Spousal Support - Columbus GA Divorce Attorney - BACKUS v. BACKUS

2009-GA-0624.1655
BACKUS v. BACKUS
BACKUS
v.
BACKUS B/N/F BACKUS.

A09A0129.

Court of Appeals of Georgia.

June 23, 2009

SMITH, Presiding Judge.

A father appeals from a probate court order finding him in wilful contempt for failing to repay money he improperly withdrew from his daughter's custodial account and threatening to jail him if he did not purge himself of the contempt by a certain date. Because the probate court was not authorized to exercise its contempt power under the circumstances presented here, we are constrained to reverse.

The record reveals that Kay Backus, on behalf of her minor daughter, Kelsey Backus, filed suit in the Superior Court of Henry County against Kelsey's father, Gordon Backus, for an accounting and for theft and conversion. The superior court transferred the demand for an accounting to the probate court and reserved ruling on the theft and conversion claim until after "receipt of an official accounting" from the probate court. Following a hearing, the probate court found that Gordon, custodian of Kelsey's banking account established under the Georgia Transfers to Minors Act,(fn1) withdrew $105,078 from the account for his personal use, including "the purchase of an automobile, payment of his personal apartment and residence, travel and attorney's fees." The court then directed Gordon to reimburse his daughter $127,930.69 ($105,078 plus simple and post-judgment interest ) and to transfer the balance of the account to the county guardian.

When Gordon failed to pay,(fn2) Kay filed a motion for contempt. Following a hearing on the motion, the probate court found Gordon in wilful contempt of its earlier order and ruled that he could only purge himself of the contempt by (1) liquidating a retirement account and paying the amount to the county custodian, (2) executing a promissory note to the county custodian for any difference between the amount liquidated and the $127,930.69 owed, and (3) executing a promissory note giving the county custodian a security interest in certain real estate he owned. The probate court ordered further that if Gordon did not purge himself of the contempt by accomplishing these tasks by a certain date, he could be jailed for contempt.

1. In his first enumeration, Gordon contends that because the probate court's order requiring him to pay the sum of $127,930.69 constituted a money judgment, the court erred in using its contempt powers to compel him to pay. We agree.

When a party is decreed to perform a duty or to do any act, other than the mere payment of money, which the court has jurisdiction to adjudge he shall do, if he disobeys, the authority of the court is defied; he is guilty of contempt. But if a court of equity should render a simple decree for money, on a simple money verdict, -- a decree which it may now enforce by the ordinary common law process against property, the failure to pay the decree would not be a contempt, nor could compulsory process against the person of the party in default be resorted to to enforce payment.
(Citation and punctuation omitted.) McKenna v. Gray, 263 Ga. 753, 755 (438 SE2d 901) (1994); see London v. London, 149 Ga. App. 805, 806-807 (1) (256 SE2d 33) (1979); OCGA § 23-4-37 (decree for money is enforced by execution and decree for performance of duty is enforced by attachment against the person for contempt or other process).

Here, the probate court ordered Gordon to pay the amount he misappropriated from his daughter's custodial account plus interest. The judgment was therefore for the payment of money, which cannot be enforced by an action for contempt. See McKenna, supra; Hill v. Paluzzi, 261 Ga. App. 123, 126-127 (2) (581 SE2d 730) (2003) (failure to pay $60,000 pursuant to consent decree cannot be grounds for contempt ruling); see also Paschal v. Melton, 174 Ga. 910, 912 (164 SE2d 757) (1932) (probate court erred in jailing party for contempt for failing to pay money judgment). Kay argues, as did the appellee in McKenna, supra, that the judgment here is analogous to judgments ordering the payment of alimony and child support, the failure of which can constitute contempt. Id. at 756. But in those cases, the use of contempt to enforce a judgment for the payment of money is specifically allowed by statute. Id.; see Webb v. Watkins, 283 Ga. App. 385, 386 (1) (641 SE2d 611) (2007); OCGA § 19-6-28 (a) (court has power to use contempt to enforce its orders in alimony and child support cases).(fn3)

Because the general rule is that contempt is not an available remedy to enforce the payment of a money judgment, the trial court's use of its contempt power here, in the absence of statutory authority, was not authorized. We therefore reverse.

