Category Archives: Contempt

Equitable Division Not Modifiable.

Equitable division not modifiableEquitable division not modifiable.  Here’s an example of a case where the court tried to modify a settlement agreement and failed.

The parties were divorced on October 3, 2007. The final divorce decree incorporated the parties settlement agreement into it making it the Order of the Court, the agreement provided that the marital residence would be placed on the market for sale, and that the net proceeds would be divided equally between the parties. If the house did not sell within two years, the Husband would refinance the marital residence and pay Wife one-half of  the equity at the time of refinancing. The marital residence did not sell; the Husband remarried and purchased a second home with his new wife.  The new home was titled in both of the parties names (Husband and new Wife) and the debt solely in his (Husband’s) name.

The Wife filed a motion for contempt because her ex-husband had not refinanced the home and she had not been paid.  The trial court found Husband in willful contempt, assigned all risk of any deficiency to the Husband, and ordered that the Husband “shall sell or liquidate all available accounts and property and shall pay down the mortgage.”

The Georgia Supreme Court affirmed the willful contempt order, however, reversed the trial court’s directive as not simply a clarification or interpretation of the decree, but a modification of the settlement agreement and divorce decree.  Requiring the Husband to sell or liquidate all available accounts and property and pay down the mortgage was deemed a modification of the settlement agreement.

Equitable division not modifiable.  For more information see the Georgia case, Jell v. Jett, 291 Ga. 56 (May 7, 2012).

If you have questions about a divorce settlement agreement, contempt, or equitable division not modifiable, if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Trial Court Cannot Retroactively Modify Alimony

images2Trial Court Cannot Retroactively Modify Alimony.  In this case there was a cross contempt’s filed, Husband’s failure to pay alimony and Wife’s failure to pay the mortgage on the residence. Court reduced Husband’s periodic alimony obligation that was past due to zero-essentially “forgiving” all past due alimony. “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment … a judgment modifying an alimony obligation is effective no earlier than the date of the judgment.”

Trial Court Cannot Retroactively Modify Alimony. For more information about this particular subject see Branham v. Branham, 290 Ga. 349 (2012).

If you have questions about if the trial court can retroactively modify alimony, a divorce settlement agreement or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Attorney’s Fees Reduced from Alimony Payment

shutterstock_282421103Attorney’s Fees Reduced from Alimony Payment.  On Cross-Contempts Court Impermissibly Orders Payment Of Awarded Attorney’s Fees Reduced from Alimony Payment

Here are the facts of the case.  The Husband was awarded attorney’s fees and expenses of litigation (including costs associated with testimony of co-parenting counselor).  The Court impermissibly allowed the Husband to reduce his alimony payments by a specified monthly amount until the attorney’s fees and expenses were paid in full. However, the court of appeals held that this was not allowed.  The Court found that “after decree of alimony has become absolute, there is no authority given under the law by which a trial court may abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself, or an action is brought as provided under [statutory law].”  Therefore the Husband should not have been able to reduce his alimony payments by any amount until the attorney’s fees and expenses had been paid.

For more information about attorney’s fees reduced from alimony payment see the Georgia case Bowerman v. Bowerman, 314 Ga. App. 487 (March 1, 2012).

If you have questions about a attorney’s fees reduced from alimony payment or if you are considering filing a divorce or have questions about your divorce matter, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Trial Court Improperly Modified Decree In Contempt

Trial Court Improperly Modified Decree In Contempt where monetary penalty converted into lien and time for sale of marital residence extended Due to “Market Conditions”.  In the original decree of divorce between the parties, the trial court stated that, in addition to the ex-husband’s obligation to refinance or sell the marital residence so as to remove his ex-wife’s name from it, he would, as an additional remedy, have to pay her a penalty of $10,000.00 if he did not remove her from the house loan by October 1, 2009. The ex-husband failed to sell the house, and he did not pay his ex-wife the $10,000.00 penalty.

