All too often a former spouse will claim that his or her ex has violated the terms of their divorce decree. Whether the charge involves failure to pay alimony or child support, denial of custody or visitation rights, acts of parental alienation or harassment, or failure to comply with provisions for equitable division of marital assets, the injured party will want relief. To punish the violator or to coerce compliance with the terms of the divorce decree, the aggrieved party typically will file a contempt action.
But is contempt an available remedy for every violation of a divorce decree? And where available, what relief may a court award to compel compliance with the divorce decree and to compensate the aggrieved party for the other’s wrongful acts?
At the heart of a contempt action rests the authority of every judge to impose sanctions against a party or attorney for contempt based on the contemnor’s disobedience to “any lawful writ, process, order, rule, decree, or command of the courts.”(1) To commit contempt, however, a person must willfully disobey a prior order etc. of the court.(2)
Sanctions available for deliberately violating an equitable order – one requiring a party to do or not to do something – include imprisonment for up to 20 days and assessment of a monetary fine up to $1,000.(3) A court can impose either or both remedies in criminal and civil contempt proceedings.(4) The purpose of criminal contempt is to punish the willful violation of an order through an unconditional fine and/or sentence for incarceration.(5) The purpose of civil contempt is to provide a remedy for an injured suitor and to coerce compliance with the violated order, by imposing conditional terms for a fine and/or imprisonment.(6) In that regard, a court may impose a fine and/or imprisonment if the offender fails to purge the contempt within a stated period of time; or the court may order the offender incarcerated until such time as he/she purges the contempt.(7)
In cases involving failure to pay alimony or child support, a judge has discretion to incarcerate any “gainfully employed” offending party for a period up until the offender either pays the amounts owed or demonstrates financial inability to pay the amounts owed.(8) In cases involving willful violations of custody or visitation rights, a court must condition the offender’s incarceration upon his/her failure to purge the contempt.(9)
Unlike violations of judgments regarding custody, alimony, or child support, not every violation of an equitable division order is punishable through contempt proceedings. Contempt remedies are available to redress willful violations of orders for the turnover of real or personal property, for the payment of monies in an amount which is not fixed at the order’s time of entry, and for payment of specified sums of money from an identified fund.(10) In contrast, an order for payment of a fixed amount without reference to an identified fund cannot be enforced through contempt proceedings.(11) The aggrieved party instead must seek to collect the amount owed through the process available to enforce money judgments.(12)
In addition to the above remedies, a court may award attorney’s fees in proceedings for contempt arising out of an alimony case or a divorce and alimony case, but only after considering the financial circumstances of both parties.(13)
(1) O.C.G.A. § 15-1-4(a)(3). See also Dyer v. Surratt, 266 Ga. 220 (2), 466 S.E.2d 584 (1996).
(2) Greene v. Greene, 306 Ga.App. 296, 300, 701 S.E.2d 911 (2010); Saravia v. Mendoza, 303 Ga.App. 758, 763(2), 695 S.E.2d 47 (2010); and Pate v. Pate, 280 Ga. 796, 798(3), 631 S.E.2d 103 (2006).
(3) See O.C.G.A. § 23-4-37; and O.C.G.A. § 15-6-8(5).
(4) Ensley v. Ensley, 239 Ga. 860, 861-864, 238 S.E.2d 920 (1977).
(5) Id.; Thedieck v. Thedieck, 220 Ga.App. 764, 765-766(1), 470 S.E.2d 265 (1996).
(8) O.C.G.A. § 15-1-4(b) and (c); O.C.G.A. § 19-6-4(b); O.C.G.A. § 19-6-16; O.C.G.A. § 19-6-28; McCullough v. McCullough, 208 Ga. 776, 69 S.E.2d 764 (1952); Hellinger v. Hellinger, 172 Ga.889, 159 S.E.242 (1931).
(9) Phillips v. Tittle, 261 Ga. 820, 411 S.E.2d 871 (1992); Easley v. Easley, 238 Ga. 180, 181(3), 231 S.E.2d 763 (1977).
(10) See Backus v. Backus, 299 Ga.App. 122, 682 S.E.2d 138, 139(1) (2009); Shelley v. Shelley, 212 Ga.App. 651, 652-653, 442 S.E.2d 847 (1994); McKenna v. Gray, 263 Ga. 753, 755, 438 S.E.2d 901 (1994); and Everett v. Sparks, 107 Ga. 48, 32 S.E. 878 (1899).
(13) O.C.G.A. § 19-6-2(a).