Jones v. Jones , 298 Ga. 762 ( 2016 )

In the Supreme Court of Georgia
Decided: March 25, 2016
S15A1927. JONES v. JONES.
S15A1928. JONES v. JONES.
HUNSTEIN, Justice.
These appeals, related to the enforcement of a 1998 Cobb County divorce
decree, arise from an October 2009 order on a petition for contempt filed by
Denita Jones (“Wife”). In the October 2009 order, the trial court found Nolan
Jones (“Husband”) in willful contempt regarding his child support obligations,
calculating his arrearage at over $119,000. We granted both parties’ respective
applications for discretionary appeal to address various aspects of this order.1
Though we affirm the trial court’s general finding of contempt, we conclude that
the trial court erred in revisiting previously adjudicated arrearages and reverse
the order to the extent it did so. We also conclude that the court erred in
calculating the most recently accrued arrearage, and we reverse that portion of
1
Though the parties’ applications were granted on November 18, 2009, the trial
court record was not transmitted to this Court for docketing until August 2015. The
record is silent regarding the reason for this extraordinary delay.
the order and remand for a re-determination of that arrearage consistent with the
terms of the parties’ divorce decree. In light of these dispositions, we also
reverse the order to the extent it directed Husband to purchase a life insurance
policy. Finally, we conclude that the trial court’s attorney fee award was not
excessive and therefore affirm that portion of the order.
Under the 1998 divorce decree, which incorporated a settlement
agreement between the parties, Wife was awarded primary custody of the
parties’ three minor children, and Husband was required to pay a base sum of
$986 per month in child support, which constituted 28% of Husband’s then-
current annual income of $42,000, plus that same percentage of any annual
income Husband earned in excess of $42,000, up to $85,000.2 Any increase in
2
In pertinent part, the child support provisions provide:
[T]he Husband shall be responsible to the Wife for the sum of $986.00 per
month for the support of the children. This child support has been calculated
in consideration of the Husband’s present income of $42,000.00 per year. In
addition to this sum, the Husband shall pay 28% of any monies over
$42,000.00 up to $85,000.00 per annum as child support.
In addition, the applicable percentage used in calculating the support payment was
to decrease upon the emancipation or aging out of each child:
The percentage of child support will be . . . 28% while it is paid for three
children, 25% at such time it is paid for two children, and 20% at such time it
2
the amount of monthly child support in accordance with this provision was to
be self-executing, and Husband was required to provide his tax returns and
related documentation for verification of his income.
In 2002, Husband filed a petition for modification of custody and child
support, and Wife counterclaimed for contempt. In an order issued in October
2004, the trial court, inter alia, declined to modify child support and found
Husband in contempt for failing to make the required child support payments
and failing to provide the information necessary to calculate the amounts owed.
The trial court determined that Husband was in arrears in the principal amount
of $85,676; together with interest accruing at the rate of 1% per month,
Husband’s total arrearage was set at $121,573.76. Though a follow-up hearing
was held in November 2004, at which the court apparently made oral rulings
regarding a purge schedule, such rulings were never memorialized in a written
order.3 No further proceedings were held with respect to this contempt petition.
is paid for one child.
3
Though it is apparent that such a hearing did take place, the transcript from
such hearing does not appear in the record.
3
In June 2006, Wife initiated a new contempt proceeding,4 in which she
claimed that Husband had failed to pay his previously adjudicated arrearage and,
with the exception of a single payment of $986, had made no child support
payments for the months since then. The trial court ultimately entered an order
in July 2007 in which it (1) reaffirmed the $85,676 arrearage as set forth in the
October 2004 order; (2) found Husband in arrears in an additional amount of
$66,456, accruing from the October 2004 order through June 2007; and (3)
awarded interest in the amount of 7% per annum on both of these arrearage
amounts, beginning 30 days thenceforth.5 This order thus, in effect, vacated the
October 2004 order to the extent it had awarded interest on the initial arrearage.6
This action was assigned to a different trial judge than the earlier modification
4
and contempt proceeding.
5
The statute governing awards of interest on past-due child support was
amended, effective July 1, 2006, to change the applicable interest rate from 12
percent per annum to 7 percent per annum. Ga. L. 2005, p. 224, §§ 3, 13.
