Horn v. Shepherd

• Decision Date: 19 November 2012
• Docket Number: No. S12A0890.,S12A0890.
• Citation: 732 S.E.2d 427,292 Ga. 14
• Parties: HORN v. SHEPHERD.
• Court: Georgia Supreme Court

292 Ga. 14

732 S.E.2d 427

HORN

v.SHEPHERD.

No. S12A0890.

Supreme Court of Georgia.

Oct. 15, 2012.

Reconsideration Denied Nov. 19, 2012.

Celeste Findlay Brewer, Decatur, for appellant.

Melissa Lois Darden Griffis, Rosenzweig, Jones, Horne & Griffis, P.C., Taylor Bridges Drake, Clifton Mark Sandlin, Glover & Davis PA, Newnan, for appellee.

NAHMIAS, Justice.

The trial court held Randy Horn (Husband) in contempt for violating his divorce decree with Brandie Shepherd (Wife) and ordered him incarcerated until he purged himself of the contempt. Husband appeals, and we conclude that the trial court erred in requiring him to pay attorney fees associated with the contempt proceeding in order to purge the contempt; we therefore reverse that small portion of the trial court's judgment. Husband's many other enumerations of error are without merit, and we affirm the remainder of the judgment.

1. The parties married in 1998 and divorced in Fayette County on April 21, 2009. As relevant to this appeal, the divorce decree designated Wife as the primary legal custodian of the parties' child, ordered Husband to pay monthly child support of $849.18 plus 86.98% of the child's uninsured medical and dental expenses, and awarded each party a half-interest in Husband's two retirement accounts. The decree also ordered Husband to pay Wife $6,479.13 that he owed her under a temporary support order and awarded Wife $3,600 in attorney fees and costs payable at the rate of $100 per month, with the entire balance becoming due immediately if Husband made one payment late. The decree gave each party a right of first refusal to care for the child whenever the other was planning to leave the child in the care of a non-family member overnight or for four or more hours. The decree mandated prior consultation for all but emergency medical care, gave each party the right to attend all the child's extracurricular activities, obligated each party to keep the other apprised of his or her contact information, and required 30 days' advance written notice before a change of residence.

On July 8, 2009, Wife filed a motion for contempt in Fayette County. On October 22, 2010, the court entered an order (the “Fayette County contempt order”) finding that “through his conduct toward [Wife], [Husband] expresses a general disregard for the orders of this Court” and holding Husband in contempt of the divorce decree. The order directed Husband to purge his contempt by paying Wife, by December 1, 2010, $1,257.32 in past due child support and uninsured medical expenses as well as $1,250 in unpaid attorney fees awarded to Wife in an August 13, 2010 order that is not in the record. Husband was also ordered, beginning on November 1, 2010, to make monthly payments of $150 until he repaid in full both $2,000 in unpaid attorney fees awarded in the divorce decree and the balance of $5,779.13, plus 6.25% interest on that amount, due from the temporary support order. Finally, the court ordered Husband to prepare and execute within 60 days all documents necessary to transfer the unpaid one-half interest in his retirement accounts as they existed at the time of the divorce decree.

Around the end of November 2010, Husband filed a motion for new trial or, in the alternative, to amend the contempt order. However, the motion was returned two to three weeks later stamped “void,” apparently because he did not pay a new filing fee.¹

In January 2011, Husband lost his job and began collecting unemployment compensation. The following month, he stopped paying child support altogether. Around that time, Husband purchased a BMW 545 that he later valued at $17,740, and one of his retirement accounts had a balance of approximately $34,000.

On March 15, 2011, Wife filed a second motion for contempt in Fayette County. After the divorce, Wife had moved to Coweta County, and on April 12, 2011, Husband filed in the Coweta County Superior Court (the “trial court”) a combined motion for contempt and for modification of custody, visitation, and support. To reduce costs, the parties agreed to consolidate the Fayette County contempt proceeding with the Coweta County contempt and modification proceeding, and Wife then dismissed her contempt motion in Fayette County. No further action was taken by either party in Fayette County.

On April 22, 2011, Wife filed an answer and counterclaims for contempt and for modification of visitation in the Coweta County proceeding. On May 11, 2011, the trial court entered a consent order appointing a guardian ad litem for the child. On August 26, 2011, Husband filed a motion to dismiss Wife's counterclaims for lack of jurisdiction and venue.

