Atlanta Divorce Attorney Blog

According to TMZ.com**, Usher Raymond’s ex-wife has filed actions for modification of child support and modification of custody/contempt against the singer in Atlanta, Georgia. Usher’s Ex-Wife: You Don’t Deserve Our Kids, TMZ.com, November 29, 2011.

In the child support modification action, Ms. Raymond is claiming that Usher has continued to have financial success since their divorce and she should, therefore, get an upward modification of child support. In Georgia, if she can prove that there has been a substantial change in his income, specifically that he is making significantly more money now, she will likely get the upward modification she is seeking. This assumes there are no other factors at play.

In the custody modification action, which seems to include contempt claims, Ms. Raymond is claiming that: (1) Usher has failed to obtain the required permission from her to travel out of state with the children; (2) Usher has failed to get her approval before hiring nannies, as required; (3) Usher has failed to give her the first chance to watch the children when he is away for an extended time, as required; (4) Usher failed to allow her to have the children for 2-weeks in the summer of 2011, as required; and (5)Usher refused to let her have custody of the children during winter break in 2010, as required. In Georgia, to obtain a custody modification, Ms, Raymond must prove that there has been a substantial change affecting the best interests of the children. The judge will weigh all relevant factors and may appoint a guardian ad litem to do a custody evaluation if the parties are unable to come to an agreement. If the parties are unable to come to an agreement, this case could go on for a long time as a full custody investigation and evaluation will likely be completed. It should be noted that, if these claims are filed as a contempt action rather than a custody modification action, the judge cannot change custody in a contempt action. Thus, Ms. Raymond will have to file a separate petition for modification of custody.

**The facts reported in the blog are based solely on the article cited above. The author is not involved in the case.

The Georgia Court of Appeals recently heard a case addressing an alleged modification of a divorce decree in a contempt case. In that case, the parties had joint legal and physical custody of their children. Earle v. Earle, A11A1450 (2011). The father had final decision-making authority over extracurricular activities. Id. at 2. The father later filed a motion for contempt, alleging that the mother refused “to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that [the father] had previously fired.” Id. at 2-3. After a hearing, the court denied the father’s motion, holding that “the mother could use her custodial time with the children ‘in any way she deems appropriate.’” Id. at 3.

The father appealed, contending that “the trial court improperly modified the original divorce decree” by adding the new language above “which results in a material modification of the decree’s provision regarding his final decision making authority concerning the children’s extracurricular activities.” Id. at 4. The Georgia Court of Appeals disagreed with the father, stating that though a court cannot modify a divorce decree in a contempt order, it can interpret and clarify its own orders. Id. at 5. The Court held that, in this case, “the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time.” Id.

This case addresses an interesting issue that can come up post-divorce. If you have final decision making regarding extracurricular activities, it now seems that you must take your former spouse’s custodial time into consideration in scheduling these activities. After this case, one probably should not over schedule the children during the times in which they are in the custody of the other parent.

There was recently a new article on ajc.com about the lawsuit against NFL receiver Terrell Owens in Fulton County for failure to pay child support. Lawyer: T.O. could face jail for failure to pay child support, by Christian Boone, The Atlanta Journal-Constitution, September 8, 2011. As mentioned in my previous blog on the subject, one possible punishment for the willful failure to pay child support is incarceration – and it looks like the plaintiff’s lawyer has petitioned the trial court for just that. According to the article, the original contempt petition for June and July child support payments was withdrawn after the full amounts were paid. However, now Owens appears to have failed to pay support for August or September, which is the subject of the current lawsuit.

The plaintiff’s attorney says that Owens has given no reason for his refusal to pay. The article further states that, though he is not currently signed by any NFL team, he is starring in a reality television show and his estimated monthly income is $666,000. If this is true, he should be able to afford the $5,000 child support payments. The case is currently pending, and a judge will decide whether to jail Owens or force him to make all back payments along with attorney’s fees.

