SECOND DIVISION DOYLE, P. J., MCFADDEN and BOGGS , 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/
July 9, 2014
In the Court of Appeals of Georgia A14A0700. MURPHY v. MURPHY.
MCFADDEN, Judge.
Nancy Michelle Murphy appeals two orders entered in this custody
modification action brought by her former husband, John Murphy. John Murphy has
moved to dismiss the appeal. We find that we have jurisdiction to consider Nancy
Michelle Murphy’s arguments regarding both orders, and we therefore deny John
Murphy’s motion to dismiss the appeal. We hold, however, that Nancy Michelle
Murphy’s challenges to the orders have no merit and find that she filed this appeal for
purposes of delay. We therefore affirm and impose a frivolous appeal penalty.
Nancy Michelle Murphy and John Murphy were divorced in 2006. In 2012,
John Murphy filed this action, seeking to modify the child custody provisions of the
parties’ divorce decree. On August 23, 2013, the trial court entered an order that denied John Murphy’s motion to temporarily change physical custody of the children,
holding that physical custody would “not be changed at this time,” and went on to
ratify the status quo as to visitation and the parties’ ongoing practices as to out of
state travel. The court held that, should the parties be unable to settle all issues in the
case after a custody evaluation had been completed, then the court would conduct a
final hearing on the issues of custody and parenting time before November 22, 2013.
On September 10, 2013, the trial court entered an order denying Nancy Michelle
Murphy’s motion to disqualify the guardian ad litem. On September 23, 2013, Nancy
Michelle Murphy filed a notice of appeal, designating both the August 23, 2013 order
and the September 10, 2013 order as the orders she was appealing.1
1. Jurisdiction.
John Murphy has moved to dismiss this appeal for two reasons: 1) that the
August 23, 2013 order concerning custody does not fall within OCGA § 5-6-34 (a)
(11), which allows direct appeals of “[a]ll judgments or orders in child custody cases
awarding, refusing to change, or modifying child custody . . . .”; and 2) that the
September 10, 2013 order concerning the guardian ad litem was entered subsequent
1 Nancy Michelle Murphy moved to disqualify the members of this panel from participation in this appeal. Her motion was referred to another panel for resolution, and that panel denied her motion.
2 to the August 23, 2013 order. We conclude that Nancy Michelle Murphy properly
filed a direct appeal from the August 23, 2013 order and that she can challenge the
September 10, 2013 order in this appeal.
(a) Custody.
The trial court entered the August 23 order after a hearing, which, the court
stated, had been for the purpose of determining “whether circumstances exist which
support a temporary change in the physical custody of [the children]” from Nancy
Michelle Murphy to John Murphy. The trial court decided that, at least for the time
being, “[t]he physical custody of the [c]hildren shall not be changed.” This amounts
to a refusal to change custody. So, the order falls within the ambit of OCGA § 5-6-34
(a) (11), and Nancy Michelle Murphy properly filed a direct appeal from this order.
(b) Pendent jurisdiction.
We have pendent jurisdiction over Nancy Michelle Murphy’s appeal of the
order denying the motion to disqualify the guardian ad litem because, although that
order was entered after entry of the custody order, it was entered before Nancy
Michelle Murphy filed her notice of appeal. Nancy Michelle Murphy could properly
file a direct appeal of the custody order under OCGA § 5-6-34 (a) (11), and she could
raise on appeal “all judgments, rulings, or orders rendered in the case . . . which may
3 affect the proceedings below.” OCGA § 5-6-34 (d). The September 10, 2013 guardian
ad litem order is one such order. It is true, as John Murphy argues, that ample
authority exists for the proposition that a party may not use OCGA § 5-6-34 (d) to
challenge orders entered “not prior to or contemporaneous with that [directly
appealable] judgment.” Norman v. Ault, 287 Ga. 324, 331 (6) (695 SE2d 633) (2010).
But in all of those cases, the challenged order was entered not only subsequent to the
entry of the directly appealable judgment, but also subsequent to the filing of the
notice of appeal. See, e.g., Bloomfield v. Bloomfield, 282 Ga. 108, 112 (5) (646 SE2d
207) (2007); Cates v. Cates, 225 Ga. 612, 613 (3) (170 SE2d 416) (1969); Waters v.
Chase Manhattan Bank, 308 Ga. App. 885, 887 (2) (709 SE2d 37) (2011); Costanzo
v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991). See also Norman v. Ault,
supra, 287 Ga. at 331 (6) (court would not consider enumeration challenging
contempt order entered after entry of divorce decree and after filing of application for
discretionary appeal of divorce decree).
