Jones v. Jones

In the Supreme Court of Georgia

Decided: March 25, 2016

S15A1927. JONES v. JONES.
S15A1928. JONES v. JONES.

HUNSTEIN, Justice.

These appeals, related to the enforcement of a 1998 Cobb County divorce

decree, arise from an October 2009 order on a petition for contempt filed by

Denita Jones (“Wife”). In the October 2009 order, the trial court found Nolan

Jones (“Husband”) in willful contempt regarding his child support obligations,

calculating his arrearage at over $119,000. We granted both parties’ respective

applications for discretionary appeal to address various aspects of this order.1

Though we affirm the trial court’s general finding of contempt, we conclude that

the trial court erred in revisiting previously adjudicated arrearages and reverse

the order to the extent it did so. We also conclude that the court erred in

calculating the most recently accrued arrearage, and we reverse that portion of

1
Though the parties’ applications were granted on November 18, 2009, the trial
court record was not transmitted to this Court for docketing until August 2015. The
record is silent regarding the reason for this extraordinary delay.
the order and remand for a re-determination of that arrearage consistent with the

terms of the parties’ divorce decree. In light of these dispositions, we also

reverse the order to the extent it directed Husband to purchase a life insurance

policy. Finally, we conclude that the trial court’s attorney fee award was not

excessive and therefore affirm that portion of the order.

Under the 1998 divorce decree, which incorporated a settlement

agreement between the parties, Wife was awarded primary custody of the

parties’ three minor children, and Husband was required to pay a base sum of

$986 per month in child support, which constituted 28% of Husband’s then-

current annual income of $42,000, plus that same percentage of any annual

income Husband earned in excess of $42,000, up to $85,000.2 Any increase in

2
In pertinent part, the child support provisions provide:

[T]he Husband shall be responsible to the Wife for the sum of $986.00 per
month for the support of the children. This child support has been calculated
in consideration of the Husband’s present income of $42,000.00 per year. In
addition to this sum, the Husband shall pay 28% of any monies over
$42,000.00 up to $85,000.00 per annum as child support.

In addition, the applicable percentage used in calculating the support payment was
to decrease upon the emancipation or aging out of each child:

The percentage of child support will be . . . 28% while it is paid for three
children, 25% at such time it is paid for two children, and 20% at such time it
2
the amount of monthly child support in accordance with this provision was to

be self-executing, and Husband was required to provide his tax returns and

related documentation for verification of his income.

In 2002, Husband filed a petition for modification of custody and child

support, and Wife counterclaimed for contempt. In an order issued in October

2004, the trial court, inter alia, declined to modify child support and found

Husband in contempt for failing to make the required child support payments

and failing to provide the information necessary to calculate the amounts owed.

The trial court determined that Husband was in arrears in the principal amount

of $85,676; together with interest accruing at the rate of 1% per month,

Husband’s total arrearage was set at $121,573.76. Though a follow-up hearing

was held in November 2004, at which the court apparently made oral rulings

regarding a purge schedule, such rulings were never memorialized in a written

order.3 No further proceedings were held with respect to this contempt petition.

is paid for one child.

3
Though it is apparent that such a hearing did take place, the transcript from
such hearing does not appear in the record.
3
 In June 2006, Wife initiated a new contempt proceeding,4 in which she

claimed that Husband had failed to pay his previously adjudicated arrearage and,

with the exception of a single payment of $986, had made no child support

payments for the months since then. The trial court ultimately entered an order

in July 2007 in which it (1) reaffirmed the $85,676 arrearage as set forth in the

October 2004 order; (2) found Husband in arrears in an additional amount of

$66,456, accruing from the October 2004 order through June 2007; and (3)

awarded interest in the amount of 7% per annum on both of these arrearage

amounts, beginning 30 days thenceforth.5 This order thus, in effect, vacated the

October 2004 order to the extent it had awarded interest on the initial arrearage.6

