FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 28, 2018
In the Court of Appeals of Georgia
A18A1346. BERNARD v. BERNARD.
A18A1347. BERNARD v. BERNARD.
DILLARD, Chief Judge.
In these consolidated appeals, James Bernard appeals from the trial court’s
orders finding him in contempt for failing to pay his ex-wife, Theresa Bernard, child
support and alimony and incarcerating him until he purges the contempt. In Case No.
A18A1347, James argues the trial court erred in denying his motion to set aside a
prior contempt order and his request for a jury trial. In Case No. A18A1346, he
contends the trial court erred in ordering him incarcerated because he lacked the
ability to pay his child support and alimony arrearage. For the reasons set forth infra,
we affirm in both cases.
The record shows that James and Theresa Bernard, who have three children
together, were divorced in 2010. Under the final judgment and decree of divorce,
James was ordered to pay Theresa alimony for 48 months, as well as child support for
their then-minor children. But James failed to fulfill his child support and alimony
obligations, and Theresa filed a contempt action. Then, on November 6, 2012, the
trial court entered a final consent order on Theresa’s petition for contempt. In this
order, the parties stipulated that James owed Theresa $34,728.38 in child support and
$34,728.38 in alimony, and the court required James to immediately pay $10,000 and
make monthly payments toward the remaining arrearage.
But in 2014, Theresa initiated another contempt proceeding, alleging that
James failed to pay both the arrearage and his ongoing child support and alimony
obligations. The matter was then set for a hearing on February 9, 2015, but James
failed to appear. After the hearing concluded, James’s counsel appeared in the
courtroom and advised that he intended to file an answer on James’s behalf, but no
responsive pleading was ever filed. Then, in a March 24, 2015 order, the court found
that James failed to pay the arrearage from the 2012 consent order and had since
accrued an additional child support and alimony arrearage. At the time this order was
entered, James owed Theresa $54,528.38 in child support and $72,528.38 in alimony.
2
As a result, the court ordered the sheriff to arrest and incarcerate James until he paid
$20,000 to purge the contempt. But James, who lives and works out of state, was not
immediately arrested, and more than a year later (in October 2016), he filed a
“Petition to Reconsider Order of Incarceration on Motion for Contempt.” In this
petition, James argued that the March 2015 order should be reconsidered under
OCGA § 9-11-601 due to his counsel’s failure to adequately represent him. Then, on
March 1, 2017, following a hearing at which James appeared, the trial court denied
James’s motion for reconsideration, ordered him immediately incarcerated until he
paid the purge amount, and directed him to comply with his ongoing arrearage
payments. James immediately paid the purge amount of $20,000, and he was released.
It is against this backdrop that Theresa filed, in August 2017, her current
motion for contempt, in which she again alleged that James failed to pay his child
support and alimony arrearage, causing her economic hardship. James answered, and
filed a consolidated demand for a jury trial and motion to set aside the March 2015
1
Under OCGA § 9-11-60 (d): “A motion to set aside may be brought to set
aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject
matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with
the negligence or fault of the movant; or (3) A nonamendable defect which appears
upon the face of the record or pleadings. Under this paragraph, it is not sufficient that
the complaint or other pleading fails to state a claim upon which relief can be granted,
but the pleadings must affirmatively show no claim in fact existed.”
3
judgment under OCGA § 9-11-60 (d)2 for fraud. Then, during the subsequent hearing,
the trial court denied James’s motion to set aside and his request for a jury trial and
heard evidence regarding the arrearage and James’s ability to pay.
Specifically, Theresa testified that James failed to make any payments to her
since purging his prior contempt order and being released from incarceration in
March 2017. James denied that he had the ability to pay the arrearage, but testified
that he works as a district manager for an insurance company and has a monthly
income of $7,353. The evidence also showed that James had just purchased a used car
with a monthly note of $609 and a loan balance of $34,600. James and his current
wife were also leasing a home with 2,300 to 2,400 square feet for $2,300 per month,
and they had recently taken a vacation to Las Vegas. At the time of the hearing, James
had $1,774.25 in one bank account and $9,378 in another account. Moreover, as a
result of the prior contempt order, James liquidated his retirement account. And while
she had not yet received the money, James’s current wife left her job of eight years
in anticipation of the current contempt proceedings, so that she could liquidate her
retirement account worth $34,869 (with up to 30 percent going to penalties and taxes)
to help James pay his child support and alimony obligations. She also liquidated a
2
See id.
