Kirkendall v. Decker, S99A0088.

• Decision Date: 10 May 1999
• Docket Number: No. S99A0088.,S99A0088.
• Citation: 271 Ga. 189,516 S.E.2d 73
• Parties: KIRKENDALL v. DECKER.
• Court: Georgia Supreme Court

516 S.E.2d 73

271 Ga. 189

KIRKENDALL v. DECKER.

No. S99A0088.

Supreme Court of Georgia.

May 10, 1999.

Reconsideration Denied June 4, 1999.

Paul R. Koehler, Atlanta, for Mack M. Kirkendall.

Melody Z. Richardson, Bocher & Richardson, Paula R. Miller, Atlanta, for Lynnette A. Decker.

HINES, Justice.

We granted discretionary appeal to ex-husband Kirkendall, to consider the propriety of his being held in wilful contempt of a final judgment and decree of divorce for his failure to maintain a whole or term life insurance policy naming his ex-wife Decker as beneficiary. Because Kirkendall has failed to show that the superior court erred in determining that he was to maintain such life insurance and wilfully failed to do so, we affirm.

Kirkendall and Decker were divorced in 1987 after a 27-year marriage. The final judgment and decree, as amended,¹ recited that pilot Kirkendall had stipulated that he would maintain "life insurance ... upon his life," which insurance he had through Delta Air Lines, Inc., in the face amount of $300,000, with Decker, and their son and daughter, each being the beneficiary of $100,000; the decree ordered that Kirkendall "make [Decker] the beneficiary on life insurance which he maintains through Delta Air Lines, Inc. in the face amount of [$100,000] and to maintain that coverage so long as he is required hereunder to pay alimony." In 1998, Decker filed an application for contempt alleging that Kirkendall was in violation of the order because he wilfully failed and refused to pay the ordered alimony and also failed to provide proof that he continued to maintain the required life insurance coverage. There was a history of litigation between the parties over Kirkendall's alleged noncompliance with the decree including at least one prior contempt action. Yet at the hearing on the present contempt petition, Kirkendall's attorney asserted, apparently for the first time, that at the time of the divorce the insurance Kirkendall carried through Delta was accidental death insurance, and therefore, under the court order Kirkendall was not required to maintain regular life insurance.

After considering the record and the statements and arguments of counsel,² as well as the record in the previous contempt action between the parties, the superior court rejected, inter alia, the assertion that Kirkendall was relieved from having life insurance with Decker as beneficiary. The court found Kirkendall in wilful contempt for his refusal to pay alimony and because his obligation to maintain life insurance was not met by maintenance of an accidental death and dismemberment policy. Kirkendall could purge himself of contempt by paying the past due alimony and by securing a life insurance policy (term or whole life) in the face amount of $100,000 naming Decker as beneficiary, and providing proof of it to Decker within thirty days.³

It is certainly true, as Kirkendall maintains, that a trial court may not modify the terms of a divorce and alimony judgment in a contempt proceeding. Perry v. Perry, 265 Ga. 186, 188(3), 454 S.E.2d 122 (1995); Peppers v. Peppers, 238 Ga. 411, 412, 233 S.E.2d 374 (1977). However, in a contempt case, the trial court has wide discretion in determining whether court orders have been violated, and such determination will not be disturbed on appeal in the absence of an abuse of discretion. Wrightson v. Wrightson, 266 Ga. 493, 496(4), 467 S.E.2d 578 (1996); Davis v. Davis, 250 Ga. 206, 207, 296 S.E.2d 722 ( 1982). The court has the authority to interpret and clarify a court order. Millner v. Millner, 260 Ga. 495, 497(2), 397 S.E.2d 289 (1990). The inquiry is whether "the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification." Davis at 207, 296 S.E.2d 722.

Accidental death insurance is distinct from life insurance, which is called for in the court order. See Moss v. Protective Life Ins. Co., 203 Ga.App. 389, 417 S.E.2d 340 (1992); Rainey v. Guardian Life Ins. Co. of America, 168 Ga.App. 577, 309 S.E.2d 649 (1983). What is more, the obvious purpose in requiring Kirkendall to maintain the insurance coverage was to secure his obligation to pay periodic alimony to Decker. See Hawkins v. Hawkins, 268 Ga. 637, 491 S.E.2d 806 (1997). Such purpose would not be served by coverage triggered only in the event of Kirkendall's accidental death. Therefore, the court's determination is consistent with the apparent intention of the decree.

The court's order will stand for yet another reason; Kirkendall has failed to carry his burden in this appeal. Although Kirkendall's attorney related at the present contempt hearing that the insurance Kirkendall maintained through his employer Delta at the time of the decree was accidental death insurance, that does not end the inquiry. In reaching its decision the trial court expressly considered the record of the previous contempt proceeding, which Kirkendall has elected not to include in this appeal. In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant's duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment. Atwood v. Southeast Bedding Co., 236 Ga.App. 116(1), 511...