This action was assigned to a different trial judge than the earlier modification
4

and contempt proceeding.
5
The statute governing awards of interest on past-due child support was
amended, effective July 1, 2006, to change the applicable interest rate from 12
percent per annum to 7 percent per annum. Ga. L. 2005, p. 224, §§ 3, 13.
6
While the record reflects that Husband filed a timely motion to set aside or for
new trial, there is no indication as to its disposition. Given the history of the case
since then, we assume that this motion was either denied or abandoned. In addition,
the record reflects that Wife sought and was granted a discretionary appeal in the
Court of Appeals and thereafter filed a timely notice of appeal in the trial court.
Setting aside the issue of whether the Court of Appeals had jurisdiction to grant
Wife’s application in the first place, see Ga. Const. of 1983, Art. 6, Sec. 6, Par. 3 (6)
(appellate jurisdiction over divorce and alimony cases lies in Supreme Court), it is
clear from the record that, as of September 2009, Wife had abandoned the appeal, and
4
 In December 2007, as a result of continuing non-compliance, Husband

was incarcerated; he was released in February 2008, subject to various

conditions, after paying a purge amount of $6,486. Wife subsequently moved

to have Husband incarcerated again for non-compliance, and in October 2009,

the trial court, following a hearing, entered the order that is the subject of this

appeal. In the October 2009 order, the trial court undertook a review of

Husband’s child support obligations and payments from 1998 forward, relying

both on findings and evidence presented in connection with the previous

contempt petitions and on new evidence as to Husband’s income and his

payment history from the date of the divorce. The court then reviewed its

previous arrearage calculations, purporting to do so under OCGA § 9-11-60 (g)

(authorizing trial courts to correct clerical errors). Based on evidence that the

arrearage calculation in the October 2004 order ($85,676) had been grounded

on incorrect information regarding Husband’s payment history, the court revised

that calculation. In addition, the court found that the subsequent arrearage

amount established in the July 2007 order ($66,456) had been calculated based

the Court of Appeals has never considered it.
5
on incorrect information about Husband’s annual income for the applicable time

period, and the court thus modified its calculation of that arrearage as well.

In the end, having recalculated the two previously adjudicated arrearages

and calculated in the first instance the arrearage dating from the July 2007 order,

the trial court arrived at a total arrearage of $119,924.38. Finding Husband in

willful contempt, the court ordered him to pay $5,250 immediately as a purge

amount and $5,000 quarterly thereafter until the arrearage was paid in full. The

court further ordered Husband to purchase a life insurance policy “worth no less

than $100,000” within 45 days, listing Wife as the primary beneficiary and the

minor children as secondary beneficiaries. Finally, the court ordered Husband

to pay Wife $14,000 in attorney fees, under a payment schedule set forth in the

order.

In granting the parties’ applications for discretionary appeal, we directed

the parties to focus on three issues: (1) whether the trial court erred in amending

the prior contempt orders; (2) whether the trial court erred in ordering Husband

to purchase a life insurance policy; and (3) whether the trial court’s award of

attorney fees was excessive. We address these issues seriatim.

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 1. A ruling on a contempt petition, made in writing by a court of

competent jurisdiction and entered in accordance with OCGA § 9-11-58, is a

conclusive judgment as to the acts of the contemnor that were the subject of the

contempt action. See Ramsey v. Ramsey, 231 Ga. 334, 336 (1) (201 SE2d 429)

(1973) (an “order adjudging a person in contempt means the trial court has

passed upon the merits of the case and the order, in effect, is a final disposition

of the contempt matter by that court”); see also Massey v. Massey, 294 Ga. 163

(2) (751 SE2d 330) (2013) (order adjudicating contempt is subject to immediate

appellate review). After the entry of such judgment and the expiration of the

term of court in which it was entered, the rendering trial court is authorized to

amend such judgment only in accordance with OCGA § 9-11-60. See Richard

C. Ruskell, Ga. Practice & Procedure, § 23:21 (2015-2016 ed.); Tremble v.

Tremble, 288 Ga. 666, 668 (1) (706 SE2d 453) (2011).

Under OCGA § 9-11-60, a judgment, unless void on its face, is subject to

challenge in the trial court only by direct attack, in the form of a motion for new

trial or a motion to set aside. OCGA § 9-11-60 (a), (b); see also Facey v. Facey,

281 Ga. 367 (6) (638 SE2d 273) (2006). Motions for new trial are available

7
only to challenge some “intrinsic defect” that does not appear on the face of the

record or pleadings, id. at (c), and must generally be made within 30 days of the

judgment being challenged, OCGA § 5-5-40 (a). Motions to set aside may be

premised on a lack of jurisdiction; some allegation of fraud, accident, mistake,

or “acts of the adverse party unmixed with the negligence or fault of the

movant”; or a “nonamendable defect” appearing on the face of the pleadings or

record. OCGA § 9-11-60 (d). Except for those alleging lack of jurisdiction,

such motions must be made within three years of the entry of the challenged

judgment. Id. at (f). In addition to these modes of review, the trial court retains

the authority to correct “clerical mistakes” and errors “arising from oversight or

omission” at any time, either sua sponte or by motion. Id. at (g).