On August 30, 2011, the trial court held a hearing, and on November 2, 2011, the court entered a final order, nunc pro tunc to August 30, 2011. The order dismissed Wife's counterclaims for lack of jurisdiction. The court also denied Husband's motion to hold Wife in contempt and denied his requested change of custody because he failed to prove any material change in circumstances and failed to prove that Wife willfully violated the divorce decree. The court also denied Husband's request to modify child support. Regarding visitation, the court ordered that the divorce decree's provision for a right of first refusal to provide child care be stricken, finding that it had “caused many problems between the parties.” Finally, the court ordered Husband to pay the guardian ad litem's fees in full and to reimburse any guardian ad litem fees Wife had paid.

On September 22, 2011, the trial court granted Wife's motion for reconsideration of the dismissal of her counterclaims. After a hearing on those claims on September 30, 2011, the court entered a contempt order on November 2, 2011, nunc pro tunc to September 30. The court ruled that Husband had willfully violated the divorce decree and the prior Fayette County contempt order by failing to pay $6,932.36 in past due child support, $850.67 in uninsured medical expenses, and $625 in past due attorney fees. The court also ordered Husband to provide statements on his two retirement accounts since April 2009 and to pay Wife $2,500 in attorney fees associated with the contempt proceeding. The court directed that Husband be jailed until he turned over the statements and paid a total of $10,908.03 to purge the contempt.

As soon as the hearing on Wife's counterclaims ended, Husband filed a “Notice of Intent to Appeal” to trigger an automatic stay of the contempt proceeding and prevent his immediate incarceration. On November 3, 2011, one day after the trial court entered the nunc pro tunc orders, Wife filed a motion for supersedeas bond. On November 9, 2011, the court ordered Husband to post within five days a $14,000 bond from a licensed surety conditioned on satisfaction of the November 2 orders or to appear at a show cause hearing. Husband posted the required bond. On December 2, 2011, Husband filed a notice of appeal to the Court of Appeals, which properly transferred the appeal to this Court on January 31, 2012, as coming within our jurisdiction over “[a]ll divorce and alimony cases.” Ga. Const. of 1983, Art. VI, Sec. VI, Par. III(6). Husband's motion to return the case to the Court of Appeals was denied on May 29, 2012.

2. Husband contends that the trial court erred in allowing Wife to pursue a contempt motion filed as a counterclaim to his modification action. He argues that because the divorce decree and first contempt order were entered in Fayette County, Wife's counterclaim for contempt also had to be filed in Fayette County. He is wrong.

In Buckholts v. Buckholts, 251 Ga. 58, 302 S.E.2d 676 (1983), we held:

[W]here a superior court other than the superior court rendering the original divorce decree acquires jurisdiction and venue to modify that decree, it likewise possesses the jurisdiction and venue to entertain a counterclaim alleging the plaintiff is in contempt of the original decree.

Id. at 61, 302 S.E.2d 676. Husband filed a motion for contempt and modification in the Coweta County trial court, and the parties agreed to consolidate the pending Fayette County contempt proceeding with that action. Because the trial court had undisputed jurisdiction and venue to modify the divorce decree based on Husband's motion, it also possessed the authority to entertain and grant Wife's counterclaim for contempt. See id.

3. Husband argues that the trial court erred in permitting Wife to pursue her counterclaim for contempt based in part on the Fayette County contempt order, which he now claims is subject to a pending motion for new trial. See OCGA § 9–11–62(b) (providing that the filing of a motion for new trial acts as a supersedeas). However, at the September 30, 2011, hearing, Husband's then-counsel told the trial court that the motion for new trial filed in Fayette County had been returned stamped “void” for failure to pay a new filing fee, and she acknowledged that the Fayette County Superior Court was “not considering [the new trial motion] a filed document”; the record suggests that the motion was not timely filed. See OCGA § 15–6–77(e)(1) (providing that “any postjudgment proceeding filed more than 30 days after judgment or dismissal in an action shall be considered as a new case,” for which payment of a new filing fee is required). While counsel asserted that the motion for new trial still appeared on the Fayette County court's docket, the record is devoid of any evidence of a valid, pending motion for new trial in Fayette County, and so the trial court did not err in allowing Wife's counterclaim for contempt based in part on Husband's willful violation of the Fayette County contempt order to proceed.

4. Husband contends that the trial court abused its discretion by refusing to hold Wife in contempt for her alleged willful failure to abide by various terms of the divorce decree relating to visitation, parenting, and sharing contact information. “Trial courts have broad...