According to the Atlanta Journal Constitution, NFL receiver Terrell Owens was recently sued in Fulton County for failing to pay child support. T.O. sued for child support, by George Mathis, The Atlanta Journal-Constitution, August 11, 2011. Owens has a five-year-old daughter with the woman bringing the lawsuit, which alleges that Owens has not paid his August child support and told the plaintiff that he does not plan to make future payments. According to the article, Owens was ordered in May 2007 to pay $5,000 per month in child support, and made June and July payments only after being threatened with legal action.

In Georgia, if the court finds that Owens’ failure to pay his court-ordered child support is willful (i.e. he has the money to pay, but just doesn’t want to), he could be subject to sanctions for contempt, which may include license revocation and/or incarceration. Owens’ defense may be that, although he has historically made a very large salary in the NFL, he is currently not on a team and, thus, technically has no income. Perhaps he will argue that he is unable to make the large child support payments due to the fact that he is currently unemployed. I would not be surprised if he filed a modification action to lower his child support if an NFL team does not sign him. Given his historic earning potential, it will be interesting to see what the court does.

The Georgia Court of Appeals recently re-emphasized long standing Georgia case law that prohibits custody from being modified in a contempt action. Coker v. Moemeka, A11A0005 (2011). In that case, the father filed a contempt action against the mother. Shortly before the court was scheduled to hear the case, the father filed a motion for change of custody, which the trial court granted at the hearing, along with the father’s contempt petition. Id. at 4.

The mother appealed, alleging that she was not properly served, and because the father improperly added the custody issue to the contempt proceeding. Id. at 5. As to the custody issue, the Court of Appeals agreed with the mother. Georgia case law clearly states that “[i]n a contempt proceeding, the trial court does not have authority to modify a final order of custody, which must be brought as a separate action.” Id. at 6, quoting McCall v. McCall, 246 Ga. App. 770, 772 (1) (542 SE2d 168) (2000). Since this was a question of law, rather than fact, the Court owed no deference to the trial court’s ruling and vacated the custody order as plain legal error by the trial court. Coker, at 5.

In addition to addressing the final decision making issue in Avren v. Garten, the Supreme Court of Georgia also addressed the trial court’s dismissal of the mother’s petitions for contempt, and modification of custody, child support and visitation. Avren v. Garten, S11A0064 (2011). The mother contended that the trial court erred in dismissing these actions. Id. at 3.

The Supreme Court of Georgia disagreed with the mother, holding that the mother’s petitions for modification of custody, modification of visitation, and her petition for contempt were properly dismissed pursuant to OCGA §19-9-24(b), which “prohibits a legal guardian from bringing an action for modification of child custody or visitation rights or any application for contempt of court so long as visitation rights are withheld by the legal guardian in violation of the custody order.” Id. at 4. In this case, there was overwhelming evidence that the mother had left the house with the child on scheduled visitation days during the time in which the father was to pick up the child. Id. Under these circumstances, the Supreme Court of Georgia held that the trial court did not err when it dismissed these actions. Id. at 5.

The Supreme Court of Georgia also held that the mother’s petition for modification of child support was properly dismissed due to the “two-year rule.” This rule provides that “[n]o petition to modify child support may be filed by either parent within a period of two years from the date of the final order on a previous petition to modify by the same parent.” OCGA §19-6-15(k)(2). In this case, the mother filed the current petition only 11 months after her previous petition for modification of child support. Id. at 6. Since it had been less than two years, the mother's petition was properly dismissed. Id. at 7.

The Supreme Court of Georgia recently held a Husband to the exact language in his divorce decree, even though it may cause him hardship. Greenwood v. Greenwood, S11A0611 (2011). In that case, the parties’ final judgment and decree of divorce awarded the marital residence to the Husband, and required him to “timely refinance the marital residence...so as to completely remove the Wife from any liability relating to the underlying mortgage.” Id. If the Husband did not refinance the mortgage by the deadline, he was required to immediately pay $10,000 to the Wife as a penalty. Id. at 2. After the Husband failed to refinance the mortgage and/or pay the penalty, the Wife filed a motion for contempt. Id. The trial court found the Husband in contempt, but converted the monetary penalty into a lien against the marital residence and stated in its order that, due to current market conditions, it would give the Husband a reasonable time to sell the house to remove Wife from the mortgage. Id. at 3.

