Smith v. Smith, 506A0897.
| Decision Date | 16 October 2006 |
| Docket Number | No. 506A0897.,506A0897. |
| Citation | 281 Ga. 204,636 S.E.2d 519 |
| Parties | SMITH v. SMITH. |
| Court | Georgia Supreme Court |
Paul R. Koehler, Atlanta, for Appellant.
Charles Edward Bailey, John C. Mayoue, Warner Mayoue Bates & Nolen & Collar, Atlanta, for Appellee.
This Court granted ex-wife Mary Smith ("Wife") discretionary review of a superior court ruling on her application for contempt against her ex-husband Michael Smith ("Husband") in order to consider whether the superior court improperly modified the parties' final judgment and decree of divorce within the contempt proceeding. Finding that it did, we reverse.
A chronology of the divorce litigation is necessary. The Smiths' divorce action was tried before a jury, and a final judgment and decree on the jury's verdict was entered on June 9, 2003.1 The final judgment and decree ("decree") provided, inter alia, that the Wife would receive 50% of the Husband's IRA valued as of the date of the verdict, with payment to be accomplished by a "[t]rustee-to-[t]rustee" transfer to the Wife's IRA; the marital residence; one-half of the cash value of a life insurance policy; one-half of the balance owed on a note and one-half of the security for the note; 10% of the Husband's shares of common stock in Biomedical Disposal, Inc., a company for which the Husband was chief executive officer; 50% of the VI-IX stock owned by the Husband; 50% of the PSSI stock which the Husband admittedly owned; $5,000 per month in alimony for 48 months and thereafter $4,000 per month for the "next immediate 24 months"; and a division of the remaining marital property in the lump sum amount of $291,000 to be paid within 60 days of May 2, 2003. The decree further awarded the Wife $2,000 per month in "supplemental alimony" to assist in her support of the parties' disabled adult daughter, to be paid during the life of the daughter,2 and 32½% of the Husband's Biomedical Disposal, Inc. stock to help reimburse the Wife for support of the daughter. Also, based upon the agreement of the Husband, 32W0 of the Husband's Biomedical Disposal, Inc. stock was awarded to the parties' minor son, to be held in trust and controlled by the Husband.3
The Husband filed a motion for a new trial, which was denied on September 25, 2003 denying a new trial, the superior court found all of the alleged grounds for a new trial to be meritless, and that the Husband's acceptance of benefits under the decree was inconsistent with asking for a new trial.4 The Husband then filed an application for discretionary appeal in this Court, which was granted automatically under this Court's pilot project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003). However, on June 16, 2004,5 the superior court dismissed the Husband's appeal for his failure to pay costs. This Court denied the Husband's application for discretionary appeal from the dismissal.
On October 14, 2004, the Wife filed an application for contempt in the superior court alleging the Husband's failure to make certain payments and transfers of property required by the decree.6 Following a hearing, the superior court entered the present order in which it acknowledged the Husband's failure to comply with provisions of the decree, but found that the Husband was not in contempt because his noncompliance was "excused by reasons of impossibility and/or illegality and a reasonable desire for clarification." It expressly found, inter alia, that in regard to the 50% award of the Husband's IRA to the Wife, which amounted to $5,976.27, the Husband had depleted this IRA making "strict compliance" impossible and causing the award to be made in "an alternate form"; that the Husband did not then or since the decree have the awarded $291,000 available in a lump sum to transfer to the Wife, therefore "strict compliance" with this provision was also impossible and instead the Husband was required to pay this amount plus interest in monthly payments as directed in the order; that the VHX stock awarded to the Wife did not exist or have any value at the date of trial, therefore, transfer of the stock was impossible; that the parties did not own any shares of PSSI stock as of the date of trial, therefore, a transfer of this stock was impossible; that the award of stock to the parties' son was void and unenforceable; that the $2,000 per month awarded as "supplemental alimony" to the Wife constituted support for an adult child, and was therefore, void and unenforceable; that the Husband was in arrears in alimony payments, but because of "confusion" associated with the decree and because of the Husband's financial circumstances, he was not then in contempt on that issue; and that the $7,500 attorney fee award should be deducted from the $53,000 attorney fee award, thereby leaving a principal balance of $45,500.
1. As a threshold matter, the Wife urges that the Husband improperly used the contempt proceeding to attack the decree and asserts that the procedural history of this case foreclosed the Husband from challenging the decree's provisions. Such argument raises notions of res judicata, OCGA § 9-12-40,7 and the law of the case rule, OCGA § 9-11-60(h).8 See Kent v. White, 266 Ga App. 822, 598 S.E.2d 113 (2004). However, pretermitting the procedural question of whether the superior court's dismissal of the Husband's appeal following the denial of his motion for new trial or this Court's denial of discretionary review of the dismissal of the appeal constituted a ruling regarding the decree sufficient to bar reexamination of the decree's provisions,9 the superior court's order on the contempt is problematic for the most basic of reasons.
2. Certainly, in order for an individual to be held in contempt, there must be a willful disobedience of the court's decree or judgment, and a trial court has the discretion to rule on the issue of contempt. Simpkins v. Simpkins, 278 Ga. 523(1), 603 S.E.2d 275 (2004). However, a trial court lacks the authority to modify the terms of a divorce decree in a contempt proceeding. Collins v. Billow, 277 Ga. 604, 605(1), 592 S.E.2d 843 (2004). And it is plain that in this case, the superior court did far more than refuse to find the Husband in contempt because of purported difficulty in compliance with the decree; it substantially modified the decree....
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