4
401 (k) account, receiving $9,371.95. And like James, she owed approximately
$36,000 on her vehicle. Finally, she had approximately $20,000 in equity in a home
she owned and $2,778.26 in a checking account. The evidence also showed that, since
March 2017, James purchased a car for one of the children to use, purchased a new
bed for another child, and sent cash payments of approximately $1,300 directly to the
children. But James acknowledged that he had made no direct payments to Theresa
since March 1, 2017.
At the conclusion of the hearing, in an order entered on November 28, 2017,
the trial court found that James willfully failed or refused to pay his monthly child
support and alimony arrearage in the amount of $107,056.76, and ordered him
incarcerated in the local jail until he paid the full amount. The trial court also ordered
James to pay attorney fees and expenses to Theresa’s counsel within 90 days.
Thereafter, James filed a motion for supersedeas, and Theresa filed a motion
for supersedeas bond. The trial court granted both motions, released James from
custody, and, as a condition of supersedeas, ordered James to pay the bond within ten
days. But James failed to pay the bond, and Theresa filed a motion for revocation of
supersedeas. In the meantime, James filed an application for discretionary review of
5
the court’s November 28, 2017 order.3 And while his application was pending, on
December 18, 2017, the court revoked James’s supersedeas bond and ordered him
incarcerated in the local jail until he either purged himself of contempt or posted
bond.4 James then filed a second application for discretionary review.5 Both of
James’s applications were granted, and these appeals follow.
Case No. A18A1347
1. In his first claim of error, James asserts that the trial court erred in denying
his motion to set aside the March 24, 2015 judgment. But James failed to raise this
argument in his applications for discretionary appeal.6 As a result, this issue is not
properly before us for review.7
3
See Case No. A18D0230.
4
James also filed an emergency motion in this Court seeking to stay
enforcement of the trial court’s order of incarceration, but his motion was denied. See
Case No. A18D0230 (December 13, 2017).
5
See Case No. A18D0240.
6
See Case Nos. A18D0230, A18D0240.
7
See Lutz v. Lutz, 302 Ga. 500, 502 (1) (807 SE2d 336) (2017) (holding that
when a party “did not raise this issue in his application for discretionary review . . .
it is not properly before us for review”); Zekser v. Zekser, 293 Ga. 366, 369 (2) (744
SE2d 698) (2013) (“An application for discretionary review must enumerate the
errors to be urged on appeal, and so, when we grant discretionary review, it
necessarily is limited to the errors actually enumerated in the application.” (citation
6
2. Next, James contends that the trial court erred in denying his request for a
jury trial on the issue of whether he had the ability to pay his child support and
alimony arrearage. We disagree.
A person who fails to pay support under a court order when he has the ability
to do so “may be found guilty of civil or criminal contempt and incarcerated under
either.”8 And the distinction between the two is that “criminal contempt imposes
unconditional punishment for prior acts of contumacy, whereas civil contempt
imposes conditional punishment as a means of coercing future compliance with a
prior court order.”9 Accordingly, when a trial court “orders incarceration for an
indefinite period until the performance of a specified act, the contempt is civil.”10 And
and punctuation omitted)); Jackson v. Irvin, 316 Ga. App. 560, 565 (2) (d) (730 SE2d
48) (2012) (holding that when a party did not raise a claim of error in her application,
the Court could not consider it).
8
Hughes v. Ga. Dep’t of Human Res., 269 Ga. 587, 587 (1) (502 SE2d 233)
(1998); accord Ford v. Ford, 270 Ga. 314, 315 (509 SE2d 612) (1998); Gallaher v.
Breaux, 286 Ga. App. 375, 377 (650 SE2d 313) (2007).
9
City of Cumming v. Realty Dev. Corp., 268 Ga. 461, 462 (2) (491 SE2d 60)
(1997) (punctuation omitted); accord Carey Canada, Inc. v. Hinely, 257 Ga. 150, 151
(356 SE2d 202) (1987); Moton v. State, 332 Ga. App. 300, 301 (772 SE2d 393)
(2015).
10
Hughes, 269 Ga. at 587 (1); accord In re Estate of Banks, 339 Ga. App. 144,
147 (2) (793 SE2d 451) (2016).