We assess the trial court’s orders here under these basic principles. We

first find, contrary to Husband’s long-standing contention, that the October 2004

order constituted a final judgment of contempt, subject to modification by the

trial court only in accordance with OCGA § 9-11-60. Husband asserts that the

court’s order was infirm, and therefore not final and subject to modification,

because its findings as to the arrearage and interest amounts are expressed in the

8
narrative portion of the order’s findings of fact and conclusions of law rather

than in its pronouncement of judgment, in which the judgment amount is left

blank. However, the order on its face leaves no doubt that the court was

entering judgment on Wife’s counterclaim for contempt against Husband in the

amount of $85,676 in unpaid child support and $35,897.76 in interest. At most,

the blank space left for the judgment amount constituted a “clerical error” that

would be subject to correction under OCGA § 9-11-60 (g), not an omission that

rendered the order invalid or interlocutory. See Tremble, 288 Ga. at 668-669

(“clerical mistake” refers to typographical errors, the omission of words,

sentences, or paragraphs, and the like); Cagle v. Dixon, 234 Ga. 698 (217 SE2d

598) (1975) (“clerical mistake” refers to an oversight or omission, either

obvious on the face of the record or plainly demonstrated by the evidence). See

also Porter-Martin v. Martin, 280 Ga. 150 (625 SE2d 743) (2006) (contrasting

the correction of clerical mistakes pursuant to OCGA § 9-11-60 (g) with the

modification of substantive provisions). Similarly, the fact that the trial court

reserved the issue of a purge methodology until a later date – and that such

purge methodology was never ultimately reduced to a written judgment – has

no effect on the finality of the determination of Husband’s arrearage. See

9
Hamilton Capital Group, Inc. v. Equifax Credit Information Services, Inc., 266

Ga. App. 1 (1) (596 SE2d 656) (2004) (even where contempt order gives the

contemnor the opportunity to purge before punishment is imposed, such order

considered final for purposes of appeal). Thus, the October 2004 order was a

final adjudication of Husband’s total arrearage, including interest, from January

1998 through August 2004.

In its July 2007 order on Wife’s second contempt petition, the trial court

purported both to adjudicate the arrearage accruing since the October 2004 order

and to review the October 2004 order itself. Though clearly empowered to

adjudicate the arrearage newly accruing since its prior contempt determination,

the trial court lacked the authority to revisit its earlier ruling, as there were no

grounds either alleged or established upon which to set it aside. See OCGA §

9-11-60 (d). While the court ultimately reaffirmed the October 2004 order as

to the principal amount of Husband’s arrearage for January 1998 through

August 2004, the court, in effect, vacated the interest portion of the October

2004 order. This elimination of Husband’s interest obligation was ostensibly

based on representations made at the November 2004 hearing; however,

10
whatever transpired at that hearing was never reduced to any form of written

judgment and thus had no binding effect. See Williams v. Williams, 295 Ga.

113 (1) (757 SE2d 859) (2014) (an oral pronouncement of a trial court is not

binding until reduced to writing and entered as a judgment). Accordingly, to the

extent the July 2007 order purported to modify the substance of the October

2004 order by eliminating Husband’s obligation to pay the $35,897.76 in

interest on the original arrearage, this order was in error.

Nevertheless, we have held that a judgment, though erroneous, is entitled

to enforcement so long as it was entered by a court of competent jurisdiction and

has not been appealed or set aside. See Collins v. Billow, 277 Ga. 604 (2) (592

SE2d 843) (2004) (enforcing contempt order, despite fact that it improperly

modified child support obligation, where it was entered by court of competent

jurisdiction and had not been reversed or set aside); State ex rel. Harrell v.

Harrell, 260 Ga. 202, 202 (391 SE2d 641) (1990) (“[a] judgment which is

erroneous but not void may be attacked only by direct appeal or by a motion to

set aside” and must be enforced if it has not been so attacked). As there is no

question that the trial court here had jurisdiction over the subject matter and the

11
parties, the July 2007 order, though improper to the extent it modified the

October 2004 order by eliminating Husband’s interest obligation, is entitled to

be enforced in its entirety, unless the October 2009 order is deemed to have

properly set it aside.

