Floyd v. Floyd

• Decision Date: 01 October 2012
• Docket Number: No. S12A1042.,S12A1042.
• Citation: 291 Ga. 605,732 S.E.2d 258
• Parties: FLOYD v. FLOYD.
• Court: Georgia Supreme Court

291 Ga. 605

732 S.E.2d 258

FLOYD

v.FLOYD.

No. S12A1042.

Supreme Court of Georgia.

Oct. 1, 2012.

Dana A. Azar, Atlanta, Robert Sherwood Stubbs, III, Banks & Stubbs, LLP, Cumming, for appellant.

Joseph Szczecko, Simmons & Szczecko, P.C., Decatur, for appellee.

BLACKWELL, Justice.

Kurt A. Floyd, Sr. and Livia M. Floyd were divorced in 2008. The decree of divorce incorporates the settlement of the parties, in which Kurt and Livia agreed that Kurt would retain title to, and possession of, the marital residence. The decree and incorporated settlement required Kurt to refinance the existing mortgage on the marital residence and to use the proceeds to pay Livia for her share of the equity. If Kurt were unwilling or unable to refinance the marital residence, the decree and incorporated settlement required him, within 90 days of the entry of the decree, to list the marital residence for sale at its fair market value or a price mutually agreeable to the parties. On cross-motions for contempt, the court below found that Kurt violated the terms of the decree in several respects, including by failing to refinance or list the marital residence, and it held Kurt in contempt of the decree. The court directed Kurt to purge his contempt with respect to the marital residence by making a quitclaim deed for the residence in favor of Livia. Kurt appeals from the contempt order, as well as the denial of his cross-motion for contempt.¹

1. We turn first to the contention that the court below impermissibly modified the decree by directing Kurt to purge his contempt by executing a quitclaim deed in favor of Livia. It is settled that, “[w]hile the trial court has broad discretion to determine whether the decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the agreement or decree.” Jett v. Jett, 291 Ga. 56, 58(2), 727 S.E.2d 470 (2012) (citation and punctuation omitted). See also Greenwood v. Greenwood, 289 Ga. 163, 164, 709 S.E.2d 803 (2011). “Although the contempt order may seem reasonable, it violates the firm rule we have established against modifying the property division provisions of a final divorce decree.” Doane v. LeCornu, 289 Ga. 379, 381(1), 711 S.E.2d 673 (2011) (citation and punctuation omitted). “Those provisions equitably divide marital property between the parties, and we have not allowed trial courts later to compel a party who was awarded a specific asset to sell or otherwise convert that asset in order to comply with some other provision of the decree.” Darroch v. Willis, 286 Ga. 566, 570–571(3), 690 S.E.2d 410 (2010) (citations omitted). The divorce decree in this case does not specify that the marital residence is to be conveyed to Livia if Kurt fails to comply with his obligation to either refinance or list it. Consequently, the requirement in the contempt order that Kurt execute a quitclaim deed in favor of Livia amounts to an impermissible modification, not an interpretation, of the divorce decree, and that portion of the contempt order must be reversed. Doane, 289 Ga. at 381(1), 711 S.E.2d 673.

Livia argues that Kurt has waived his contractual interest in the marital residence by his contemptuous conduct, specifically by failing to refinance the marital residence, put it on the market for sale, or pay Livia her share of the equity and by occupying the residence for more than 15 months without paying the mortgage.² But a question of contractual waiver is not the question with which we are presented. Whether or not Kurt waived any contractual rights that he enjoyed as a result of his settlement with Livia,³ that settlement was incorporated into the decree of divorce, and the court below was not exercising any power to reform a contract, but rather its power to address contempt of its judgment. “The rights of the parties after a divorce is granted are based not on the settlement agreement, but on the judgment itself.” Walker v. Estate of Mays, 279 Ga. 652, 653(1), 619 S.E.2d 679 (2005) (citation and punctuation omitted). See also Jordan v. Jordan, 313 Ga.App. 189, 191(1), 721 S.E.2d 119 (2011). So, Livia's motion for contempt “is founded on the final decree, and not on the underlying agreement.” Walker, 279 Ga. at 653(1), 619 S.E.2d 679. And Kurt's rights under that agreement cannot be waived by conduct, as “[t]he obligations and rights created by an incorporated settlement agreement can be affected only by means of an action addressing the underlying divorce decree itself.” ⁴Jordan, 313 Ga.App. at 191(1), 721 S.E.2d 119 (quoting Walker, 279 Ga. at 653(1), 619 S.E.2d 679) (citation and punctuation omitted). Although a decree based on the agreement of the parties may be set aside in an appropriate case under OCGA § 9–11–60(d), the subsequent failure of a party to meet his obligations under the decree is not enumerated in that statute as a ground upon which the decree may properly be set aside. City of Rincon v. Couch, 272 Ga.App. 411, 413–414(3), 612 S.E.2d 596 (2005). “Parties cannot, on their own, extinguish a court order [by alleged violations of it]—an order may be modified or vacated only by the court or by operation of law.” Bradley v. State, 252 Ga.App. 293, 294, 556 S.E.2d 201 (2001). The decree and incorporated settlement in this case were never modified by the court below or by operation of law, and they cannot be modified by the failures of Kurt to comply with his obligations, however egregious, or modified in a contempt proceeding.

