Gallemore v. White

303 Ga. 209

• Court: Supreme Court of Georgia
• Decided: March 5, 2018
• Docket: S17A1464
• Status: Published

Opinion

303 Ga. 209 FINAL COPY

S17A1464. GALLEMORE v. WHITE.

BENHAM, JUSTICE.

Appellant David Wayne Gallemore, III and appellee Wanda Willis

White were previously married, and they divorced in 2009. Later, the parties

were involved in a dispute over the amount of child support Gallemore was

required to pay and whether he was in contempt for failing to pay what had

been ordered. This Court granted Gallemore’s application for discretionary

appeal to examine whether the trial court erred by holding Gallemore in

contempt for failing to pay child support and by awarding attorney fees to

White. For the reasons set forth below, we affirm the contempt order, we

vacate the order awarding attorney fees, and we remand the case for further

proceedings on that issue.

1. The parties’ divorce decree incorporated a settlement agreement

pursuant to which the parties agreed to mediate any dispute related to child

custody within thirty days of either party’s written request for mediation, and agreed that legal action in a court of law would ensue only after the failure to

reach a mediated agreement. The record reflects that White filed a contempt

petition for alleged failure to comply with the terms of the child support award

in December 2014, and the trial court granted the petition in March 2015,

ordering Gallemore to pay the sum of $7,300 to White. That order was set aside

and vacated when Gallemore showed he had filed a voluntary petition for

bankruptcy which thereby served as a stay of White’s petition for contempt.

Once the bankruptcy stay was lifted, an evidentiary hearing was scheduled for

the claims raised in White’s petition. One day prior to the hearing date,

Gallemore served on White’s attorney a demand for mediation.1 After a

hearing on the petition, the trial court entered an order finding Gallemore in

willful contempt of the final judgment and awarding unpaid child support in

the amount of $81,298.50.

Gallemore asserts the trial court erred by granting White’s motion for

contempt without first requiring mediation pursuant to the settlement

agreement. As the appellant, Gallemore has the burden of demonstrating error.

1 Also on that date, Gallemore filed a petition seeking modification of visitation and child support. We note that a notice of appeal was filed from the judgment entered in that proceeding, but because it was filed after January 1, 2017, the case was transferred to the Court of Appeals. See OCGA § 15-3-3.1. Because the application for discretionary review in the case now before us, as well as the notice of appeal, were filed prior to January 1, 2017, jurisdiction remains in this Court. See Rymuza v. Rymuza, 292 Ga. 98, 102 (5) (734 SE2d 384) (2012); Gillespie

v. Gillespie, 259 Ga. 838, 839 (388 SE2d 688) (1990). While the record

contains a copy of the mediation demand letter to White’s counsel, it does not

reflect that Gallemore sought a stay of the hearing until such time as mediation

could be conducted or moved to dismiss the contempt proceeding. On appeal,

White asserts that she testified at the trial court hearing that she attempted to

find a private mediator to work with the parties to attempt to resolve the

dispute, but that Gallemore refused to participate. Because this appeal draws

into question the transcript of the proceedings, it was Gallemore’s duty to have

the transcript prepared so that it could be included in the record. See OCGA §

5-6-41 (c). Because Gallemore failed to attach the transcript of the hearing, it

is not possible for this Court to determine whether this issue was properly

preserved. In the absence of a transcript of a hearing, “we must presume that

the evidence supports the trial court’s findings.” See Jones v. Foster, 287 Ga.

144 (695 SE2d 21) (2010); Harry v. Dale, 281 Ga. 870, 871 (644 SE2d 137)

(2007). Because no error is demonstrated by the record before this Court, the

contempt order is affirmed.

2. The trial court also found that White is entitled to reasonable

attorney fees, and awarded the amount of $11,200 pursuant to OCGA § 9-15- 14 (b). The order, however, contained no findings of fact necessary to support

such an award. Accordingly, the award of attorney fees must be vacated and

the case remanded to the trial court so that the necessary findings may be made.

See Moon v. Moon, 277 Ga. 375, 379 (6) (589 SE2d 76) (2003).

Judgment affirmed in part and vacated in part and case remanded with

direction. All the Justices concur. Decided March 5, 2018.

Domestic relations. DeKalb Superior Court. Before Judge Hunter.

Odis W. Williams II, for appellant.

Sabrina A. Parker, for appellee.