The October 2009 order, issued in response to the latest in a series of

motions filed by Wife due to Husband’s repeated non-compliance, in effect

vacated both earlier orders and began calculating anew Husband’s arrearage

from 1998 forward. Though the court purported to do so under OCGA § 9-11-

60 (g), its ruling here went far beyond the correction of a “clerical mistake” such

as is countenanced by that statutory subsection. See Porter-Martin, 280 Ga. at

151-152 (court cannot modify substantive provisions of prior order under

OCGA § 9-11-60 (g)); see also Tremble, 288 Ga. at 668-669; Cagle, 234 Ga. at

699. Rather, the court in effect reopened the evidence regarding Husband’s

payment history and income dating back to 1998, thus essentially retrying

Wife’s previous contempt actions far beyond the time period in which such a

proceeding was authorized. See OCGA § 5-5-40 (a), (h). This was error.

Neither can this re-adjudication of past arrearages qualify as a proper order

12
setting aside the July 2007 order, as there is no indication that the trial court

found the existence of any of the limited grounds to set aside a judgment

enumerated in OCGA § 9-11-60 (d). We must therefore reverse the October

2009 order insofar as it purports to re-adjudicate the arrearages as established

in the July 2007 order.

As to the arrearage accruing subsequent to the July 2007 order, this issue

was properly before the court for disposition in the October 2009 order, and the

merits of this determination are thus ripe for appellate review. On review, we

must affirm a trial court’s adjudication of contempt so long as there is “any

evidence” to support it. Facey, 281 Ga. at 370; Pate v. Pate, 280 Ga. 796 (3)

(631 SE2d 103) (2006). As there is ample evidence – and, indeed, little dispute

– that Husband is seriously delinquent on his child support payments, we affirm

the October 2009 order insofar as it found that Husband was in willful violation

of his obligations under the parties’ divorce decree. Insofar as the court made

findings as to the specific amount of the most recently accrued arrearage,

however, we hold that those findings rest on an erroneous construction of the

parties’ divorce decree and, therefore, cannot stand. See Hardigree v. Smith,

13
291 Ga. 239 (728 SE2d 633) (2012) (reversing contempt ruling premised on

erroneous construction of husband’s alimony obligation).

In adjudicating the arrearage accruing from July 2007 through the October

2009 order, the trial court made findings regarding Husband’s income during

that interval, on the basis of which the court calculated Husband’s child support

obligations on a monthly basis. This task was made difficult due to the

incomplete and haphazard evidence Husband offered and the apparent

variability of Husband’s income from month to month – ranging from $0 during

periods of unemployment to over $10,000 per month during one six-month

period. Though it is clear that the trial court labored diligently in making its

calculations, we are constrained to reverse its determination of this last arrearage

amount, because it does not conform to the plain language of the child support

provisions of the divorce decree. For example, for certain intervals within the

relevant time period, the trial court fixed Husband’s monthly obligation at $0,

based on Husband’s unemployment or incarceration. However, nothing in the

divorce decree permits a reduction of Husband’s monthly obligation to $0;

rather, the applicable provisions require Husband to pay at least the established

14
base sum and make no allowance for any reduction to that sum based on a

decrease in Husband’s income. Thus, to the extent the trial court calculated a

$0 obligation for any given month, the court’s determination was in error. We

therefore reverse that portion of the October 2009 order which adjudicates

Husband’s arrearage for the period between July 2007 and October 2009, and

we remand the case to the trial court to recalculate Husband’s arrearage for this

latter period in compliance with the language of the parties’ divorce decree.

In net effect, the above determinations operate to (1) affirm the arrearage

and interest determinations in the July 2007 order as conclusive regarding the

amounts owed up until July 2007; and (2) reverse and remand back for a re-

calculation, in compliance with the language of the parties’ divorce decree, of

the arrearage and any interest thereon accruing between that time and October

2009.