2. In light of our holding in Div. 1, Gordon's remaining enumerations are rendered moot.

Judgment reversed.

Phipps and Bernes, JJ., concur.

_____________________
Footnotes:

FN1. OCGA § 44-5-110 et seq.

FN2. Gordon apparently transferred the balance of the account following a separate motion for contempt filed by Kay.

FN3. We also acknowledge that the trial court's use of contempt to enforce a money judgment may be authorized where the order to pay is interlocutory in nature. See Hamilton Capital Group v. Equifax Credit &c. Inc., 266 Ga. App. 1, 5 (2) (596 SE2d 656) (2004); Warehouse Carpet & c. Inc. v. S.C.J. Assoc., 170 Ga. App. 352, 352-353 (1) (317 SE2d 328) (1984). But this is a narrow exception. Hamilton Capital Group, supra.

GA

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-------------------------
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2009-GA-0624.1655
BACKUS v. BACKUS
BACKUS
v.
BACKUS B/N/F BACKUS.

A09A0129.

Court of Appeals of Georgia.

June 23, 2009

SMITH, Presiding Judge.

A father appeals from a probate court order finding him in wilful contempt for failing to repay money he improperly withdrew from his daughter's custodial account and threatening to jail him if he did not purge himself of the contempt by a certain date. Because the probate court was not authorized to exercise its contempt power under the circumstances presented here, we are constrained to reverse.

The record reveals that Kay Backus, on behalf of her minor daughter, Kelsey Backus, filed suit in the Superior Court of Henry County against Kelsey's father, Gordon Backus, for an accounting and for theft and conversion. The superior court transferred the demand for an accounting to the probate court and reserved ruling on the theft and conversion claim until after "receipt of an official accounting" from the probate court. Following a hearing, the probate court found that Gordon, custodian of Kelsey's banking account established under the Georgia Transfers to Minors Act,(fn1) withdrew $105,078 from the account for his personal use, including "the purchase of an automobile, payment of his personal apartment and residence, travel and attorney's fees." The court then directed Gordon to reimburse his daughter $127,930.69 ($105,078 plus simple and post-judgment interest ) and to transfer the balance of the account to the county guardian.

When Gordon failed to pay,(fn2) Kay filed a motion for contempt. Following a hearing on the motion, the probate court found Gordon in wilful contempt of its earlier order and ruled that he could only purge himself of the contempt by (1) liquidating a retirement account and paying the amount to the county custodian, (2) executing a promissory note to the county custodian for any difference between the amount liquidated and the $127,930.69 owed, and (3) executing a promissory note giving the county custodian a security interest in certain real estate he owned. The probate court ordered further that if Gordon did not purge himself of the contempt by accomplishing these tasks by a certain date, he could be jailed for contempt.

1. In his first enumeration, Gordon contends that because the probate court's order requiring him to pay the sum of $127,930.69 constituted a money judgment, the court erred in using its contempt powers to compel him to pay. We agree.

When a party is decreed to perform a duty or to do any act, other than the mere payment of money, which the court has jurisdiction to adjudge he shall do, if he disobeys, the authority of the court is defied; he is guilty of contempt. But if a court of equity should render a simple decree for money, on a simple money verdict, -- a decree which it may now enforce by the ordinary common law process against property, the failure to pay the decree would not be a contempt, nor could compulsory process against the person of the party in default be resorted to to enforce payment.
(Citation and punctuation omitted.) McKenna v. Gray, 263 Ga. 753, 755 (438 SE2d 901) (1994); see London v. London, 149 Ga. App. 805, 806-807 (1) (256 SE2d 33) (1979); OCGA § 23-4-37 (decree for money is enforced by execution and decree for performance of duty is enforced by attachment against the person for contempt or other process).

