In re Estate of Banks

339 Ga.App. 144

793 S.E.2d 451

IN RE: ESTATE OF Jimmy Darryl BANKS, Sr.

A16A1972

Court of Appeals of Georgia.

October 27, 2016

Garland C. Gary Moore, Conyers, for Appellant.

Eunice Banks, April Banks, for Appellee.

Ellington, Presiding Judge.

The Probate Court of Meriwether County entered an order finding Jimmy Darryl Banks, Jr. ("Banks") in contempt of court for violating its orders that he preserve and return certain specified property of his father's estate. Pursuant to this Court's order granting Banks's application for discretionary appeal, see OCGA § 5–6–35 (a) (1), he appeals, and, for the reasons explained below, we vacate the contempt order and remand.

The record shows the following proceedings. Jimmy Darryl Banks, Sr., died intestate in November 2014. In August 2015, his widow, Eunice Banks, and his daughter, April Banks (the "petitioners" or the "co-administrators"), filed a petition for letters of administration in the Probate Court of Meriwether County. On August 19, 2015, the petitioners then filed an emergency motion, seeking an order restraining Banks and Doris Harris (identified as the decedent's friend) from disposing of personal property that had belonged to the decedent, including five specified motor vehicles, a lawn mower, and a trailer. The probate court immediately granted a temporary restraining order, enjoining any person in possession of the listed property from selling, pawning, or otherwise disposing of the property, unless authorized by court order, and directing such persons to immediately surrender the property to a sheriff's deputy at the decedent's former residence. On September 8, 2015, the petitioners filed a motion for contempt, alleging that Banks and Harris violated the temporary restraining order by failing to retrieve or relinquish any of the property listed in the order.

In two orders entered on September 28, 2015, the probate court recited that it held a hearing six days earlier (on September 22, 2015). In one order, the probate court granted the petition for letters of administration and designated Eunice Banks and April Banks as co-administrators of the estate. In the other order the probate court ordered Banks and Harris to return all property listed in the August 19, 2015 temporary restraining order. The probate court commanded Banks and Harris to complete the requirements of that order entered on September 28, "within five days after the hearing held on September 22" and ordered that "failure to comply with this Order shall be punished by imprisonment ... [with the contemnor] to remain [in jail] so charged with contempt until he or she complies with this Order." During these proceedings, the co-administrators were represented by attorney Robert Bexley.

On February 5, 2016, the co-administrators filed pro se a motion for imposition of sanctions for contempt against Banks and Harris, alleging that they failed to return the property as ordered. Before the hearing on the motion, the co-administrators' attorney moved to withdraw, and the probate court granted his request on March 1, 2016. The court conducted a hearing on the motion for contempt beginning on March 18 and concluding on March 21, 2016. In an order entered March 22, 2016, the probate court found that Banks was in wilful contempt of its September 28, 2015 order, based on his failure to return three vehicles and their keys (a 1972 Camaro,¹ a 1979 black van, and a 2002 Dodge Stratus), along with the keys to a fourth vehicle (a 1993 Ford F150) and a lawn mower. The court ordered that Banks be incarcerated until further order of the court, noting that he could purge himself of contempt by fully complying with the order to return the property to the co-administrators. Because Banks's contumacious conduct occurred outside the presence of the probate court, the court granted his request for supersedeas, pending this appeal.

1.

Banks contends that, because the co-administrators were still represented by counsel on February 5, 2016, they were without legal authority to represent themselves in filing a motion for sanctions and, therefore, that the probate court erred in going forward with the contempt proceeding over his counsel's oral objections.² If Banks had formally moved to dismiss the co-administrators' motion for sanctions on the basis that they still had counsel of record, which he did not, and the trial court had dismissed their motion, the co-administrators had only to wait until their counsel had been permitted to formally withdraw to immediately refile their motion pro se. By the time of the evidentiary hearing on the co-administrators' motion for sanctions, their counsel had formally withdrawn, and they were no longer represented by counsel. Banks has not articulated any basis for finding that he suffered any prejudice in the trial court's tacitly allowing the co-administrators' premature pro se filing to be held effectively in abeyance pending formal withdrawal of counsel. "The trial court's exercise of its discretion in undertaking such actions to aid in the orderly administration of its business will not be disturbed on appeal absent an impermissible restriction of [a litigant's] access to the courts [.]" Higdon v. Higdon , 321 Ga.App. 260, 267 (4), 739 S.E.2d 498 (2013). Under the circumstances presented here, we discern no abuse of discretion in the probate court's economical management of the proceedings.

2. In related claims of error, Banks contends that the probate court erred in finding him in wilful contempt and ordering him confined until he returns the personal property described in the probate court's September 28, 2015 order, a task he contends was shown to be impossible under the circumstances.³

The appropriate standard of proof in a civil contempt case is preponderance of the evidence. On appeal from an order finding a party in civil contempt, if there is any evidence from which the trial court could have concluded that its order had been violated, this Court is without power to disturb the judgment absent an abuse of discretion.

(Citations and punctuation omitted.) In re: Singleton , 323 Ga.App. 396, 403 (2) (b), 744 S.E.2d 912 (2013).

In his notice of appeal, Banks indicated that "[a]ny transcript of evidence and proceedings will be filed for inclusion in the record on appeal." No such transcript was transmitted to this Court. Upon inquiry to the clerk of the probate court, it appears that there was no court reporter at the hearing on the motion for contempt beginning on March 18 and concluding on March 21, 2016. Ordinarily, Banks's failure to support his claims of error with specific reference to the record or transcript as needed to support his statement of facts would result in affirmance of the probate court's judgment.⁴ However, under these circumstances, an affirmance on the basis of such procedural default would, if Banks's compliance with the September 28, 2015 order is truly impossible, impermissibly subject Banks to indefinite incarceration for civil contempt. Under Georgia law,

[w]hen the trial court orders incarceration for an indefinite period until the performance of a specified act, the contempt is civil.... A trial court, however, may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to [comply].... [T]he moment it appears that there is inability , it would clearly be the duty of the judge to discharge the party. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court's orders, the justification for imprisonment is lost when that compliance is impossible.

(Punctuation and footnotes omitted; emphasis in original.) Hughes...