P. J., COOMER and MARKLE, JJ.
a hearing, the trial court found Joseph McCarthy in contempt
of court for violating a divorce decree by failing to pay
child support. McCarthy appeals the contempt order as well as
several other orders that preceded the contempt ruling.
McCarthy, who is pro se, has been particularly litigious
following his divorce from Annie Ashment. In the present
appeal, McCarthy raises 13 enumerations of error, which this
Court will address in turn. For the following reasons, we
appeal from an order finding a party in civil contempt, if
there is any evidence from which the trial court could have
concluded that its order had been violated, this Court is
without power to disturb the judgment absent an abuse of
discretion." In re Singleton, 323 Ga.App. 396,
403 (2) (b) (744 S.E.2d 912) (2013). The relevant facts show
that Ashment and McCarthy divorced in 2012. Ashment was given
primary physical custody of the couple's four young
children, and the decree obligated McCarthy to pay $800 per
month in child support. McCarthy appealed, and the Georgia
Supreme Court found that McCarthy was barred from challenging
the amount of child support; vacated the attorney fee award
and remanded for a new hearing; and broadly rejected
McCarthy's additional claims of error in which he
attacked the discretion of the trial court. See
McCarthy, 295 Ga. at 231. On June 5, 2015, the trial
court entered an order awarding Ashment $42, 599.06 in
attorney fees, which it apportioned under OCGA § 9-15-14
(b) and OCGA § 19-6-2.
was found to be in arrears in his payments and twice in 2013
McCarthy was found in contempt and ordered jailed until he
purged himself. In November 2016, Ashment filed a contempt
motion based upon McCarthy's failure to pay over $50, 000
in child support and the attorney fee award. McCarthy had the
case removed to federal court, and the case was remanded to
superior court in December 2016.
filed multiple motions to recuse the trial judge and the
entire Cobb County Judicial Circuit. The second motion was
heard by Judge Sutton, who did not preside over the divorce.
On July 5, 2017, Judge Sutton entered an order denying the
recusal motion, finding McCarthy had not shown good cause for
recusal and that the motion was untimely. McCarthy again
filed a motion to recuse the trial judge and the entire Cobb
County Judicial Circuit, and the motion was later denied.
then filed: (1) a motion to dismiss the contempt citation;
(2) a motion to disqualify Ashment's attorney; and (3) a
demand for a jury trial. The trial court denied these
motions. On June 28, 2018, following a hearing, the trial
court entered an order finding McCarthy to be in contempt
for: failing to pay child support; failing to pay medical and
school expenses; failing to obtain medical insurance for the
children; and failing to pay attorney fees in accordance with
the June 2015 order. The trial court ordered McCarthy
incarcerated until he purged himself by paying $10, 000
toward his arrearage and paying an additional $800 per month.
the court noted that McCarthy was unemployed, the court found
McCarthy was capable of working, but refused to look for
employment since he was living with a fiancé who
provided for all of his needs. The court also found that
McCarthy had borrowed substantial sums from his mother and
fiancé, which he did not use toward his support
obligations. Although he claimed to be destitute, McCarthy
opened credit card accounts and purchased his fiancé
an expensive watch. The trial court also ordered McCarthy to
pay $7, 566.54 in attorney fees under OCGA § 19-6-2.
This appeal followed.
McCarthy first argues the trial court erred by failing to
dismiss Ashment's contempt motion because it failed to
comply with the express language of OCGA § 19-6-28 (b).
Specifically, McCarthy contends Ashment's motion failed
to comply with the rule nisi and time requirements of OCGA
§ 19-6-28 (b) and thus he was entitled to a dismissal of
the motion for contempt. We disagree.
§ 19-6-28 (b) provides, in pertinent part:
In any proceeding to enforce a temporary or permanent grant
of alimony or child support by attachment for contempt, the
petitioner may serve the motion and rule nisi by mailing a
copy of the motion and rule nisi by first-class mail, postage
prepaid, to the respondent[.] . . . A child support contempt
motion shall be served upon a respondent with a notice that
contains a date certain for hearing which shall be no later
than 30 days from the date of service of the motion, unless
good cause for a later date is found by the court, in which
event the time for a hearing may be extended for up to 30
record shows that Ashment filed a motion for citation for
contempt on November 11, 2016. The motion was served on
McCarthy on November 14, 2016. McCarthy was later served with
a Rule Nisi on December 7, 2016, which set the matter down
for trial on January 10, 2017. Thus, our review of the record
reveals that McCarthy was served with the Rule Nisi within 30
days of the date of service of Ashment's motion and this
enumeration of error lacks merit.
McCarthy next argues the trial court erred by not
disqualifying Ashment's attorney after an alleged
conflict of interest was established. We disagree.
The right to counsel is an important interest which requires
that any curtailment of the client's right to counsel of
choice be approached with great caution. In determining
whether to disqualify counsel, the trial court should
consider the particular facts of the case, balancing the need
to ensure ethical conduct on the part of lawyers against the
litigant's right to freely chosen counsel. We review the
court's ruling for abuse of discretion.
Befekadu v. Addis Intl. Money Transfer, 332 Ga.App.
103, 106 (1) (c) (772 S.E.2d 785) (2015) (citation omitted).
Here, McCarthy filed a motion to disqualify Ashment's
current attorney, Hylton Dupree, on the grounds that during
the pendency of their divorce, McCarthy's mother called
Dupree regarding McCarthy's pending divorce action to
inquire as to whether Dupree's firm could represent
McCarthy. McCarthy alleged that his mother spoke with Dupree
for 37 minutes and during the call Dupree was provided
privileged information by McCarthy's mother about
McCarthy. Dupree denied there was a conflict and filed an
affidavit from his law firm's administrator to that
effect. Following a hearing, the trial court denied the
motion. Despite McCarthy's contentions to the contrary,
he has failed to show the trial court abused its discretion
in its refusal to disqualify Ashment's attorney.
Consequently, we affirm the trial court's judgment in
McCarthy next argues the trial court erred in refusing to
allow for a jury trial pursuant to OCGA § 15-1-4 (b)
regarding the contempt action relating to a child support and
attorney fee arrearage. We disagree.
§ 15-1-4 (b) provides that:
No person shall be imprisoned for contempt for failing or
refusing to pay over money under any order, decree, or
judgment of any court of law or any other court of this state
when he denies that the money ordered or decreed to be paid
over is in his power, custody, or control until he has a
trial by jury in accordance with the following provisions:
(1) The allegation of the plaintiff, receiver, referee, or
any other person or persons that the defendant accused of
contempt has a certain sum of money within his power,
custody, or control, which he is withholding or refuses or
fails to pay over, and the denial of the defendant that he
has the power, custody, or control of the money shall form
the issue to be tried by the jury, and the jury shall decide
the issue of fact;
(2) The issue being made, a bond may be required in the
discretion of the court for the appearance of the defendant
for trial, which bond shall be of sufficient size to ensure
the attendance of the defendant to appear and answer the
final judgment or decree in the case and shall be approved by
the judge. On failure of the defendant to appear, the bond
shall be forfeited as in criminal cases. If bond is ...