Killingsworth v. Killingsworth, S09A1137.

CourtSupreme Court of Georgia
Citation686 S.E.2d 640
Docket NumberNo. S09A1137.,No. S09A1142.,S09A1137.,S09A1142.
PartiesKILLINGSWORTH v. KILLINGSWORTH (two cases).
Decision Date23 November 2009

Johnston, Owen & Bullard, Lance N. Owen, Griffin, for appellant.

R. Edwin Joyner, Jonesboro, for appellee.

NAHMIAS, Justice.

This appeal involves a contempt sanction arising out of a divorce case. The trial court held Donald Killingsworth in contempt of court for willfully disobeying several provisions of the parties' 2006 divorce decree. We granted Mr. Killingsworth's application for discretionary appeal and directed the parties to address whether the trial court impermissibly modified the divorce decree by requiring Mr. Killingsworth to pay his ex-wife, Cynthia Killingsworth, $1,850 in cash in lieu of transferring one-half of his 401 (k) account to her as ordered by the divorce decree. As explained below, we conclude that this change did constitute an impermissible modification of the divorce decree and therefore reverse that portion of the trial court's judgment. Mr. Killingsworth's other three enumerations of error are without merit, and we affirm the remainder of the contempt judgment, including the finding that Mr. Killingsworth willfully disobeyed the 2006 divorce decree, except for the calculation of attorney fees for the contempt proceeding which the trial court will need to reconsider on remand.

1. The Killingsworths divorced in late 2006. The divorce decree awarded Mr. Killingsworth the couple's motorcycle and extremely run-down mobile home, and Ms. Killingsworth was ordered to leave the residence "in the same condition that it was in at the date of the separation." The divorce decree awarded Ms. Killingsworth $2,000 for her interest in the couple's motorcycle, $1,000 in alimony for moving expenses, alimony of $500 per month for 12 months, and $2,000 in attorney fees. The decree also awarded her "one-half (½) of the Husband's retirement account as of November 13, 2006, together with any gains or losses accruing on said amount subsequent to the hearing" and directed that the "attorney of the Wife shall prepare the QDRO that is necessary to transfer these funds."1

Ms. Killingsworth vacated the mobile home on November 26, 2006, shortly after the final decree was filed. The mobile home was in the same dilapidated condition it was in when the parties separated in 2005, and she locked the deadbolt to the front door on her way out. Ms. Killingsworth learned that Mr. Killingsworth was in the mobile home over the following weekend, and when she went there a few days later, she found the door kicked in, saw running water on the floor in the hallway, and immediately called the police. The mobile home, which was in poor condition to begin with, had been extensively vandalized. The following day, Mr. Killingsworth paid Ms. Killingsworth the $1,000 in alimony he owed her for moving expenses, and he made one monthly alimony payment of $500. From that point forward, Mr. Killingsworth refused to make any of the payments ordered under the divorce decree, citing as justification the vandalism to the mobile home and the provision of the divorce decree ordering Ms. Killingsworth to leave it in the same condition it was in when the parties separated.

Ms. Killingsworth filed a motion for contempt against Mr. Killingsworth in May 2008, and three months later, Mr. Killingsworth filed a motion for contempt against her. On December 12, 2008, the trial court conducted an evidentiary hearing at which it heard testimony from both parties. A month later, the trial court entered substantially identical orders holding Mr. Killingsworth in contempt of court but declining to hold Ms. Killingsworth in contempt. The contempt orders directed Mr. Killingsworth to pay Ms. Killingsworth $11,050. This sum represented the $5,500 in back due monthly alimony awarded in the divorce decree plus the $2,000 for Ms. Killingsworth's interest in the couple's motorcycle and the $2,000 attorney fees award; plus $1,850 for Ms. Killingsworth's one-half interest in Mr. Killingsworth's 401(k) account;2 plus an additional $1,200 in attorney fees for the contempt proceeding; minus $1,500 for three appliances awarded to Mr. Killingsworth in the divorce decree that Ms. Killingsworth allegedly removed from the mobile home.