The Wife appealed, alleging that the trial court improperly modified the divorce decree, and the Supreme Court of Georgia agreed. In general, “[w]hile the trial court has broad discretion to determine whether [a divorce] decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the…decree.” Id. at 4; quoting Dohn v. Dohn, 276 Ga. 826 (2003). Here, the Supreme Court of Georgia held that it was “clear that the trial court improperly modified the divorce decree by converting Husband’s penalty for failure to remove Wife from the mortgage by an explicitly-stated deadline into a lien on the marital residence.” Id. at 4. A lien “that may possibly be recouped at some indeterminate time in the future” is contrary to a monetary penalty which became due on October 2, 2009 and, thus, the Supreme Court of Georgia reversed this portion of the order. Id. at 5. Though the Court was sympathetic to the hardship the market may place on Husband, allowing him a reasonable time to sell was also an impermissible modification of the divorce decree. Id. at 6.

The Supreme Court of Georgia recently clarified the meaning of "attends school" as it relates to child support obligations. Draughn v. Draughn, S10A1599 (2011). In that case, the parties’ divorce decree stated that the father was to pay child support until the child “reaches the age of eighteen…; provided that if [the child] becomes eighteen years old while enrolled in and attending a secondary school on a full time basis, then the child support shall continue for [said child] until he has graduated from secondary school or reaches the age of twenty, whichever comes first.” Id. Shortly before the child turned 18, he stopped attending private high school and enrolled in an online high school equivalency program, but he failed to complete the online program and did not graduate. Id. at 2. After the father subsequently stopped paying child support, the mother filed a motion for contempt.

An issue addressed by the Supreme Court of Georgia on appeal was whether online schooling satisfies the requirement that the child “attends” a secondary school. The trial court found that online classes were not considered to be “attending school”, but the Supreme Court of Georgia disagreed. (Interestingly, the trial court did not base its contempt judgment on this finding, but the Supreme Court of Georgia was concerned as to whether the trial court’s assertion was correct and, therefore, asked the parties to address the issue so it could rule.)

The Supreme Court of Georgia unequivocally held that “once a child enrolls in approved online courses in an effort to graduate from secondary school, his online attendance constitutes 'attending school' for purposes of extending child support beyond the child’s attainment of the age of majority.” Id. at 4-5. The Court based its ruling on the state government’s endorsement and regulation of online learning opportunities. In doing so, the Court is keeping up with the realities of the digital age and allowing children to participate in alternative forms of education.

The Supreme Court of Georgia recently heard an interesting case regarding self-executing child support provisions in a divorce settlement agreement. In Tanner v. Morris, the parties’ divorce settlement agreement gave the mother primary physical custody and stated that the father was to pay child support to the mother for the three minor children “for so long as each child shall remain in high school and while also living at home with Wife prior to beginning college or other secondary education.” Tanner v. Morris, S10A1227 at 2 (2010) (emphasis added).

Shortly after the divorce was final, the parties’ eldest child began living with the father, and the father ceased making child support payments for that child. Id. The middle child subsequently began living with the father, and the father thereafter ceased making child support payments for that child. Id. at 3. When the father refused the mother’s request for return of the middle child to her custody, the mother filed an action for contempt. Id. The trial court held that the father had child support arrearage for both children, but only held him in contempt for the support for the middle child, since the mother never requested return of the eldest child. Id. The father appealed.

