving Tom Ladale Roberts, the paternal grandfather, 40 consecutive days of visitation and paying $1850.00 in attorney fees. For the reasons that follow, we affirm in part and reverse in part.

A trial court’s ruling on a motion for contempt will be affirmed on appeal if there is any evidence to support it. Earle v. Earle , 312 Ga. App. 139, 140, 717 S.E.2d 720 (2011). See Hunter v. Hunter , 289 Ga. 9, 11 (4), 709 S.E.2d 263 (2011) ("[A] trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.") (citation omitted). So viewed, the evidence demonstrates that in March 2017, by final order of the juvenile court, and upon finding clear and convincing evidence of a "substantial preexisting relationship" between the grandfather and the child and harm should the relationship be interrupted, and that visitation was in the best interest of the child, the grandfather was awarded grandparent visitation pursuant to OCGA § 19-7-3.¹ The visitation schedule included visits every second and fourth weekend, two weeks during the summer, alternating years for Spring Break and several hours during Thanksgiving and Christmas.

Subsequently, on June 7, 2017, after the father denied the grandfather visitation and upon his filing of a motion for contempt, the trial court entered an order finding the father in contempt and granting the grandfather, in addition to the scheduled visitation, "compensatory visitation" and attorney’s fees of $850.00. The order further provided that the failure to comply "could result in the [father’s] incarceration." On August 25, 2017, the grandfather filed a second motion for contempt in which he alleged that the father had failed to comply with the provisions in the final order awarding visitation and contempt order, and had "absconded with the child and ... denied any contact whatsoever with Paternal Grandfather." Following a hearing on the motion, on November 3, 2017, the trial court entered an order finding the father "in willful contempt of the Final Order on Contempt and Order[ing] him incarcerated." To purge himself of the contempt, the father was ordered to release the child to the grandfather for "forty consecutive days of visitation to make up for visitation [denied to the grandfather]," and to pay $1850.00 in attorneys fees, representing the $850 in attorneys fees awarded in the first contempt action, and another $1000.00 incurred in bringing the most current contempt action. It is from that order that the father appeals.

1. The father first contends that the trial court erred in holding him in contempt for relocating to another state, and that there was no provision in the final order preventing him from relocating. Contrary to the father’s contention, the trial court did not find him in contempt for moving out of state with the child, but rather for willfully failing to comply with earlier orders, specifically the final order of visitation and the first contempt order. See Higdon v. Higdon , 321 Ga. App. 260, 263 (1) (c), 739 S.E.2d 498 (2013) ("the court must find that there was a willful disobedience of the court’s decree or judgment.") And "[i]f there is any evidence in the record to support the trial judge’s determination that a party either has or has not willfully disobeyed the trial court’s order, the decision of the trial court will be affirmed on appeal." Smith v. Morris, Manning & Martin, LLP , 293 Ga. App. 153, 168 (7), 666 S.E.2d 683 (2008).

The father did not attend, but was represented by counsel at the November 2017 hearing on the underlying contempt motion. At that hearing, the evidence revealed that the father was present at the May 19, 2017 hearing on the first contempt petition and, at that time, still lived in Georgia. Further, the trial court found that despite being found in contempt of the final order of visitation, and being ordered to comply with the terms of visitation in the final order and the first contempt order, the father continued to withhold visitation from the grandfather. The grandfather testified that, other than one visitation on the weekend of March 24, 2017, he had been refused all other visitation with the child. He also testified that,...