Here, the probate court ordered Gordon to pay the amount he misappropriated from his daughter's custodial account plus interest. The judgment was therefore for the payment of money, which cannot be enforced by an action for contempt. See McKenna, supra; Hill v. Paluzzi, 261 Ga. App. 123, 126-127 (2) (581 SE2d 730) (2003) (failure to pay $60,000 pursuant to consent decree cannot be grounds for contempt ruling); see also Paschal v. Melton, 174 Ga. 910, 912 (164 SE2d 757) (1932) (probate court erred in jailing party for contempt for failing to pay money judgment). Kay argues, as did the appellee in McKenna, supra, that the judgment here is analogous to judgments ordering the payment of alimony and child support, the failure of which can constitute contempt. Id. at 756. But in those cases, the use of contempt to enforce a judgment for the payment of money is specifically allowed by statute. Id.; see Webb v. Watkins, 283 Ga. App. 385, 386 (1) (641 SE2d 611) (2007); OCGA § 19-6-28 (a) (court has power to use contempt to enforce its orders in alimony and child support cases).(fn3)

Because the general rule is that contempt is not an available remedy to enforce the payment of a money judgment, the trial court's use of its contempt power here, in the absence of statutory authority, was not authorized. We therefore reverse.

2. In light of our holding in Div. 1, Gordon's remaining enumerations are rendered moot.

Judgment reversed.

Phipps and Bernes, JJ., concur.

_____________________
Footnotes:

FN1. OCGA § 44-5-110 et seq.

FN2. Gordon apparently transferred the balance of the account following a separate motion for contempt filed by Kay.

FN3. We also acknowledge that the trial court's use of contempt to enforce a money judgment may be authorized where the order to pay is interlocutory in nature. See Hamilton Capital Group v. Equifax Credit &c. Inc., 266 Ga. App. 1, 5 (2) (596 SE2d 656) (2004); Warehouse Carpet & c. Inc. v. S.C.J. Assoc., 170 Ga. App. 352, 352-353 (1) (317 SE2d 328) (1984). But this is a narrow exception. Hamilton Capital Group, supra.

GA

Slip Opinions

-------------------------
The Law office of Scot Sikes handles family law in Columbus GA. Scot Sikes is a Columbus GA divorce lawyer & Georgia child custody attorney.

706-494-6900 - www.columbus-divorce.com

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GA Uncontested Divorce - GA Contested Divorce - Separation - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases - Child Custody modification - Child Support Modification - Child Visitation. Columbus GA Divorce lawyer and uncontested divorce attorney.

Columbus GA Divorce - Alimony and Child Support Lawyer- WALTON v. WALTON

009-GA-0713.136
WALTON v. WALTON
WALTON
v.
WALTON

S09F0303.
Supreme Court of Georgia.

June 29, 2009

MELTON, Justice.

Following a bench trial, Willie C. Walton ("Husband") and Aileen Walton ("Wife") were divorced pursuant to a Final Judgment and Decree of Divorce entered on March 27, 2008. After considering the income and other circumstances of both Husband and Wife, the trial court ordered Husband to pay child support in the amount of $1,800 per month (the presumptive amount), and awarded wife three years of periodic alimony. The trial court awarded Husband the marital residence and lot, and ordered him to pay $319,000 to Wife for her equity in the home by May 31, 2008. The trial court also awarded Wife one of Husband's businesses (the Alliance Financial Group), and ordered Husband to pay off the debt that had been used to finance the business. Finally, in a separate July 2, 2008 order, the trial court awarded Wife attorney fees of $50,000. We granted Husband's application for discretionary appeal in this divorce case pursuant to this Court's Family Law Pilot Project, under which this Court will

2

grant all non-frivolous discretionary applications seeking review of a final decree of divorce. Maddox v. Maddox, 278 Ga. 606 (604 SE2d 784) (2004). Husband contends that the trial court erred by failing to properly consider evidence relating to his nonmarital contribution to the purchase of the marital home and his interest in the home; erred in its consideration of the evidence relating to the awards of child support and alimony; and erred in its award of attorney fees to Wife. For the reasons that follow, we affirm.