6
While the record reflects that Husband filed a timely motion to set aside or for
new trial, there is no indication as to its disposition. Given the history of the case
since then, we assume that this motion was either denied or abandoned. In addition,
the record reflects that Wife sought and was granted a discretionary appeal in the
Court of Appeals and thereafter filed a timely notice of appeal in the trial court.
Setting aside the issue of whether the Court of Appeals had jurisdiction to grant
Wife’s application in the first place, see Ga. Const. of 1983, Art. 6, Sec. 6, Par. 3 (6)
(appellate jurisdiction over divorce and alimony cases lies in Supreme Court), it is
clear from the record that, as of September 2009, Wife had abandoned the appeal, and
4
In December 2007, as a result of continuing non-compliance, Husband
was incarcerated; he was released in February 2008, subject to various
conditions, after paying a purge amount of $6,486. Wife subsequently moved
to have Husband incarcerated again for non-compliance, and in October 2009,
the trial court, following a hearing, entered the order that is the subject of this
appeal. In the October 2009 order, the trial court undertook a review of
Husband’s child support obligations and payments from 1998 forward, relying
both on findings and evidence presented in connection with the previous
contempt petitions and on new evidence as to Husband’s income and his
payment history from the date of the divorce. The court then reviewed its
previous arrearage calculations, purporting to do so under OCGA § 9-11-60 (g)
(authorizing trial courts to correct clerical errors). Based on evidence that the
arrearage calculation in the October 2004 order ($85,676) had been grounded
on incorrect information regarding Husband’s payment history, the court revised
that calculation. In addition, the court found that the subsequent arrearage
amount established in the July 2007 order ($66,456) had been calculated based
the Court of Appeals has never considered it.
5
on incorrect information about Husband’s annual income for the applicable time
period, and the court thus modified its calculation of that arrearage as well.
In the end, having recalculated the two previously adjudicated arrearages
and calculated in the first instance the arrearage dating from the July 2007 order,
the trial court arrived at a total arrearage of $119,924.38. Finding Husband in
willful contempt, the court ordered him to pay $5,250 immediately as a purge
amount and $5,000 quarterly thereafter until the arrearage was paid in full. The
court further ordered Husband to purchase a life insurance policy “worth no less
than $100,000” within 45 days, listing Wife as the primary beneficiary and the
minor children as secondary beneficiaries. Finally, the court ordered Husband
to pay Wife $14,000 in attorney fees, under a payment schedule set forth in the
order.
In granting the parties’ applications for discretionary appeal, we directed
the parties to focus on three issues: (1) whether the trial court erred in amending
the prior contempt orders; (2) whether the trial court erred in ordering Husband
to purchase a life insurance policy; and (3) whether the trial court’s award of
attorney fees was excessive. We address these issues seriatim.
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1. A ruling on a contempt petition, made in writing by a court of
competent jurisdiction and entered in accordance with OCGA § 9-11-58, is a
conclusive judgment as to the acts of the contemnor that were the subject of the
contempt action. See Ramsey v. Ramsey, 231 Ga. 334, 336 (1) (201 SE2d 429)
(1973) (an “order adjudging a person in contempt means the trial court has
passed upon the merits of the case and the order, in effect, is a final disposition
of the contempt matter by that court”); see also Massey v. Massey, 294 Ga. 163(2) (751 SE2d 330) (2013) (order adjudicating contempt is subject to immediate
appellate review). After the entry of such judgment and the expiration of the
term of court in which it was entered, the rendering trial court is authorized to
amend such judgment only in accordance with OCGA § 9-11-60. See Richard
C. Ruskell, Ga. Practice & Procedure, § 23:21 (2015-2016 ed.); Tremble v.
Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011).
Under OCGA § 9-11-60, a judgment, unless void on its face, is subject to
challenge in the trial court only by direct attack, in the form of a motion for new
trial or a motion to set aside. OCGA § 9-11-60 (a), (b); see also Facey v. Facey,
281 Ga. 367 (6) (638 SE2d 273) (2006). Motions for new trial are available
7
only to challenge some “intrinsic defect” that does not appear on the face of the
record or pleadings, id. at (c), and must generally be made within 30 days of the
judgment being challenged, OCGA § 5-5-40 (a). Motions to set aside may be
premised on a lack of jurisdiction; some allegation of fraud, accident, mistake,
or “acts of the adverse party unmixed with the negligence or fault of the
movant”; or a “nonamendable defect” appearing on the face of the pleadings or
record. OCGA § 9-11-60 (d). Except for those alleging lack of jurisdiction,
such motions must be made within three years of the entry of the challenged
judgment. Id. at (f). In addition to these modes of review, the trial court retains
the authority to correct “clerical mistakes” and errors “arising from oversight or
omission” at any time, either sua sponte or by motion. Id. at (g).
