In two prior articles, we addressed which provisions of a divorce decree could be modified after its entry and also covered a court’s ability to clarify a divorce decree in a contempt proceeding. This article delves into a court’s contempt powers with respect to a specific component of a divorce decree: namely, a fixed allocation of real and personal property between spouses.
In a proceeding alleging contempt of a final decree of divorce, well-established Georgia law permits a trial court to interpret and clarify the decree but precludes the court from modifying the terms of the decree or any settlement agreement incorporated in it.(1)
A court, for instance, may not modify a divorce decree’s provisions for equitable division of marital property, by compelling a party who was awarded a specific asset to sell or otherwise convert that asset in order to comply with some other provision of the decree.(2) As Georgia’s high Court has characterized the rule: “[f]ixed allocations of economic resources between spouses, those that are already vested or perfected, are not subject to modification by the court....”(3)
This prohibition applies even when two provisions of a divorce decree are linked. For example, where a former husband violated a divorce decree’s obligation to assume sole responsibility for a mortgage on the marital residence by removing wife as a co-obligor, the court could not lawfully order husband to sell the marital residence if he did not refinance within thirty days, where the decree had awarded exclusive ownership of the property to husband.(4) Similarly, in a case where a former husband violated a divorce decree’s obligation to pay wife $15,000, partly in exchange for his receipt of exclusive ownership of the marital residence, the trial court could not lawfully compel husband to sell the residence in order to generate funds to make the payment.(5) In both cases, the reviewing Courts deemed the trial judges’ contempt remedies as improper modifications rather than permissible clarifications, because nothing in their divorce decrees explicitly or implicitly required the husbands to sell the marital residences in order to satisfy the decrees’ mortgage removal and payment provisions.(6)
Although precluding the sale or conversion of property expressly awarded to a spouse as a contempt remedy, the Supreme Court of Georgia has made clear that a trial court retains other effective means to enforce equitable division obligations of divorce decrees. A judge can order a contemnor’s payment of a significant sum every day until he purges his contempt, or order incarceration of the contemnor until he purges his contempt.(7)
(1) Darroch v. Willis, 286 Ga. 566, 690 S.E.2d 410, 414 (2010); and Stone v. Stone, A20A1814 (Ga. Ct. App., January 29, 2021). (2) Id. (3) Spivey v. McClellan, 259 Ga. 181, 182, 378 S.E.2d 123 (1989). (4) Darroch, supra, 690 S.E.2d at 414. (5) Roquemore v. Burgess, 281 Ga.593, 593-594, 642 S.E.2d 41 (2007). (6) Darroch, supra, 690 S.E.2d at 415; and Roquemore, supra, 281 Ga. at 594-595. (7) Darroch, supra, 690 S.E.2d at 415.