Brown v. Brown , 269 Ga. 724 ( 1998 )

506 S.E.2d 108 (1998) 269 Ga. 724

BROWN
v.
BROWN.

No. S98A0955.

Supreme Court of Georgia.

September 14, 1998.

Barry B. McGough, Atlanta, for Beverly Kaye Bryant Brown.

Henry R. Bauer, Jr., Bauer & Deitch, P.C., Atlanta, for Clarke Roger Brown, Jr.

CARLEY, Justice.

The marriage between Beverly and Clarke Brown was dissolved in 1983, pursuant to a final judgment and decree of divorce which approved and incorporated by reference a settlement agreement previously entered into by the parties. The final judgment and decree ordered both parties to comply with the terms of the agreement. The incorporated agreement contained several references to "the event [Ms. Brown] ... ceases to be entitled to alimony pursuant to OCGA § 19-6-19." In May of 1997, Ms. Brown filed a motion for contempt, seeking to recover alimony for 1987 and 1988. Included in her motion was a prayer for the revival of "any portion of the ... [alimony] Judgment ... which may be dormant ..." See Parker v. Eason, 265 Ga. 236, 454 S.E.2d 460 (1995). Mr. Brown answered, asserting that he had no liability because of the dormancy of the alimony judgment for the years 1987 and 1988 or, in the alternative, because Ms. Brown "openly cohabited in a meretricious relationship ... prior to January 1, 1987." At the hearing, the trial court ruled that evidence of Ms. Brown's cohabitation was "relevant on the issue of contempt." After the presentation of evidence in that regard, the trial court denied the motion for contempt. We granted discretionary review to determine whether the trial court erred in holding that the evidence of her meretricious relationship was relevant to Mr. Brown's obligation to pay alimony.

1. Such evidence would be relevant if the incorporated agreement provided that Ms. Brown's meretricious relationship was a self-effectuating ground authorizing Mr. Brown to cease paying her alimony. Quillen v. Quillen, 265 Ga. 779(1), 462 S.E.2d 750 (1995); Kent v. Kent, 265 Ga. 211, 212(2), 452 S.E.2d 764 (1995). Under those circumstances, he would be entitled to stop paying alimony immediately upon her entry into the meretricious relationship, without any prior judicial proceedings. However, the settlement agreement does not designate the precipitating occurrence as Ms. Brown's meretricious relationship, but as the cessation of her entitlement to alimony "pursuant to OCGA § 19-6-19." She would cease to be entitled to alimony pursuant to that statute only after a judicial determination that she had engaged in a meretricious relationship and that the termination, rather than a mere reduction, of the alimony award was warranted. OCGA § 19-6-19(b). "[U]nder the statute, the obligated spouse is never authorized to terminate payments by claiming the former spouse is in a meretricious relationship without first seeking judicial relief. [Cit.]" (Emphasis in original.) Kent v. Kent, supra at 213(2), fn. 4, 452 S.E.2d 764.

Accordingly, evidence that Ms. Brown engaged in a meretricious relationship would not be relevant to excuse retroactively Mr. Brown's failure to pay alimony for 1987 and 1988. Her meretricious relationship would constitute a defense only if, pursuant to OCGA § 19-6-19(b), he had previously obtained a judicial modification terminating her entitlement to alimony for those years. It is undisputed that Mr. Brown did not obtain such a prior order of modification. "The burden is on defendant to show affirmatively that he is unable to pay the judgment of the court." Weiner v. Weiner, 219 Ga. 44, 131 S.E.2d 561 (1963). Thus, if Ms. Brown's claim for unpaid alimony is not otherwise barred, Mr. Brown's failure to pay would be a wilful contempt unless he demonstrated a financial inability to meet that obligation. Brown v. Brown, 237 Ga. 122(1), 227 S.E.2d 14 (1976), overruled on other grounds, Ensley v. Ensley, 239 Ga. 860, 864, 238 S.E.2d 920 (1977). The trial court erred in allowing Mr. Brown to introduce irrelevant evidence in defense of the motion for contempt.

