Robinson v. Robinson

• Decision Date: 04 October 2010
• Docket Number: No. S10A0929.,S10A0929.
• Citation: 287 Ga. 842,700 S.E.2d 548
• Parties: ROBINSON v. ROBINSON.
• Court: Georgia Supreme Court

287 Ga. 842

700 S.E.2d 548

ROBINSON

v.ROBINSON.

No. S10A0929.

Supreme Court of Georgia.

Oct. 4, 2010.

Deanna H. Powell, Celeste F. Brewer, Atlanta, for appellant.

Jonathan B. Mason, Atlanta, for appellee.

HINES, Justice.

This Court granted the application for discretionary appeal of Tonja Robinson (“Wife”) from the trial court's order on a petition for contempt in this divorce case, and we affirm in part and reverse in part that judgment.

Tonja Robinson filed a complaint for divorce from Edward Robinson, Jr. (“Husband”) in 2007. On July 31, 2007, the trial court entered a temporary order, requiring Husband to pay $3,431 per month in child support for the couple's three minor children, and to provide health and dental insurance for the children and Wife. Husband was also ordered to pay $3,000 per month in temporary alimony beginning on August 1, 2007, and name the children as beneficiaries on an existing life insurance policy.

On November 5, 2008, after a bench trial, the trial court entered what it denominated a “Final Judgment and Decree,” which required, among other things, that Husband pay $5,440.65 per month in child support, name Wife as successor trustee on his life insurance policy, and pay one-half of his children's uncovered medical expenses. The “Final Judgment and Decree” provided for lump sum permanent alimony to be paid to Wife, but not periodic permanent alimony. On April 30, 2009, the trial court entered an order on Wife's request for attorney fees, which had not been addressed in the “Final Judgment and Decree” of November 5, 2008. On May 15, 2009, Husband filed an application for discretionary appeal in this Court, which this Court denied as frivolous. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003). After that denial, the remittitur from this Court was entered in the trial court on July 28, 2009.

On July 13, 2009, Wife filed a motion for contempt with the trial court, alleging, inter alia, that Husband had failed to fully pay alimony, child support, and medical expenses, as set forth in the temporary order. On August 21, 2009, Wife filed an amended motion for contempt which sought child support for the months of June, July, and August 2009, calculated using the $5,440.65 per month award set forth in the “Final Judgment and Decree”; she also sought temporary alimony for those same months, based upon the July 31, 2007 temporary order.

On August 26, 2009, a hearing was conducted on the amended contempt petition. ¹ The trial court entered an order on September 30, 2009, finding that Husband was not in contempt. The trial court stated that Husband's child support obligations were controlled by the temporary order until the entry of the remittitur in the trial court on July 28, 2009, and that the higher amount set forth in the final decree did not take effect until the remittitur was entered, and such higher amount would be due beginning with the payment required for August 2009.

The trial court also addressed Wife's claims for temporary alimony for the months of June, July, and August 2009, while Husband pursued an appeal. The court reasoned that, as Wife was not entitled to periodic permanent alimony under the “Final Judgment and Decree” of November 5, 2008, and the “Final Judgment and Decree” was essentially affirmed by this Court's denial of Husband's application for discretionary appeal, the trial court's ruling that no periodic permanent alimony would be due was effective as of the date the order memorializing that decision was filed (i.e., November 5, 2008), and Husband was thus not obligated to pay temporary alimony for the months of June, July, and August 2009. Consequently, he could not be held in contempt for failing to do so.

Wife appeals the order of September 30, 2009.

1. This appeal presents the question of at what point in time do awards of temporary alimony and child support cease to be effective when a final judgment and decree of divorce makes permanent awards in amounts different from those in the temporary order, appeal is sought on the final judgment and decree of divorce, and the case is returned to the trial court with the permanent alimony and child support awards intact, either by the denial of the application, as in this case, or otherwise.

It is unquestioned that the application for discretionary appeal, and any resulting notice of appeal, operate as supersedeas of the trial court's final order during the pendency of the application and appeal. OCGA §§ 5-6-35(h); 5-6-46(a). The operative question is, upon return of the remittitur, do permanent awards in the final judgment and decree take effect as of the date of the entry of the remittitur, or do such awards “ relate back” to the date of the final judgment and decree, with adjustments then made to reflect any payments made under temporary orders during the pendency of any appellate actions?

