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Murphy v. Murphy

Court of Appeals of Georgia

November 17, 2014

MURPHY et al.

Reconsideration denied December 4, 2014 -- Cert. applied for.

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[Copyrighted Material Omitted]

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Contempt. Coweta Superior Court. Before Judge Baldwin.

Millard C. Farmer, Jr., Larry King, for appellants.

Glover & Davis, Taylor B. Drake, Michael W. Warner, Kilpatrick Townsend & Stockton, Stephen E. Hudson, William R. Poplin, Jr., for appellee.

McFADDEN, Judge. Doyle, P. J., and Boggs, J., concur.


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McFadden, Judge.

Although this is our third opinion in this custody modification action, we are still not presented with a final order on the petition to modify. Instead we are presented with a series of rulings holding appellant Nancy Michelle Murphy and her attorneys, Millard Farmer and Larry King, in contempt of court.

Farmer has been held in contempt of an earlier order tat prohibited the parties from discussing the case with their children. As Farmer signed a brief to which he exhibited affidavits of the children echoing their mother's anger at John Murphy, there is sufficient evidence to support that ruling; and we find that Farmer received sufficient notice and opportunity to be heard before he was held in contempt. Nancy Michelle Murphy has been held in contempt of another provision of that order which required her to cooperate with a custody evaluator. Any insufficiency of the evidence presented on that charge at the contempt hearing was supplied by her own brief in opposition to the motion for contempt. In that brief she announced that she deemed herself to be entitled to defy the provision directing her to cooperate with the evaluator. And again we find sufficient notice and opportunity to be heard. Finally, Farmer and King have [330 Ga.App. 170] been held in contempt for failure to have Nancy Michelle Murphy present at the contempt hearing. But as she was not under subpoena and had not been ordered to appear in person, she was entitled to appear through counsel; so that ruling must be reversed.

We therefore affirm the trial court's contempt order in part and reverse it in part.

1. Prior appeals.

Nancy Michelle Murphy and John Murphy were divorced in 2006. They have two children, born in November 1998 and January 2001. In April 2012, John Murphy filed this action, seeking to modify the child custody provisions of the divorce decree.

Nancy Michelle Murphy has repeatedly moved to recuse the trial court judge. Murphy v. Murphy, 322 Ga.App. 829 (747 S.E.2d 21) (2013), her first appeal in this case, was a direct appeal from an interlocutory order denying one of her motions to recuse. We dismissed on the basis the order was not appealable as a collateral order and was not appealable under the version of OCGA § 5-6-34 (a) (11) adopted in 2013, which authorizes direct appeals from " judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders."

Our Supreme Court granted Nancy Michelle Murphy's petition for certiorari to address whether we erred when we concluded that the 2013 amendment of OCGA § 5-6-34 (a) (11) applied retroactively. In Murphy v. Murphy, 295 Ga. 376 (761 S.E.2d 53) (2014), the Supreme Court ruled that the amendment did not apply retroactively but nonetheless affirmed the dismissal of Nancy Michelle Murphy's appeal on the ground that, " even under the prior version of OCGA § 5-6-34 (a) (11), there was no right of direct appeal from the recusal order at issue." Id. at 379.

In the meantime, on August 23, 2013, the trial court entered an order that, among other things, denied John Murphy's motion to temporarily change physical custody of the children, directed the parties not to discuss the case with the children, ordered a custody evaluation, and directed the parties to cooperate with the custody evaluator. In Nancy Michelle Murphy's second appeal to our court, Murphy v. Murphy, 328 Ga.App. 767 (759 S.E.2d 909) (2014), we affirmed that order. We imposed a frivolous appeal penalty against Nancy Michelle Murphy's counsel, finding that the appeal was frivolous and dilatory and rife with violations of Court of Appeals Rule 10, which forbids oral or written personal remarks that are discourteous or disparaging to any judge, opposing counsel, or any court.

[330 Ga.App. 171] 2. Facts underlying the present appeal.

Six days after the August 23, 2013 order was entered, John Murphy filed a motion seeking to hold Nancy Michelle Murphy in contempt for violating its visitation provisions. In response Nancy Michelle Murphy filed affidavits from the children, testifying

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that the motion for contempt had been read to them in the presence of their mother, that their mother had not interfered with their father's visitation as alleged in the motion for contempt, and that they were extremely ...

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