The Supreme Court of Georgia found that the language “while also living at home with Wife” made the child support provision self-executing, meaning that the child support was modifiable without a new order from the court. Id. at 4. Since the Court has previously held self-executing provisions such as this one to be lawful, the Court held that “it was error for the trial court to hold [the father] in contempt for relying on the self-executing provision in the parties’ settlement agreement to reduce his child support obligation when he had [the mother’s] consent to allow the children to live with him." Id. Thus, the portion of the trial court’s judgment as to the arrearage for the eldest child was reversed. Id. at 5. The Court also vacated the arrearage amount for the middle child, holding that “the arrearage amount should be from the time [the father] lost [the mother’s] consent to keep the middle child, rather than the full amount awarded by the trial court." Id.

Final decision-making regarding children and religion can be an important issue for many parents going through a divorce. The Georgia Court of Appeals recently addressed this issue. In Greene v. Greene, the parties entered into a Settlement Agreement in their divorce action, which provided that the parties would have joint legal custody with the mother as the sole physical custodian. Greene v. Greene, A10A1463 (2010). In addition, the mother would have final decision-making authority on all matters related to religion. Id. The parties agreed that “the child would be raised in the Jewish faith, would attend Hebrew school, become Bat Mitzvah and follow other Jewish traditions." Id. at 4. After the father violated this provision of the Settlement Agreement, the mother filed a motion for contempt. The trial court granted the mother’s motion, and the father appealed.

On appeal the father admitted that, in spite of the agreement, he had taken the child to numerous Christian churches, shared Christian prayers with the child, read the Bible to the child, played Christian music for the child, gave the child Christian books and DVDs, and told the child that she was “Jewish on the outside and Christian on the inside.” Id. The father acknowledged that he knew the Settlement Agreement gave the mother final decision making authority on religion, but contended that the trial court’s ruling “restricted his freedom to share his religious beliefs with his child.” Id. at 2.

The Georgia Court of Appeals disagreed with the father. The Court held that when the Settlement Agreement is “clear, unambiguous, and capable of only one interpretation as written, the provision’s plain meaning must be strictly enforced.” Id. at 5, quoting Page v. Baylard, 281 Ga. 586, 587 (1) (642 SE2d 14) (2007). In affirming the trial court’s ruling, the Court said “the Settlement Agreement is clear that Wife had the right to make the final decisions about the child’s religious upbringing, and the trial court correctly concluded that the Agreement governs.” Id. at 5.

Atlanta divorce attorneys are often asked whether a party has to pay alimony or child support when the order requiring alimony/child support has been appealed. The Georgia Supreme Court recently clarified this issue. Robinson v. Robinson, S10A0929 (2010). In Robinson v. Robinson, there was an August 2007 temporary order in the divorce case requiring, among other things, that the husband pay the wife $3,000 per month in temporary alimony. Id. In November 2008, a Final Judgment and Decree of Divorce was entered in the case, providing lump sum permanent alimony to the wife, but no periodic/monthly alimony. Id. at 2. The Georgia Supreme Court denied the husband’s appeal of this award, and remittitur was entered in July 2009. Id. ("Remittitur" means that the appellate court's order goes back to the trial court for final order consistent with the appellate court's decision.) Shortly thereafter, the wife filed a motion for contempt alleging that the husband had not fully paid alimony in June, July and August 2009, while the husband’s appeal was pending. Id. at 3. The trial court found that the husband was not in contempt, and reasoned that the wife was not entitled to periodic alimony under the Final Judgment and Decree, that the Final Judgment and Decree was essentially affirmed by the denial of the husband’s appeal, and that the ruling that no periodic alimony would be due was effective as of the date of the Final Judgment and Decree (November 2008). Id. at 4.

The issue presented to the Georgia Supreme Court on the wife’s appeal was whether permanent awards in a Final Judgment and Decree of Divorce take effect as of the date of the remittitur, or whether they relate back to the date of the Final Judgment and Decree. Id. at 5. In reversing the trial court’s decision as to the alimony issue, the Georgia Supreme Court clarified previously confusing and contradicting precedent on this issue. Specifically, the Court held that “a temporary award continues in effect until the entry of the remittitur in the trial court, and it is from that date forward that any permanent award in a final judgment and decree of divorce has effect.” Id. at 11. Thus, the award does not relate back to the date of the FInal Judgment and Decree of Divorce.