7
here, because the trial court ordered James incarcerated only until he pays his past-
due child support and alimony, he was found in civil contempt.11
With regard to civil contempt, it has been repeatedly held that “the respondent
in contempt proceedings is not entitled to a trial by jury except where a jury trial is
expressly provided by statute.”12 And in this case, James asserts that he is entitled to
a jury trial on his ability to pay under OCGA § 15-1-4 (b), which provides that:
11
See Schmidt v. Schmidt, 270 Ga. 461, 462 (3) (510 SE2d 810) (1999) (“It is
well-settled that incarceration under civil contempt is designed to coerce behavior and
must be conditioned on the defendant performing some act, such as paying past-due
alimony or child support.”); Hughes, 269 Ga. at 587 (1) (“Because the trial court
ordered [the father’s] incarceration until he paid $19,945.10, the contempt in this case
was civil in nature.”).
12
Branch v. Branch, 219 Ga. 601, 601 (1) (135 SE2d 269) (1964) (emphasis
supplied); see Hortman v. Ga. Bd. of Dental Examiners, 214 Ga. 560, 563 (1) (105
SE2d 732) (1958) (noting that the constitutional right to a jury trial “preserve[d] the
right of trial by a jury as it existed at common law,” and the “right to trial by a jury,
unless extended by statute, applies only to actions proceeding according to the course
of the common law, and not to special proceedings of a summary character,” such as
contempt proceedings). There is, of course, a right to a jury trial in criminal-contempt
proceedings when the trial court imposes a punishment of six months or more. See
Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826-27 (II) (A)
(114 SCt 2552, 129 LE2d 642) (1994) (holding that a defendant has a constitutional
right to a jury trial for “serious” criminal contempts involving imprisonment of more
than six months); In re Thompson, 339 Ga. App. 106, 109 (1) (793 SE2d 462) (2016)
(“For serious criminal contempt involving imprisonment of more than six months, the
alleged contemnor additionally has the right to a jury trial.”). But as James was found
in civil contempt (which he concedes), he has no constitutional right to a jury trial.
8
No person shall be imprisoned for contempt for failing or refusing to
pay over money under any order, decree, or judgment of any court of
law or any other court of this state when he denies that the money
ordered or decreed to be paid over is in his power, custody, or control
until he has a trial by jury in accordance with the following provisions:
(1) The allegation of the plaintiff, receiver, referee, or any other person
or persons that the defendant accused of contempt has a certain sum of
money within his power, custody, or control, which he is withholding or
refuses or fails to pay over, and the denial of the defendant that he has
the power, custody, or control of the money shall form the issue to be
tried by the jury, and the jury shall decide the issue of fact . . . .
But the Supreme Court of Georgia has long held that a person is not entitled to a jury
trial on the issue of ability to pay or contempt for failure to pay alimony and child
support.13 And while none of our Supreme Court’s opinions appear to address the
13
Brannon v. Brannon, 225 Ga. 677, 677 (3) (171 SE2d 123) (1969) (“The
respondent in the contempt proceeding for failure to pay an alimony judgment was
not entitled to a jury trial[.]”); Blackburn v. Blackburn, 201 Ga. 793, 796 (3) (41
SE2d 519) (1947) (“In a proceeding before a judge of the superior court to enforce
the payment by the father of an allowance made for the support of his children, he is
not entitled to demand a jury to pass upon the question of his ability to comply with
the terms of the decree.”); see Branch, 219 Ga. at 601 (1) (“[Ga. Code. Ann.] §
24-105 does not require a jury trial in the situation here where the respondent is cited
for refusing to pay an alimony judgment[.]”); Stokes v. Stokes, 126 Ga. 804, 804 (3)
(55 SE 1023) (1906) (“The provisions of the Civil Code, § 4046, providing for a trial
by jury in certain proceedings for contempt, has no application to a rule for contempt
issued in the progress of an alimony case[.]”); Lee v. Lee, 97 Ga. 736, 737 (25 SE
9
plain meaning of OCGA § 15-1-4 (b) or its similarly worded predecessor statutes,14
this is ultimately of no consequence. We are bound by these decisions and must apply
174) (1896) (holding that Civil Code § 4711 (1892) had no application in a suit for
the collection of alimony). Prior to the enactment of the Official Code of Georgia
Annotated, the predecessor statutes to OCGA § 15-1-4 (b)—including Ga. Code Ann.
