Burke v. Burke, S93A0133

• Decision Date: 03 May 1993
• Docket Number: No. S93A0133,S93A0133
• Citation: 263 Ga. 141,429 S.E.2d 85
• Parties: David Marvin BURKE v. Sharyn Ann BURKE.
• Court: Georgia Supreme Court

Page 85

429 S.E.2d 85

263 Ga. 141

David Marvin BURKE v. Sharyn Ann BURKE.

No. S93A0133.

Supreme Court of Georgia.

May 3, 1993.

Reconsideration Denied May 27, 1993.

Robert G. Wellon, Wilson, Strickland & Benson, Samuel T. Brannan, III, Atlanta, for David Martin Burke.

Joseph Szczecko, Simmons, Warren & Szczecko, P.A., Decatur, for Sharyn Ann Burke.

HUNSTEIN, Justice.

Appellee brought a contempt action against appellant, her former husband, for failure to pay alimony and child support under the terms of a temporary order entered May 30, 1990. Following a ruling against appellant on his motion for reconsideration of the temporary order, the trial court entered an order on October 1, 1990 holding appellant in contempt. Appellant purged himself of this contempt but later defaulted on additional terms of the temporary order causing appellee to file another contempt motion on June 3, 1991. On June 27, 1991 appellant filed a Chapter 11 bankruptcy petition; the bankruptcy judge subsequently entered a consent order affording appellee "relief from the automatic stay for the purpose of going forward with all aspects of the divorce action pending in DeKalb Superior Court, including distribution of property and determination of alimony, maintenance and support." Thereafter, on February 28, 1992 counsel for the parties informed the trial court that the parties had achieved a settlement on "all issues" of the divorce proceeding. Counsel tendered a "memorandum of agreement" signed by the parties which, together with certain additional terms announced in court and transcribed by the court reporter, reflected the final settlement reached between the parties. The parties thereupon affirmed on the record their intention that the agreement, as modified during the proceeding, was to serve as the final agreement subject to incorporation into the final judgement and decree. On August 5, 1992 the trial court, sua sponte, entered a final judgment and decree incorporating the "memorandum of agreement" and the transcribed settlement stipulations. Relying on language contained in the "memorandum of agreement," which provided for an automatic finding of contempt of the May 1990 order, the trial court simultaneously ordered that appellant be incarcerated until such time as he purged himself of the contempt finding by paying $125,000 to the appellee in scheduled amounts. ¹ We granted appellant's application for discretionary review to decide whether the trial court erred by failing to hold a hearing before entering the contempt order.

1. Appellant's contention that the trial court lacked authority to incorporate the "memorandum of agreement" into the final judgment and decree of divorce on the ground that the parties did not intend it to be the full and final agreement is without merit.

2. Appellant contends that the trial court erred by incarcerating him for contempt without benefit of a hearing and proof that the order of the trial court had been violated. "In cases of contempt the trial judge is vested with a discretion in determining whether his orders have been violated and how such infringements should be treated; and it has been said that this court will not disturb his judgment, unless it appears that he has abused his discretion. [Cits.]" Patten v. Miller, 190 Ga. 152, 159, 8 S.E.2d 786 (1940). In the present case no hearing was required to determine whether a violation of the May 1990 order had occurred inasmuch as appellant consented to entry of a contempt order finding he had failed to comply with a previous order of the court. Cf. Edwards v. Edwards, 224 Ga. 224, 160 S.E.2d 830 (1968) (proof required to show that respondent had...