--- title: Yntema v. Smith collection: opinions id: S24C0850 cite_as: Yntema v. Smith, 319 Ga. 801 (2024) canonical_url: https://georgiacommons.org/opinions/S24C0850 md_url: https://georgiacommons.org/opinions/S24C0850.md text_url: https://georgiacommons.org/opinions/S24C0850/text source_url: https://www.courtlistener.com/opinion/10680260/yntema-v-smith/ date: 2024-09-17 status: published corpus_version: opinions-2026-09-14 license: Public record of the Supreme Court of Georgia, via CourtListener and the court's own website; see about.md publisher: Georgia Commons, an independent project of Georgia Civic Data. Not the State of Georgia. Not legal advice. up: https://georgiacommons.org/opinions/2024.md previous: https://georgiacommons.org/opinions/S24A0687.md next: https://georgiacommons.org/opinions/S24A0670.md index: https://georgiacommons.org/opinions/index.md omitted: opinion extras omitted_chars: 2029 omitted_url: https://georgiacommons.org/opinions/S24C0850.md?full=1 docket: S24C0850 citation: 319 Ga. 801 court: Supreme Court of Georgia case_type: civil authoring_justice: Peterson disposition: Petition for certiorari denied vote: All the Justices concur word_count: 825 date_filed_source: courtlistener citations: - 906 S.E.2d 748 record_source: courtlistener legal_areas: - constitutional law - family law - civil procedure upstream_id: "10680260" summaries_model: claude-sonnet-5 --- # Yntema v. Smith Supreme Court of Georgia, docket S24C0850, filed 2024-09-17, 319 Ga. 801. ## Opinion 319 Ga. 801 FINAL COPY S24C0850. YNTEMA v. SMITH. ORDER OF THE COURT. The Supreme Court today denied the petition for certiorari in this case. All the Justices concur. PETERSON, Presiding Justice, concurring. I concur fully in the denial of Howard Yntema’s petition for a writ of certiorari. Although there is gravity in whether the order of the trial court prohibiting a broad range of speech by a variety of people was permitted by the federal and state constitutional rights to free speech, Yntema consented to that order (and so waived whatever rights the order might otherwise have violated). But Kitty, Yntema’s new wife, was not a party to the litigation, and did not consent to the order. It seems to me that Kitty’s challenges to the order — both on free speech grounds and on due process grounds as a nonparty — are significant. And I have serious doubts about aspects of the Court of Appeals’s resolution of those challenges.1 But Kitty has not filed 1 As to the due process issue, the case law on which the court relied for a trial court’s authority to hold a nonparty in contempt does not seem to apply. The Court of Appeals concluded that the consent order applied to Kitty merely because she had notice of it. Notice is a necessary condition, but is not sufficient alone. The sole case the Court of Appeals cited in which a contempt order was upheld involved a nonparty taking extraordinary efforts to frustrate orders of the trial court, and then being held in contempt for those efforts. See Wilkerson v. Tolbert, 239 Ga. 702 (238 SE2d 338) (1977). The Court of Appeals cited no decision of our Court empowering trial courts to include nonparties within the scope of an order like the one here absent some previous effort to impede the trial court’s lawful authority. And as to the free speech issue, the Court of Appeals properly recognized that at least some of the trial court’s order was constitutionally impermissible. But it applied a decision of our Court for the proposition that it is constitutionally permissible for a trial court to require parties in a divorce proceeding “to refrain from making derogatory remarks about the other before the children.” See Maloof v. Maloof, 231 Ga. 811, 812 (6) (204 SE2d 162) (1974). That statement in Maloof cited no authority, Maloof has never been cited by our Court, and the statement was dicta, given the Court’s holding that the order at issue was not permissible. And, in any event, Maloof’s conclusory dicta was limited by its terms to parties. It is not at all clear that broad prior restraints such as those here (which extended far beyond statements made in the presence of the children) would satisfy the constitutional rights to free speech. See, e.g., K. Gordon Murray Prods. v. Floyd, 217 Ga. 784, 790-793 (2) (125 SE2d 207) (1962) (holding that prior restraint that was permissible under United States Constitution was impermissible under Georgia Constitution); see also Shak v. Shak, 144 NE3d 274, 279-280 (Mass. 2020) (considering nondisparagement order in divorce proceeding under First Amendment and holding that, although “the State has a compelling interest in protecting children from being exposed to disparagement between their parents,” order was impermissible prior restraint because no case-specific showing was made “linking communications by either parent to any grave, imminent harm to the child” (citations and punctuation omitted)); Yanez v. Sanchez, 548 P3d 341, 345-346 (Ariz. Ct. App. 2024) (while considering First Amendment challenge a petition for a writ of certiorari, and this is not the sort of case warranting the exercise of our certiorari power sua sponte. And, in any event, as the Court of Appeals rightly noted, its review was very limited given that the trial court order on appeal is interlocutory. It may be that Kitty can more persuasively raise constitutional challenges before the trial court on remand; although the Court of Appeals’s narrow decision will be law of the case in future proceedings before the trial court and the Court of Appeals as to the issues actually decided, it does not prevent either court from considering broader issues on remand, and does not prevent our consideration of an eventual petition for a writ of certiorari even as to the issues already decided by the Court of Appeals. I am authorized to state that Justice Warren and Justice LaGrua join in this concurral. to order imposing speech restrictions in domestic case, observing “nearly every state to have tackled the issue requires proof of actual or threatened physical or emotional harm to a child” and invalidating order due to lack of record “evidence of actual or threatened physical or emotional harm to the child”) (citing cases). Ordered September 17, 2024. Certiorari to the Court of Appeals of Georgia — 371 Ga. App. 19. Martin Demelfi, Nicholas P. Martin; Sauls Law Group, Ulice Sauls III, for appellant. Dawn H. Taylor, for appellee. ## Summaries written by Georgia Commons The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary. The Supreme Court of Georgia declined to review a Court of Appeals ruling about a divorce case gag order, leaving in place questions about whether a nonparty who never agreed to the order can still be bound by its speech restrictions. ### Plain-language summary Howard Yntema was involved in a divorce proceeding in which the trial court entered a broad order limiting what a range of people, not just the divorcing spouses, could say. Yntema himself had agreed to the order, but his new wife, Kitty, was never a party to the case and never consented to it. When the dispute reached the Court of Appeals of Georgia, that court upheld parts of the order but found other parts went too far under free speech protections. Yntema then asked the Supreme Court of Georgia to review that decision. The Supreme Court denied the petition for certiorari, meaning it chose not to take up the case. All the Justices agreed with that outcome. Presiding Justice Peterson wrote separately to explain that although he agreed the petition should be denied, he had real concerns about how the Court of Appeals handled Kitty's situation, since she never had a chance to challenge the order as a nonparty and the case was still at an early, interlocutory stage. ### Holding, as summarized The court denied the petition for certiorari without deciding the underlying constitutional questions, meaning the Court of Appeals's decision stands for now, though the concurrence signals the nonparty's free speech and due process arguments could still be raised later before the trial court or in a future petition. ### Disposition Petition for certiorari denied. All the Justices concur. ### Why it matters The order leaves the Court of Appeals's reasoning about nonparties and gag orders in divorce cases in place for now, but flags open questions that could affect how far trial courts can bind people who were never part of a lawsuit and never consented to its terms. > The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (2,029 characters) are at https://georgiacommons.org/opinions/S24C0850.md?full=1