In addition, the Court held that any payments of temporary alimony should not offset lump sum alimony because “temporary alimony is different in character and purpose from an award of permanent alimony because it is intended to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce.” Id. at 10.

The Georgia Supreme Court recently emphasized the importance of the specific language in a Georgia divorce settlement agreement. In that case, the parties jointly purchased a 27-acre tract of land during their marriage. Gonzalez v. Crocket, 287 Ga. 430 (2010). For financing purposes, they subdivided the property into a five-acre tract upon which the marital residence was built, and a 22-acre tract. Id. In the parties' divorce settlement agreement, the husband received the marital residence, which he was to refinance into his own name, and the wife was to quitclaim her interest in that marital residence to the husband. Id. at 431.

Several years later, the husband filed a Petition for Contempt against the wife for failing to quitclaim the 22-acre tract to him. Id. The trial court denied his petition, ruling that the settlement agreement did not address the 22-acre tract and it, therefore, remained jointly owned by the parties. Id.

The husband appealed, and Georgia Supreme Court agreed with the trial court, affirming a long standing rule that “title to property not described in a verdict or judgment is unaffected by the decree and remains titled in the name of the owners as before the decree was entered.” Id. at 432, citing Messaadi v. Messaadi, 282 Ga. 126, 127 (2007). The settlement agreement only mentioned “the marital residence” and did not even mention the other property. In addition, the parties treated the properties as separate during the marriage and subsequent to the divorce. Since the 22-acre tract was not specifically described in the divorce decree, even though it was adjacent to the property on which the marital residence was located, it remained the joint property of the parties and the wife was not obligated to quitclaim her interest to the husband. Id.

In this era of social networking websites such as Facebook and My Space, you can find out just about anything about anyone. You can find out their likes and dislikes, their friends, and what they like to do socially. Often, you can even see pictures to give you a snapshot into a particular person’s life. In general, if you value your privacy, you should be careful of what you post on these social networking sites. If you are involved in a family law case, you should be even more careful. Anything you post can, and likely will, be seen by the opposing party in your case and his/her attorney. If possible, this information will be used against you in your case. For example, if you are going through a divorce and are attempting to gain custody of your children, photos of you habitually drinking could be used against you to show that you are an unfit parent. If you are claiming you have no money to pay child support, photos of you with expensive cars, clothes, or jewelry, or on luxury vacations, will likely hinder your success in your case. It is best to assume that anything you post online will be seen by your adversary and act (and post!) accordingly.

The trial courts in Georgia have the power to punish a person who is in contempt, or fails to pay child support or alimony, “to the same extent as is provided by law for contempt of the court in any other action or proceeding cognizable by the court.” OCGA 19-6-28(a). In addition to other possible punishment, such as jail time, the Georgia Code specifically allows the court to suspend a license or registration, or deny an application for same, if the respondent “has accumulated support arrears equivalent to or greater than the current support due for 60 days.” OCGA 19-6-28.1(b). This applies to a number of licenses and registrations: the license to conduct a trade, business, profession or occupation; the license to hunt or fish; the license to drive a motor vehicle; and the registration of a vehicle in Georgia. Id. In order for the license or registration to be reissued, the respondent must prove to the licensing or registering entity, by “written proof of payment by cash or certified check, notice issued by the court, or notice from a child support receiver,” that he/she is in compliance with the order for support. OCGA 19-6-28.1(c)

The Georgia Supreme Court recently heard a case wherein parties were divorced and the wife was awarded half of the husband’s 401K, which was to be paid to her via a Qualified Domestic Relations Order (“QDRO”). Killingsworth v. Killingsworth, 286 GA. 234 (2009). After the husband failed to comply with provisions of the parties' divorce decree, the wife filed a motion for contempt against him. The trial court found the husband in contempt, ordering him to pay the wife a cash sum which included the 401K funds. Id. at 235. The husband appealed, alleging that the trial court erred in requiring him to pay the 401K funds in cash, as that was an impermissible modification of the divorce decree.

