Kirkendall v. Decker , 271 Ga. 189 ( 1999 )

Thompson, Justice,

dissenting.

The decree in question ordered Kirkendall to make Decker the beneficiary of life insurance “which he maintains through Delta Air Lines, Inc.” It is undisputed that, at the time of the entry of the decree, the only “life insurance” policy which Kirkendall carried through Delta was an accidental death policy. In my view, inasmuch as the decree did not require Kirkendall to maintain a whole life or term life insurance policy, the trial court erred in holding Kirkendall in contempt for failing to maintain such a policy. See Perry v. Perry, 265 Ga. 186,188 (3) (454 SE2d 122) (1995) (trial court cannot modify terms of divorce and alimony judgment in contempt proceeding). See also Chandler v. Ratcliffs, 248 Ga. 700 (2) (285 SE2d 694) (1982) (divorce agreement cannot be interpreted to require husband to maintain greater life insurance benefits than those that were in effect at the time of the agreement); Reeves v. Reeves, 236 Ga. 209, 212 (2) (223 SE2d 112) (1976) (minor child’s interest in insurance policy by virtue of divorce decree is limited to the insurance provided by the policy at the time of the entry of the divorce decree).

Decided May 10, 1999 Reconsideration denied June 4, 1999. Paul R. Koehler, for appellant. Melody Z. Richardson, Paula R. Miller, for appellee.

Nothing in the transcript indicates that the trial court considered the record in the previous contempt proceeding with regard to the insurance issue. In fact, the transcript makes it clear that the previous contempt proceeding had nothing to do with Kirkendall’s obligation to maintain life insurance.⁴ It cannot be said, therefore, that Kirkendall has failed to carry his burden in this appeal by failing to include the record of the previous contempt proceeding.

I would reverse the judgment of the trial court. Accordingly, I respectfully dissent. I am authorized to state that Justice Carley joins in this dissent.

4 In the hearing below, Kirkendall’s attorney pointed out, without contradiction, that the insurance policy issue was never raised in a prior contempt proceeding.