We granted Mr. Killingsworth's application for discretionary appeal on March 16, 2009, and directed the parties to brief the following question: "Did the trial court err in requiring the husband to pay 401(k) funds in cash upon holding the husband in contempt?" Mr. Killingsworth filed timely notices of appeal from the two substantially identical contempt orders, and the case was submitted for decision on the briefs.

2. Mr. Killingsworth contends that the trial court impermissibly modified the divorce decree in the contempt orders by requiring him to pay Ms. Killingsworth $1,850 in cash in lieu of transferring half his 401(k) funds to her through a QDRO prepared by her counsel, as required by the 2006 divorce decree. We agree.

A trial court may interpret a divorce decree, or clarify a prior order or judgment, in the course of resolving contempt issues placed before it. See Johnston v. Johnston, 281 Ga. 666, 667, 641 S.E.2d 538 (2007). In addition, "[t]he 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." Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (2006) (citation and punctuation omitted). However, a trial court has no power to modify the terms of a divorce decree in a contempt proceeding. Smith v. Smith, 281 Ga. 204, 206, 636 S.E.2d 519 (2006). The test for distinguishing permissible interpretations and clarifications from impermissible modifications is "whether the clarification [or interpretation] is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification." Cason, 281 Ga. at 297, 637 S.E.2d 716 (citation and punctuation omitted).

The trial court's contempt order did not merely "clarify" the provision of the divorce decree awarding Ms. Killingsworth one-half of Mr. Killingsworth's 401(k) account. The divorce decree specified both how Ms. Killingsworth's interest in the 401 (k) account would be calculated and the manner in which the transfer was to be accomplished, including requiring her counsel to prepare the QDRO, which had not been done. We agree with Mr. Killingsworth that transmuting this award into a presently due cash obligation of $1,850 was "so...

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19 cases
  • VanVlerah v. VanVlerah
    • United States
    • Georgia Court of Appeals
    • 26 Mayo 2021
    ...873, 875 (1), 840 S.E.2d 85 (2020). See Friday v. Friday , 294 Ga. 687, 691 (2), 755 S.E.2d 707 (2014) ; Killingsworth v. Killingsworth , 286 Ga. 234, 237 (3), 686 S.E.2d 640 (2009) ; Higdon v. Higdon , 321 Ga. App. 260, 263 (1) (b), 739 S.E.2d 498 (2013). There was some evidence to support......
  • Morton v. Macatee, A18A0514
    • United States
    • Georgia Court of Appeals
    • 15 Mayo 2018
    ...875 (punctuation omitted); accord Cason v. Cason , 281 Ga. 296, 297-98 (1), 637 S.E.2d 716 (2006).14 See Killingsworth v. Killingsworth , 286 Ga. 234, 236 (2), 686 S.E.2d 640 (2009) (reversing contempt-proceeding order that husband pay wife $1850 in cash in lieu of transferring half of his ......
  • Baars v. Freeman., S10A1779.
    • United States
    • Georgia Supreme Court
    • 18 Marzo 2011
    ...Freeman. A trial court's ruling on a contempt motion will be affirmed if there is any evidence to support it. Killingsworth v. Killingsworth, 286 Ga. 234(3), 686 S.E.2d 640 (2009). However, reversal and remand may be necessary if the ruling rests on an “erroneous legal premise.” Nesbit v. N......
  • Horn v. Shepherd
    • United States
    • Georgia Supreme Court
    • 19 Noviembre 2012
    ... ... Killingsworth v. Killingsworth, 286 Ga. 234, 237, 686 S.E.2d 640 (2009) (citation and punctuation omitted). See also [292 Ga. 18]Greene v. Greene, 306 Ga.App. 296, ... ...
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1 books & journal articles
  • Domestic Relations - Barry B. Mcgough and Elinor H. Hitt
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 62-1, September 2010
    • Invalid date
    ...251 (2008)). 152. Id. 153. Id. 154. Id. at 323-24, 687 S.E.2d at 586. 155. Id. at 324, 687 S.E.2d at 586. 156. Id. 157. 286 Ga. 234, 686 S.E.2d 640 (2009). 158. Id. at 235, 686 S.E.2d at 642 (internal quotation marks omitted). 2010] DOMESTIC RELATIONS 121 was held in contempt ofcourt and or......

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