Thedieck v. Thedieck
| Decision Date | 15 March 1996 |
| Docket Number | A95A2609,Nos. A95A2608,s. A95A2608 |
| Parties | THEDIECK v. THEDIECK (two cases). |
| Court | Georgia Court of Appeals |
Turner, Turner & Turner, Nelson G. Turner, Atlanta, for appellant.
Whitehurst, Cohen & Blackburn, Ronald A. Cohen, Thomasville, Long & Denton, Allen D. Denton, Quitman, for appellee.
We granted Marianne Thedieck's application for a discretionary appeal of the superior court's order holding her in contempt for violating the visitation provisions of a child custody order. The instant two cases were numbered separately below because they arise from two separate petitions for contempt which Mark Thedieck filed; because they involve identical issues, the cases will be addressed together.
Marianne and Mark Thedieck were divorced by a consent judgment dated August 10, 1993. The judgment held that Marianne Thedieck would have custody of the parties' child and set forth visitation provisions for Mark Thedieck.
On June 29, 1994, Mark Thedieck filed a petition for contempt, alleging that Marianne Thedieck had wilfully violated the visitation provisions of the court's order by depriving him of eight visits with the child. Mark Thedieck also alleged that his ex-wife had violated the court's order by harassing and stalking him. He filed a second petition for contempt on October 21, 1994, alleging that his ex-wife had again prevented him from visiting the child. Both petitions requested an award of attorney fees and court costs and additional visitation.
Marianne Thedieck filed an answer to the petitions and counterclaimed. She claimed that she was fearful for her well-being and requested that the court modify the visitation and award attorney fees.
On February 22, 1995, the court conducted a hearing at which Mark Thedieck testified that Marianne Thedieck had caused him to miss 11 visits with the child. He submitted into evidence an affidavit which corroborated his testimony regarding one of the visits. Marianne Thedieck denied that she had violated the order; she claimed that the child had been sick on some of the scheduled visitations.
On April 10, 1995, the court issued an order concluding that Marianne Thedieck had wilfully failed to allow Mark Thedieck visitation more than 11 times. The court also found that Marianne Thedieck was in wilful violation of the court's order by continually harassing her ex-husband with phone calls and by going onto his property.
The trial court ordered that Marianne Thedieck be jailed from April 15, 1995, for 20 days and pay $5,000 in attorney fees and $180 for court costs and filing fees. The order stated that after serving 20 days and upon payment in full of the sums the court ordered, she was to be released. The court further ordered that she could purge herself of her contempt by paying the awards by April 14, 1995, and by allowing Mr. Thedieck to make up a portion of the missed visitation. The court ordered that if Marianne Thedieck failed to make the child available at the designated time, the Sheriff was to incarcerate her.
Marianne Thedieck filed a notice of intent to seek review and a demand for supersedeas. Here, she raises eight enumerations of error.
1. In several enumerations of error, Thedieck raises arguments regarding the nature of the court's order. She argues that the adjudication could not have been for civil contempt since, at the precise moment of the hearing there was no violation of the visitation provisions occurring, and thus no act to coerce. Furthermore, she claims that because the award of the attorney fees was not part of any prior order, she could not have been in contempt for failure to pay fees which were not yet due. Thedieck argues that if the adjudication was for criminal contempt, the incarceration sanction was excessive, and that the evidence to support this adjudication was insufficient.
(Punctuation omitted.) Phillips v. Tittle, 261 Ga. 820, 821, 411 S.E.2d 871 (1992).
In Ensley v. Ensley, supra, 239 Ga. 860, 238 S.E.2d 920, our Supreme Court explained: Id. at 861-862, 238 S.E.2d 920.
Here, the conditional nature of the order indicates that the contempt imposed was civil. The order stated that Marianne Thedieck could purge herself of the contempt by paying the awards and by allowing Mark Thedieck to make up a portion of the missed visitation. In other words, the order sought to obtain Marianne Thedieck's compliance with the visitation provisions of the final judgment.
To the extent that the trial court's order conditioned Marianne Thedieck's avoidance of, or release from, incarceration upon payment of the attorney fees award, it was erroneous. A trial court is not authorized to enter an order which simultaneously awards attorney fees in a contempt proceeding and directs that the contemnor be incarcerated unless she pays the award. See generally Burke v. Burke, 263 Ga. 141, 142(2), 429 S.E.2d 85 (1993); Davis v. Davis, 138 Ga. 8(1)(d), 74 S.E. 830 (1912). Accordingly, this portion of the court's order conditioning the incarceration on the payment of attorney fees is reversed.
Thedieck's other arguments regarding the nature of the contempt order are without merit. Thedieck's argument that the evidence was insufficient for a finding of civil contempt is without merit. While Marianne Thedieck disputed the charges against her, a preponderance of the evidence supported the finding. In re Booker, 195 Ga.App. 561, 564(4), 394 S.E.2d 791 (1990); see generally In re Pruitt, 249 Ga. 190, 191(1), 288 S.E.2d 208 (1982).
2. Marianne Thedieck argues that the attorney fees award was unauthorized. Although in Division 1, we conclude that the manner in which incarceration was imposed with respect to those fees was improper, the award itself was authorized.
First, as in McDonogh v. O'Connor, 260 Ga. 849, 400 S.E.2d 310 (1991), issues other than child visitation were at issue here--also at issue was the parties' compliance with various aspects of the divorce decree. Moreover, although previously attorney fees were not recoverable in a contempt proceeding involving only child custody or visitation rights, see Smith v. Smith, 244 Ga. 230, 231(2), 259 S.E.2d 480 (1979); Keith v. Keith, 248 Ga. 819, 286 S.E.2d 434 (1982), OCGA § 19-6-2(a)(1) has been amended to allow these fees. See Ga.L.1985, pp. 877-878. The statute specifically provides that the "grant of attorney's fees as a part of the expenses of litigation, ... whether the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case, including but not limited to contempt of court orders involving property...
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...Moreover, since, the primary purpose of a civil contempt is to coerce compliance with an order of the court, Thedieck v. Thedieck, 220 Ga.App. 764, 766(1), 470 S.E.2d 265 (1996), it makes sense that once the trial court has entered an order coercing such compliance, a party may directly app......
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