The Georgia Supreme Court agreed with the husband, stating that “[a] trial court may interpret a divorce decree, or clarify a prior order or judgment, in the course of resolving contempt issues placed before it,” but that “a trial court has no power to modify the terms of a divorce decree in a contempt proceeding.” Id. at 236. The Georgia Supreme Court stated that, since the divorce decree specifically stated that the 401K funds were to be transferred to the wife via QDRO, “transmuting this award into a presently due cash obligation of $ 1,850 was ‘so contrary to the apparent intention of the original order as to amount to a modification.’” Id. The Court reversed the portion of the contempt order requiring the husband to pay the 401K funds to the wife in cash, but adamantly stated that the husband was not relieved of his obligation to transfer the funds to the wife via QDRO. Id.

Recently, the Georgia Court of Appeals affirmed the great discretion of the Dekalb County trial court in determining how to handle a father who was in contempt of his child support obligation. Henry v. Beacham, 301 Ga. App. 160 (2009). The father, who was a professional football player, had failed to make child support payments according to the trial court’s temporary order in the case. Id. at 161. In addition, the trial court found that, despite his significant income, he “had encountered financial problems over the course of his professional athletic career.” Id. In light of these facts, the trial court ordered an income deduction order and ordered that the father “fund a $ 250,000 trust, which would be invaded only in the event that [he] failed to pay his obligations.” Id. Any money remaining in the trust would be refunded to the father at the conclusion of his child support obligation.

The father was later found in contempt for failing to fund the trust and appealed, alleging that the trust was not authorized under the child support guidelines. Id. at 162. The Georgia Court of Appeals disagreed, quoting OCGA 19-6-15(c)(2)(B) which states that the trial court is authorized to order the "manner, how often, to whom, and until when the support shall be paid." Id. at 163. The Court further stated that OCGA 19-6-15, “as a whole establishes that the legislature has granted trial courts broad discretion when ruling on child support obligations based on the factors presented to the court at the time of the award.” Id. at 163. Looking at the facts of the case, the Court of Appeals found that the trial court did not abuse its discretion in ordering the father to fund a trust in case he, again, failed to satisfy his child support obligation.

The Court of Appeals recently emphasized the due process required before incarcerating a person for contempt of a divorce decree. In Bauman v. Humphries, according to the parties’ divorce decree, the wife was required to enroll the minor children in private school and pay all associated expenses. Bauman v. Humphries, 300 Ga. App. 263 (2009). Following a hearing, the trial court found the wife in willful contempt of this provision of the divorce decree, but gave her the opportunity to purge herself of the contempt by enrolling the children at the specified school by a specified date. Id. If the wife failed to purge herself, she was to be incarcerated until she complied. Id. at 264. Shortly thereafter, the husband’s attorney sent a letter to the court alleging that the wife failed to comply by the specified date and included a proposed order for incarceration, which the trial court signed. Id.

Upon appeal by the wife, the Court of Appeals reversed, relying on well-settled Supreme Court of Georgia rulings and stating that "in Georgia, a trial court cannot order incarceration pursuant to a self-effectuating order, regarding future acts, without benefit of a hearing." (Citations and punctuation omitted.) Smith v. Smith, 280 Ga. 620, 621 (632 SE2d 83) (2006). The Court went on to state that even when a hearing has been held adjudging a person in contempt, the trial court cannot sign an order of incarceration based upon a letter from an interested individual. Bauman at 264. The Court of Appeals quoted the Supreme Court of Georgia, which held that “the court may only act, at a minimum, on an ‘affidavit . . . from a neutral and disinterested court official or other officer based upon objective information.’” Hall v. Doyle-Hall, 284 Ga. 325, 326 (667 SE2d 81) (2008).

