A basic rule in Georgia states that a trial court cannot modify the terms of a prior divorce decree in a contempt proceeding.(1) The court can, however, interpret or clarify a divorce decree in the course of resolving contempt issues placed before it.(2) But what constitutes mere clarification of a prior decree? This article explores that issue.
The test for distinguishing permissible interpretations and clarifications of prior judgments 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.”(3) Where the divorce decree incorporated the parties’ settlement agreement, the court reviewing contempt claims must construe the prior decree by ascertaining the intent of the parties under their settlement agreement.(4) The court finds the intent of the parties by looking to the “four corners” of the agreement in the light of circumstances as they existed at the time the agreement was made.(5) The court also examines the intent and spirit of its prior decree to ensure that no party takes advantage of the letter of a decree to the detriment of the other party.(6)
In practice, the distinction between improper modification and permissible clarification often turns on whether the divorce decree was silent on an issue. If so, the trial court can interpret that silence and issue an order filling in the blanks. If not, the court cannot alter the terms of the decree as to that issue in a contempt proceeding.(7)
For example, in one case, a consent parenting plan of a divorce decree awarded the spouses joint legal custody of their children, but gave the wife final decision-making authority on medical issues. Another provision of the parenting plan required each parent to bring the children to their therapy appointments while the children were in his or her custody. After a child’s new psychologist performed a comprehensive evaluation, the husband brought his new fiancé to a feedback meeting with the therapist. Wife complained on the basis of her final-decision making authority and insisted that husband’s girlfriend was not permitted to attend therapy sessions. In husband’s subsequent contempt action, the trial court entered an order clarifying the parenting plan to provide that wife did not have the right to dictate who husband brought to his meetings with the children’s doctors. In affirming that order, the Georgia Court of Appeals held that, because the parenting plan was silent as to whether a parent could bring a third party to an appointment scheduled during his or her parenting time, the trial court could interpret the parenting plan’s silence on that issue as permission.(8)
In another case, the divorce decree required husband to pay alimony for the support of the parties’ child in a greater amount while the child was enrolled in good standing at an accredited college, and a lesser amount otherwise. The decree also obligated wife to inform husband of any change in the child’s enrollment status which could trigger a change in husband’s alimony obligation. When wife failed to inform husband that the child had dropped out of college and enrolled at a new university thirteen months later, husband filed for contempt. In the contempt proceeding, the trial court issued an order construing the divorce decree as obligating husband to pay the lesser alimony amount for the thirteen months in which the child was not enrolled in college, and to reinstate the higher amount once the child had regained his status as a full-time student in good standing. On appeal, the Georgia Supreme Court focused on the facts that the divorce decree was silent as to whether the greater amount of alimony could be reinstated in the event the child regained good standing, but clearly established husband’s obligation to pay the higher alimony amount for those months when the child was enrolled as a full-time student in good standing. In light of the parties’ intent for husband to pay the higher alimony amount when the final decree’s stated conditions were met, and the absence of any language prohibiting reinstatement of the higher amount, the Court held that the trial court’s determination constituted a reasonable clarification of the decree consistent with the intent and spirit of the original decree.(9)
In contrast, in a case where a divorce decree explicitly awarded wife one half of husband’s retirement account, and required husband to transfer those funds to wife, our Supreme Court held that the trial court impermissibly modified the decree in a contempt proceeding by ordering husband to pay wife a lump sum amount equal to her share of the retirement account’s value. The Court held that transmuting an award for transfer of a half-interest in a retirement account into a presently due cash obligation was ‘so contrary to the apparent intention of the original order as to amount to a modification.’(10)
While a trial court can lawfully interpret silence as to an issue, it cannot create preconditions to explicit rights in doing so. For instance, in one case, a final decree required the sale of the marital residence and specified that the net proceeds of sale would be equally divided between the parties. The decree made no provision for the time within which the proceeds must be distributed, however. In a subsequent contempt proceeding, the trial court held that husband’s share of the proceeds of sale could not be distributed to him until he had returned certain jewelry to wife or paid her its value. On appeal, the trial court was found to have impermissibly modified the divorce decree by imposing upon husband a pre-condition to his receipt of the net proceeds that did not exist in the original decree.(11)
(1) Smith v. Smith, 281 Ga. 204, 206, 636 S.E.2d 519 (2006); Duncan v. Mughelli, 324 Ga.App. 465, 466, 751 S.E.2d 127 (2013). (2) Hamilton v. Hamilton, 292 Ga. 81, 82(1), 734 SE2d 355 (2012); Johnston v. Johnston, 281 Ga. 666, 667, 641 S.E.2d 538 (2007). (3) Hamilton, supra, 292 Ga. at 82(1); accord Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (2006). (4) Dohn v. Dohn, 276 Ga. 826, 827, 584 S.E.2d 250 (2003). (5) Doritis v. Doritis, 294 Ga. 421, 754 S.E.2d 53, 56 (2014), citing Ward v. Ward, 236 Ga. 860, 861, 226 S.E.2d 52 (1976). (6) Cason, supra, 281 Ga. at 297; and Kaufmann v. Kaufmann, 246 Ga. 266, 268(3), 271 S.E.2d 175 (1980). (7) See, e.g., Sullivan v. Harper, A19A1629 (Ga. Ct. App., October 22, 2019); Hamilton, supra; and Killingsworth v. Killingsworth, 286 Ga. 234, 686 S.E.2d 640 (2009). (8) Sullivan, supra, A19A1629 (1). (9) Hamilton, supra, 292 Ga. at 82(1). (10) Killingsworth, 686 S.E.2d at 643(2) (citation omitted). (11) Doritis, supra, 754 S.E.2d at 57(4).