1. Husband contends that the trial court did not properly determine his interest in the marital home, because the court failed to give him credit for his nonmarital contribution to the purchase of the marital home. See Hubby v. Hubby, 274 Ga. 525 (556 SE2d 127) (2001) ("In applying the `source of the funds' rule to the equitable division of a home which was brought to a marriage, the trial court must determine the contribution of the spouse who brought the home to the marriage, and weigh it against the total nonmarital and marital investment in the property") (citations and punctuation omitted). However, evidence supported the trial court's conclusion that Husband did not use his own personal funds to make the down payment on the home. Specifically, the evidence showed that the down payment on the home was made with funds from

3

Husband and Wife's joint account, and from funds shared by Husband and Wife that Husband had transferred into his own personal account. The transfer of the couple's funds to Husband's account did not make the funds Husband's separate property. Because evidence supported the trial court's conclusion that Husband did not make a nonmarital contribution to the purchase of the marital home, that determination will not be disturbed here.(fn1) Southerland v. Southerland, 278 Ga. 188 (1) (598 SE2d 442) (2004).

In this regard, contrary to Husband's claims, the trial court did not abuse its discretion in refusing to grant Husband more than fifty percent of the equity in the marital residence. Indeed,

an equitable division of marital property does not necessarily mean an equal division. The purpose behind the doctrine of equitable division of marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital property.
(Citations and punctuation omitted.) Wright v. Wright, 277 Ga. 133, 134 (2) (587 SE2d 600) (2003).

4

2. Husband contends that the trial court erred in its factual findings used to support its awards for child support and alimony. Specifically, Husband claims that the trial court erred in finding that his income was $15,708 per month for purposes of calculating child support, and erred in failing to consider any alimony award as a deviation from the presumptive amount of child support. See OCGA § 19-6-1 (b) (child support calculated based on determination of adjusted monthly gross income of both the custodial parent and the noncustodial parent); OCGA § 19-6-1 (c) (alimony awarded in accordance with needs of the party and ability of other party to pay); OCGA § 19-6-15 (i) (requirements for deviation from presumptive amount of child support). However, "this court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses." (Citations and punctuation omitted.) Frazier v. Frazier, 280 Ga. 687, 690 (4) (631 SE2d 666) (2006).

Here, the trial court considered the many personal expenses of Husband that were paid for by his companies -- including two Mercedes Benz lease payments and entertainment and travel expenses. The court also considered a loan application on which Husband had listed his monthly income as $68,750

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2009-GA-0713.136
WALTON v. WALTON
WALTON
v.
WALTON

S09F0303.
Supreme Court of Georgia.

June 29, 2009

MELTON, Justice.

Following a bench trial, Willie C. Walton ("Husband") and Aileen Walton ("Wife") were divorced pursuant to a Final Judgment and Decree of Divorce entered on March 27, 2008. After considering the income and other circumstances of both Husband and Wife, the trial court ordered Husband to pay child support in the amount of $1,800 per month (the presumptive amount), and awarded wife three years of periodic alimony. The trial court awarded Husband the marital residence and lot, and ordered him to pay $319,000 to Wife for her equity in the home by May 31, 2008. The trial court also awarded Wife one of Husband's businesses (the Alliance Financial Group), and ordered Husband to pay off the debt that had been used to finance the business. Finally, in a separate July 2, 2008 order, the trial court awarded Wife attorney fees of $50,000. We granted Husband's application for discretionary appeal in this divorce case pursuant to this Court's Family Law Pilot Project, under which this Court will

2

grant all non-frivolous discretionary applications seeking review of a final decree of divorce. Maddox v. Maddox, 278 Ga. 606 (604 SE2d 784) (2004). Husband contends that the trial court erred by failing to properly consider evidence relating to his nonmarital contribution to the purchase of the marital home and his interest in the home; erred in its consideration of the evidence relating to the awards of child support and alimony; and erred in its award of attorney fees to Wife. For the reasons that follow, we affirm.

