Baars v. Freeman., No. S10A1779.

• Court: Supreme Court of Georgia
• Writing for the Court: HUNSTEIN, Chief Justice.
• Citation: 288 Ga. 835,708 S.E.2d 273
• Parties: BAARSv.FREEMAN.
• Docket Number: No. S10A1779.
• Decision Date: 18 March 2011

288 Ga. 835
708 S.E.2d 273
11 FCDR 746

BAARS
v.
FREEMAN.

No. S10A1779.

Supreme Court of Georgia.

March 18, 2011.

[708 S.E.2d 275]

Christopher Todd Adams, General Counsel, Christopher T. Adams, P.C., Lawrenceville, for appellant.Richard Freeman, pro se.HUNSTEIN, Chief Justice.

[288 Ga. 835] This appeal arises from the trial court's order in competing post-divorce contempt proceedings commenced by appellant Jami Lynne Baars and appellee Richard Guy Freeman. We granted Baars' application for discretionary appeal. Finding that the trial court improperly modified the final divorce decree and for other reasons explained below, we reverse in part and remand.

Baars and Freeman were divorced pursuant to the trial court's [288 Ga. 836] final judgment and divorce decree of July 17, 2001, which incorporates the parties' March 12, 2001 settlement agreement. They have a son who was born January 17, 1998. The decree awards legal and physical custody of the child to Baars and orders Freeman to pay $146.25 in weekly child support. The settlement agreement, inter alia, governs Freeman's visitation rights and imposes various obligations on him.

Baars filed a contempt proceeding against Freeman in 2003, alleging that he had failed to pay child support and had violated certain obligations in the settlement agreement. After Freeman failed to appear at a compliance hearing in 2004, the trial court issued an order finding Freeman in contempt for failing to pay child support and failing to verify his compliance with the settlement agreement. The trial court found that Freeman owed $11,608.75 in child support and issued a bench warrant for his arrest, to remain in effect until Freeman paid $4,000 to the Sheriff's Department.

In 2004, Freeman moved to England, his native country. In May 2004, Baars, her new husband, and the child relocated to Holland and resided there until August 2008, when they returned to Georgia. While living in Holland, the child visited with Freeman between two and four months each year. In September 2008, Baars, with the assistance of the Georgia Department of Human Resources (“DHR”), Division of Child Support Services, filed for reciprocal enforcement of child support in the United Kingdom. In May 2009, Baars cut off telephone contact between Freeman and the child, alleging that she did so because Freeman verbally abused her and disparaged her and her family in front of the child.

On May 26, 2009, Freeman filed a motion for contempt and motion for specific performance in the Superior Court of Gwinnett County seeking to enforce his rights to visitation and communication with the child. On June 18, 2009, Baars filed a petition for contempt against Freeman in the trial court based on his alleged ongoing failure to pay child support and to comply with the settlement agreement. Thereafter, Freeman paid the purge amount under the 2004 contempt order. Freeman voluntarily dismissed his motion for specific performance in Gwinnett County, and his motion for contempt was transferred to the trial court and consolidated with Baars' contempt proceeding. The trial court held a hearing on October 28, 2009, during which Freeman testified by telephone from England. The trial court subsequently issued an order finding Baars in contempt for denying Freeman's visitation and communication rights and finding both parties in contempt for disparaging one another. The trial court declined to find that Freeman otherwise was in contempt.

1. Baars argues that the trial court impermissibly modified the decree.

(a) Baars argues that the trial court improperly modified the [288 Ga. 837] decree in ordering that: “Each party shall pay fifty percent of all reasonable medical expenses not covered by the minor child's medical insurance.” We agree.

[708 S.E.2d 276]

“While 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.” Dohn v. Dohn, 276 Ga. 826, 828, 584 S.E.2d 250 (2003). The settlement agreement expressly states: “[Freeman] shall be responsible for and shall pay all reasonable and necessary uninsured medical, dental, and orthodontic expenses of the minor child ...” (Emphasis supplied.) The trial court went far beyond interpreting or clarifying the decree and instead substituted a cost-sharing arrangement for the provision of the settlement agreement that makes Freeman responsible for “all” of his son's reasonable, necessary uninsured medical expenses. See Pineres v. George, 284 Ga. 483(1), 668 S.E.2d 727 (2008) (trial court improperly modified the parties' divorce decree when it shifted final decision-making authority regarding child's health care to co-parenting counselor); Perry v. Perry, 265 Ga. 186(3), 454 S.E.2d 122 (1995) (trial court improperly modified terms of divorce judgment, which provided that father would be responsible for children's uninsured medical and dental expenses, by ruling that father was responsible for one-half of uninsured expenses). We reverse the trial court's order insofar as it states that the parties are to share the child's reasonable uninsured medical expenses.

(b) Baars next maintains that the trial court in effect modified the decree by refusing to find Freeman in contempt of his obligation under the settlement agreement to provide health insurance for the child. The settlement agreement provides that, while Freeman is paying child support, he must “maintain medical and dental insurance coverage on [the] child under the plan presently available to him or under another plan or plans equivalent thereto.” The trial court concluded that Freeman was not in contempt of this obligation, but it did not go further and declare that the obligation to provide health insurance does not exist or purport to relieve Freeman of that obligation. Compare Smith v. Smith, 281 Ga. 204(2), 636 S.E.2d 519 (2006) (trial court “did far more than refuse to find the Husband in contempt because of purported difficulty in compliance with the decree; it substantially modified the decree”); Dohn, supra, 276 Ga. at 828, 584 S.E.2d 250 (trial court “went beyond interpretation and into the realm of modification”; it ruled, not just that husband was not in contempt, but also that he had no obligation to maintain life insurance policy discussed in decree). As such, the trial court did not improperly modify the decree.

2. Baars contends that the trial court erred in failing to make [288 Ga. 838] additional findings of contempt against Freeman. A trial court's ruling on a contempt motion will be affirmed if there is any evidence to support it. Killingsworth v. Killingsworth, 286 Ga. 234(3), 686 S.E.2d 640 (2009). However, reversal and remand may be necessary if the ruling rests on an “erroneous legal premise.” Nesbit v. Nesbit, 241 Ga. 351(2), 245 S.E.2d 303 (1978).

(a) Baars argues that the trial court erred in finding that Freeman was not in contempt for failing to pay child support due to, in its words, “a lack of evidence of an amount certain and those proceedings in the Courts of the United Kingdom.”

At the contempt hearing, Baars' counsel advised the trial court that the parties were stipulating “that, according to the terms of the [decree], the amount of child support that would be owed as of today would be [$53,389].” Freeman admitted on cross-examination that his trial counsel...