On April 28, 2009, the Georgia Supreme Court reversed an Order of the Dekalb County Superior Court finding a wife in contempt of the equitable distribution portion of the parties’ divorce decree. Farris v. Farris (S09A0302). Following a November 13, 2007 bench trial, Judge Castellani made an oral ruling regarding equitable distribution of the parties’ assets, but did not formalize this ruling until over a month later. The divorce decree provided that the wife shall place the marital residence on the market and shall control all aspects of the listing and sale for six months. If the residence did not sell within six months, the husband would take over control of the listing and sale, and this process shall repeat every six months until the house sold. The parties were to equally split the proceeds from the sale and the house was not to be sold for less than $650,000.00.

After the oral ruling but before entry of the final decree of divorce, the husband offered to purchase the wife’s interest in the house for $325,000, but the wife rejected this offer. Shortly after the final decree was entered, the wife accepted an offer on the house from the parties’ daughter in the amount of $650,150, which the husband rejected. The wife then filed a motion to hold the husband in contempt for rejecting this offer and the husband filed a motion for contempt against the wife for rejecting his offer. The Judge found the wife in contempt.

The Georgia Supreme Court reversed, stating adamantly that the wife could not be held in contempt of the divorce decree because there was no divorce decree entered at the time of husband’s offer. “Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. [Cit.]" (Punctuation omitted.) Hall v. Nelson, 282 Ga. 441, 444 (3) (651 SE2d 72) (2007).” Simply put, an oral Order is not sufficient for contempt. A person is not bound by a divorce decree until it is in writing and entered by the court.

On January 29, 2009, the Georgia Court of Appeals reversed the decision of the trial court, which held that the Husband’s claim for indemnification under the divorce settlement agreement was barred by res judicata. In Stone v. Stone, (A08A2020), the parties separated on August 28, 2005 and the Husband filed for divorce shortly thereafter. During the pending divorce, the Wife obtained five cash advances from an equity line of credit on the marital home and used the money for her own personal expenses. The Wife disclosed this action prior to finalizing the divorce and the parties’ settlement agreement reflected that the Husband would retain the marital home, but that the Wife would be responsible for, indemnify and hold Husband harmless from any liability arising out of this debt.

After the trial court entered a final decree incorporating the terms of the settlement agreement, the Husband sued the Wife for indemnification on the equity line of credit. The trial court dismissed the action after the Wife argued that Husband’s claim was barred by the prior divorce action because it could have been resolved at that time. The Court of Appeals disagreed, stating that “the breach allegation was not – and could not have been – adjudicated in the divorce proceeding, which concluded when the parties settled the case…” The Court of Appeals did not reach the merits of the Husband’s claim, but reversed the trial court’s dismissal.

If your ex-spouse fails to comply with a final divorce decree, there are certain actions, such as filing a motion for contempt, which you can take to compel compliance. We recommend that you first try to obtain compliance yourself by making requests of your ex-spouse in writing before resorting to legal action. Remember to be cordial in the letters – you are usually more likely to get a favorable response from being nice and the letters may be used in Court later. Also, be sure to keep an accurate record of what you receive or have paid and all receipts, as this will be important in Court.

In the event that your attempts to obtain voluntary compliance with the final divorce decree fail, you can file a Petition for Contempt with the Court. Both parties will then have to appear in Court and your ex-spouse will have to explain why he/she has not complied with the Order. If the Court finds that his/her non-compliance is willful (i.e. he/she has the money to pay, but just doesn’t want to), your ex-spouse may be subject to sanctions for contempt which could include incarceration.

While you should not be eager to return to Court, the Court will not look favorably upon an unreasonable delay to enforce your rights. Thus, if your ex-spouse shows a pattern of non-compliance, we recommend addressing the issue as soon as possible, whether with written requests to your ex-spouse or a Petition for Contempt, if the written requests fail.

