ELLINGTON, Presiding Judge.
These consolidated appeals arise from an order in an ongoing visitation dispute between Kellie Van Leuvan, the mother of a minor child (hereinafter, "the mother"), and Connie Carlisle, the child's maternal grandmother ("the grandmother"). In the order, the Superior Court of Fulton County found the mother to be in willful civil contempt of its temporary visitation order, and it ordered
The record shows the following, undisputed facts. In February 2011, the grandmother filed a petition asking for visitation with her granddaughter, who was four years old at the time and was living with her mother, who was divorced from the child's father. On May 31, 2012, following an evidentiary hearing, the trial court issued a temporary order (hereinafter, the "visitation order") in which it found that the grandmother had met her burden, under OCGA § 19-7-3(a), of showing that she was entitled to visitation with the child. The visitation order stated, in relevant part, as follows:
The mother filed an application for interlocutory review of the visitation order, and this Court granted the application. Pursuant to that appeal, this Court vacated the visitation order because it did not contain the court's specific findings of fact, as required by OCGA § 19-7-3(c). See Van Leuvan v. Carlisle, ___ Ga.App. ___, ___ (1), ___ S.E.2d ___ (2013). This Court remanded the case back to the trial court with directions to issue an order that complied with OCGA § 19-7-3(c). Id.
While the appeal from the visitation order was pending, the mother notified the grandmother that she had designated the week beginning August 13, 2012, for the grandmother's seven uninterrupted days of "summer" visitation, as required by the order. The grandmother immediately filed an objection to this designation of dates, however, because the child's school year was scheduled to begin before then, so she would be attending school throughout that week. The trial court, however, did not rule on the objection prior to August 13, the date the designated week of visitation was to begin.
On August 13, the mother's attorney, Singleton, sent a letter to the grandmother's attorney stating that the mother had just learned that the grandmother intended to pick up the child from school each afternoon that week and to keep her overnight, pursuant to the mother's designation of dates. Singleton's letter stated that, based upon the grandmother's objection to the dates and the absence of either a court order ruling on the objection or any communication between the parties' attorneys regarding visitation dates while the mother's appeal from the visitation order was pending, "there does not appear to be a legal basis for [the child's] school to release [her] into [the grandmother's] custody." Singleton also stated that the mother was going to pick up the child from school each day of that week, as she was entitled to do pursuant to the parenting plan executed by her and the child's father. In other words, the letter notified the grandmother that she would not be allowed to exercise her
The grandmother, however, was apparently not aware of the attorneys' communications when she went to the child's school to pick her up for visitation on the afternoon of August 13. At that time, school officials told her that the school's policies did not allow it to release the child to her because she was not the child's parent. It is undisputed that the mother had spoken with school officials earlier that day and had given them copies of certain documents, including the visitation order, her designation of dates for summer visitation, and the grandmother's objection to such dates.
The next afternoon, August 14, the grandmother again went to the child's school to pick her up for visitation. She was unable to do so, however, because, unbeknownst to the grandmother, the mother had gone to the school and had picked up the child before the end of the school day. School officials again informed the grandmother that the school would not release the child to her, and, in support of such refusal, they showed her a copy of a letter written by Singleton that the school had received. They also showed the grandmother a copy of an e-mail the school had received from its Executive Director. The August 14 e-mail stated, in relevant part, that the Executive Director had been
(Emphasis supplied.) Given these circumstances, the grandmother decided not to make any further attempts to exercise her summer visitation that week.
A few days later, however, the grandmother's attorney sent a letter to Singleton stating that the grandmother had selected August 23 as the date she wanted to exercise her monthly, Thursday overnight visitation (hereinafter, "monthly visitation"), pursuant to paragraph 2 of the visitation order. Singleton responded with a two-sentence letter, stating that paragraph 2 of the visitation order "does not appear to grant [the grandmother] the rights referenced in your letter."
That same day, the grandmother went to the school to pick up her granddaughter, but school officials refused to release the child to her. They showed her a copy of Singleton's August 23 letter (above) that they had received and informed her that, because of the apparent error in the visitation order regarding the term "respondent," the school would not release the child to her until the order was corrected.
Following this incident, the grandmother filed a second motion asking the court to find the mother in contempt of the visitation order and to award her attorney fees associated with bringing the motion against the mother, Singleton or both, pursuant to OCGA § 9-15-14(a) and/or (b). During the contempt hearing, Singleton defended the mother's designation of the week of August 13 for the grandmother's week of summer visitation — despite the fact that the child would be in school that entire week — by arguing that the visitation order said "nothing about [allowing the visitation during] the summer or restricting it to summer vacation." As shown above, however, the order specifically stated that the grandmother shall have seven "uninterrupted" days of visitation "during the summer months of June, July, or August," and it followed that provision with a separate provision about the monthly overnight visits that began, "During the school year, August through May...."