1. Husband contends that the trial court did not properly determine his interest in the marital home, because the court failed to give him credit for his nonmarital contribution to the purchase of the marital home. See Hubby v. Hubby, 274 Ga. 525 (556 SE2d 127) (2001) ("In applying the `source of the funds' rule to the equitable division of a home which was brought to a marriage, the trial court must determine the contribution of the spouse who brought the home to the marriage, and weigh it against the total nonmarital and marital investment in the property") (citations and punctuation omitted). However, evidence supported the trial court's conclusion that Husband did not use his own personal funds to make the down payment on the home. Specifically, the evidence showed that the down payment on the home was made with funds from

3

Husband and Wife's joint account, and from funds shared by Husband and Wife that Husband had transferred into his own personal account. The transfer of the couple's funds to Husband's account did not make the funds Husband's separate property. Because evidence supported the trial court's conclusion that Husband did not make a nonmarital contribution to the purchase of the marital home, that determination will not be disturbed here.(fn1) Southerland v. Southerland, 278 Ga. 188 (1) (598 SE2d 442) (2004).

In this regard, contrary to Husband's claims, the trial court did not abuse its discretion in refusing to grant Husband more than fifty percent of the equity in the marital residence. Indeed,

an equitable division of marital property does not necessarily mean an equal division. The purpose behind the doctrine of equitable division of marital property is to assure that property accumulated during the marriage be fairly distributed between the parties. Each spouse is entitled to an allocation of the marital property based upon his or her respective equitable interest therein. Thus, an award is not erroneous simply because one party receives a seemingly greater share of the marital property.
(Citations and punctuation omitted.) Wright v. Wright, 277 Ga. 133, 134 (2) (587 SE2d 600) (2003).

4

2. Husband contends that the trial court erred in its factual findings used to support its awards for child support and alimony. Specifically, Husband claims that the trial court erred in finding that his income was $15,708 per month for purposes of calculating child support, and erred in failing to consider any alimony award as a deviation from the presumptive amount of child support. See OCGA § 19-6-1 (b) (child support calculated based on determination of adjusted monthly gross income of both the custodial parent and the noncustodial parent); OCGA § 19-6-1 (c) (alimony awarded in accordance with needs of the party and ability of other party to pay); OCGA § 19-6-15 (i) (requirements for deviation from presumptive amount of child support). However, "this court will not set aside the trial court's factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses." (Citations and punctuation omitted.) Frazier v. Frazier, 280 Ga. 687, 690 (4) (631 SE2d 666) (2006).

Here, the trial court considered the many personal expenses of Husband that were paid for by his companies -- including two Mercedes Benz lease payments and entertainment and travel expenses. The court also considered a loan application on which Husband had listed his monthly income as $68,750



-------------------------
The Law office of Scot Sikes handles family law in Columbus GA. Scot Sikes is a Columbus GA divorce lawyer & Georgia child custody attorney.

706-494-6900 - www.columbus-divorce.com

Fort Benning GA military divorce lawyer,
GA Uncontested Divorce - GA Contested Divorce - Separation - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases - Child Custody modification - Child Support Modification - Child Visitation. Columbus GA Divorce lawyer and uncontested divorce attorney.

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TITLE 31. HEALTH
CHAPTER 10. VITAL RECORDS

O.C.G.A. § 31-10-22 (2009) - GA Divorce Code

§ 31-10-22. Record of divorces, dissolutions, and annulments

(a) A record of each divorce, dissolution of marriage, or annulment granted by any court of competent jurisdiction in this state shall be filed by the clerk of the court with the department and shall be registered if it has been completed and filed in accordance with this Code section. The record shall be prepared by the petitioner or the petitioner's legal representative on a form prescribed and furnished by the state registrar and shall be presented to the clerk of the court with the petition. In all cases, the completed record shall be a prerequisite to the granting of the final decree.

(b) The clerk of the superior court shall complete and forward to the department on or before the tenth day of each calendar month the records of each divorce, dissolution of marriage, or annulment decree granted during the preceding calendar month.