Here, on the other hand, the guardian ad litem order was entered in the gap
between the entry of the directly appealable custody order and the filing of the notice
of appeal. We have found no authority, and John Murphy has cited none, in which it
was held that the appellate court could not consider a challenge to an order entered
4 in the period between the entry of the appealable judgment and the filing of the notice
of appeal. Cf. Sewell v. Cancel, __ Ga. __ (__ SE2d __) (Case No. S13G1274,
decided June 2, 2014) (appellee may raise in a cross-appeal any adverse rulings
issued prior to the filing of a timely notice of cross-appeal, even if the rulings were
issued after the ruling conferring appellate jurisdiction and after the filing of the
notice of appeal). This unusual fact pattern distinguishes this case from the cases
cited by John Murphy. Therefore we hold that we have jurisdiction to consider Nancy
Michelle Murphy’s challenge to the September 10 order. We observe that to do so
furthers the purpose of the appellate practice act “to bring about a decision on the
merits of every case appealed and to avoid dismissal of any case or refusal to consider
any points raised therein, except as may be specifically referred to in [the act itself].”
OCGA § 5-6-30.
2. The custody order.
Nancy Michelle Murphy argues that the trial court entered the August 23 order
after engaging in ex parte communications with John Murphy’s attorney. She also
argues that the trial court refused to allow her to present evidence or to complete
cross-examination of John Murphy’s witness at the August 13, 2013 hearing that
resulted in the order. The record belies both arguments.
5 (a) The order was not entered ex parte.
Nancy Michelle Murphy argues that the trial court entered the order ex parte
because the order was prepared by counsel for John Murphy and delivered to the trial
court, which entered the order the same day. Her argument is belied by the documents
of record. The cover letter reflects that counsel for Nancy Michelle Murphy was
emailed this communication and proposed order by John Murphy’s counsel, albeit on
the same day the order was entered. Nancy Michelle Murphy has failed to support her
accusation of improper ex parte communications with sworn testimony; she has not
even elicited a finding of fact on this issue that would be subject to appellate review.
“Black’s Law Dictionary defines ‘ex parte’ in this context as ‘a judicial
proceeding, order, injunction, etc. . . . taken or granted at the instance and for the
benefit of one party only, and without notice to, or contestation by, any person
adversely interested.’” Cagle v. Davis, 236 Ga. App. 657, 661-661 (4) (a) (513 SE2d
16) (1999) (citation and emphasis omitted). The custody order was not granted at the
instance of and “for the benefit of one party only.” The order matched the ruling
announced at the August 13 hearing, where counsel for Nancy Michelle Murphy had
the opportunity to object. And it denied John Murphy’s request for a temporary
change of custody.
6 Moreover, “[o]rders prepared ex parte do not violate due process and should
not be vacated unless a party can demonstrate that the process by which the judge
arrived at them was fundamentally unfair.” Fuller v. Fuller, 279 Ga. 805, 806 (1)
(621 SE2d 419) (2005) (citation and punctuation omitted). Nancy Michelle Murphy
has shown no harm as the order matches the announced ruling. She has not
demonstrated that the process by which the trial court arrived at its order was
fundamentally unfair. Her argument that the custody order is invalid because it was
entered ex parte is frivolous.
(b) The trial court did not commit reversible error by entering the order before
Nancy Michelle Murphy had presented evidence.
Nancy Michelle Murphy argues that the trial court entered the order after
denying her the right to present evidence in violation of Shore v. Shore, 253 Ga. 183
(318 SE2d 57) (1984). She correctly asserts that the trial court ended the hearing for
the day – past 6:00 p.m. – and entered the order ten days later and that she had not
presented evidence. But at the hearing, after attempting to determine a day when the
hearing could resume, the trial court explained that “of course [John Murphy has] the
burden on [his] case and [he] will have finished [his] case” but that the court “may
decide at that point [he did not] need to hear anything else.” Counsel for Nancy
7 Michelle Murphy responded, “All right.” The court further explained that after
hearing from the guardian ad litem, he would “decide whether [he thought] we need
to go any further or [he], at that point, [could] say something about, you know, what
[he thought they] need to do.”
About an hour before concluding for the day, after an unrecorded, 45-minute
conference with the lawyers (in which, according to John Murphy, the guardian ad
litem participated ), the trial court explained that he needed a custody evaluation by
an expert custody evaluator. He explained that until he received the evaluation, he
would maintain the status quo, but emphasized that John Murphy would get every
visitation to which he was entitled, and as long as he returned the children on time to
Nancy Michelle Murphy, he could take them out of state. In his appellate brief, John
Murphy represents that at the unrecorded bench conference, counsel for the parties
discussed the trial court’s proposed resolution of the hearing, and the trial court
adopted a recommendation of counsel for Nancy Michelle Murphy.
