Mahaffey v. Mahaffey, 31614
| Decision Date | 01 December 1976 |
| Docket Number | No. 31614,31614 |
| Citation | 230 S.E.2d 872,238 Ga. 64 |
| Parties | Michael L. MAHAFFEY v. Leah Hainline MAHAFFEY. |
| Court | Georgia Supreme Court |
Guy B. Scott, Jr., Athens, for appellant.
Denny C. Galis, Athens, for appellee.
This is an appeal from a contempt citation issued by the Superior Court of Clarke County.
Appellant and appellee were divorced on December 8, 1972. The final divorce judgment and decree incorporated an agreement between the parties whereby appellant husband agreed to pay the minor children's dental expenses in excess of $100.00 per child per calendar year. Appellee wife brought a contempt action in May 1976, alleging that appellant had refused to pay certain orthodontist bills in violation of the divorce judgment. The trial court found the appellant to be in arrears in his dental expense obligations in the amount of $220.00 and held him in willful contempt. The court also awarded appellee attorney fees and expenses of litigation.
1. Appellant contends that the trial court erred in finding him in willful contempt for failure to pay orthodontist expenses, since those expenses are not 'dental expenses' within the meaning of the agreement incorporated into the divorce decree.
Dorland's Illustrated Medical Dictionary (25th Edition 1974) defines orthodontics as 'that branch of dentistry which deals with the development, prevention, and correction or irregularities of the teeth and malocclusion, and with associated facial abnormalities.' It defines an orthodontist as being 'a dentist who specializes in orthodontics.' See also Code Ann. § 84-701 which defines the practice of dentistry in Georgia.
The orthodontic expenses in question are clearly 'dental expenses' within the meaning of the agreement. The trial court did not err in finding that appellant was obligated under the divorce judgment for orthodontic work for Michelle Mahaffey in the amount of $105.00 in 1975 and $115.00 in 1976. See Rodgers v. Rodgers, 234 Ga. 463, 216 S.E.2d 322 (1975).
2. Appellant contends that, if the orthodontic expenses are in fact dental expenses his failure to pay them did not constitute willful contempt because he was financially unable to make these payments.
A former husband's inability to pay the required alimony and child support under a divorce decree is a valid defense to a contempt action. Brady v. Brady, 228 Ga. 793, 187 S.E.2d 896 (1972). The burden, however, is on the one refusing to pay 'to show that he has in good faith exhausted all of the resources at his command and has made a diligent and bona fide effort to comply with the decree awarding alimony or child support.' Fambrough v. Cannon, 221 Ga. 289(2), 144 S.E.2d 335, 337 (1965). The contempt question, including any factual issues as to the former husband's ability to pay, is for the trial court to...
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