-------------------------
The Law office of Scot Sikes handles family law in Columbus GA. Scot Sikes is a Columbus GA divorce lawyer & Georgia child custody attorney.

706-494-6900 - www.columbus-divorce.com

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GA Uncontested Divorce - GA Contested Divorce - Separation - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases - Child Custody modification - Child Support Modification - Child Visitation. Columbus GA Divorce lawyer and uncontested divorce attorney.

Divorce Attorney IN Columbus GA - Columbus Georgia Custody Attorney

TITLE 19. DOMESTIC RELATIONS
CHAPTER 6. ALIMONY AND CHILD SUPPORT
ARTICLE 1. GENERAL PROVISIONS

O.C.G.A. § 19-6-10 (2009)

§ 19-6-10. Voluntary separation, abandonment, or driving off of spouse -- Petition for alimony or child support when no divorce pending -- Notice; hearing; order and enforcement; equitable remedies; decree in equity; effect of filing for divorce

When spouses are living separately or in a bona fide state of separation and there is no action for divorce pending, either party, on the party's own behalf or on the behalf of the minor children in the party's custody, if any, may institute a proceeding by petition, setting forth fully the party's case. Upon three days' notice to the other party, the judge may hear the same and may grant such order as he might grant were it based on a pending petition for divorce, to be enforced in the same manner, together with any other remedy applicable in equity, such as appointing a receiver and the like. Should the petition proceed to a hearing before a jury, the jury may render a verdict which shall provide the factual basis for equitable relief as in Code Section 19-6-9. However, such proceeding shall be held in abeyance when a petition for divorce is filed bona fide by either party and the judge presiding has made his order on the motion for alimony. When so made, the order shall be a substitute for the aforesaid decree in equity as long as the petition is pending and is not finally disposed of on the merits.

HISTORY: Ga. L. 1870, p. 413, § 4; Code 1873, § 1747; Code 1882, § 1747; Civil Code 1895, § 2467; Civil Code 1910, § 2986; Code 1933, § 30-213; Ga. L. 1979, p. 466, § 18.


-------------------------
The Law office of Scot Sikes handles family law in Columbus GA. Scot Sikes is a Columbus GA divorce lawyer & Georgia child custody attorney.

706-494-6900 - www.columbus-divorce.com

Fort Benning GA military divorce lawyer,
GA Uncontested Divorce - GA Contested Divorce - Separation - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases - Child Custody modification - Child Support Modification - Child Visitation. Columbus GA Divorce lawyer and uncontested divorce attorney.

Columbus GA Divorce Attorney - Columbus Custody Attorney

XII. OPINIONS AND JUDGMENTS in GA Family law courts
Rule 33. Showing of Concurrence or Dissent.
The judgment line on an opinion shall show on its face, the vote or non-participation of each judge.
(a) Judgment as Precedent.

If an appeal is decided by a Division, a judgment in which all three judges fully concur is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there is a concurrence in the judgment only or a special concurrence without a statement of agreement with all that is said. If the appeal is decided by a seven or twelve-judge Court, a full concurrence by a majority of judges is a binding precedent; provided, however, an opinion is physical precedent only with respect to any Division of the opinion for which there are concurrences in the judgment only or special concurrences without a statement of agreement with all that is said in the Division, resulting in a general concurrence by less than a majority of the judges with respect to the Division. The opinion of a case which is physical precedent shall be marked as such.
(b) Unreported Opinion.

An unreported opinion is neither a physical nor binding precedent but establishes the law of the case as provided by O.C.G.A. § 9-11-60 (h).

-------------------------
The Law office of Scot Sikes handles family law in Columbus GA. Scot Sikes is a Columbus GA divorce lawyer & Georgia child custody attorney.

706-494-6900 - www.columbus-divorce.com

Fort Benning GA military divorce lawyer,
GA Uncontested Divorce - GA Contested Divorce - Separation - Spousal Support - Property Division - Alimony - Military Divorce - Contempt Actions in Divorce Cases - Child Custody modification - Child Support Modification - Child Visitation. Columbus GA Divorce lawyer and uncontested divorce attorney.