The trial court’s written order denied John Murphy’s request for a temporary
change in custody. It ordered the parties to “continue the parenting time with the
[c]hildren as detailed in the [f]inal [d]ecree,” but specified that “[t]here shall be no
requirement that a party be limited to exercising parenting time with the [c]hildren in
8 the State of Georgia.” It added that “[t]o clarify the every-other-weekend schedule
contained in the [f]inal [d]ecree, [John Murphy] shall exercise his parenting time with
the [c]hildren beginning Friday, August 23, 2013,” the day the order was entered. The
court ordered a full custody evaluation by a particular doctor and specified the
conditions of that evaluation. Finally, the court ruled that should the parties be unable
to settle all issues after the custody evaluation was completed, it would conduct a
final hearing on or before November 22, 2013.
Nancy Michelle Murphy correctly argues that the trial court “must consider all
facts and conditions which present themselves up to the time of rendering the
judgment” in a change of custody proceeding, Shore, 253 Ga. at 184. But here, she
has failed to show the preservation of error or harm. When the trial court stated that
he might not “need to hear anything else” once John Murphy presented his case,
given that it was John Murphy’s burden to prove his case, counsel for Nancy Michelle
Murphy responded, “All right.” She has given us no indication of what occurred
during the 45-minute, unrecorded conference, which apparently included a discussion
about suspending the hearing until the completion of the custody evaluation. Nancy
Michelle Murphy has not satisfied her burden of showing error by the record.
Rohatensky v. Woodall, 257 Ga. App. 801, 801-802 )(1) (572 SE2d 354) (2002).
9 As for harm, as she concedes in her appellate brief, the August 23 order simply
maintained the status quo established by the terms of the divorce decree and denied
John Murphy’s request to change custody on a temporary basis. Therefore, Nancy
Michelle Murphy has not demonstrated that she was harmed by being denied the
opportunity to present evidence.
To the extent that she argues that the order improperly modified visitation
without her having the opportunity to present evidence by changing John Murphy’s
visitation from August 16 to August 23, we find no harm. As the trial court explained
in the order, he was simply “clarify[ing] the every-other-weekend schedule contained
in the [f]inal [d]ecree.” To the extent Nancy Michelle Murphy argues that the order
modified visitation by allowing John Murphy to exercise his visitation outside the
state of Georgia, the court was simply formalizing the parties’ practice, given that
John Murphy resides out of state. Indeed, at the hearing, Nancy Michelle Murphy,
who was called for purposes of cross-examination, admitted that she, too, had taken
the children out of the state of Georgia.
Even if Nancy Michelle Murphy was denied the opportunity to present
evidence, she has failed to show any harm and thus has failed to show reversible
error. See Alejandro v. Alejandro, 282 Ga. 453, 456 (7) (651 SE2d 62) (2007). See
10 also In the Interest of S. P., 282 Ga. App. 82, 85 (3) (637 SE2d 802) (2006) (mother
in deprivation proceeding was not entitled to reversal because she did not show any
harm based on her absence from hearing, as she did not demonstrate what evidence
she would have provided that would have changed the outcome of the hearing).
The trial court made it very clear that he was merely suspending the hearing for
the day, directing that there be a forensic examination before the hearing resumed,
and entering an interim order designed to preserve the status quo. That interim order
was favorable to Nancy Michelle Murphy as to the central issue, change of custody.
Nancy Michelle Murphy had an opportunity to object when the trial court announced
his ruling, as well as in the unrecorded conference, and has waived this argument. Her
appeal on this issue is frivolous.
3. The guardian ad litem order.
Nancy Michelle Murphy argues that the trial court erred by denying her motion
to disqualify the guardian ad litem and by failing to conduct a hearing on the motion.
We disagree.
A trial court’s decision not to disqualify a guardian ad litem is reviewed for an
abuse of discretion. See Wrightson v. Wrightson, 266 Ga. 493, 497 (6) (467 SE2d
578) (1996).
11 Nancy Michelle Murphy’s argument is that the guardian ad litem unlawfully
converted funds to her personal use. This accusation is also belied by the record. The
guardian ad litem used funds from her retainer for travel to visit the children at John
Murphy’s residence in Tennessee. Uniform Superior Court Rule 24.9 (4) expressly
authorizes the guardian ad litem “to examine any residence wherein any person
seeking custody or visitation rights proposes to house the minor child.”