During a contempt proceeding brought by the ex-wife, the trial court took two actions, both of which were appealed to the Georgia Supreme Court: 1) rather than requiring the ex-husband to pay the $10,000.00 penalty immediately, the trial court permitted that obligation to be converted into a lien against the marital residence (one that, presumably, would only be satisfied upon sale); and 2) rather than requiring the ex-husband to sell the home immediately, the trial court gave the ex-husband a “reasonable period of time” to sell it instead, “given the market conditions right now.”

The Georgia Supreme Court held that both actions were so contrary to the intent of the original decree as to constitute improper modifications of its terms. The moral of the story: even if a trial court, understandably, wants to act as a problem solver, it is without the power to do so in the context of a contempt action, and must hold the parties to the original terms of the final judgment of divorce

Trial Court Improperly Modified Decree In Contempt.  Greenwood v. Greenwood, 289 Ga. 163 (2011)

Trial Court Impermissibly Modified Decree in Contempt

scalesTrial Court Impermissibly Modified Decree in Contempt when it ordered a Party to sell an asset in order to purge himself of contempt. 

Here are the facts of the case.  The trial court impermissibly modified a final decree in the context of a contempt action when it required an ex-husband to sell a lake house after failing to “buyout” his ex-wife’s interest in that lake house through a series of three payments.

In their opinion, the appellate court took pains to emphasize that the trial court COULD order the husband to pay “a significant sum every day, or even incarcerate him,” until the payments had been made and it recognized that, as a practical matter, the ex-husband might have to sell the lake house so as to satisfy the contempt, but the trial court COULD NOT act as a “problem-solver” by creating a remedy for the contempt in a manner that modified the original decree. Under the original decree, the ex-husband had been awarded the lake house.

Trial Court Impermissibly Modified Decree in Contempt.  Doane v. LeCornu, 289 Ga. 379 (2011).

If you have questions about a divorce settlement agreement, or a contempt matter or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Permissible Modification Within A Contempt Action

cropped-Books2.jpgPermissible Modification Within A Contempt Action.  Here’s an example.  The parties created a sole proprietorship within their two year marriage. The banking number and medicare number were in the Wife’s name, and the Husband handled day-to-day operations. The Husband was awarded the business in the divorce. In the amended settlement agreement, the Wife agreed to maintain the banking and medicare numbers in her name until July 3, 2008.  On June 25, 2009, Wife notified Husband that she intended to close the bank account. The Husband stated that the accounts needed to stay open until September 2009. On July 13, 2009, Wife closed the account and forwarded the $4,197.33 account balance to Husband.

The trial court found Wife in willful contempt for closing the bank account, ordered her incarcerated and awarded Husband $52,035.60 in damages and $33,195.55 in attorneys fees, and provided that Wife could purge herself of contempt by paying all amounts due within 60 days of the order.

For more information about Permissible Modification Within A Contempt Action, see Georgia case:  Schererv. Testino, 291 Ga. 75 (May 7, 2012).

If you have questions about a divorce settlement agreement, contempt action, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

A court may not modify a previous decree in a contempt order.

A court may not modify a previous decree in a contempt order. However, a court may always interpret and clarify its own orders.  Here’s and example, the parties divorced in 2005. Pursuant to the divorce decree, the parties were granted joint legal and physical custody of the two minor children. The decree further ordered that the father shall have final authority to make decisions regarding extracurricular activities.

The Father filed a motion for contempt alleging that the Mother was in contempt for refusing to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that he previously fired. The trial court held that the golf instructor was forbidden from having any contact related to golf instruction with the daughter, and that the mother could utilize her custodial time with the children in any way she deems appropriate.

“The court may not modify a previous decree in a contempt order. However, a court may always interpret and clarify its own orders. The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. Cason v. Cason, 281 Ga. 296,297 (1)(2006)

The Georgia Supreme court held that the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time.

A court may not modify a previous decree in a contempt order but may interpret and clarify its own orders.  Earle v. Earle, 312 Ga. App. 139 (October 18, 2011)

Sell or Refinance Marital Residence – Contempt

images2Sell or Refinance Marital Residence – Contempt.  Here are the facts:  The Husband was to sell or refinance the marital residence so as to remove Wife’s name from it. In the original decree of divorce, the trial court put an additional remedy, that Husband would have to pay Wife a penalty of $10,000.00 if Husband did not remove her from the house loan. The Husband failed to sell the house, and he did not pay his ex-wife the $10,000.00 penalty.

