Yntema v. Smith

899 S.E.2d 543

YNTEMA

v.SMITH.

Yntema

v.Smith.

A23A1562

A23A1660

Court of Appeals of Georgia.

March 12, 2024

Kathryn Taylor Franklin, Lawrenceville, for Appellant in A23A1562.

Lynne Hunsicker Bradley Bradley, for Appellee.

Ulice Trey Sauls III, Duluth, Nicholas Paul Martin, Lawrenceville, for Appellant in A23A1660.

Doyle, Presiding Judge.

These cases arise in the context of a pending petition for modification of child custody filed in 2017 by Leah Smith ("the Mother") against Howard Yntema ("the Father") following their divorce in 2010. In Case No. A23A1562, Kitty Yntema (the stepmother and the Father’s new wife), appeals from the denial of her motion to strike certain provisions of an interlocutory consent order, as amended ("the Consent Order"), agreed to by the Father and the Mother that restricts her speech about the parties and the custody proceedings. Because the Consent Order was overly restrictive as to certain speech, we affirm in part and reverse in part the judgment in that case. In Case No. A23A1660, the Father appeals from seven orders pertaining to a finding of contempt against him, the failure of the trial judge to recuse, the denial of his motion to vacate or modify the Consent Order, and the sealing of the case. In that case, we affirm in part, vacate in part, and remand.

Case No. A23A1562

The relevant record shows that following their divorce in 2010, the Father was awarded primary physical custody of their children, with the Mother receiving weekend and holiday custody. Since that time, the Father married Kitty,¹ and the Father and Mother have both filed petitions for modification of custody; the current petition was filed by the Mother in 2017. As part of those proceedings, temporary consent orders were entered to govern the reunification process with the Mother, who had been subject to a no-contact order since 2016. After various allegations of contempt, a hearing was held in May 2022 regarding allegations of contempt against the Father. At that hearing, the Mother and Father entered into the Consent Order to resolve the issues without further action by the court. Kitty was present at the hearing and was notified by the trial court that the Father and Mother had entered into an agreement memorialized in the Consent Order that prevented her from disparaging the parties:

I’m going to need you to review that order because I want you to understand that if you violate the spirit of that order in any way by any slight discouragement, any slight negativity towards [the Mother], anything at all, that I’m going to hold that against your husband and he’s going to jail…. I think that along [the last seven years] you’ve made some mistakes that have hurt the boys, not intentionally, but you’ve hurt them, and now we have a chance to fix those mistakes…. So[,] it may not come natural … but fake it ‘til you make it … it will become natural …. I really believe that you are sincerely understanding that this needs to happen because I believe that all you’ve ever wanted is the best for your boys…. I need you to stop telling everyone your version of what has happened because that is damaging…. I need you to … do a 180[,] and if you don’t have anything nice to say, say nothing at all….

Kitty acknowledged that she had seen the order and seemed to agree with the trial court’s message. The Consent Order was entered in June 2022, and later amended in July 2022.²

In part, the Consent Order provided that the Father and Kitty have no contact or communication with the children for at least 90 days, and it contained non-disparagement clauses that restricted the Father, the Mother, and Kitty from speaking negatively about each other and the custody litigation, except in a therapeutic setting. Two paragraphs in particular, 28 and 29, pertained to Kitty as a spouse:

28. The parties and their spouses shall not discuss this litigation or any prior alleged negative acts of the other [p]arty or of their spouse with anyone at any time except in a therapeutic setting either with the [family counseling] personnel, the [reunification therapist], or the [p]arties’ own personal counselor, or the [children’s] individual counselor(s), if one is to be obtained.