To the extent that Nancy Michelle Murphy argues that the guardian ad litem
should have secured advance approval for the use of the funds, we find that the trial
court acted well within the bounds of his discretion. Nancy Michelle Murphy relies
on Uniform Superior Court Rule 24.9 (8) (g), which states:
It shall be within the [c]ourt’s discretion to determine the amount of fees awarded to the [guardian ad litem], and how payment of the fees shall be apportioned between the parties. The [guardian ad litem’s] requests for fees shall be considered, upon application properly served upon the parties and after an opportunity to be heard, unless waived. In the event the [guardian ad litem] determines that extensive travel outside of the circuit in which the [guardian ad litem] is appointed or other extraordinary expenditures are necessary, the [guardian ad litem] may petition the [c]ourt in advance for payment of such expenses by the parties.
12 Uniform Superior Court Rule 24.9 (8) (g). Assuming that the guardian ad litem
violated the rule by failing to secure advance permission before drawing down on her
retainer for reimbursement for travel – travel that was entirely appropriate, and indeed
necessary – there is nothing to support Nancy Michelle Murphy’s contention that the
trial court abused his discretion by rejecting her argument that, as a consequence, the
guardian ad litem’s removal was necessary. Nancy Michelle Murphy simply and
frivolously mischaracterizes the guardian ad litem’s actions as law-breaking and her
conduct as the illegal, unlawful conversion of money she held in trust.
Contrary to Nancy Michelle Murphy’s contention on appeal, a hearing was not
required. Uniform Superior Court Rule 6.3 provides, “Unless otherwise ordered by
the court, all motions in civil actions, including those for summary judgment, shall
be decided by the court without oral hearing, except motions for new trial and
motions for judgment notwithstanding the verdict.” Nancy Michelle Murphy has
pointed to no authority that – and indeed, does not even explain why – the trial court
erred by denying her motion to disqualify the guardian ad litem without first
conducting a hearing. See Odom v. Hughes, 293 Ga. 447, 450 (1) (748 SE2d 839)
(2013); Uniform Superior Court Rule 6.3.
13 Nancy Michelle Murphy’s arguments regarding the trial court’s denial of her
motion to disqualify the guardian ad litem are frivolous.
4. Frivolous appeal penalty.
We may impose a penalty under Court of Appeals Rule 15 in cases where the
appellant could have no reasonable basis upon which to anticipate that this court
would reverse the trial court’s judgment. Hardwick v. Williams, 272 Ga. App. 680,
683 (3) (613 SE2d 215) (2005). As detailed above, Nancy Michelle Murphy’s
arguments are not merely meritless but frivolous. Nancy Michelle Murphy could not
have reasonably anticipated reversal by this court on any ground alleged. We
conclude that Nancy Michelle Murphy has appealed purely for the purpose of
delaying resolution of John Murphy’s custody modification petition – an act that is
antithetical to the children’s best interests. See Freese II, Inc. v. Mitchell, 318 Ga.
App. 662, 668 (7) (734 SE2d 491) (2012).
The frivolousness and dilatoriness of Nancy Michelle Murphy’s appeal are
aggravated by her repeated violations of Court of Appeals Rule 10. That rule
provides, “Personal remarks, whether oral or written, which are discourteous or
disparaging to any judge, opposing counsel, or any court, are strictly forbidden.”
Nancy Michelle Murphy’s appellate brief contains numerous direct violations of Rule
14 10, as well as numerous discourteous or disparaging remarks about other persons
involved in the case, particularly John Murphy’s wife. Notwithstanding Rule 10, we
recognize that cases arise where counsel must show that the issue is not merely error
but misconduct. In such cases counsel should take particular care to summarize and
cite the record accurately and to use a tone that is respectful and appropriate to the
seriousness of the issues. Such care and respect are wholly absent from Nancy
Michelle Murphy’s brief.
Accordingly, under Court of Appeals Rule 15, each of Nancy Michelle
Murphy’s counsel shall pay a penalty of $1,250, a total of $2,500. This penalty shall
constitute a money judgment in favor of John Murphy against each of Nancy
Michelle Murphy’s counsel, and the trial court is directed to enter judgment in such
amount upon return of the remittitur in this case. Court of Appeals Rule 15 (c);
Wieland v. Wieland, 216 Ga. App. 417, 418 (3) (454 SE2d 613) (1995).
Judgment affirmed. Doyle, P. J., and Boggs, J., concur.