§ 24-105 (1) (1981), Civil Code § 4046 (1895), and Civil Code § 4711 (1892)—all
used the same operative language as OCGA § 15-1-4 (b), set forth supra. For
example, Civil Code § 4711 (1892) provided: “that in no case shall any person be
imprisoned for contempt for failing or refusing to pay over money under any order,
judgment or decree of any court of law or any court of this State, when he denies that
the money ordered or decreed to be paid over is in his power, custody or control, until
he [has] had a trial by jury as hereinafter provided . . .”
14
See supra note 13. As far as we can tell, the closest our Supreme Court has
come to explaining its interpretation of similar statutory language—contained in Civil
Code § 4711 (1892)—was in Lee v. Lee, 97 Ga. at 737, where it noted that “[t]he act
was passed to meet that class of cases where an insolvent debtor or other person is
alleged to have in his custody, power or control, a certain sum of money which he has
been directed by the court to turn over to a receiver, or to the plaintiff or some other
person, and fails or refuses to surrender. The question which the act provides shall be
submitted to the jury makes it clear that the act was intended to apply to that class of
cases only.”
10
them in this case.15 Thus, because James was not entitled to a jury trial under binding
Supreme Court precedent, the trial court did not err in denying his request.16
15
See Ga. Const., art. VI, § VI, ¶ VI (1983) (“The decisions of the Supreme
Court shall bind all other courts as precedents.”); State v. Smith, 308 Ga. App. 345,
352 (1) (707 SE2d 560) (2011) (“[T]he doctrine of stare decisis prohibits this Court
from ignoring the valid precedent of a higher court.”); see also State v. Jackson, 287
Ga. 646, 658 (5) (697 SE2d 757) (2010) (“Stare decisis is an important principle that
promotes the rule of law . . . .”); Kurt T. Lash, Originalism, Popular Sovereignty, and
Reverse Stare Decisis, 93 Va. L. Rev. 1437, 1454 (2007) (noting that “[v]ertical stare
decisis refers to the binding effect of precedent on lower courts[,]” and that “[s]erious
rule of law costs would follow if lower courts were free to ignore precedent
established by a higher court of appeal”).
16
We note that, in its order, the trial court found that James was not entitled to
a jury trial under OCGA § 15-1-4 (c), which provides that “[w]hen a person who is
gainfully employed violates an order of the court granting temporary or permanent
alimony or child support and the judge finds the person in contempt of court, the
sentencing judge may sentence the respondent to a term of confinement in a diversion
center . . .” But subsection (c) does not address the right to a jury trial; rather, it
authorizes a trial court to “sentence those gainfully-employed persons found in
contempt of an order to pay court-ordered alimony or child support to a term of
confinement in a diversion center and participation in a diversion program.” Hughes,
269 Ga. at 588 (Hunstein, J., concurring); see Gallaher v. Breaux, 286 Ga. App. 375,
378 (650 SE2d 313) (2007) (noting that trial court had chosen not to apply OCGA §
15-1-4 (c) and confine the father in a diversion center or place him in work release,
and, instead, the father was incarcerated and lost his job). In any event, James was not
sentenced to confinement in a diversion center and participation in a diversion
program, and, accordingly, OCGA § 15-1-4 (c) has no application in this case.
11
Case No. A18A1346
3. Finally, James argues that the trial court erred in ordering him incarcerated
because he had no ability to pay the child support and alimony arrearage and purge
himself of contempt. Again, we disagree.
To be sure, a trial court may not “continue incarceration for civil contempt
when the respondent lacks the ability to purge himself.”17 But inability to pay is a
defense only when “the contemnor demonstrates that he has exhausted all resources
and assets available and is still unable to secure the funds necessary to enable
compliance with the court’s order.”18 Indeed, the contemnor must show clearly that
“he has in good faith exhausted all the resources at his command and has made a
diligent and bona fide effort to comply with the order of the court, and that he cannot
borrow sufficient funds to comply with the obligation.”19 Importantly, the terms
“wilful refusal” and “ability to pay” are “are not words of art which must appear in
17
Hughes, 269 Ga. at 587 (1); accord Estate of Banks, 339 Ga. App. at 147 (2).
18
Darroch v. Willis, 286 Ga. 566, 569 (2) (690 SE2d 410) (2010); accord
Cross v. Ivester, 315 Ga. App. 760, 764 (1) (728 SE2d 299) (2012); Affatato v.
Considine, 305 Ga. App. 755, 759 (2) (700 SE2d 717) (2010).
19
Darroch, 286 Ga. at 569 (2) (citation and punctuation omitted); accord
Cross, 315 Ga. App. at 764 (1); Affatato, 205 Ga. App. 759-60 (2).
