Rollins v. Rollins
| Court | Supreme Court of Georgia |
| Citation | 796 S.E.2d 721,300 Ga. 485 |
| Docket Number | S16A1449 |
| Parties | ROLLINS v. ROLLINS. |
| Decision Date | 06 February 2017 |
300 Ga. 485
796 S.E.2d 721
ROLLINS
v.
ROLLINS.
S16A1449
Supreme Court of Georgia.
Decided February 6, 2017
Christopher A. Corbett, for Appellant.
R. Scott Berryman, for Appellee.
Blackwell, Justice.
Glen William Rollins and Danielle Deaton Rollins were divorced in December 2013, and they agreed at that time to submit to binding arbitration of their respective claims to certain furniture and furnishings in the marital home. The arbitrator rendered an award in July 2014, and Glen promptly moved for judicial confirmation of the award. While his motion for confirmation was pending,1 the trial court ordered Danielle in August 2014 to account for some of the furniture and furnishings that the arbitrator had awarded to Glen, the location of which Glen had been unable to ascertain since the award was rendered. Dissatisfied with her accounting, Glen filed a motion to hold Danielle in contempt of the August 2014 order. In April 2015, the trial court found that Danielle was in willful contempt of the August 2014 order in at least one respect, and it entered an initial contempt order that directed Danielle to show cause why she ought not be incarcerated for her contempt.
Danielle sought appellate review of that initial contempt order, both by filing an application for discretionary review in this Court, and by filing a notice of direct appeal. In May 2015, we denied the
application for discretionary review.2 The transmission of the record in the direct appeal took some time, and the direct appeal was not docketed in this Court until November 2015. On December 3, 2015, we dismissed the direct appeal, explaining that any appeal from the initial contempt order had to come by application, and noting that we already had denied an application for discretionary review of the same initial contempt order.3
In the meantime, the trial court held a final hearing on the motion for contempt and entered a final contempt order on November 24, 2015, finding Danielle in contempt of the
August 2014 order in additional respects, directing her to immediately surrender any property awarded to Glen, ordering her to pay Glen for any such property that had gone missing or was damaged, and ordering her to pay fines for 34 separate instances of contempt. The trial court also awarded attorney fees to Glen in connection with the contempt proceedings. Danielle filed an application for discretionary review of this final contempt order, and we granted her application.4 For the reasons that follow, we vacate the final contempt order entered in November 2015, and we remand this case for further proceedings consistent with this opinion.
1. Danielle argues that the trial court was without jurisdiction to enter a final contempt order while her direct appeal from the initial contempt order still was pending in this Court. We agree. By filing a notice of appeal from the initial contempt order, Danielle triggered an automatic supersedeas of that order. See OCGA § 5–6–46 (a). See also Massey v. Massey , 294 Ga. 163, 166 (3), 751 S.E.2d 330 (2013). "At that point, the trial court was deprived of the power to affect the judgment appealed." Massey , 294 Ga. at 166 (3), 751 S.E.2d 330 (citation and punctuation omitted). It is true that a direct appeal was improper—any appeal from the initial contempt order had to come by application—and that the appeal was, therefore, subject to dismissal from the beginning. "That would not have meant, however, that the trial court retained jurisdiction." Tolbert v. Toole , 296 Ga. 357, 361 (2), 767 S.E.2d 24 (2014) (citation omitted). See also
Styles v. State , 245 Ga.App. 90, 90, 537 S.E.2d 377 (2000) (the rule "that a superior court is without authority to alter a judgment while an appeal of that judgment is pending" applies "even when the pending appeal is dismissed for lack of jurisdiction"), disavowed in part on other grounds, Islamkhan v. Khan , 299 Ga. 548, 552 (2), n. 7, 787 S.E.2d 731 (2016). As a leading treatise on appellate practice in Georgia explains, "dismissal of an appeal for lack of jurisdiction is not retroactive," and "even if [an] appeal is jurisdictionally defective from the outset, the notice of appeal [ordinarily] acts as a supersedeas until the appeal is dismissed." Christopher J. McFadden et al., Georgia Appellate Practice § 17:11 (November 2016 update) (citations omitted).
In its final contempt order, the trial court rejected the notion that the pending (but jurisdictionally flawed) direct appeal from the initial contempt order worked a supersedeas, explicitly finding that the direct appeal was "unlawful" because any appeal from orders entered in this domestic relations case was required to come by application pursuant to OCGA § 5–6–35 (a) (2). But neither the trial court nor Glen cited any authority for the proposition that a trial court is entitled to simply ignore the supersedeas effect of a pending appeal on the ground that the appeal is due to be dismissed.5 When an appeal appears jurisdictionally frivolous, a trial court certainly may require the appellant to post a supersedeas bond (both to satisfy the judgment and to cover the costs, interest, and damages for delay if the appeal is found to be, in fact, frivolous). See Horn v. Shep he rd , 292 Ga. 14, 21 (10), 732 S.E.2d 427 (2012). There also is some authority for the
proposition that a trial court may award attorney fees under OCGA § 9–15–14 for filing in the trial court a frivolous notice of appeal.6 See ...
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