Bernard v. Bernard, A18A1346

• Decision Date: 28 September 2018
• Docket Number: A18A1347,A18A1346
• Citation: 347 Ga.App. 429,819 S.E.2d 688
• Parties: BERNARD v. BERNARD. Bernard v. Bernard.
• Court: Georgia Court of Appeals

347 Ga.App. 429

819 S.E.2d 688

BERNARD

v.BERNARD.

Bernard

v.Bernard.

A18A1346

A18A1347

Court of Appeals of Georgia.

September 28, 2018

Robert L. Sirianni, for Appellant.

Norman H. Cuadra, Lawrenceville, for Appellee.

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. 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 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 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 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

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 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:

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 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 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

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...