Claybrooks v. Claybrooks
| Citation | 364 Ga.App. 157,874 S.E.2d 190 |
| Decision Date | 07 June 2022 |
| Docket Number | A22A0413 |
| Parties | CLAYBROOKS v. CLAYBROOKS. |
| Court | United States Court of Appeals (Georgia) |
Divida Gude, Atlanta, for Appellant.
Stearns-Montgomery & Proctor, Melanie Annette Prehodka, for Appellee.
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 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: 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), 690 S.E.2d 410. A 401(k) account is just such an available resource. See id. (). 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 affirmed. Id. ; see also Bernard v. Bernard , 347 Ga. App. 429, 435-36 (3), 819 S.E.2d 688 (2018) ().
2. "Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract." O'Keefe v. O'Keefe , 285 Ga. 805, 805-06, 684 S.E.2d 266 (2009) (citation and punctuation omitted). Yolanda contends that the trial court erred by awarding attorney fees under OCGA § 19-6-28 (a), rather than under OCGA § 19-6-2. But we conclude that neither statute authorized the fee award.
(a) The trial court awarded attorney fees under OCGA § 19-6-28 (a), but no part of that provision authorized that award. The first part of that provision gives courts the power to impose "terms and conditions" they "deem proper to assure compliance" with divorce, child support, or alimony orders. As a general matter, it is not clear when, if ever, attorney fees awarded at the close of litigation would serve as a mechanism for "assur[ing] compliance" with an order. But in any event, there is no indication in the court's order or otherwise that these particular attorney fees were awarded to assure compliance with the modification order at issue. Instead, they were awarded in a contempt proceeding, which is meant to punish a failure to comply with that order. So OCGA § 19-6-28 (a) ’s power to set "terms and conditions" does not authorize this fee award.
Neither are attorney fee awards authorized by the part of OCGA § 19-6-28 (a) that deals with contempt. That part of the provision extends the contempt power to trial courts that have issued divorce, child support, or alimony orders. It does this by giving these courts the "power to punish" a party for violating such orders "to the same extent as is provided by law for contempt of the court in any other action or proceeding." Id. (emphasis supplied). But it is well settled that the contempt power does not inherently include a power to award attorney fees. Minor v. Minor , 257 Ga. 706, 709 (2), 362 S.E.2d 208 (1987) (). Accord Cook v. Campbell-Cook , 349 Ga. App. 325, 332 (3) (b), 826 S.E.2d 155 (2019) ; Tate v. Tate , 340 Ga. App. 361, 364 (3), 797 S.E.2d 227 (2017) ; Stewart v. Tricord, LLC , 296 Ga. App. 834, 835 (1), 676 S.E.2d 229 (2009) ; see also Sampson v. Cureton , 343 Ga. App. 466, 473 (2), 807 S.E.2d 465 (2017) (). If the contempt power does not generally include the power to award attorney fees, then the contempt power that OCGA § 19-6-28 (a) extends to courts "to the same extent" that it is available in other actions also does not include the power to award attorney fees.1 So OCGA § 19-6-28 (a) does not authorize the attorney fee award here.
(b) OCGA § 19-6-2 also does not authorize the attorney fee award. That provision authorizes attorney fees in an "action ... for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case." OCGA § 19-6-2 (a). This is a contempt action that alleged a failure to comply with a consent order that modified custody, visitation, and child-support rights and obligations. Although one might argue that such an action nevertheless "ar[ose] out of" the Claybrookses’ divorce case, our precedent squarely forecloses awarding attorney fees in these circumstances: OCGA § 19-6-2 "does not...
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