Salter v. Greene

• Decision Date: 07 May 1997
• Docket Number: No. A97A1266,A97A1266
• Citation: Salter v. Greene, 486 S.E.2d 650, 226 Ga.App. 384 (Ga. App. 1997)
• Parties: , 97 FCDR 1969 SALTER v. GREENE, Sheriff of Upson County.
• Court: Georgia Court of Appeals

Page 650

486 S.E.2d 650

226 Ga.App. 384, 97 FCDR 1969

SALTER v.GREENE, Sheriff of Upson County.

No. A97A1266.

Court of Appeals of Georgia.

May 7, 1997.

William A. Adams, Jr., Thomaston, for appellant.

William T. McBroom, III, District Attorney, Mallory & Trice, Truitt A. Mallory, Thomaston, for appellee.

ELDRIDGE, Judge.

On November 26, 1996, appellantMary Salter was held in contempt of court for allegedly violating an alleged court order; she was sentenced to 20 days confinement and fined $500.Finding that the trial court failed to provide the appellant with even the most basic requirements of due process, we reverse the trial court's judgment.Further, we find that the trial court erred as a matter of law in finding the appellant in contempt of the court order at issue.

On or about February 20, 1996, appellant's husband at that time, Larry Salter("Salter"), was charged with violating the Battery/Family Violence Act, OCGA §§ 16-5-23and19-13-1.Salter was released on bond, but the Magistrate Court of Upson County revoked Salter's bond in April 1996 for alleged violations of the conditions of his bond.Salter filed a habeas corpus petition, which was heard by the trial court in May 1996, and he was released on a $20,000 bond.The trial court imposed a special condition of the bond which required that Salter was "to have no contact directly or indirectly with Mary Jean Salter[the appellant] nor is he to have anyone make contact with her on his behalf."The court order granting bond was not worded as an injunction or restraining order applicable to anyone other than Larry Salter; it appears only for the protection of the appellant and does not state that she cannot waive such protection.

On September 26, 1996, Salter was charged with, inter alia, aggravated stalking and making terroristic threats toward the appellant.Part of the basis for such charges involved a trip to Florida Salter made with the appellant, allegedly to discuss issues in their pending divorce action.A hearing was set to determine whether, in making such contact with the appellant, Salter violated the conditions of his previous bond.The appellant was ordered to appear at the hearing as a material witness.The order did not cite the appellant for any alleged contempt on her part, nor did it advise the appellant that she would be called upon to defend herself against a charge of criminal contempt.

However, at the time of the court's order, the appellant was hospitalized in a psychiatric facility and was receiving treatment for severe depression.The trial court was aware of the appellant's hospitalization and issued an order to the facility to produce the appellant so that she could testify at the hearing.The facility, on behalf of the appellant, moved to quash the order, attaching a physician's affidavit which asserted that the appellant was incapable of testifying because of her mental condition and that forcing her to testify would be detrimental to her health.

During the November 26, 1996 hearing, the trial court granted the motion to quash the order because the appellant was neither competent nor capable of testifying; the appellant was not compelled to testify.However, after hearing testimony that Salter and the appellant had mutual voluntary contact with each other during a trip to Florida, the trial court found both Salter and the appellant in criminal contempt of the trial court's May 1996 order which had reinstated Salter's bond and which, as a special condition of bond, had prohibited Salter from contacting the appellant.Appellant was not notified of the alleged contumacious conduct and was provided no opportunity to secure counsel, present evidence, argue, testify, or otherwise defend herself against the criminal contempt charge.Held:

1.The appellant asserts as error the trial court's finding that she was in criminal contempt of a court order absent any notice or opportunity to defend against such charge.We agree.

The appellant was found in constructive criminal contempt of court, in that her alleged violation, i.e., voluntarily accompanying Salter on a trip to Florida, was outside the presence of the court."In cases of constructive contempt of court, where the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused," thereby giving the accused notice of the pending contempt charge, providing an opportunity for the accused to be heard, and affording a reasonable time for the accused to prepare a defense to...