We assess the trial court’s orders here under these basic principles. We
first find, contrary to Husband’s long-standing contention, that the October 2004
order constituted a final judgment of contempt, subject to modification by the
trial court only in accordance with OCGA § 9-11-60. Husband asserts that the
court’s order was infirm, and therefore not final and subject to modification,
because its findings as to the arrearage and interest amounts are expressed in the
8
narrative portion of the order’s findings of fact and conclusions of law rather
than in its pronouncement of judgment, in which the judgment amount is left
blank. However, the order on its face leaves no doubt that the court was
entering judgment on Wife’s counterclaim for contempt against Husband in the
amount of $85,676 in unpaid child support and $35,897.76 in interest. At most,
the blank space left for the judgment amount constituted a “clerical error” that
would be subject to correction under OCGA § 9-11-60 (g), not an omission that
rendered the order invalid or interlocutory. See Tremble, 288 Ga. at 668-669
(“clerical mistake” refers to typographical errors, the omission of words,
sentences, or paragraphs, and the like); Cagle v. Dixon, 234 Ga. 698 (217 SE2d
598) (1975) (“clerical mistake” refers to an oversight or omission, either
obvious on the face of the record or plainly demonstrated by the evidence). See
also Porter-Martin v. Martin, 280 Ga. 150 (625 SE2d 743) (2006) (contrasting
the correction of clerical mistakes pursuant to OCGA § 9-11-60 (g) with the
modification of substantive provisions). Similarly, the fact that the trial court
reserved the issue of a purge methodology until a later date – and that such
purge methodology was never ultimately reduced to a written judgment – has
no effect on the finality of the determination of Husband’s arrearage. See
9
Hamilton Capital Group, Inc. v. Equifax Credit Information Services, Inc., 266
Ga. App. 1 (1) (596 SE2d 656) (2004) (even where contempt order gives the
contemnor the opportunity to purge before punishment is imposed, such order
considered final for purposes of appeal). Thus, the October 2004 order was a
final adjudication of Husband’s total arrearage, including interest, from January
1998 through August 2004.
In its July 2007 order on Wife’s second contempt petition, the trial court
purported both to adjudicate the arrearage accruing since the October 2004 order
and to review the October 2004 order itself. Though clearly empowered to
adjudicate the arrearage newly accruing since its prior contempt determination,
the trial court lacked the authority to revisit its earlier ruling, as there were no
grounds either alleged or established upon which to set it aside. See OCGA §
9-11-60 (d). While the court ultimately reaffirmed the October 2004 order as
to the principal amount of Husband’s arrearage for January 1998 through
August 2004, the court, in effect, vacated the interest portion of the October
2004 order. This elimination of Husband’s interest obligation was ostensibly
based on representations made at the November 2004 hearing; however,
10
whatever transpired at that hearing was never reduced to any form of written
judgment and thus had no binding effect. See Williams v. Williams, 295 Ga.
113 (1) (757 SE2d 859) (2014) (an oral pronouncement of a trial court is not
binding until reduced to writing and entered as a judgment). Accordingly, to the
extent the July 2007 order purported to modify the substance of the October
2004 order by eliminating Husband’s obligation to pay the $35,897.76 in
interest on the original arrearage, this order was in error.
Nevertheless, we have held that a judgment, though erroneous, is entitled
to enforcement so long as it was entered by a court of competent jurisdiction and
has not been appealed or set aside. See Collins v. Billow, 277 Ga. 604 (2) (592
SE2d 843) (2004) (enforcing contempt order, despite fact that it improperly
modified child support obligation, where it was entered by court of competent
jurisdiction and had not been reversed or set aside); State ex rel. Harrell v.
Harrell, 260 Ga. 202, 202 (391 SE2d 641) (1990) (“[a] judgment which is
erroneous but not void may be attacked only by direct appeal or by a motion to
set aside” and must be enforced if it has not been so attacked). As there is no
question that the trial court here had jurisdiction over the subject matter and the
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parties, the July 2007 order, though improper to the extent it modified the
October 2004 order by eliminating Husband’s interest obligation, is entitled to
be enforced in its entirety, unless the October 2009 order is deemed to have
properly set it aside.
