THIRD DIVISION

MILLER, P. J.,

MCFADDEN and MCMILLIAN, 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

June 30, 2016

In the Court of Appeals of Georgia

A16A0692. HILL v. DAVIS

MCFADDEN, Judge.

Alonzo Q. Hill appeals from a temporary order of the trial court that held him

in contempt. Hill enumerates multiple errors on appeal. As to contempt, Hill’s

arguments are without merit. But we vacate the award of attorney’s fees because the

trial court did not specify a statutory basis for the award.

Hill and Chanestia Davis are the parents of a minor child, born out of wedlock

in 2005 and legitimated in 2006. Davis had joint legal and primary physical custody

of the minor. Hill filed numerous contempt actions against Davis. On June 2012,

ruling on one such motion, the trial court ordered the parties to receive joint

psychological counseling, and wrote out a schedule for visitation. 
In September 2012, after Hill filed another contempt action, the court held Hill

in contempt, finding that “[t]he sheer volume of text messages [sent by Hill to Davis]

. . . demonstratesto the [c]ourt an excessive compulsion to control every aspect of the

child’slife.” The court ordered that Hillsend no more than ten text messagesto Davis

each month. 

Hill filed yet another motion for contempt in November 2014, arguing that

Davis had failed to adhere to the visitation schedule and failed to attend the

counseling mandated in the prior order. Davis filed a counterclaim, asking that Hill

be held in contempt for his continuous harassment of Davis in violation of the prior

court order. In an order entered on August 25, 2015, the trial court denied Hill’s

motion for contempt, but granted Davis’s. He found Hill in contempt and awarded

Davis attorney’s fees. This appeal followed. Although the trial court also granted

Davis full legal and full physical custody of the minor, Hill appeals only the trial

court’s holding of contempt.

1. Deficiencies in Hill’s brief

As a threshold matter, we address the deficiencies in Hill’s brief, which fails

to comply with our rules. Notably, Hill’s brief does not contain proper citationsto the

specific page numbers of the record or transcript that are essential to consideration

2
of the enumerated errors, nor does he include a concise statement of the applicable

standard of review. See Court of Appeals Rule 25 (a) (1), (a) (c) (2) (ii). In the

absence of proper record citations, we need not “search for or consider such

enumeration.” Court of Appeals Rule 25 (c) (2) (i). “Briefsthat do not conform to our

rules hinder our ability to determine the basis and substance of an appellant’s appeal.

Nonetheless, we will review [Hill’s] claims of error to the extent that we can ascertain

his arguments.” Gary v. Dollar Thrifty Auto. Group, 329 Ga. App. 320, n. 1 (763

SE2d 354) (2014) (citation omitted). 

2. Refusal to hold Davis in contempt.

In his first enumeration of error, Hill contends that the trial court erred by

finding that Davis was not in contempt of the June 2012 order. Hill first argues that

Davis had previously been held in contempt of that order. But the record is devoid of

any orders holding Davis in contempt. “The party asserting error on appeal has the

burden to show it affirmatively by the record.” McClaskey v. Jiffy Lube, 197 Ga. App.

537 (398 SE2d 825) (1990) (citation omitted). “This court is a court for the correction

of errors and its decision must be made on the record sent to this court by the clerk

of the court below and not upon the briefs of counsel.” Sheffield v. Zilis, 170 Ga. App.

62, 65 (2) (316 SE2d 493) (1984) (Citation and punctuation omitted). It therefore

3
must be assumed that the evidence supported the trial court’s finding that Davis had

not previously been held in contempt.

Hill also arguesthat the trial court erred because he made a factual finding that

both parties failed to comply with the court order by not attending the joint

psychological counseling sessions and by not following the visitation schedule, yet

did not find Davis in contempt. Trial courts have “broad discretion to determine if a

party is in contempt of its order, and the exercise of that discretion will not be

reversed on appeal unless grossly abused.” Baker v. Schrimsher, 291 Ga. 489, 491

(731 SE2d 646) (2012) (Citations omitted.) Here the trial court did not find that either

party’sfailure to adhere to the prior court order rose to the level of contempt, and Hill

fails to show any abuse of the trial court’s discretion in failing to hold Davis in

contempt. See Higdon v. Higdon, 321 Ga. App. 260, 262 (b) (739 SE2d 498) (2013).

