Gallaher v. Breaux, A07A0471.

Decision Date06 July 2007
Docket NumberNo. A07A0471.,A07A0471.
Citation286 Ga. App. 375,650 S.E.2d 313
CourtGeorgia Court of Appeals

Daryl G. Lecroy, for appellant.

Anthony M. Zezima, Atlanta, for appellee.

ADAMS, Judge.

Richard Sean Gallaher appeals from the trial court's orders directing him to pay $24,709.96 in back child support, finding him in wilful civil contempt, sentencing him to incarceration and later placing him into a work release program, where his earnings were withheld in payment of child support arrearages. We reverse.

This matter began as a complaint for domestication of a foreign judgment filed by Gallaher's ex-wife, Mary Terese Breaux, on January 11, 2006. Breaux subsequently moved for contempt on the ground that Gallaher had failed to pay court-ordered child support for the couple's two children. Breaux testified that Gallaher was ordered to pay $850 per month in child support and that he owed $24,709.96 in back payments. Gallaher, who represented himself at the motion hearing, testified on cross-examination that he was currently employed at a sandwich shop and was paid $200 per week. He stated that he had made payments of $100 per month toward restitution ordered by a Florida federal court, arising out of an earlier child support dispute. He admitted that he had not paid the monthly $850 child support payments since December 2003.1 Gallaher also stated that he had a lawsuit pending against the United States government for inter alia, back wages and had turned down the government's offer of $120,000 plus a government job with an annual salary of $60,000. Gallaher presented no evidence on his own behalf.

The trial court granted Breaux's motion, finding that Gallaher owed $24,709.96 in back child support and had the present ability to pay. The court determined that Gallaher's nonpayment of the child support was wilful and deliberate, and the judge ordered Gallaher incarcerated until he paid the back child support.

Gallaher moved for reconsideration of the trial court's order, and he was represented by counsel at the hearing on that motion. Gallaher testified that he had no liquid assets did not own an automobile, and had no other assets with which to pay the back child support. Gallaher stated that he could not obtain the money from his family. His parents and family had already given him $55,000 toward his past child support obligations, including funds from his parents' savings and retirement. He also stated that his father had paid $5,000 toward the children's braces within the last six months.

Gallaher was jailed for 13 months in connection with the earlier federal child support matter and, during his incarceration, paid $75 per month toward his support obligations. Since his incarceration, he has been paying $100 per month. After he was released from prison, he went to a halfway house, and obtained the job with the sandwich shop in connection with his federal probation. Gallaher stated that his efforts to obtain other employment had been unsuccessful due in large part to the fact that he was a convicted felon. Nevertheless, Gallaher believed that he could obtain a job through the halfway house within 14 days if he were released from jail. Although he has remarried, he signed a pre-nuptial agreement providing that his wife would have no responsibility for his child support obligations. Gallaher's attorney asked him if he understood what a work release program was and whether he would be agreeable to enter into such a program. Gallaher stated that the program would be better than just being in jail because he would be able to earn money to pay some of his support.

Although Gallaher's attorney requested that he be released from jail in order to get a job and begin to earn money to pay his back child support, the trial court declined to do so. Instead, the trial judge signed an order maintaining the original contempt order, but recommending that Gallaher be considered for a work release program. The order provided that any fees Gallaher earned in that program would go first to the sheriff for his board and fees, with the remainder going to Breaux to pay his child support obligations.

Gallaher now contends that the trial court erred in (1) finding him in wilful contempt where there was no evidence of a wilful refusal to pay child support and in refusing to release him from custody after he showed an inability to pay; (2) placing him in a work release program for an unspecified period of time until the back child support was paid; and (3) ordering that 100 percent of his earnings from the work release program be paid to the plaintiff minus board and fees to the sheriff.

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. Hughes v. Dept. of Human Resources, 269 Ga. 587(1), 502 S.E.2d 233 (1998). Because Gallaher 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. Id. "The essence of civil contempt involved in a proceeding to enforce child support is wilful disobedience of a prior court order." (Citation and punctuation omitted.) Webb v. Watkins, 283 Ga.App. 385(1), 641 S.E.2d 611 (2007). And if there is any evidence...

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  • Appellate Practice and Procedure - Roland F. L. Hall
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-1, September 2008
    • Invalid date
    ...Ga. App. 835, 650 S.E.2d 307 (2007). 96. 286 Ga. App. 835, 650 S.E.2d 307 (2007). 97. Id. at 836, 650 S.E.2d at 309. 98. Id. at 842, 650 S.E.2d at 313 (second alteration in original). 99. Id.; Ga. Ct. App. R. 25(a)(1). 100. Comcast Corp., 286 Ga. App. at 842-43, 650 S.E.2d at 313. 101. 292 ......

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