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Bankston v. Lachman

Court of Appeals of Georgia

July 15, 2014

BANKSTON
v.
LACHMAN

Contempt. DeKalb Superior Court. Before Judge Johnson.

David A. Webster, Jeanney M. Kutner, for appellant.

Ellis Hoyle King de Clerk, C. Suzette Ellis-Hoyle, for appellee.

BRANCH, Judge. Phipps, C. J., and Ellington, P. J., concur.

OPINION

Page 831

Branch, Judge.

The father of a girl, now six years old, brings this appeal from a trial court's order on a petition by the child's mother. The trial court suspended the father's visitation rights and found him in contempt for failing to pay child support.[1] The father argues that the trial court erred when it suspended his visitation rights and also asserts four errors as to a previous order denying his own motion for contempt. The evidence supported the trial court's suspension of the father's visitation rights, and we lack jurisdiction as to the previous order. We therefore affirm.

The record shows that the parties' February 2009 divorce decree granted the father four hours of visitation per week until the child began kindergarten, and every other weekend after that time. As part of the parties' ongoing dispute over enforcement of the divorce decree's visitation and child support provisions, one of which resulted in a June 2011 adjudication of contempt against the father for failure to pay child support, the father moved for contempt in July 2012. After a hearing, and in an order dated September 18, 2012, the trial court denied the father's motions to recuse the judge, for contempt, and to set aside two February 2012 orders on visitation.

Meanwhile, on September 7 and 18, 2012, the trial court granted the mother's emergency ex parte motions and her petition to suspend the father's visitation pending an investigation of the mother's allegations that over the weekend of August 24-26, the father's eight-year-old son by another woman had penetrated the girl's vagina with his finger several times while both children were in the father's physical custody. At a hearing on October 11, 2012, the trial court heard testimony from the mother that on returning to the mother's house, the girl was found cutting off her own hair down to the scalp in an effort to " get [her brother] out of [her] head." At the same [328 Ga.App. 285] hearing, the father admitted that he had never made a full monthly child support payment. On October 31, 2012, the trial court granted the mother's petition to suspend the father's visitation, found the father in contempt, and ordered the father to begin paying $19,000 in overdue child support. On November 29, 2012, the father appealed the October 31 order. An amended notice of appeal also noted that the father was appealing only the October 31 order.

On appeal, the father argues that the trial court erred in the course of proceedings on the father's motion for contempt when it denied his motion to recuse the judge, limited the father's cross-examination of the mother, quashed a subpoena of the child's doctor, and declined to hold the mother in contempt. The father also argues that the trial court's suspension of his visitation at the conclusion of proceedings on the mother's petition was not supported by the evidence. We have jurisdiction over only the last of these assertions.

1. The father's first four asserted errors concern proceedings in the father's contempt action against the mother culminating in the order of September 18, 2012, which was not timely appealed. We therefore lack jurisdiction.

The order of September 18, 2012, resolved all issues raised in proceedings in the father's motion for contempt, including his request to set aside previous orders concerning visitation, and was thus directly appealable.[2]

Page 832

See Edge v. Edge, 290 Ga. 551, 553 (1) (722 S.E.2d 749) (2012) (an order setting aside " a ruling eliminating [a father's] right of visitation [was] a 'custody case' subject to direct appeal" ). As a final disposition on the father's motion, the order of September 18, 2012 was subject to the timeliness requirements of OCGA § 5-6-38 (a), which provides that a notice of appeal " shall be filed within 30 days after entry of the appealable decision or judgment complained of." If such an adjudication is not appealed within 30 days, an appeal taken after that time is properly dismissed. In re ...


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