3. Hill’s contempt.

Hill argues that the trial court erred by holding him in indirect criminal

contempt because trial court did not witness any disrespectful or contumacious

conduct from Hill during the hearing. But whether Hill engaged in conduct that was

disrespectful or contumaciousisirrelevant to whether he was properly held in indirect

criminal contempt. “[T]he procedure[s] that a trial court must follow to hold a person

4
in contempt depend upon whether the acts alleged to constitute the contempt are

committed in the court’s presence (direct contempt) or are committed out of the

court’s presence (indirect contempt).” Ramirez v. State, 279 Ga. 13, 14 (2) (608 SE2d

645) (2005) (Citations omitted). Indirect contempt “may involve some form of wilful

disrespect toward the court; it may involve intentional disregard for or disobedience

of an order or command of the court, or it may involve conduct which interferes with

the court’s authority to administer justice.” Dogan v. Dep’t of Human Res., 278 Ga.

App. 905, 907 (1) (630 SE2d 140) (2006) (Citations and punctuation omitted). Here,

the trial court based his decision to hold Hill in indirect criminal contempt on Hill’s

failure to adhere to the prior court order by sending hundreds of texts to Davis. Such

conduct was an intentional violation of a prior court order, and the trial court was

authorized to hold Hill in indirect contempt for these actions.

4. Failure to set out findings of fact.

Hill argues that the trial court erred by failing to set out findings of fact in his

order. This contention is without merit. The trial courtspecifically found that Hill was

in violation of a prior court order when he failed to limit his texts to ten per month.

That was sufficient. “To hold in contempt, the court must find that there was a wilful

5
disobedience of the court’s decree or judgment.” Beckham v. O’Brien, 176 Ga. App.

518, 522 (336 SE2d 375) (1985) (citations omitted).

5. Hearsay.

Hill argues that hearsay evidence which was excluded at the hearing was used

to find that he was in contempt. Hill claims that the testimony of the school’s

principal “who stated that [a] teacher told her [Hill] had berated her at school and

intimidated her,” was hearsay that the trial court used to find Hill in contempt. At the

hearing, the principal testified about an incident that occurred when Hill confronted

a teacher after his son was disciplined. At the hearing, Hill did not object to this

testimony. Assuming without deciding that the testimony was hearsay, there is no

evidence that the alleged hearsay evidence cited by Hill was considered by the trial

court. The order shows that Davis was found in contempt solely because of his

violation of the text message provision of the previous order. This contention is

therefore without merit.

Hill also argues that “the court allowed [Hill’s] blog to be admitted into

evidence despite the fact that said blog was hearsay.” Once again, the trial court’s

contempt holding was based solely on the excessive text messages sent from Hill to

6
Davis, and there is no evidence that the blog was considered by the trial court. This

contention is also without merit. 

6. Attorney Fees

Hill contends that the trial court erred by awarding attorney fees. Because the

trial court did not specify the statutory basis for the award, we agree. Davis sought

the award of attorney feesin her counterclaim withoutstating a statutory basisfor the

award, and the trial court’s order states no statutory basis for his award of attorney

fees to Hall.

“As a general rule, Georgia law does not provide for the award of attorney fees

even to a prevailing party unless authorized by statute or by contract.” Cothran v.

Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838) (2007) (Citation and punctuation

omitted). Since Hill originally brought this action to modify child custody, the trial

court was authorized to award attorney fees under OCGA § 19-9-3 (g) or OCGA §

19-6-15 (k) (5). See Viskup v. Viskup, 291 Ga. 103, 106-107 (1) (727 SE2d 97)

(2012). And because the record shows multiple statutory bases for the attorney fees

award, “it was incumbent upon the trial court to indicate which statute was relied

upon in making its award.” Hall v. Hall, 335 Ga. App. 208, 212-213 (2) (780 SE2d

787) (2015). 

7
Georgia appellate courts have repeatedly held: When there is more than

one statutory basis for the attorney-fee award and neither the statutory

basis for the award nor the findings necessary to support an award is

stated in the order and a review of the record does not reveal the basis

of the award, the case is remanded for an explanation of the statutory

basis for the award and the entry of any findings necessary to support it.

Id. at 210 (citations omitted).

We therefore must vacate the award of attorney fees and remand the case for

the trial court to explain the statutory basis for the award and to enter any necessary

factual findings.

Judgment affirmed in part, vacated in part and case remanded. Miller, P. J.,

concurs. McMillian, J., concurs fully in Divisions 1, 2, 3, 4, 5, and in the judgment

only in Division 6.

8