Further, Singleton asserted that the mother "didn't interfere" with the grandmother's visitation on August 14, stating that, when the grandmother arrived at the school that afternoon to pick up the child, "my client was not present." The undisputed evidence shows, however, that the mother was not present because she intentionally picked up the child before the end of that school day and took her home. And, despite having designated the week of August 13 for the grandmother's week-long "summer" visitation, and despite being notified that the grandmother intended to exercise that visitation, the mother continued to assert that the grandmother did not have the right to visitation that week and, as a result, she intentionally did not notify the school that the grandmother had permission to pick up the child from school.
On the issue of why the grandmother was denied the right to pick up the child from school on August 23 for her monthly visitation, the mother testified that, because paragraph 2 of the visitation order referred to the "respondent" instead of the "petitioner," and because she was the "respondent" in the visitation action, it "seem[ed] pretty clear" that the order did not give the grandmother visitation once a month on a Thursday night. When asked if it was true that the use of the term "respondent" was clearly a typographical error, especially when considered in the context of the entire order, she answered that the order "reads what it reads" and, as a result, she believed that it did not give the grandmother Thursday overnight visitation.
Further, Singleton argued that the mother "was not present" at the school when the grandmother arrived on August 23; that, instead, it was the school that refused to release the child to her; and that the school had made "its own decision [on that issue]... independently of [the mother]." It is undisputed, however, that the mother provided school officials with the documents that allegedly supported her claim that the visitation
In response to the mother's hearing testimony about what she believed the visitation order allowed, the court stated that it found such testimony to be completely incredible. Further, the court characterized Singleton's numerous objections as "ridiculous," "inappropriate" and "unprofessional," and stated that the legal position he expressed about the language of the visitation order was "absolutely frivolous." In fact, the court specifically stated that, "I don't think that there is any reasonable interpretation that you could take of that [visitation] order other than ... the fact that this was a complete clerical error[.] ... [The error] was completely obvious on the face of the document." Subsequently, in its written order finding the mother in civil contempt and awarding attorney fees to the grandmother, the court ruled, in relevant part, as follows:
(Emphasis supplied.) Both the mother and Singleton appeal from this order.
1. Before reaching the merits of the instant appeal, we must address the issue of whether the trial court was authorized to find the mother in contempt of the visitation order given the fact that this Court subsequently vacated the order on appeal and remanded the case to the trial court with direction to issue a new order that included findings of fact, as required by OCGA § 19-7-3(c).
"[I]f the trial court has jurisdiction to make [an] order, it must be obeyed however wrong it may be. [It follows that the] disobedience of an unsuperseded order within the jurisdiction of a court is a contempt of
Accordingly, we conclude that the visitation order was enforceable at the time the mother violated its provisions and that, as a result, the trial court was authorized to find the mother in contempt of the order.
2. The mother contends that there was insufficient evidence presented to support the court's finding that she was in willful civil contempt of the visitation order. We disagree.
(a) As an initial matter, contrary to the mother's repeated assertions in her appellate brief that the trial court failed to designate whether it was finding her in civil or criminal contempt, the court's order specifically states that it found her to be in "willful civil contempt" of the visitation order by not allowing the grandmother to have visitation with the child pursuant to that order.
(b) "The appropriate standard of proof in a civil contempt case is preponderance of the evidence." (Citation omitted.) In re Harvey, 219 Ga.App. 76, 80, 464 S.E.2d 34 (1995). On 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." (Citation and punctuation omitted.) Carden v. Carden, 276 Ga.App. 43, 44, 622 S.E.2d 389 (2005).
We find that the undisputed evidence in this case, as set out above, is more than sufficient to support the trial court's conclusion that the mother willfully violated the visitation order by preventing the grandmother from exercising her visitation rights pursuant to that order. Accordingly, we find that the court did not abuse its discretion in ruling that the mother was in willful civil contempt.
In these appeals, the mother and her attorney, Singleton (collectively, "the appellants"), challenge the court's award of attorney fees to the grandmother, pursuant to OCGA § 9-15-14(a) and (b).
3. The appellants contend that the court erred in awarding attorney fees under OCGA § 9-15-14(a), arguing that the only defenses they asserted in the contempt action raised justiciable issues of law and fact
OCGA § 9-15-14(a) provides as follows:
"OCGA § 9-15-14(a) therefore provides for a mandatory award upon a finding of the absence of any justiciable issue of law or fact." (Citation omitted.) Haney v. Camp, 320 Ga.App. 111, 114(2), 739 S.E.2d 399 (2013). Moreover, "[t]his Court will affirm a lower court ruling made pursuant to OCGA § 9-15-14(a) if there is `any evidence' to support it." (Citation omitted.) Brewer v. Paulk, 296 Ga.App. 26, 29(1), 673 S.E.2d 545 (2009).
