Claybrooks v. Claybrooks, A22A0413

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtPINSON, JUDGE.
Docket NumberA22A0413
Decision Date07 June 2022



No. A22A0413

Court of Appeals of Georgia, Fifth Division

June 7, 2022



After losing her job, Yolanda Claybrooks stopped making her court-ordered child-support payments to her former spouse, John Claybrooks. John sued Yolanda for contempt. The trial court found Yolanda in willful contempt and ordered her to pay the past-due child support, plus attorney fees and interest. We affirm the finding of willful contempt, because evidence supported the trial court's finding that Yolanda failed to pay child support even though she had enough money in her 401(k) account to do so. But we must vacate the awards of attorney fees and interest. The attorney fees were awarded under OCGA § 19-6-28 (a), but that statute does not authorize the award of attorney fees in a contempt action. And the interest was awarded under OCGA § 7-4-12.1, but that statute requires courts to consider four specific factors in


deciding whether and how to apply interest, and the record shows that the trial court did not consider those statutory factors. So we vacate these awards and remand the case for further proceedings consistent with this opinion.


John and Yolanda Claybrooks are the divorced parents of a daughter, M. C. In 2016, the parties entered into a consent order modifying their divorce decree, which provided, among other things, that John would have primary physical custody of M. C. and that Yolanda would pay $700 per month in child support.

About four years later, in 2020, John filed a complaint for contempt against Yolanda. The complaint alleged that Yolanda was behind in her child-support payments by more than $8, 400 and asked the trial court to find her in willful contempt of the 2016 child-support order. For relief, the complaint requested that Yolanda pay all "all monies owed pursuant to the 2016 Order," as well as John's attorney fees and litigation expenses and "such other and further relief as this Court may deem just and equitable." Yolanda responded to the complaint, explaining that she had lost her job in 2019 and that she had not been able to find another one, particularly during the COVID-19 pandemic.


The court held a hearing. During opening statements, Yolanda's counsel explained that Yolanda had about $50, 000 in her 401 (k) account and that she had recently offered to pay her unpaid child support out of that account by the end of that week. The trial court asked: "So we're just really here to argue about [attorney] fees?" Counsel agreed that the question of fees was "basically it." Both sides then presented argument and testimony about two remaining issues: the reasonableness of the amount of attorney fees that John was seeking ($6, 200), and Yolanda's contention that she had already made a series of $25 payments, totaling $575, which should be credited against the amount of child support she owed.

The trial court found that Yolanda was in willful contempt of the 2016 child support order: "I mean, she's obviously in contempt. It's obviously willful. She had the money. She just didn't pay it." The trial court did, however, find that Yolanda's arrearage should be reduced by the $575 she had already paid. The trial court asked John's counsel to prepare an order of payment, leaving blank the amounts of fees and interest so that the court could determine what amounts were reasonable.

The next day the trial court issued its final order. The court found that Yolanda owed $7, 825 in child support, giving her credit for the $575 she had already paid. The court further found that Yolanda was in willful contempt of her child support


obligation, since she had a 401 (k) account with enough funds to cover the unpaid amount. Based on that finding, the court assessed $1, 024 in interest on the unpaid child support under OCGA § 7-4-12.1. Also based on that finding, the court ordered Yolanda to pay $3, 125 in attorney fees under OCGA § 19-6-28 (a), having reduced the fee amount from the $6, 200 that John had originally requested.

Yolanda applied for a discretionary appeal, which we granted.


1. Yolanda contends that the trial court erred by finding her in willful contempt of her child support obligations.

"In order to hold a party in contempt, a trial court must find that the party willfully disobeyed a court order." Wall v. James, 358 Ga.App. 121, 123 (1) (853 S.E.2d 881) (2021) (citation and punctuation omitted; emphasis in original). A trial court has broad discretion in applying that standard. Sullivan v. Harper, 352 Ga.App. 427, 433 (2) (834 S.E.2d 921) (2019). And in reviewing the trial court's application of that standard, "if there is any evidence to support [the] court's determination that a party has willfully disobeyed its order, the finding of contempt will be affirmed." Darroch v. Willis, 286 Ga. 566, 568 (2) (690 S.E.2d 410) (2010).


The trial court's finding of willful contempt here was within its discretion. The court found that Yolanda willfully declined to comply with the 2016 child support order because she had enough money in her 401(k) account to pay what she owed, yet did not pay it. Yolanda contends that her failure to pay was not willful, because she was out of work and because she would incur a penalty for withdrawing funds from her 401(k) account. But "[i]nability to pay is a defense only where the contemnor demonstrates that [she] has exhausted all resources and assets available and is still unable to secure the funds necessary to enable compliance with the court's order." Darroch, 286 Ga. at 569 (2). A 401(k) account is just such an available resource. See id. (upholding finding of willful contempt where former spouse failed to refinance the mortgage on the marital home, as directed in a Marital Dissolution Agreement, despite having available resources, including a 401(k) account and multiple ways to borrow money). And there is no dispute that Yolanda had a 401(k) account, or that she could have withdrawn funds from it to comply with the child-support order. Because this evidence supports the trial court's finding of willful contempt, that finding must be...

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