Cross v. Ivester, A12A0318.

• Decision Date: 03 May 2012
• Docket Number: No. A12A0318.,A12A0318.
• Citation: 315 Ga.App. 760,728 S.E.2d 299,12 FCDR 1653
• Parties: CROSS v. IVESTER.
• Court: Georgia Court of Appeals

315 Ga.App. 760

728 S.E.2d 299

12 FCDR 1653

CROSS

v.IVESTER.

No. A12A0318.

Court of Appeals of Georgia.

May 3, 2012.

Sean Aaron Black, Toccoa, for Cross.

Henry Lee Simmons, Timothy Paul Healy, Toccoa, for Ivester.

MILLER, Judge.

Nathaniel James Cross was found to be in wilful contempt for his failure to pay $22,810.15 in back child support and was sentenced to incarceration on the work release program pending his payment of all past due and current child support, as well as attorney fees. This Court granted Cross's request for discretionary review of the trial court's contempt order. On appeal, Cross argues that (1) the trial court erred in finding that Cross was in wilful contempt for failure to pay child support; (2) the trial court erred in modifying Cross's visitation schedule at the contempt hearing; (3) the trial court exceeded its authority in temporarily revoking Cross's work release assignment; and (4) the trial court erred in not releasing Cross from incarceration when it became aware of his appeal to this Court. For the reasons that follow, we affirm.

“[A] trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation and punctuation omitted.) Hunter v. Hunter, 289 Ga. 9, 11(4), 709 S.E.2d 263 (2011).

Cross has two minor children with Kendra Ivester. In 2006, Cross and Ivester agreed to a consent order awarding them joint legal custody of their two minor children and awarding Ivester primary physical custody. Cross was given visitation rights and ordered to pay child support in the amount of $600 per month. At the time the consent order was entered, Cross was working as an insurance salesman and making a gross monthly income of $2,400. Cross was subsequently terminated in February 2007. Thereafter, Cross began doing various manual labor jobs until he was injured and could no longer do heavy lifting or construction; Cross claims that he then sought employment in the insurance field, but was overqualified for most of those positions. Although Cross was eventually offered a commission-based insurance sales position, Cross explained that he “thought about it and prayed about it, and when it come down to it, [he] said, you know, if I'm going to work commission for someone and split commissions, why don't I just work for myself and just make all the commission.” Consequently, Cross declined the sales position opportunity and instead started his own insurance business. By July 8, 2008, Cross's child support arrearage totaled $4,295. As a result, and because Cross was in the process of starting up his own business, the parties agreed to an amended consent order effective July 15, 2008. The amended consent order modified Cross's child support obligations as follows:

(1) Cross's child support obligation was reduced to $100 per month from August 1, 2008, through April 30, 2009; (2) Cross's child support obligation was increased to $500 per month effective May 1, 2009, through July 31, 2009;

(3) Cross's child support obligation was increased to $650 per month effective August 1, 2009;

(4) Cross was to pay as he could toward the arrearage of $4,295 from August 1, 2008, through April 30, 2009;

(5) Cross would pay at least 25% of his arrearage from May 1, 2009, through April 30, 2010; and

(6) Cross would pay at least 25% of his arrearage in each 12–month period thereafter until satisfied in full.

Following this amended consent order, however, Cross made only one payment of $300 in 2008 and two payments of $25 in 2011. Accordingly, on February 18, 2011, Ivester filed a motion to hold Cross in contempt for failing to pay child support in accordance with the trial court's amended consent order.

A hearing on the contempt action was conducted on June 15, 2011. At the start of the hearing, Ivester also made an oral motion to modify Cross's visitation schedule. On June 28, 2011, the trial court entered an order finding Cross to be in wilful contempt of the provisions set forth in the amended consent order and that as of the date of the contempt hearing, Cross's arrearage totaled $22,810.15. The trial court ordered that Cross be incarcerated at the county jail starting Saturday, July 2, 2011, and remain incarcerated therein on work release Monday through Friday, 7:00 a.m. to 6:00 p.m., until he purged himself of such contempt by payment to Ivester of all past due and current due child support, as well as $1,000 in Ivester's attorney fees. The trial court's order further provided, however, that the incarceration provisions would be suspended upon Cross's payment to Ivester of $5,000 before July 1, 2011, which would be applied toward the arrearage, and so long as all future child support payments in the amount of $650 per month, plus an additional $250 per month to be applied to the arrearage until paid in full, were kept current beginning July 1, 2011. Cross was also required to pay the $1,000 in attorney fees by October 1, 2011, for the suspension of incarceration to remain in effect. The trial court's order further modified Cross's visitation schedule with the minor children.