The undisputed evidence in the record supports the court's finding that, in order to justify the denial of monthly overnight visitation rights to the grandmother, the appellants solely and consistently relied on the fact that paragraph 2 of the visitation order referred to "Respondent" instead of "Petitioner." The trial court was authorized to conclude that this misnomer constituted an obvious typographical error, that both appellants knew it was an error, and that their claims to the contrary lacked merit and were made in bad faith. Thus, to the extent the appellants argue that the court erred in finding that they improperly defended the contempt action based on the typographical error in the visitation order, we find this assertion to be disingenuous and completely without merit.
Moreover, if the appellants are trying to convince this Court that they reasonably believed that the visitation order did not contain a typographical error, then they are essentially arguing that the paragraph at issue reflected the actual intent of the trial court to give the mother, with whom the child resided, monthly overnight visitation in addition to her actual physical custody of the child. Such an assertion is patently illogical and preposterous.
Consequently, the trial court did not err in awarding the grandmother attorney fees pursuant to OCGA § 9-15-14(a).
4. The appellants also contend that the court erred in awarding attorney fees under OCGA § 9-15-14(b), again arguing that they did not rely on the typographical error as a defense to the contempt motion or engage in other conduct triggering liability under that statute. OCGA § 9-15-14(b) provides as follows:
"[A]n award under OCGA § 9-15-14(b) involves consideration of the conduct of the party against whom an award is sought, and the conduct of that party's counsel along with the impact of that conduct on the attorney fees incurred by the opposing party." (Citation and punctuation omitted.) Citizens for Ethics in Govt. v. Atlanta Dev. Auth., 303 Ga.App. 724, 736(3), 694 S.E.2d 680 (2010). Finally, "[b]ecause an award of attorney fees and expenses of litigation is discretionary under subsection (b), the standard of review by an appellate court is whether the trial court abused its discretion in making the award." (Punctuation and footnote omitted.) MacDonald v. Harris, 266 Ga.App. 287, 288,
Given the evidence presented and our ruling in Division 3, supra, we find that the trial court did not abuse its discretion in awarding the grandmother attorney fees pursuant to OCGA § 9-15-14(b).
5. The appellants contend that there was no evidence presented to support the court's award in the amount of $6,500, arguing that they objected to the grandmother's attorney's statements regarding the amount of attorney fees that the grandmother had incurred as a consequence of having to file and prosecute the motion for contempt.
"Attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence." (Punctuation and footnote omitted.) In re Estate of Bell, 274 Ga.App. 581, 583, 618 S.E.2d 194 (2005). See Rank v. Rank, 287 Ga. 147, 149(2), 695 S.E.2d 13 (2010) ("In the absence of an objection, counsel's evidentiary proffers to the trial court during a hearing will be treated on appeal as the equivalent of evidence.") (citations omitted); Sams v. State, 197 Ga.App. 201, 204(5), 397 S.E.2d 751 (1990) ("An officer of the court may make a statement in his place which is taken to be prima facie true unless verification of such statement is required by the opposing party at the time the statement is made.") (citation and punctuation omitted; emphasis in original). Contrary to the appellants' assertions in their appellate briefs, the record shows that neither objected to the statements of the grandmother's counsel regarding the amount of attorney fees at issue.
6. The appellants argue that the court erred by failing to assess the reasonableness of the requested attorney fees. Pretermitting whether this argument is supported by the record, however, the appellants waived this issue on appeal by failing to raise it in the court below. It is axiomatic that, on appeal, "only issues properly raised before the trial court will be considered. Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court." (Citations and punctuation omitted.) City of Dalton v. Smith, 210 Ga.App. 858, 859(1), 437 S.E.2d 827 (1993).
7. The appellants contend that the court erred in awarding fees directly to the grandmother's counsel instead of to the grandmother. "[A]ny award of fees or expenses under OCGA § 9-15-14(a) `shall be awarded to any party' and not directly to the attorney for the party. The court may, of course, specify the amounts due to each attorney or law firm, but the award itself, as specified in the statute, is for the benefit of the party litigant." (Citations and emphasis omitted.) Brewer v. Paulk, 296 Ga.App. at 31(2), 673 S.E.2d 545.
Pretermitting whether the appellants waived this issue on appeal by failing to raise it in the court below,
8. The grandmother's motion to dismiss Singleton's appeal, Case No. A13A0783, on jurisdictional grounds is denied.
9. Finally, this Court finds that the appellants' arguments on appeal completely lacked merit and, thus, we deem these appeals to be frivolous. Consequently, we sua sponte impose a penalty of $1,000 against each of the appellants personally, i.e., Singleton in Case No. A13A0783 and Van Leuvan in Case No. A13A0784, pursuant to Court of Appeals Rule 15.
Judgments affirmed.
ANDREWS, P.J., concurs.
DILLARD, J., concurs in the judgment only.
(Emphasis supplied.)
See also Court of Appeals Rule 15(c) ("The imposition of such penalty shall constitute a money judgment, in favor of appellee against appellant.... Upon filing of the remittitur in the trial court, the penalty may be collected as are other money judgments.").
