A prior article discussed the use of temporary attorney fee awards in divorce and alimony actions as a safe, though uncertain, means to secure sums needed to pay for legal services. Where an opposing spouse will not consent to the use of the parties’ liquid assets to pay attorneys’ fees, the filing of a request for a temporary hearing – in lieu of a party’s unilateral drawdown of joint funds to pay her lawyer – avoids any risk of contempt for violating a standing order’s prohibitions against disposing marital property except in “the ordinary course of business.” Yet, a financially strapped litigant may balk at the uncertainty of such a discretionary fee award. That spouse instead may choose to act without consent of the opposing party or the court, and hope that the use of marital assets to pay legal fees does not result in a subsequent contempt ruling. When answering an ensuing charge of contempt of the standing order, the alleged violator obviously should attempt to cite legal authority justifying his/her conduct. This article explores those authorities.
As stated in our original piece, no binding decision from a Georgia appellate court has yet determined whether a divorcing party’s use of marital funds to retain a lawyer constitutes a payment in “the ordinary course of business.” Our Supreme Court, however, has addressed that subject in an analogous, albeit different, context. In a breach of contract and fraudulent transfer case, the Court considered an interlocutory injunction freezing certain assets, except for payments made in the ordinary course of business or financial affairs, or as permitted by court order.(1) In affirming the validity of the interlocutory injunction, the Court rejected appellants’ “laches” argument. The Court held in part that appellants had failed to show harm resulting from appellee’s delay in seeking injunctive relief, because appellants remained free under the interlocutory injunction to make “payments in the ordinary course of business or financial affairs,” which the Court expressly interpreted to include payment of appellants’ attorneys’ fees and expenses.(2)
A trial judge, in ruling on a claim of contempt of a standing order in a divorce action, likely would construe the Supreme Court’s stated interpretation of “payments in the ordinary course of business” as non-binding dicta. For that reason, the spouse opposing a contempt charge may wish to supplement her arguments with citations to out-of-state cases in which courts have interpreted orders prohibiting payments outside the ordinary course of business to exclude attorney fees.(3) Citation of out-of-state authorities along with the single case from our state Supreme Court should, at the least, enable a party to defend against a contempt charge by arguing that he or she did not willfully violate the standing order.
(1) Srb Investment Services v. Branch Banking and Trust Co., 289 Ga. 1, 709 S.E.2d 267 (2011).
(2) Id., 289 Ga. at 7(3)(b).
(3) See, e.g., ZVI Construction Co. v. Upper Crust, 94 N.E.3d 879 (Mass. App. Ct., 2017); Angiodynamics, Inc., v. Biolitec AG, 910 F.Supp.2d 346, 349 (D. Mass., 2012); and Taxpayers Against Fraud v. Link Flight Simulation, 722 F.Supp. 1248, 1250(III) (D. Md., 1989).