“Our ruling does not mean that the trial court is left with no effective means of enforcing the divorce decree.” Darroch, 286 Ga. at 571(3), 690 S.E.2d 410. Kurt “is still obligated to refinance [or list] the marital residence, and the trial court has means to compel his compliance, including incarceration.” Jett, 291 Ga. at 59(2), 727 S.E.2d 470 (citation omitted). And perhaps Kurt might decide on his own to convey his interest in the marital residence to Livia by quitclaim deed so as to fulfill “ his obligations and avoid these consequences. If that happens, however, it will be based upon his decision to take that action with the house specifically awarded to him in the divorce decree, rather than the trial court's impermissible direct modification of that component of the decree's property division.” Doane, 289 Ga. at 382(1), 711 S.E.2d 673.

2. We turn now to the other claims of error that Kurt raises on appeal. First, Kurt contends that the court below erred when it held him in contempt for his failure to carry medical insurance to cover the children and when it required him to reimburse Livia for the cost of medical insurance premiums that she paid during the time that Kurt failed to secure the required coverage.⁵ In pertinent part, the incorporated settlement includes the following provisions, which Kurt claims are ambiguous:

The Wife may seek a more economical health insurance policy, and for so long as health insurance is made available at a reasonable rate through Husband's place of employment, Husband shall maintain his current health insurance covering the minor children.... Husband shall be responsible for said cost of insurance for each minor child for as long as Husband has a child support obligation for that child; however, if Wife is offered more economical insurance which is comparable to the insurance currently carried by Husband, then Wife shall be able to maintain health insurance for the minor children and to pay the premiums associated with said insurance. As dictated by the current child support guidelines, the cost of health insurance is calculated into the formula which determines the amount each party is obligated to pay for child support.

(RT.207) According to Kurt, it is unclear whether he is required to maintain health insurance if it no longer is available at a reasonable rate from his employer or if Livia is offered a comparable policy which is more economical.

As this Court has explained, “[t]he controlling principle to be applied in interpreting decrees based on agreement of the parties is to find the intent of the parties by looking to the four corners of the agreement.” Crosby v. Lebert, 285 Ga. 297, 299, 676 S.E.2d 192 (2009) (citation and punctuation omitted). “But, when a contractual term of a settlement agreement incorporated into a divorce decree is clear, unambiguous, and capable of only one interpretation as written, the plain meaning of the provision must be strictly enforced.” DeRyke v. Teets, 288 Ga. 160, 162(1), 702 S.E.2d 205 (2010) (citation omitted). It is true that the incorporated settlement in this case requires Kurt to maintain his existing medical insurance for only so long as it is available through his employer at a “reasonable rate.” Because Kurt lost his job, he could not be held in contempt for failing to maintain his existing insurance. But the agreement separately requires Kurt to be “responsible” for the cost of medical insurance for each minor child born of the marriage for as long as he has an obligation to pay support for that child. So, regardless of the loss of his existing insurance, Kurt continued to be “responsible” for the cost of insurance.⁶ He is, therefore, accountable for the cost of medical insurance for the children. See Blair v. Blair, 272 Ga. 94, 96(1), 527 S.E.2d 177 (2000) (“court's determination that the final judgment and decree of divorce contemplates that Mr. Blair would pay the expense of a replacement health insurance policy providing coverage equivalent to that in [a previous] policy is supported by the clear language of the judgment”).

The subsequent provision, which concerns an offer to Livia of comparable, but more economical, insurance, does not relieve Kurt of his responsibility for the cost of medical insurance. Instead, that provision merely allows Livia to secure and maintain a less expensive health insurance policy and to “pay” the associated premiums. In other...