Brown v. King

472 S.E.2d 65 (1996) 266 Ga. 890

BROWN
v.
KING.

No. S96A0907.

Supreme Court of Georgia.

July 1, 1996.

Charles Crawford, Cartersville, for Brown.

Anthony N. Perrotta, Brian Richard Cahn, Perrotta & Associates, Cartersville, for King.

Michael J. Bowers, Atty. Gen., Kevin M. O'Connor, Asst. Atty. Gen., amicus curiae.

FLETCHER, Presiding Justice.

Jillian Ellis Brown filed a motion for contempt against her former husband, James P. King, Jr., seeking to enforce court-ordered child support payments. The trial court granted the husband's motion to dismiss, ruling that a contempt action to enforce a divorce decree must be filed as a new civil action requiring 30 days notice of a hearing. We granted the wife's discretionary application to consider the trial court's ruling. Adhering to our previous decisions, we hold that the contempt action is an independent proceeding ancillary to the divorce case and requires only reasonable notice of a hearing. Therefore, we reverse.

1. Contempt is part of the judiciary's inherent power to enforce its orders.^[1] Since the adoption of the Georgia Civil Practice Act, this court has stated that an application for contempt is a motion and not a complaint.^[2] We reasoned that because a contempt application does not come within the definition of a pleading under OCGA § 9-11-7(a), it must necessarily be a motion as defined in subsection (b).^[3] Yet, due to the independent nature of contempt actions, many provisions of the Civil Practice Act do not apply. Thus, we have held that a party may not file a counterclaim or cross-claim under OCGA § 9-11-13,^[4] a respondent is not entitled to five days notice of a hearing under OCGA § 9-11-6(d),^[5] and a trial court is not required to enter findings of facts and conclusions of law under OCGA § 9-11-52.^[6]

We reiterate today that a contempt action to enforce court-ordered child support payments is an independent proceeding that is ancillary to the divorce action and not a new civil action. This ancillary status applies whether the divorce action is still pending or the trial court has already entered a final judgment. The petitioner initiates the contempt proceeding by serving the respondent with a copy of the contempt motion and a rule nisi.^[7] The rule nisi gives the respondent notice of the charges and the opportunity for a hearing at a specific time and place.^[8] To comport with due process, the notice of the hearing must be reasonable.^[9]

In this case, the wife properly initiated the contempt proceeding. She personally served her former husband with the motion for a contempt citation and rule nisi on November 13, 1995. The rule nisi ordered the husband to show cause at a hearing set on December 1, 1995. Because the husband had 17 days notice of the hearing, we find that he received reasonable notice.

2. Although the trial court relied on OCGA § 15-6-77(e)(1) and Uniform Superior Court Rule 39.2, neither the code section nor the uniform rule provides authority for a court to designate a contempt motion as a new civil action requiring 30 days notice of a hearing. The statutory provision defines "civil cases" for determining when the clerks of the superior court may charge and collect fees and is expressly limited to that particular code section.^[10] The uniform rule requires clerks to enter a separate case number for all actions civil in nature, except adoptions. Both provisions deal with administrative matters related to filings in the clerk's office. By our decision today, we do not intend to change the authority of clerks to assign separate case numbers or assess fees in contempt actions filed after a final decree.

Rather, we simply invalidate the local rule that requires 30 days notice of a hearing on contempt. Since the trial court relied on that rule in dismissing the wife's motion, we reverse.

Judgment reversed.

All the Justices concur.

NOTES

[1] In re Siemon, 264 Ga. 641, 449 S.E.2d 832 (1994); In re Pruitt, 249 Ga. 190, 192, 288 S.E.2d 208 (1982).

[2] Phillips v. Brown, 263 Ga. 50, 51, 426 S.E.2d 866 (1993); Baer v. Baer, 263 Ga. 574, 575, 436 S.E.2d 6 (1993); Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 327 S.E.2d 487 (1985); Hines v. Hines, 237 Ga. 755, 756, 229 S.E.2d 744 (1976); McNeal v. McNeal, 233 Ga. 836, 837, 213 S.E.2d 845 (1975).

[3] See OCGA § 9-11-7(b)(1) ("An application to the court for an order shall be by motion."); Hines v. Hines, 237 Ga. at 756, 229 S.E.2d 744.

[4] Baer, 263 Ga. at 575, 436 S.E.2d 6; McNeal, 233 Ga. at 837, 213 S.E.2d 845; Davis v. Davis, 230 Ga. 33, 34, 195 S.E.2d 440 (1973).

[5] Gibson v. Gibson, 234 Ga. 528, 529, 216 S.E.2d 824 (1975).

[6] See Hines, 237 Ga. at 756, 229 S.E.2d 744.

[7] See OCGA § 19-6-28.

[8] Braden v. Braden, 260 Ga. 269, 392 S.E.2d 710 (1990).

[9] See Gibson, 234 Ga. at 530, 216 S.E.2d 824.

[10] See OCGA § 15-6-77(e)(1) (defining "civil cases" as "used in this subsection" to include actions for divorce and specifying that post-judgment proceedings "shall be considered as a new case for the purposes of this Code section").