Jones v. Jones

• Decision Date: 25 March 2016
• Docket Number: Nos. S15A1927,S15A1928.,s. S15A1927
• Citation: 787 S.E.2d 682,298 Ga. 762
• Parties: JONES v. JONES; and vice versa.
• Court: Georgia Supreme Court

298 Ga. 762

787 S.E.2d 682

JONES

v.JONES; and vice versa.

Nos. S15A1927

S15A1928.

Supreme Court of Georgia.

March 25, 2016.

Alonzo Nelson, Atlanta, for appellant.

Nolan Jones, pro se.

HUNSTEIN, Justice.

These appeals, related to the enforcement of a 1998 Cobb County divorce decree, arise from an October 2009 order on a petition for contempt filed by Denita Jones (“Wife”). In the October 2009 order, the trial court found Nolan Jones (“Husband”) in willful contempt regarding his child support obligations, calculating his arrearage at over $119,000. We granted both parties' respective applications for discretionary appeal to address various aspects of this order.¹ Though we affirm the trial court's general finding of contempt, we conclude that the trial court erred in revisiting previously adjudicated arrearages and reverse the order to the extent it did so. We also conclude that the court erred in calculating the most recently accrued arrearage, and we reverse that portion of the order and remand for a re-determination of that arrearage consistent with the terms of the parties' divorce decree. In light of these dispositions, we also reverse the order to the extent it directed Husband to purchase a life insurance policy. Finally, we conclude that the trial court's attorney fee award was not excessive and therefore affirm that portion of the order.

Under the 1998 divorce decree, which incorporated a settlement agreement between the parties, Wife was awarded primary custody of the parties' three minor children, and Husband was required to pay a base sum of $986 per month in child support, which constituted 28% of Husband's then-current annual income of $42,000, plus that same percentage of any annual income Husband earned in excess of $42,000, up to $85,000.² Any increase in the amount of monthly child support in accordance with this provision was to be self-executing, and Husband was required to provide his tax returns and related documentation for verification of his income.

In 2002, Husband filed a petition for modification of custody and child support, and Wife counterclaimed for contempt. In an order issued in October 2004, the trial court, inter alia, declined to modify child support and found Husband in contempt for failing to make the required child support payments and failing to provide the information necessary to calculate the amounts owed. The trial court determined that Husband was in arrears in the principal amount of $85,676; together with interest accruing at the rate of 1% per month, Husband's total arrearage was set at $121,573.76. Though a follow-up hearing was held in November 2004, at which the court apparently made oral rulings regarding a purge schedule, such rulings were never memorialized in a written order.³ No further proceedings were held with respect to this contempt petition.

In June 2006, Wife initiated a new contempt proceeding,⁴ in which she claimed that Husband had failed to pay his previously adjudicated arrearage and, with the exception of a single payment of $986, had made no child support payments for the months since then. The trial court ultimately entered an order in July 2007 in which it (1) reaffirmed the $85,676 arrearage as set forth in the October 2004 order; (2) found Husband in arrears in an additional amount of $66,456, accruing from the October 2004 order through June 2007; and (3) awarded interest in the amount of 7% per annum on both of these arrearage amounts, beginning 30 days thenceforth.⁵ This order thus, in effect, vacated the October 2004 order to the extent it had awarded interest on the initial arrearage.⁶

In December 2007, as a result of continuing non-compliance, Husband was incarcerated; he was released in February 2008, subject to various conditions, after paying a purge amount of $6,486. Wife subsequently moved to have Husband incarcerated again for non-compliance, and in October 2009, the trial court, following a hearing, entered the order that is the subject of this appeal. In the October 2009 order, the trial court undertook a review of Husband's child support obligations and payments from 1998 forward, relying both on findings and evidence presented in connection with the previous contempt petitions and on new evidence as to Husband's income and his payment history from the date of the divorce. The court then reviewed its previous arrearage calculations, purporting to do so under OCGA § 9–11–60(g) (authorizing trial courts to correct clerical errors). Based on evidence that the arrearage calculation in the October 2004 order ($85,676) had been grounded on incorrect information regarding Husband's payment history, the court revised that calculation. In addition, the court found that the subsequent arrearage amount established in the July 2007 order ($66,456) had been calculated based on incorrect information about Husband's annual income for the applicable time period, and the court thus modified its calculation of that arrearage as well.

