Gooch v. Gooch

297 Ga. 189FINAL COPY
S15A0202. GOOCH v. GOOCH.
HINES, Presiding Justice.
This Court granted the application for discretionary appeal of Nancy
Gooch (“Nancy”) from the trial court’s order in her contempt action against
appellant Terry J. Gooch (“Terry”). For the reasons that follow, we reverse and
remand for further proceedings.
Under the couple’s 2012 divorce decree and incorporated settlement
agreement, Terry was required to select a certain option for his retirement
benefits, and to designate Nancy as the survivor beneficiary; under that option,
Terry would receive life-time benefits, with a guarantee of ten years of
payments, such that should he die within that period, payments would continue
to his designated survivor beneficiary for the remainder of the guarantee period,
referred to as “Life with 10-year guarantee.” However, Terry did not comply
with this directive of the decree, instead selecting an entirely different retirement
option, and naming his new wife as the survivor beneficiary thereunder; this
designation was irrevocable. In December 2013, Nancy filed in the trial court
a petition for Terry to be held in contempt for his failure to comply with this
portion of the decree. After a hearing, on May 29, 2014, the trial court entered
an order finding Terry in willful contempt of his obligations under the divorce
decree, but determined that no available remedy existed; the court’s order also
awarded Nancy $5,600 in attorney fees, which it struck in response to a motion
for reconsideration by Terry. This Court granted Nancy’s application for
discretionary appeal to determine whether the trial court was correct in ruling
that there was, at this time, no available remedy for Terry’s contempt.
As this Court has noted,
“[i]n cases of contempt the trial judge is vested with a discretion in
determining whether his orders have been violated and how such
infringements should be treated; and it has been said that this court
will not disturb his judgment, unless it appears that he has abused
his discretion. [Cits.]” [Cit.]
Burke v. Burke, 263 Ga. 141, 142 (2) ( 429 SE2d 85) (1993). The trial court’s
order states that the court
concludes that there is no available remedy for [Terry’s] actions.
The [decree’s] provision . . . for the survivor’s benefits applies in
the event of [Terry] predeceasing [Nancy]. Unless and until [Terry]
predeceases [Nancy], it is too speculative to determine the
appropriate remedy.
However, during the contempt hearing, the testimony of a financial planning
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expert was that there were remedies currently available, including an annuity to
provide payments for a certain period of time, such as the ten years specified in
the decree, or a life insurance policy.
Although Terry contends that the trial court was correct in finding that
there was no need for any remedy unless and until Terry dies within the
guarantee period of the mandated retirement plan, this ignores the fact that, had
Terry met the obligation placed upon him by the trial court’s decree, Nancy’s
potential receipt of survivor benefits would not be dependent on Terry’s control
of his own assets — with the hope that he would leave an estate sufficient to
meet the remaining obligation — but on the assets and management of the
retirement plan.
Terry asserts that, were the trial court to order him to purchase an annuity
to serve the same function as the obligation he ignored, i.e., to pay to himself for
ten years the sum that selection of the Life with 10-year guarantee plan would
have produced with Nancy as the surviving beneficiary, such would constitute
a modification of the decree, as no such annuity was set forth therein. Certainly,
the trial court could not modify the decree in a contempt action. See Roquemore
v. Burgess, 281 Ga. 593, 594 (642 SE2d 41) (2007). But, the trial court
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certainly could “exercise its discretion to craft a remedy for contempt, including
remedying harm caused to an innocent party by [Terry’s] contemptuous
conduct.” Smith v. Smith, 293 Ga. 563, 564 (1) (748 SE2d 456) (2013)
(Citations and punctuation omitted.) And, in doing so, the trial court can
enforce its order by requiring the contemnor to secure something of the same
monetary value as that which was set forth in the violated order. Id.Terry asserts that the evidence regarding an annuity or insurance policy
to replace the obligation set forth in the decree was insufficient, as it did not
include the specific purchase amount of the annuity or insurance policy, “the
term for either instrument,” or “detail as to how these instruments would be put
in place.” However, Terry cites no authority for the contention that it was
Nancy’s obligation to provide all details regarding the remedy for his willful
contempt, nor do we find any. The evidence presented was sufficient to
authorize the trial court to order Terry to acquire an annuity or insurance policy
that would conform to his original court-ordered obligation.
The trial court abused its discretion in failing to devise a remedy for
Terry’s willful contempt. Burke, supra. Accordingly, the judgment of the trial
court must be reversed and the case remanded for proceedings consistent with
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this opinion.
Judgment reversed and case remanded with direction. All the Justices
concur.
Decided June 1, 2015.
Domestic relations. Cherokee Superior Court. Before Judge Harris.
James D. Nichols, Jr., for appellant.
Roach, Caudill & Gunn, Thomas A. Roach, Jr., David W. Frost, for
appellee.
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