During a contempt proceeding brought by the Wife, the trial court took two actions, both of which were appealed to the Georgia Supreme Court: 1) rather than requiring the ex-husband to pay the $10,000.00 penalty immediately, the trial court permitted that obligation to be converted into a lien against the marital residence (one that, presumably, would only be satisfied upon sale); and (2) rather than requiring the ex-husband to sell the hone immediately, the trial court gave the ex-husband a “reasonable period of time” to sell it instead, “given the market conditions right now.”

The Georgia Supreme Court held that both actions were so contrary to the intent of the original decree as to constitute improper modifications of its terms.

The moral of the story: even if the trial court, understandably, want to act as a problem solver, it is without the power to do so in the context of a contempt actions, and must hold the parties to the original terms of the final judgment of divorce.

For more information about Sell or Refinance Marital Residence – Contempt?  See:  Greenwood v. Greenwood, 289 Ga. 163 (2011).

Sell or Refinance Marital Residence – Contempt.  If you have questions about a divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

Contempt attorney fees and expenses for family therapist.

Divorce TopicsContempt Attorney Fees and Expenses for Family Therapist: In this contempt action following entry of Dr. Scott Bowerman and Melissa Bowerman’s divorce and custody decree and subsequent related orders, the Court of Appeals reversed the grant of $5.8K in attorneys’ fees and expenses to Dr. Bowerman and the award of $3.4K in reimbursement for Dr. Bowerman’s payments to Susan Boyan, a licensed marriage and family therapist, holding that the trial court grievously erred in making such an award, since it ordered that Dr. Bowerman ‘ “[m]ay deduct the total amount, $9,200.00 from the payment of periodic alimony [$10,000 per month] at the rate of $1,500.00 per month,” ’ since, ‘ “after a decree for permanent alimony has become absolute, there is no authority given under the law by which a trial court is empowered to abrogate or modify the obligation imposed by the decree, unless such a right has been reserved by consent of the parties in the final decree itself, or an action is brought as provided under” ’ OCGA § § 19-6-18 through 19-6-25.

However, the Court rejected Melissa Bowerman’s contention that the trial court erred in finding her in contempt ‘ “by failing to articulate which specific provision of any prior order” ’ she had violated, since the trial court’s various orders incorporated the terms of the parties’ agreements, which included very specific, all-encompassing requirements, including express language of commands directed at both parties. The Court also held that the lack of a transcript prevented the trial court from reviewing Melissa Bowerman’s second and sixth enumerations of error and prevented Melissa Bowerman from showing harm from any alleged error in the trial court’s modification of summer visitation. Next, the record belied Melissa Bowerman’s contention that the trial court made any modification to the order granting equal rights to the parties, unless they are unable to agree regarding healthcare. Finally, the trial court’s order requiring Dr. Bowerman and his daughter to enter into counseling did not alter legal custody, and the Court declined to consider the daughter’s affidavit, since she did not testify at the contempt hearing, denying her father the right to cross-examine her.

For more information about the facts of this case, see:  Bowerman v. Bowerman, A11A1895 (03/01/12)

Fulton County Daily Report, March 16, 2012

If you have questions about a divorce settlement agreement, contempt, or if you considering filing a divorce, please contact the Remboldt Law Firm, LLC at 404-348-4081 for a free phone consultation.

GA Children’s extracurricular activities can encroach upon mother’s custodial time.

Denial of father’s contempt motion, affirmed, as trial court did not impermissibly modify parties’ prior divorce decree in holding that mother can use her custodial time with parties’ children in any way she deems appropriate; trial court merely clarified extent to which father’s decision-making authority with regard to children’s extracurricular activities can encroach upon mother’s custodial time.

Earle v. Earle, A11A1450 (10/18/11)

Fulton County Daily Report, November 4, 2011