The October 2009 order, issued in response to the latest in a series of
motions filed by Wife due to Husband’s repeated non-compliance, in effect
vacated both earlier orders and began calculating anew Husband’s arrearage
from 1998 forward. Though the court purported to do so under OCGA § 9-11-
60 (g), its ruling here went far beyond the correction of a “clerical mistake” such
as is countenanced by that statutory subsection. See Porter-Martin, 280 Ga. at
151-152 (court cannot modify substantive provisions of prior order under
OCGA § 9-11-60 (g)); see also Tremble, 288 Ga. at 668-669; Cagle, 234 Ga. at
699. Rather, the court in effect reopened the evidence regarding Husband’s
payment history and income dating back to 1998, thus essentially retrying
Wife’s previous contempt actions far beyond the time period in which such a
proceeding was authorized. See OCGA § 5-5-40 (a), (h). This was error.
Neither can this re-adjudication of past arrearages qualify as a proper order
12
setting aside the July 2007 order, as there is no indication that the trial court
found the existence of any of the limited grounds to set aside a judgment
enumerated in OCGA § 9-11-60 (d). We must therefore reverse the October
2009 order insofar as it purports to re-adjudicate the arrearages as established
in the July 2007 order.
As to the arrearage accruing subsequent to the July 2007 order, this issue
was properly before the court for disposition in the October 2009 order, and the
merits of this determination are thus ripe for appellate review. On review, we
must affirm a trial court’s adjudication of contempt so long as there is “any
evidence” to support it. Facey, 281 Ga. at 370; Pate v. Pate, 280 Ga. 796 (3)
(631 SE2d 103) (2006). As there is ample evidence – and, indeed, little dispute
– that Husband is seriously delinquent on his child support payments, we affirm
the October 2009 order insofar as it found that Husband was in willful violation
of his obligations under the parties’ divorce decree. Insofar as the court made
findings as to the specific amount of the most recently accrued arrearage,
however, we hold that those findings rest on an erroneous construction of the
parties’ divorce decree and, therefore, cannot stand. See Hardigree v. Smith,
13
291 Ga. 239 (728 SE2d 633) (2012) (reversing contempt ruling premised on
erroneous construction of husband’s alimony obligation).
In adjudicating the arrearage accruing from July 2007 through the October
2009 order, the trial court made findings regarding Husband’s income during
that interval, on the basis of which the court calculated Husband’s child support
obligations on a monthly basis. This task was made difficult due to the
incomplete and haphazard evidence Husband offered and the apparent
variability of Husband’s income from month to month – ranging from $0 during
periods of unemployment to over $10,000 per month during one six-month
period. Though it is clear that the trial court labored diligently in making its
calculations, we are constrained to reverse its determination of this last arrearage
amount, because it does not conform to the plain language of the child support
provisions of the divorce decree. For example, for certain intervals within the
relevant time period, the trial court fixed Husband’s monthly obligation at $0,
based on Husband’s unemployment or incarceration. However, nothing in the
divorce decree permits a reduction of Husband’s monthly obligation to $0;
rather, the applicable provisions require Husband to pay at least the established
14
base sum and make no allowance for any reduction to that sum based on a
decrease in Husband’s income. Thus, to the extent the trial court calculated a
$0 obligation for any given month, the court’s determination was in error. We
therefore reverse that portion of the October 2009 order which adjudicates
Husband’s arrearage for the period between July 2007 and October 2009, and
we remand the case to the trial court to recalculate Husband’s arrearage for this
latter period in compliance with the language of the parties’ divorce decree.
In net effect, the above determinations operate to (1) affirm the arrearage
and interest determinations in the July 2007 order as conclusive regarding the
amounts owed up until July 2007; and (2) reverse and remand back for a re-
calculation, in compliance with the language of the parties’ divorce decree, of
the arrearage and any interest thereon accruing between that time and October
2009.
