Gerald K. Johnson, Jr. v. Diane Johnson

• Court: Court of Appeals of Georgia
• Decided: March 21, 2019
• Docket: A18A1654
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., MCMILLIAN and REESE, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

March 5, 2019

In the Court of Appeals of Georgia A18A1654. JOHNSON v. JOHNSON.

MCMILLIAN, Judge.

In August 2013, appellant Gerald K. Johnson, Jr. (“Gerald”) and appellee

Diane Johnson (“Diane”) were granted a divorce in a Final Judgment and Decree of

Divorce, which incorporated the parties’ settlement agreement setting out the terms

of the custody and support of their children (“Divorce Decree”). In November 2015,

Diane filed a contempt petition against Gerald, alleging, among other things, that he

was in contempt of the provision governing visitation and support of the parties’ adult

son R. J., who has Down Syndrome. Following an evidentiary hearing, which was not

transcribed, the trial court entered an order finding Gerald in contempt, ordered him

to abide by the provisions of the Decree that required him to pay 70 percent of the

caretaker costs for R. J. while Diane was working, and awarded Diane $3,603.61 for previously incurred costs. Gerald appeals, challenging the findings of contempt and

the evidentiary basis for the trial court’s award of caretaker costs. As more fully set

forth below, we now reverse in part and affirm in part.

1. In related enumerations, Gerald argues that the trial court erred by mandating

visitation with his adult son and by finding him in contempt for failing to exercise his

visitation rights. “Before a person may be held in contempt for violating a court order,

the order should inform in definite terms as to the duties thereby imposed upon him

[or her], and the command must therefore be express rather than implied. Hall v.

Nelson, 282 Ga. 441, 444 (3) (651 SE2d 72) (2007) (citations and punctuation

omitted).” (Punctuation omitted.) Scherer v. Testino, 291 Ga. 75, 77 (1) (727 SE2d

490) (2012).

As to Gerald’s visitation with R. J., provisions (i) and (j) of the settlement

agreement provide:

The Husband shall be entitled to parenting time with [R. J.] on alternating weekends from 6:00 P. M. on Friday through 6:00 P. M. on Sunday. . . . The Husband shall be entitled to parenting time with [R. J.] on each Wednesday (or other mutually convenient weekday) afternoon for dinner.

2 Under the plain language, Gerald “shall be entitled” to visitation with his son,

but nothing in the language of the Decree makes such visitation compulsory. Because

Gerald cannot be compelled to visit with his son and he did not violate the terms of

the Divorce Decree by failing to exercise his visitation privileges, the trial court

abused its discretion in finding Gerald in contempt of the parenting time provision

of the Divorce Decree.

However, although the trial court erred by finding him in contempt, the trial

court went on to specifically acknowledge that it could not force Gerald to exercise

his visitation rights and did not impose any punishment or penalties for his past or

future failure to exercise his rights. Thus, the trial court did not, as Gerald contends,

mandate that he visit with his son. And while the trial court ordered Gerald to pay 70

percent of any costs Diane might incur from hiring caretakers for R. J. if she worked

during the times Gerald had been granted visitation, that award was clearly authorized

by the provision of the Divorce Decree pertaining to R. J.’s financial support1 and was

not imposed as a sanction for Gerald’s failure to visit with his son or to force

compliance with that provision. Accordingly, we reverse that portion of the trial

court’s order finding Gerald in contempt for failing to exercise his visitation rights,

1 The court specifically made this award “as per the original agreement.”

3 but because Gerald does not face any sanctions simply for foregoing the opportunity

to spend time with his son in the future, and any caretaker costs he may be held partly

responsible for during his forfeited visitation time are authorized as part of his

enforceable obligation to contribute to the support of his son, the remainder of that

provision is affirmed.

2. Gerald also argues that the evidence did not support the trial court’s

imposition of an award against him for failure to pay caretaker costs because Diane

failed to present sufficient evidence that the costs were actual or necessary to her

employment. We are unable to review this contention. As the trial court stated in the

order, the award was based on the testimony of the parties and the evidence presented

at the hearing. However, the proceedings were not transcribed, the exhibits

introduced at the hearing cannot be located, and Gerald has not attempted to utilize

any authorized means to recreate the evidence. In the absence of the transcript or the

exhibits presented at the hearing, we are unable to review Gerald’s challenge to the

sufficiency of the evidence, assume that sufficient competent evidence supported the

trial court’s findings and award, and affirm the imposition of caretaker costs. E.g.,

Barnwell v. TPCII, LLC, 295 Ga. 153, 154 (758 SE2d 281) (2014) (because review

of the transcripts was required to “sort out” the appellant’s claims, the trial court was

4 affirmed); Blue v. Blue, 279 Ga. 550, 550 (1) (615 SE2d 540) (2005) (“the final

hearing was not transcribed and, in the absence of a transcript of the evidence, we

must presume that the evidence supports the judge’s findings.”); Leitzke v. Leitzke,

239 Ga. 17, 18 (1) (235 SE2d 500) (1977) (“Unless some authorized means is used

to bring the evidence to this court on appeal, we cannot determine whether

enumerations of error, which require consideration of the evidence, have any merit

or not.”) (citation and punctuation omitted.)

3. Finally, we decline to impose a frivolous appeal penalty as Diane requests

in her brief on appeal. Our Rules plainly provide that all motions must be filed as

separate documents, and our Rules specifically prohibit the filing of motions or

responses thereto in the body of the parties’ briefs. See Court of Appeals Rule 41 (b).

Accordingly, we decline to consider the merits of Diane’s request.

Judgment affirmed in part and reversed in part. Barnes, P. J., and Reese, J.,

concur.