According to O.C.G.A. § 19-6-28.1(b), the licensing agencies in Georgia can revoke or suspend someone’s license if he or she is in arrears behind in paying child support for a period of more than sixty days. Not only can the Georgia Department of Driver Services suspend someone’s drivers license, but the person’s professional license, such as a license to practice medicine. A business license as well as hunting and fishing licenses can also be suspended. Also, if the non-paying parent applies for the license, the application can be denied based solely on the fact that he or she is in arrears with child support. Georgia is not the first state to implement such a drastic law to punish parents who are in arrears. For years, the states of Ohio, Tennessee, and Arizona, have suspended drivers licenses because someone owes back owed child support to their ex-spouse.

When this law comes into effect in July, there are going to be those who support the law and who oppose it. Some people may feel that it is unfair because if they don’t have a driver’s license, then they cannot get to work to earn the money to pay child support. Prior to revoking or suspending someone’s license, the court will notify the person who is in arrears. If he or she is able and willing to cooperate with the court to make their child support obligation current and to provide evidence to the court, then the court will consider this and may not revoke or suspend his or her license according to O.C.G.A. § 19-6-28.1(b). This law is meant only to punish those who do not plan on becoming current with their child support obligations. Once the court has contacted the person and has determined that he or she is not going to pay the back owed child support, then the court will enter into an order and contact the licensing agency for the person’s failure to pay child support. If the licensing agency revokes or suspends his or her license, then the licensing agency will contact the court according to O.C.G.A. §19-6-28.1(b).

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The Georgia Court of Appeals has entered a decision on November 13, 2008 in regards to the effective date of a modification of child support award. In Hampton v Nesbit(A08A1887) the court of appeals held that the Judge Merck, DeKalb Superior Court, abused its discretion in ordering a delay in the upward modification of child support until such time as the past due child support payments have been made.

In that action, the father had filed a petition seeking joint physical and legal custody of the minor child. The mother counterclaimed for contempt due to father’s past due child support payments. After hearing evidence, the trial court entered an income deduction order against the father which ordered the father to repay the arrearages at a rate of $300 per month beginning October 1, 2007 in order to avoid jail time and increased the amount of child support from $525 per month to $800 per month starting October 1, 2008 (at which point the trial court determined that the father should be caught up with his arrearages). The mother appealed indicating that the trial court could not delay the effective date of the upward award of modification.

The Court of Appeals reversed the trial court and held that the trial court did not have the right to fully delay implementation of the upward modification. Specifically, the Court of Appeals focused its attention upon O.C.G.A. § 19-6-15(k)(3)(B) which provides:

If there is a difference of 30 percent or more between a new award and a Georgia child support order entered prior to January 1, 2007, the court may, at its discretion, phase in the new child support award over a period of up to two years with the phasing in being largely evenly distributed with at least an initial immediate adjustment of not less than 25 percent of the difference and at least one intermediate adjustment prior to the final adjustment at the end of the phase-in period.

Accordingly, the Court of Appeals specifically held that while the trial court did not have authority to completely delay the modification it could have phased in the modification had the statutory requirements been met. Of note, the Court of Appeals also held that past due child support cannot be considered when reducing or increasing income under the child support calculations.

The Georgia Supreme Court issued an order today in Pineres v. George, S08A0773, which has several implications for Georgia law. First, it held that a trial judge has no authority in a contempt proceeding to modify the obligations imposed by a divorce decree. Second, the Georgia Supreme Court held that medical expenses constitute a form a child support.

Of note in this case, the modification being sought was in regards to the psychological expenses for the minor child and there had previously been a petition for modification of child support made less than two years ago. Because Georgia law prohibits a modification of child support less than two years after an order on a previous modification petition by the same spouse, it upheld an awarded of frivolous litigation fees under O.C.G.A. § 9-15-14 against the spouse that was now seeking to modify the amount of medical expenses that they had to pay.