☢ test - Í
essential to constitute a contempt that the thing ordered to be done be within the power of the person against whom the order is directed.’ (Citation omitted.) In re: Bowens, 308 Ga.App. 241, 242(1) (706 S.E.2d 694) (2011).” 3. Juvenile’s mother could be found in willful contempt for failing to comply with Juvenile Court’s verbal order to return to court at 4:30 p.m. “Although Stallworth later testified that the reason she failed to appear at 4:30 p.m. was her inability to secure timely transportation, the juvenile court judge was authorized to reject her testimony as not credible and find that Stallworth had in fact had the ability to comply with the juvenile court's order to return at 4:30 p.m.” Apoian v. State, 313 Ga.App. 800, 723 S.E.2d 35 (January 27, 2012). Criminal contempt finding against police officer who failed to respond to witness subpoena reversed “because he was not afforded due process. … This Court has previously held that failure to respond to a subpoena is not the type of conduct subject to summary contempt proceedings; Moody v. State, 131 Ga.App. 355, 359(2) (206 S.E.2d 79) (1974). Thus, as Apoian correctly urges, he was entitled to reasonable notice of the charges, the opportunity to call witnesses and present evidence, and the opportunity to retain counsel of his own choosing and adequately prepare his defense. E.g., Ramirez v. State, 279 Ga. 13 (608 S.E.2d 645) (2005); Hayes v. State, 298 Ga.App. 419, 423(2) (680 S.E.2d 508) (2009); In re: Hasty, 215 Ga.App. 349 (450 S.E.2d 848) (1994). Here, the trial judge announced that the contempt hearing would be conducted when Apoian arrived at the courthouse. Apoian was not given reasonable notice of the charge of contempt and did not have an opportunity to retain counsel or otherwise adequately prepare his defense. The contempt proceedings in this case clearly did not comply with due process, and the trial court's finding of contempt must be vacated and the case remanded for further proceedings. E.g., Newton v. Golden Grove Pecan Farm, 309 Ga.App. 764, 768–769(1) (711 S.E.2d 351) (2011).” In re: Bowens, 308 Ga.App. 241, 706 S.E.2d 694 (February 15, 2011). Contempt finding for sheriff affirmed where he directed deputy to transport only two inmates to court in contravention of judge’s order requiring four inmates to be brought. Sheriff contended that county hadn’t adequately funded his office; he could only afford one deputy to transport inmates to court; and doing so would have been unsafe. “ If Sheriff Bowens believed in good faith that, because of a lack of funding and personnel for his office, the court order erroneously compelled him to transport the prisoners in an unsafe manner, his remedy was to appeal the order, not to disobey it. Britt v. State, 282 Ga. 746, 749-751 (653 S.E.2d 713) (2007). Since evidence showed that Sheriff Bowens had notice of and disobeyed the court order, his sole defense to the contempt citation was that he did not do so willfully because he lacked the ability to comply. The evidence, especially evidence that Sheriff Bowens had ample deputies and resources under his control to comply with the court order, was sufficient to prove beyond a reasonable doubt that he willfully violated the order and was guilty of criminal contempt.” Johnson v. State, 306 Ga.App. 844, 702 S.E.2d 920 (November 17, 2010). In defendant’s family violence battery prosecution, defendant’s appeal from contempt citation was moot where he served the full sentence before appealing. “‘Our Supreme Court has held that ‘where a litigant is found to be in contempt of court and is ordered held in jail, his appeal of that order becomes moot upon his release from jail.’ Herring v. Herring, 236 Ga. 43, 44(1) (222 S.E.2d 331) (1976) (appeal from order imposing fine for civil contempt was moot once appellant paid fine), citing Cagle v. PMC Dev. Co. of Ga., 233 Ga. 583, 584 (212 S.E.2d 765) (1975) (‘once a contempt judgment has been complied with, or has been vacated, or has been rendered moot in any other manner, there is no remaining case or controversy for adjudication in the appellate court’). This Court has recognized that ‘the rule remains in force without limitation,’ (Footnote omitted.) In re: Hatfield, 290 Ga.App. 134, 136(1) (658 S.E.2d 871) (2008) (dictum), even in a criminal contempt case, such as that at issue here. Although an exception to this rule has been made in cases involving an attorney, See In re: Hughes, 299 Ga.App. 66-67(1) (681 S.E.2d 745) (2009) (even where attorney paid fine imposed upon contempt conviction, her appeal was not moot due to present and possible continuing adverse collateral consequences she might suffer as result of conviction); In re: Hatfield, supra at 137(1) (same), the exception does not apply in this case because Johnson is not an attorney. Because Johnson has served the 20-day sentence imposed for contempt, his appeal of his conviction for contempt is moot. See Herring, supra.” Affatato v. Considine, 305 Ga.App. 755, 700 S.E.2d 717 (August 30, 2010). Two of defendant’s three criminal contempt convictions affirmed, one reversed. 1. Finding of contempt for failing to pay sums due under civil consent order affirmed, despite defendant’s contention that he wasn’t financially able to pay. “‘Inability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available and is still unable to secure the funds necessary to enable compliance with the court's order. He must show clearly that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court, and that he cannot borrow sufficient funds to comply with the obligation.’ (Citations and punctuation omitted.) Darroch v. Willis, 286 Ga. 566, 569(2) (690 S.E.2d 410) (2010). Furthermore, inability to pay caused by the
Made with FlippingBook Ebook Creator