2. We now turn to the life insurance provision of the October 2009 order,

which requires Husband to obtain a $100,000 minimum life insurance policy

within 45 days of the order. As is clear from the transcript from the last of the

hearings leading up to the October 2009 order, the trial court intended the

15
insurance policy provision to function as a remedy for Husband’s more than

$100,000 arrearage. Though it is well-established that a trial court cannot

modify the terms of a divorce decree in a contempt proceeding, a trial court is

authorized to “‘exercise its discretion to craft a remedy for contempt.’” Gooch

v. Gooch, 297 Ga. 189 (773 SE2d 247) (2015). See OCGA § 23-4-31 (“[a]

superior court shall have full power to mold its decrees so as to meet the

exigencies of each case and shall have full power to enforce its decrees when

rendered”). Whether a trial court’s directive is a valid remedy for contempt as

opposed to an improper modification is a fact-intensive inquiry. Compare

Froehlich v. Froehlich, 297 Ga. 551 (4) (775 SE2d 534) (2015) (trial court

properly imposed accounting and transfer requirements on contemnor who had

violated his obligation under a divorce decree to “make available” to his ex-wife

one-half of his accumulated hotel loyalty program points); Ziyad v. El-Amin,

293 Ga. 871 (750 SE2d 337) (2013) (trial court properly ordered contemnor to

pay down principal on property pending its sale, where contemnor had

previously ignored his obligation to list the property for sale and the property

would not be salable without such payments); Smith v. Smith, 293 Ga. 563 (1)

(748 SE2d 456) (2013) (trial court properly ordered contemnor to pay his ex-

16
wife the monetary value of personal property he had disposed of in violation of

divorce decree), with Floyd v. Floyd, 291 Ga. 605 (1) (732 SE2d 258) (2012)

(reversing contempt order to the extent it directed ex-husband to execute a

quitclaim deed to marital residence as remedy for failing to refinance or list it

for sale); Jett v. Jett, 291 Ga. 56 (727 SE2d 470) (2012) (reversing contempt

order to the extent it directed the ex-husband, inter alia, to liquidate his accounts

to pay down debt on marital residence so as to enable him to fulfill his

obligation to refinance the mortgage thereon). In a recent case, we have

signaled our approval, in appropriate circumstances, of a trial court’s directive

that a life insurance policy be purchased as a means of guaranteeing a party’s

receipt of benefits of which she had been deprived because of actions of the

contemnor. Gooch, 297 Ga. at 190-191 (trial court abused its discretion in

failing to devise a remedy for contempt, in the form of a directive to purchase

life insurance or an annuity, where there was evidence that such measures would

constitute a sufficient remedy). In another recent case, however, we reversed a

trial court’s order directing the ex-wife to purchase a life insurance policy or

establish a bank account payable upon her death, as a means of remedying her

failure to name the ex-husband as the survivor beneficiary of her pension.

17
Pollard v. Pollard, 297 Ga. 21 (771 SE2d 875) (2015). This outcome was

required, we held, because there was no evidence that the life insurance policy

or bank account would be “equivalent to” the value of the survivor beneficiary

designation. Id. at 24.

Under the above authorities, we conclude that the trial court’s effort to

craft a means to ensure the payment of Husband’s past arrearage might be

permissible under the particular circumstances of this case. However, because

we are reversing the October 2009 order for a recalculation of Husband’s total

arrearage, we hereby reverse as to the life insurance provision as well. On

remand, we note, any similar remedial provision must be supported by evidence

establishing that the specified remedy is of equivalent monetary value as the

arrearage it is intended to remedy and is clearly designed to secure pre-existing

obligations. Compare Gooch, 297 Ga. at 190-191, with Pollard, 297 Ga. at 24.

In addition, any provision requiring the purchase of life insurance would have

to make clear that Husband’s responsibility to maintain such policy would last

only so long as he failed to pay off his arrearage; so structured, a provision of

18
this kind could constitute a proper remedy for Husband’s contempt rather than

an improper modification of the parties’ divorce decree.

3. Finally, as to the trial court’s award of OCGA § 19-6-2 attorney fees,

we conclude that the award of $14,000 – less than half of what Wife sought –

was not excessive in light of the substantial legal work performed in connection

with the latest contempt action, which was necessitated by Husband’s persistent

non-compliance with his clear obligations to make child support payments and

provide the information necessary to determine the amounts owed. The trial

court did not abuse its discretion in this regard. See Vines v. Vines, 292 Ga. 550

(4) (739 SE2d 374) (2013) (affirming award of attorney fees incurred in

connection with successful contempt motion).

Judgment affirmed in part and reversed in part, and case remanded with

direction. All the Justices concur.

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