Some decisions of this Court support the proposition that awards in a final judgment and decree of divorce are to be enforced as of the date that judgment was entered, with proper adjustments for any payments made pursuant to a temporary award during the pendency of the appeal. In Nicol v. Nicol, 240 Ga. 673, 242 S.E.2d 129 (1978), the permanent awards of alimony and child support were greater than the temporary awards, the final decree was affirmed on appeal, and a contempt citation was sought for failure to fully pay the child support award that came due during the pendency of the appeal. This Court stated:

The effect of the supersedeas of the final judgment was to suspend all proceedings for the enforcement of the judgment, and when the judgment was affirmed it had full force and effect as of the date it was entered. [Cits.] The greater sums for permanent alimony and child support which came due during the pendency of the appeal must be paid, subject to a set-off of temporary alimony and child support paid for the same time period.

Id. at 673-674(1), 242 S.E.2d 129 (emphasis supplied).

This reasoning was followed in Dubois v. Dubois, 250 Ga. 271, 297 S.E.2d 277 (1982), in which the permanent awards were lower than the temporary awards; the permanent awards were affirmed on appeal, and the husband had paid the higher temporary awards during the pendency of the appeal.

In cases where the final decree awarded higher alimony and child-support payments than did the temporary order, our appellate courts have held that the greater sums of alimony and child support which came due during the pendency of the appeal must be paid subject to a set-off for the temporary alimony and child support paid during the pendency of the appeal. Nicol v. Nicol, [supra at 673(1), 242 S.E.2d 129]; Cale v. Cale, 153 Ga.App. 57(1), 265 S.E.2d 71 (1980). Under the same reasoning, it is only equitable that a credit should be allowed in the converse situation where, as here, the final

decree awards overall lower alimony and child-support payments than did the temporary order when the “maintenance” payments are included.

Dubois, supra at 272, 297 S.E.2d 277.

However, a contrary result was reached in McDonald v. McDonald, 234 Ga. 37, 214 S.E.2d 493 (1975). In that case, the husband argued that, as to the payments he was required to make under the divorce decree, he should receive a credit for the amount he had paid under the temporary order during the pendency of the appeal.

As stated in Bickford v. Bickford, 228 Ga. 353, 355, 185 S.E.2d 756 [(1971)], “The fact that the final judgment rendered had not awarded to the wife periodic payments of permanent alimony is not ground for not requiring the husband to continue the temporary alimony payments pending final determination of the case. ... ‘A judgment for temporary alimony continues in full force and effect until a final judgment in the case, until the termination of the litigation in all courts, and as long as the case is pending, including litigation in the Supreme Court. [Cits.] The judgment cannot be treated as final so long as either party has the right to have it reviewed by the Supreme Court. [Cit.]’ ”

McDonald, supra at 39(3), 214 S.E.2d 493. This precedent was followed in Langley v. Langley, 279 Ga. 374, 375(1), 613 S.E.2d 614 (2005), which rejected the argument that payments of temporary alimony should offset one party's obligation to pay the other $25,000 in lump sum permanent alimony. And the principle that a temporary award prevails until a permanent award becomes final has oft been repeated. See, e.g., Shepherd v. Shepherd, 233 Ga. 228, 232, 210 S.E.2d 731 (1974) (“Until the permanent award of alimony becomes final, the parties are bound by the interlocutory order of the trial court.”).

It has been recognized that there is “some difficulty in reconciling the decisions” of this Court regarding this issue. Cale v. Cale, 153 Ga.App. 57, 265 S.E.2d 71 (1980). And that difficulty is illustrated in this case; the trial court applied the Nicol line of precedent to find that Husband could not be held liable for failing to pay temporary alimony for the months of June, July, and August 2009, as the November 5, 2008 decree awarded no periodic permanent alimony, and after the entry of the remittitur, the permanent award was to be enforced as of the date of its entry. However, in addressing the claim for child support payments, the trial court followed the McDonald line of precedent, stating that Husband's “child support obligations were controlled by the Temporary Order until the Remittitur was filed on July 28, 2009. The higher amount took effect as of the payment next due after said date. Therefore, [Husband] shall pay [Wife] the difference due for August instanter.” However, there is no basis to treat awards of alimony and child support differently in this context; this Court has determined that “alimony includes support for a spouse or for a child or children.” Jones v. Jones, 280 Ga. 712, 715(2), 632 S.E.2d 121 (2006). “[A]n award of child support always constitutes alimony...