2. We now turn to the life insurance provision of the October 2009 order,
which requires Husband to obtain a $100,000 minimum life insurance policy
within 45 days of the order. As is clear from the transcript from the last of the
hearings leading up to the October 2009 order, the trial court intended the
15
insurance policy provision to function as a remedy for Husband’s more than
$100,000 arrearage. Though it is well-established that a trial court cannot
modify the terms of a divorce decree in a contempt proceeding, a trial court is
authorized to “‘exercise its discretion to craft a remedy for contempt.’” Gooch
v. Gooch, 297 Ga. 189 (773 SE2d 247) (2015). See OCGA § 23-4-31 (“[a]
superior court shall have full power to mold its decrees so as to meet the
exigencies of each case and shall have full power to enforce its decrees when
rendered”). Whether a trial court’s directive is a valid remedy for contempt as
opposed to an improper modification is a fact-intensive inquiry. Compare
Froehlich v. Froehlich, 297 Ga. 551 (4) (775 SE2d 534) (2015) (trial court
properly imposed accounting and transfer requirements on contemnor who had
violated his obligation under a divorce decree to “make available” to his ex-wife
one-half of his accumulated hotel loyalty program points); Ziyad v. El-Amin,
293 Ga. 871 (750 SE2d 337) (2013) (trial court properly ordered contemnor to
pay down principal on property pending its sale, where contemnor had
previously ignored his obligation to list the property for sale and the property
would not be salable without such payments); Smith v. Smith, 293 Ga. 563 (1)
(748 SE2d 456) (2013) (trial court properly ordered contemnor to pay his ex-
16
wife the monetary value of personal property he had disposed of in violation of
divorce decree), with Floyd v. Floyd, 291 Ga. 605 (1) (732 SE2d 258) (2012)
(reversing contempt order to the extent it directed ex-husband to execute a
quitclaim deed to marital residence as remedy for failing to refinance or list it
for sale); Jett v. Jett, 291 Ga. 56 (727 SE2d 470) (2012) (reversing contempt
order to the extent it directed the ex-husband, inter alia, to liquidate his accounts
to pay down debt on marital residence so as to enable him to fulfill his
obligation to refinance the mortgage thereon). In a recent case, we have
signaled our approval, in appropriate circumstances, of a trial court’s directive
that a life insurance policy be purchased as a means of guaranteeing a party’s
receipt of benefits of which she had been deprived because of actions of the
contemnor. Gooch, 297 Ga. at 190-191 (trial court abused its discretion in
failing to devise a remedy for contempt, in the form of a directive to purchase
life insurance or an annuity, where there was evidence that such measures would
constitute a sufficient remedy). In another recent case, however, we reversed a
trial court’s order directing the ex-wife to purchase a life insurance policy or
establish a bank account payable upon her death, as a means of remedying her
failure to name the ex-husband as the survivor beneficiary of her pension.
17
Pollard v. Pollard, 297 Ga. 21 (771 SE2d 875) (2015). This outcome was
required, we held, because there was no evidence that the life insurance policy
or bank account would be “equivalent to” the value of the survivor beneficiary
designation. Id. at 24.
Under the above authorities, we conclude that the trial court’s effort to
craft a means to ensure the payment of Husband’s past arrearage might be
permissible under the particular circumstances of this case. However, because
we are reversing the October 2009 order for a recalculation of Husband’s total
arrearage, we hereby reverse as to the life insurance provision as well. On
remand, we note, any similar remedial provision must be supported by evidence
establishing that the specified remedy is of equivalent monetary value as the
arrearage it is intended to remedy and is clearly designed to secure pre-existing
obligations. Compare Gooch, 297 Ga. at 190-191, with Pollard, 297 Ga. at 24.
In addition, any provision requiring the purchase of life insurance would have
to make clear that Husband’s responsibility to maintain such policy would last
only so long as he failed to pay off his arrearage; so structured, a provision of
18
this kind could constitute a proper remedy for Husband’s contempt rather than
an improper modification of the parties’ divorce decree.
3. Finally, as to the trial court’s award of OCGA § 19-6-2 attorney fees,
we conclude that the award of $14,000 – less than half of what Wife sought –
was not excessive in light of the substantial legal work performed in connection
with the latest contempt action, which was necessitated by Husband’s persistent
non-compliance with his clear obligations to make child support payments and
provide the information necessary to determine the amounts owed. The trial
court did not abuse its discretion in this regard. See Vines v. Vines, 292 Ga. 550(4) (739 SE2d 374) (2013) (affirming award of attorney fees incurred in
connection with successful contempt motion).
Judgment affirmed in part and reversed in part, and case remanded with
direction. All the Justices concur.
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