Practitioners in the area of family law frequently represent ex-spouses and parents in proceedings claiming contempt of a prior divorce decree or child custody order. Typically, those proceedings commence with the filing of a “petition” in an action assigned its own new case number. The petitioner’s attorney at times will serve the opposing party with a summons in the same way complaints are served. But is a contempt proceeding actually a new legal action, and do the statutes and rules governing new cases apply to it? In short, no, as this article explains.

Georgia law clearly holds that a contempt claim does not create a new civil action.(1) Rather, the law deems an action for contempt a motion ancillary to the action in which the violated order issued, and not a filed pleading.(2)

Because a contempt action does not constitute a pleading creating a new civil action, the claimant does not have to serve the opposing party with a summons.(3) Instead, where the contempt claim alleges violation of an order entered in a concluded case, the claimant must serve only a copy of the contempt motion and a “Rule Nisi” notifying the opposing party of the date to appear before the court to show cause why he/she should not be held in contempt of the prior order.(4)

Although a contempt motion does not create a new civil action, the motion nonetheless must obtain a separate case number when filed, if it involves an alleged violation of an order entered in a closed case or a final order entered more than 30 days prior to the filing of the motion.(5) That requirement, however, merely imposes administrative duties on county clerks, and it does not transform contempt proceedings into wholly new civil actions.(6)

The nature of a contempt proceeding as a motion has various practical implications in addition to the absence of a summons. For instance, a judge does not need the parties’ consent to consolidate a contempt action with another related proceeding between the parties, as would be required to consolidate separate civil actions.(7) Additionally, a court can schedule the trial of a contempt petition on less than 30-days’ notice to the defendant, unlike trials in new civil actions.(8)

(1) Cook v. Smith, 288 Ga. 409, 412(2), 705 S.E.2d 847 (2010); Opatut v. Guest Pond Club, Inc., 254 Ga. 258, 258(1), 327 S.E.2d 487 (1985); and Cowart v. Georgia Power Co., A21A1805, 8(1) (Ga. Ct. App., January 14, 2022). (2) Phillips v. Brown, 263 Ga. 50, 51(2), 426 S.E.2d 866 (1993); Opatut, supra, 254 Ga. at 258(1); Cowart, supra, at 8-9(1); and Carden v. Carden, 266 Ga.App. 149, 150(1), 596 S.E.2d 686 (2004). (3) See Brown v. King, 266 Ga. 890, 891(1), 472 S.E.2d 65 (1996); Braden v. Braden, 260 Ga. 269, 270, 392 S.E.2d 710 (1990); and Anthony v. Anthony, 240 Ga. 155, 157(1), 240 S.E.2d 45 (1977). See also Cowart, supra, at 12(1). (4) Brown, supra, 266 Ga. at 891(1); Braden, supra, 260 Ga. at 270; and Anthony, supra, 240 Ga. at 157(1). (5) Cowart, supra, at 9(1); O.C.G.A. § 15-6-61(a)(4)(A); and O.C.G.A. § 15-6-77(e)(1); and U.S.C.R. 39.2. (6) Cowart, supra, at * 12(1); O.C.G.A. § 15-6-61(a)(4)(A); and O.C.G.A. § 15-6-77(e)(1); and U.S.C.R. 39.2. (7) Cook, supra, 288 Ga. at 412(2). (8) Brown, supra, 266 Ga. at 891.

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