Davis v. Davis

• Decision Date: 02 November 1982
• Docket Number: No. 39082,39082
• Citation: 296 S.E.2d 722,250 Ga. 206
• Parties: DAVIS v. DAVIS.
• Court: Georgia Supreme Court

Page 722

296 S.E.2d 722

250 Ga. 206

DAVIS v. DAVIS.

No. 39082.

Supreme Court of Georgia.

Nov. 2, 1982.

C. James McCallar, Jr., Savannah, for Ronald J. Davis.

John J. Sullivan, Savannah, for George Ann Davis.

MARSHALL, Presiding Justice.

Ronald J. Davis appeals from an order holding him in contempt of court for disobeying the final decree in the parties' divorce case. A temporary order in the case had provided that the appellant was to pay the monthly house payments owing on the marital home. The final decree provided that the temporary order "shall remain in full force and effect until the [marital home] is sold; said sale to be consummated within six (6) months from this date at a sales price to be determined by [the appellee-wife, George Ann] ..." The appellant previously had been held in "nonwilful contempt" of court for failure to make further payments on the house, which had not been sold after six months. The judge in that contempt proceeding held that the liability for the payments continued even after the six-month period in which the house was to have been sold; found that the wife had made no effort to obstruct the sale, having made every effort to sell the home through various ads and listings with several licensed real estate brokers; found against the husband's contention that he was financially unable to make the payments; and held that any future failure of compliance with the order would be considered to be wilful. This order was never appealed.

"A court may not modify a previous decree in a contempt order. Gallit v. Buckley, 240 Ga. 621 [242 S.E.2d 89 (1978) ]. However, a court may always interpret and clarify its own orders. Ward v. Ward, 236 Ga. 860 [226 S.E.2d 52 (1976) ]; Roberts v. Roberts, 229 Ga. 689 (194 S.E.2d 100) (1972). The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. Cf. Ward v. Ward, supra. 'The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.' Davis v. Davis, 243 Ga. 421, 422 (254 S.E.2d 370) (1979). The trial court in a contempt case has wide discretion to determine whether his orders have been violated. His determination will not be disturbed on appeal in the absence of an abuse of discretion. Ward v. Ward, supra; Reid v. McRae, 190 Ga. 323 (9 S.E.2d 176) (1940)." Kaufmann v. Kaufmann, 246 Ga. 266, 268(3), 271 S.E.2d 175 (1980).

There can be no "nonwilful contempt of court," for the reason that "there must be a wilful disobedience of the court's decree or judgment by the offending party before he is in contempt of court and can be so adjudged." (Emphasis supplied.) Atwell v. Hill, 226 Ga. 560, 562, 176 S.E.2d 60 (1970) and cit. Perhaps the confusion as to "wilful contempt" has come about by this...