In the end, having recalculated the two previously adjudicated arrearages and calculated in the first instance the arrearage dating from the July 2007 order, the trial court arrived at a total arrearage of $119,924.38. Finding Husband in willful contempt, the court ordered him to pay $5,250 immediately as a purge amount and $5,000 quarterly thereafter until the arrearage was paid in full. The court further ordered Husband to purchase a life insurance policy “worth no less than $100,000” within 45 days, listing Wife as the primary beneficiary and the minor children as secondary beneficiaries. Finally, the court ordered Husband to pay Wife $14,000 in attorney fees, under a payment schedule set forth in the order.

In granting the parties' applications for discretionary appeal, we directed the parties to focus on three issues: (1) whether the trial court erred in amending the prior contempt orders; (2) whether the trial court erred in ordering Husband to purchase a life insurance policy; and (3) whether the trial court's award of attorney fees was excessive. We address these issues seriatim.

1. A ruling on a contempt petition, made in writing by a court of competent jurisdiction and entered in accordance with OCGA § 9–11–58, is a conclusive judgment as to the acts of the contemnor that were the subject of the contempt action. See Ramsey v. Ramsey, 231 Ga. 334, 336(1), 201 S.E.2d 429 (1973) (an “order adjudging a person in contempt means the trial court has passed upon the merits of the case and the order, in effect, is a final disposition of the contempt matter by that court”); see also Massey v. Massey, 294 Ga. 163(2), 751 S.E.2d 330 (2013) (order adjudicating contempt is subject to immediate appellate review). After the entry of such judgment and the expiration of the term of court in which it was entered, the rendering trial court is authorized to amend such judgment only in accordance with OCGA § 9–11–60. See Richard C. Ruskell, Ga. Practice & Procedure, § 23:21 (2015–2016 ed.) ; Tremble v. Tremble, 288 Ga. 666, 668(1), 706 S.E.2d 453 (2011).

Under OCGA § 9–11–60, a judgment, unless void on its face, is subject to challenge in the trial court only by direct attack, in the form of a motion for new trial or a motion to set aside. OCGA § 9–11–60(a), (b) ; see also Facey v. Facey, 281 Ga. 367(6), 638 S.E.2d 273 (2006). Motions for new trial are available only to challenge some “intrinsic defect” that does not appear on the face of the record or pleadings, id. at (c), and must generally be made within 30 days of the judgment being challenged, OCGA § 5–5–40(a). Motions to set aside may be premised on a lack of jurisdiction; some allegation of fraud, accident, mistake, or “acts of the adverse party unmixed with the negligence or fault of the movant”; or a “nonamendable defect” appearing on the face of the pleadings or record. OCGA § 9–11–60(d). Except for those alleging lack of jurisdiction, such motions must be made within three years of the entry of the challenged judgment. Id. at (f). In addition to these modes of review, the trial court retains the authority to correct “clerical mistakes” and errors “arising from oversight or omission” at any time, either sua sponte or by motion. Id. at (g).

We assess the trial court's orders here under these basic principles. We first find, contrary to Husband's longstanding contention, that the October 2004 order constituted a final judgment of contempt, subject to modification by the trial court only in accordance with OCGA § 9–11–60. Husband asserts that the court's order was infirm, and therefore not final and subject to modification, because its findings as to the arrearage and interest amounts are expressed in the narrative portion of the order's findings of fact and conclusions of law rather than in its pronouncement of judgment, in which the judgment amount is left blank. However, the order on its face leaves no doubt that the court was entering judgment on Wife's counterclaim for contempt against Husband in the amount of $85,676 in unpaid child support and $35,897.76 in interest. At most, the blank space left for the judgment amount constituted a “clerical error” that would be subject to correction under OCGA § 9–11–60(g), not an omission that rendered the order invalid or interlocutory. See Tremble, 288 Ga. at 668–669, 706 S.E.2d 453 (“clerical mistake” refers to typographical errors, the omission of words, sentences, or paragraphs, and the like); Cagle v. Dixon, 234 Ga. 698, 217 S.E.2d 598 (1975) (“clerical mistake” refers to an oversight or omission, either obvious on the face of the record or plainly demonstrated by the evidence). See also , 298 Ga. 766>>Porter–Martin v. Martin, 280 Ga. 150, 625 S.E.2d 743 (2006) (contrasting the correction of clerical mistakes pursuant to OCGA § 9–11–60(g) with the modification of substantive provisions). Similarly, the fact that the trial court reserved the issue of a purge methodology until a later date—and that such purge methodology...