12
every contempt order. It is only necessary that the order specify sufficient facts to
show that the respondent was in contempt of court.”20 And if there is any evidence to
support the trial court’s finding of “a wilful refusal to comply with a court order, this
court will affirm the order of contempt.”21 Finally, the contempt question, including
any factual issues as to the ability to pay, is “for the trial court to determine, and that
court’s adjudication will not be reversed on appeal unless there has been an abuse of
discretion.”22 With these guiding principles in mind, we will now consider James’s
claim of error.
Here, the trial court found that James willfully failed or refused to pay his
child support and alimony arrearage. And there was evidence adduced at the hearing
that James was living a comfortable lifestyle. He rented a house of approximately
20
Floyd v. Floyd, 247 Ga. 551, 553 (1) (277 SE2d 658) (1981) (citation
omitted); accord Ruskin v. AAF-McQuay, Inc., 294 Ga. App. 842, 844 (670 SE2d
517) (2008).
21
Gallaher, 286 Ga. App. at 377; see Darroch, 286 Ga. at 568 (2) (“[I]f there
is any evidence to support a trial court’s determination that a party has willfully
disobeyed its order, the finding of contempt will be affirmed on appeal.”).
22
Mahaffey, 238 Ga. 64, 65 (2) (230 SE2d 872) (1976) (citation omitted); see
Amoakuh v. Issaka, 299 Ga. 132, 133 (2) (786 SE2d 678) (2016) (“Trial courts have
broad discretion to determine if a party is in contempt of its order, and the exercise
of that discretion will not be reversed on appeal unless grossly abused.” (punctuation
omitted)).
13
2,400 square feet, recently vacationed in Las Vegas, and borrowed money to purchase
a vehicle on which he owed $34,600. Moreover, he drew a salary of $7,353 per month
and reported cash accounts worth $1,774.25 and $9,378. Additionally, his current
wife reported $2,778.26 in a checking account, $20,000 in home equity, and
retirement accounts worth $9,371.95 and $34,869 (minus penalties and taxes).
Importantly, James presented no evidence that he attempted to borrow money, had
reduced his spending, or made any attempts to pay his child support and alimony
arrearage. And, had James made any payments since March 2017, “that might have
indicated to the trial court his good faith in attempting to comply with” its orders.23
But he admittedly made no payments since his prior incarceration, and thus failed to
“show clearly that he has in good faith exhausted all the resources at his command
and has made a diligent and bona fide effort to comply with the order of the court,
and that he cannot borrow sufficient funds to comply with the obligation.”24 On this
record, we cannot say that the trial court abused its discretion in concluding that
23
Cross, 315 Ga. App. at 766 (1).
24
Darroch, 286 Ga. at 569 (2) (citation and punctuation omitted).
14
James had the ability to pay and ordering him incarcerated until he paid the full
amount owed as there is some evidence to support its findings.25
For all these reasons, the judgments of the trial court in Case Nos. A18A1346
and A18A1347 are affirmed.
Judgments affirmed. Doyle, P. J., and Mercier, J., concur.
25
See supra notes 21-22 & accompanying text; Amoakuh, 299 Ga. at 133-34
(2) (affirming trial court’s contempt order when father admitted that he failed to
timely pay all child support and record amply supported the trial court’s conclusion
that father “had access to sufficient funds, could have paid the amount due weeks
earlier than he did, and that his failure to pay child support was flagrant and willful”
(punctuation omitted)); Darroch, 286 Ga. at 569 (2) (affirming trial court’s finding
of contempt when, inter alia, the ex-husband “initially tried to delay his obligations
and then made only cursory efforts to refinance, failed to actively pursue applications,
failed to provide requested information to potential lenders, and generally behaved
in a dilatory fashion”); Weiner v. Weiner, 219 Ga. 44, 45 (131 SE2d 561) (1963)
(affirming trial court’s finding of contempt when ex-husband “was able to finance a
honeymoon trip to Europe for himself and his new wife at a cost of $6,500 by selling
a house, and the evidence indicates that his financial condition is such that he can pay
the judgment of the court”). But cf. Gallaher, 286 Ga. App. at 376-378 (reversing
contempt order when the evidence showed that the father “had no liquid assets, did
not own an automobile, . . . had no other assets with which to pay the back child
support[,]” and he could not obtain any more money from his family, which had
already given him $55,000).
15