29. Neither [p]arty nor their spouse shall post, re-post, forward, re-tweet, etc.[,] on social media any information about past, present[,] or future litigation or disparaging information about the other party or their spouse. If either party finds out a friend, associate, or family member posts such information[, the party] shall immediately admonish that person to remove it. In October 2022, the Mother filed a motion for contempt against the Father, alleging certain violations of the order by the Father and Kitty. In particular, Kitty was alleged to have communicated negatively about the litigation with a friend. The following month, November 2022, Kitty received a witness subpoena directing her to attend a November 18 hearing and bring all records (including texts, emails, and social media posts) of any of her communications about the case. On the day of the hearing, Kitty filed a motion to strike paragraphs 28 and 29 as they applied to her. Kitty did not challenge other provisions restricting her ability to speak such as having no contact with the children for a rolling 90-day period assessed by the court, a prohibition on disparaging the other parent or spouse,³ and a prohibition on "interfer[ing] in any way with the children’s progress in repairing the damaged relationship with the Mother."

Following a hearing in February 2023, the trial court denied Kitty’s motion to strike paragraphs 28 and 29 of the Consent Order. The trial court issued a certificate of immediate review, and this Court granted Kitty’s application for an interlocutory appeal; Kitty then filed a notice of appeal in April 2023.

We note that Kitty’s appellate brief recounts that after she filed her notice of appeal, additional proceedings occurred. Ac- cording to the brief, the trial court scheduled a hearing on an ongoing contempt motion against the Father, and at an unreported call, the court announced that it would entertain a hearing against both the Father and Kitty. Following a hearing in May 2023, the trial court made oral findings of contempt against Kitty but reserved punishment until after the appeal was resolved. A written order entered in May 2023 found that Kitty and the Father acted in concert to violate the Consent Order. It ordered the incarceration of the Father for 90 days, but it does not contain any penalty for Kitty.

Kitty now appeals the denial of her motion to strike paragraphs 28 and 29 of the Consent Order. Specifically, she argues that she lacked sufficient notice and that the paragraphs are unconstitutional prior restraints on her speech.⁴ We agree in part.

1. Kitty first argues that the trial court erred by purporting to enforce the Consent Order against her because she was not a party to the proceedings and lacked sufficient notice that she could be held in contempt for violating the Consent Order. With respect to the issue before us — the denial of her motion to strike — we disagree.

As a general matter, Kitty correctly points out that the Consent Order was entered in a custody proceeding in which she was not a named party, and she was not directly involved in negotiating any provisions that applied to her. And although she received a subpoena to appear as a witness at the contempt proceeding against the Father, Kitty herself had not received a rule nisi notice informing her of the need to defend herself against her own alleged contempt with respect to the Consent Order.⁵

But this appeal is an interlocutory review of the order denying Kitty’s motion to strike paragraphs 28 and 29. The record is plain as to Kitty’s notice of and ability to challenge those provisions, and she was represented by counsel at a hearing devoted to the issue in February 2023. As noted in the trial court’s subsequent order, at the May 2022 hearing, Kitty was personally notified of the contents of the order and of the need for her to abide by it.⁶ Finally, the trial court has not entered a final written order punishing Kitty for any alleged violations of the Consent Order, so we confine our review to the merits of the motion to strike.

[1–3] 2. With respect to the challenge to paragraphs 28 and 29, Kitty argues that they are constitutionally impermissible because they cannot sustain the exacting scrutiny applicable to prior restraints on speech. We agree in part.

Prior restraints of speech, such as the order here, are not unconstitutional per se, but they bear a heavy presumption against their constitutional validity. The Government thus carries a heavy burden of showing justification for the imposition of such a restraint. An attempt to effect a priorrestraint is subject to exacting scrutiny…. [P]roperly applied, the test requires a court to make its own inquiry into the imminence and magnitude of the danger said to flow from the particular utterance and then to balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. The possibility that other measures will serve the State’s interests should also be weighed.⁷

[4, 5] At the outset, we note that in custody proceedings courts have authority "to make prohibitive or mandatory orders, with or without notice or bond, and upon such terms and conditions as the court may deem just."⁸ This authority properly and constitutionally extends to temporarily requiring "the parties in a divorce proceeding ‘to refrain from making derogatory remarks about the other before the children.’ "⁹ And because contempt power can extend to non-parties who are nevertheless involved in the litigation,¹⁰ we discern no error in the trial court’s restriction on Kitty’s ability' to criticize the parties or spouses involved in the litigation or interfere with the children’s bond with the Mother. To the extent that paragraphs 28 and 29...