On August 19, 2011, the trial court found Cross in violation of his work release status and revoked Cross's work release provision for a period of ten days beginning August 21, 2011. On August 22, 2011, following this Court's grant of Cross's application for discretionary appeal, the trial court ordered Cross's immediate release from both incarceration and enforcement of the trial court's order pending appeal.

1. In his first enumeration, Cross argues that the trial court erred in finding him in wilful contempt for failure to pay child support because he allegedly demonstrated that his financial situation rendered him unable to pay.¹ We disagree.

“A person who has failed to pay child support under a court order when he has the ability to pay may be subject to incarceration for either civil or criminal contempt.” (Citation omitted.) Gallaher v. Breaux, 286 Ga.App. 375, 377, 650 S.E.2d 313 (2007). As Cross “was sentenced for an indefinite period until the performance of a specific act (i.e., payment of back support), the contempt in this case was civil.” (Citation and punctuation omitted.) Id.

And if there is any evidence to support the trial court's finding of a wilful refusal to comply with a court order, this [C]ourt will affirm the order of contempt. Thus, the question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion.

(Citations and punctuation omitted.) Id.

Where the person lacks the ability to pay the child support, however, the trial court must release the party from incarcerationfor civil contempt. Id. As the Supreme Court of Georgia has held,

[a] trial court ... may not continue incarceration for civil contempt when the respondent lacks the ability to purge himself. Imprisonment under civil sanctions is always conditional and a party found in contempt may apply for release at any time upon a showing of inability to pay. As we have long held, the moment it appears that there is inability, it would clearly be the duty of the judge to discharge the party. Because the purpose of civil contempt is to provide a remedy and to obtain compliance with the trial court's orders, the justification for imprisonment is lost when that compliance is impossible.

(Footnotes and punctuation omitted.) Hughes v. Ga. Dept. of Human Resources, 269 Ga. 587, 587–588(2), 502 S.E.2d 233 (1998). Here, Cross contends that the trial court's finding of wilful contempt was an abuse of discretion because the trial court did not identify (i) any ability of Cross to have paid the child support amounts previously ordered and found to be in arrears; (ii) where the money to pay these child support amounts would come from; or (iii) where Cross could borrow the funds. Notwithstanding his contentions however, the burden was on Cross, and not the trial court, to affirmatively show his inability to pay. See Weiner v. Weiner, 219 Ga. 44, 131 S.E.2d 561 (1963). Indeed,

[i]nability to pay is a defense only where the contemnor demonstrates that he has exhausted all resources and assets available and is still unable to secure the funds necessary to enable compliance with the court's order. He must show clearly that he has in good faith exhausted all the resources at his command and has made a diligent and bona fide effort to comply with the order of the court, and that he cannot borrow sufficient funds to comply with the obligation.

(Citations and punctuation omitted.) Darroch v. Willis, 286 Ga. 566, 569(2), 690 S.E.2d 410 (2010); see also Mahaffey v. Mahaffey, 238 Ga. 64, 65(2), 230 S.E.2d 872 (1976) (“The burden ... is on the one refusing to pay to show that he has in good faith exhausted all of the resources at his command and has made a diligent and bona fide effort to comply with the decree awarding alimony or child support.”) (citation and punctuation omitted). Here, Cross did not meet this burden.

As an initial matter, Cross did not clearly show that his earnings were insufficient so as to render him unable to pay anything more than $350 in child support payments since July 2008. Although Cross testified generally that he has paid what he can afford in child support after paying his expenses, Cross's only evidence of his earnings consisted of the following: a one-month statement from his business checking account in 2011 showing an available balance of $89.40; tax records for the year 2010 showing an adjusted gross income of $672; and documentation from creditors showing various unpaid bills and expenses in 2011. None of this evidence, however, clearly revealed the amount of Cross's earnings from the time of the July 2008 amended consent order through the present. Cf. Vickers v. Vickers, 220 Ga. 258, 259–260, 138 S.E.2d 308 (1964) (affirming ...