Gunderson v. Sandy ( 2014 )

FINAL COPY
295 Ga. 428
S14A0759. GUNDERSON v. SANDY.
BENHAM, Justice.
Appellant Colleen Gunderson and appellee Ronald Sandy were divorced
in 2010. The decree of divorce incorporates the parties’ settlement agreement,
which provides them with approximately equal physical custody time with their
children and includes the following custody provision:
The parties intend that they both maintain their primary residence
in reasonable proximity to the other for so long as any of their
children is a minor or is still attending high school full time.
Accordingly, neither party shall permanently re-locate his/her
primary residence beyond fifteen (15) road miles from [the marital
home awarded to Gunderson] for so long as any of their children is
a minor or is still attending high school full time.
Gunderson remarried and moved, and at the time Sandy filed his contempt
motion, he alleged that she resided 45 miles from the marital home.1 The parties
still have a minor child. The trial court granted Sandy’s motion for contempt
and ordered Gunderson to “move back into the school district in which [Sandy]
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Sandy states in his brief that Gunderson has now moved to within about twenty-five miles
from the marital home but still resides outside the county and, therefore, outside the child’s school
district, although this does not appear in the record. Sandy also states that at the contempt motion
hearing, in open court, Gunderson agreed to move back within the child’s school district, but this
is also not in the record, as there is no transcript of the hearing, and the contempt order does not
indicate it is a consent order. Accordingly, this assertion does not appear to make the appeal moot.
lives and in which the parties’ minor child attends school.” We granted
Gunderson’s application for discretionary appeal in order to examine the
question of whether the trial court’s contempt order impermissibly modified the
parties’ divorce decree.2
In addition to the geographical restriction on the parties’ relocation of
their respective residences contained within the custody agreement, that
agreement required each party to give thirty days notice to the other party before
moving. It appears undisputed that Gunderson moved more than once without
giving the required notice, and that at the time the contempt motion was filed
she had moved more than 48 road miles from the marital residence referenced
in the agreement. Sandy filed the contempt motion, seeking to have Gunderson
cited for contempt for violation of the relocation agreement incorporated into the
final decree, along with various other alleged violations of the divorce decree
unrelated to the relocation of her residence. Following a hearing, the trial court
cited Gunderson for contempt of the relocation agreement as well as two of the
other grounds for contempt raised in Sandy’s motion. The trial court did not err
2
The application was filed in the Court of Appeals which transferred the case to this Court
pursuant to our appellate jurisdiction over divorce cases.
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in finding Gunderson in contempt, but for the reasons set forth below we find
that portion of the contempt order that addresses the relocation agreement
impermissibly modifies the divorce decree. Therefore, the order is reversed in
part.
1. “[A] trial court lacks the authority to modify the terms of a divorce
decree in a contempt proceeding.” Smith v. Smith, 281 Ga. 204, 206 (2) (636
SE2d 519) (2006). Here, the contempt citation did not simply clarify or enforce
the relocation agreement incorporated into the divorce decree; it changed its
terms. The original decree required Gunderson to live no more than fifteen road
miles from the home in which she resided at the time of the decree. The
contempt order, however, requires her to move into the school district where the
minor child is enrolled in school. But, as Gunderson points out, it would be
possible for her to reside within the geographical limitation imposed by the
decree and still live outside that school district. The trial court’s order requiring
Gunderson to move back into the school district in which the minor child is
enrolled in school amounts to an unauthorized modification of the decree. See
Roquemore v. Burgess, 281 Ga. 593, 595 (642 SE2d 41) (2007); Cason v.
Cason, 281 Ga. 296, 298 (1) (637 SE2d 716) (2006). Accordingly, that portion
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of the contempt order that modifies the terms of the geographical restrictions of
the parties’ relocation agreement is reversed, and the case is remanded for
further action not inconsistent with this opinion.
2. Given our holding in Division 1, it is unnecessary to address the
additional grounds for reversal of the contempt order raised in the appeal.
Judgment reversed in part and case remanded with direction. All the
Justices concur.
Decided June 30, 2014.
Domestic relations. Cobb Superior Court. Before Judge Stedman, pro hac
vice.
Hill-Macdonald, Vic B. Hill, Brad E. Macdonald, for appellant.
Ronald A. Sandy, pro se.
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