2. Under OCGA § 9-12-60(a), a judgment can become dormant after seven years but, pursuant to OCGA § 9-12-61, may be renewed or revived within the ensuing three-year period. Thus, if those statutes are applicable here and Ms. Brown made no other attempt to renew or revive her judgment, she has an enforceable claim for unpaid alimony for no more than the 10-year period preceding May 9, 1997. See Parker v. Eason, supra. Effective July 1, 1997, however, OCGA § 9-12-60 was amended by adding a subsection (d) which provides that the dormancy provisions of subsection (a) "shall not apply to judgments or orders for child support or spousal support." According to Ms. Brown, this amendment applies retroactively, rather than prospectively, so as to defeat Mr. Brown's assertions of the dormancy of the judgment awarding alimony for 1987-1988 and the consequent unenforceability of her claim for arrearage for the pre-May 1987 period.

Classification as a dormant judgment under OCGA § 9-12-60(a) is determinative of the applicability of the three-year period for renewal or revival established by OCGA § 9-12-61. See Bell v. Hanks, 55 Ga. 274, 275(2) (1875); Johnson v. Huggins, 7 Ga.App. 553, 67 S.E. 217 (1910). Thus, the issue is whether the 1997 legislative removal of judgments for child and spousal support from the definition of dormant judgments applies retroactively so as to revive Ms. Brown's claim for such unpaid alimony which was due more than 10 years before she brought this contempt action and prayed for revival of the dormant portion of the judgment. The general rule is that statutes which remove a time-bar to the initiation of legal claims will be given a retrospective application only "when the language imperatively requires it, or when an examination of the act as a whole leads to the conclusion that such was the legislative purpose. It is at last and always a question of legislative intent. [Cit.]" Canton Textile Mills v. Lathem, 253 Ga. 102, 103(1), 317 S.E.2d 189 (1984). Reid v. Reid, 232 Ga.App. 304, 502 S.E.2d 269 (1998) is distinguishable, as it addresses the retroactive application of a remedial statutory amendment, rather than a statutory amendment reviving the substantive right to enforce a dormant judgment. The effective date of OCGA § 9-12-60(d) is July 1, 1997, and there is no expression of any legislative intent that it apply to judgments for child and spousal support entered before that date. Compare Vaughn v. Vulcan Materials Co., 266 Ga. 163, 465 S.E.2d 661 (1996); Canton Textile Mills v. Lathem, supra. Giving that amendment a retroactive interpretation would have the far-reaching effect of authorizing initiation of a suit after July of 1997 to recover arrearages on any and all child or spousal support judgments that were entered in this state at any time prior to July of 1987. Our review of the 1997 enactment as a whole does not lead us to the conclusion that the General Assembly's implicit intent was that OCGA § 9-12-60(d) have such a broad and significant impact. See Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796(3), 471 S.E.2d 504 (1996); Appalachee Enterprises v. Walker, 266 Ga. 35, 36(2), 463 S.E.2d 896 (1995). Accordingly, OCGA § 9-12-60(d) must be given prospective effect and, thus, it applies only to judgments for child and spousal support entered after July 1, 1997.

It follows that if the dormant portion of the alimony judgment is revived, pursuant to OCGA § 9-12-61, Ms. Brown would have a viable claim for arrearages resulting from the post-May 1987 period, but, in no event, would the judgment be enforceable for the pre-May 1987 period. A review of the transcript shows that an issue of fact remains as to the amount of unpaid alimony which is attributable to that 10-year period between May of 1987 and 1997. Accordingly, the denial of Ms. Brown's motion for contempt is reversed because of the erroneous evidentiary ruling discussed in Division One, and the case is remanded with direction that the trial court conduct another hearing to determine initially whether Mr. Brown is in contempt and, if he is, then to determine the amount of unpaid alimony that became dormant under OCGA § 9-12-60(a) but the judgment for which can be revived pursuant to OCGA § 9-12-61.

Judgment reversed, and case remanded with direction.

All the Justices concur.