The Meriwether & Tharp Divorce Attorney Blog

Return to the Blog Home Page

Contempt

May I File a Contempt Action in Response To My Ex-Spouse’s Petition for Modification?

Monday, January 14th, 2013

You most certainly can – if your spouse is in contempt. Although many are often confused by the law of Georgia on this matter, when faced with a petition for modification, a party may indeed initiate a contempt action as a counterclaim in response. Many are often confused on this point of Georgia law because, in Georgia, one may not file a child custody modification action in response to a contempt action. O.C.G.A. § 19-9-3. Additionally in Georgia, a trial court may not modify future child support or alimony payments or otherwise change the terms of the final decree of divorce during a contempt proceeding. See Arnold v. Arnold, 236 Ga. 594 (1976). However, one may definitely file a contempt action in response to a modification action. An example may be beneficial in illustrating this distinction.

Acceptable under Georgia Law:
Mother and Father are divorced. Father is ordered to pay mother child support and alimony. Father fails to make payments for two consecutive months. Father files a petition for modification of alimony. Mother responds by filing a motion for contempt as a result of father’s failure to make two support payments. Mother’s counterclaim for contempt is allowable.

Not acceptable under Georgia Law:
Mother and Father are divorced. Father is awarded primary physical custody of the couple’s minor child. Mother is awarded visitation with the minor child. Mother willfully refuses to return the child to father’s custody after her visitation period on three occasions. As a result, Father files a motion for contempt. In response, Mother files a petition to modify child custody. Mother’s modification petition is not an allowable counterclaim to Father’s contempt action.

The first example is totally acceptable under Georgia law. In fact, even if your ex-spouse files a petition to modify alimony in DeKalb County, for example, you may still respond by counterclaiming for contempt, even if your original divorce decree was entered in Fulton County. However, as with initiating a contempt action in any other situation, you must show that your ex-spouse willfully disobeyed the order of the court by failing to comply with your final divorce decree or child custody order in order to prevail. If you require assistance in responding to an alimony, child support, or child custody modification action, contact our Atlanta Family Law Team at Meriwether & Tharp.

By A. Latrese Martin, Associate Attorney, Meriwether & Tharp, LLC

Parental accountability courts may help parents behind on child support in Georgia

Friday, July 13th, 2012

According to an article in the Atlanta Journal-Constitution, Georgia parents who are behind on their child support payments have reason to hope that they’ll see their children rather than the inside of a jail cell thanks to a new program started by courts across the state. “New court pushes fathers to make turnaround,” by Tammy Joyner, published at AJC.com.

The reason for the hope is the introduction of an innovative program in Georgia called parental accountability court. Thanks to the program, parents behind on child support payments can avoid jail and instead work at chipping away the money they owe while still getting to see their kids.

Parental accountability courts have been cropping up across the state. They are the product of a joint effort by Georgia’s Child Support Services department and various local court systems and are designed to offer an alternative to jail. Using resources that exist in the county, the courts address the specific problems facing delinquent parents that prevent them from making regular payments: unemployment, drug use, lack of transportation, etc.

In Georgia, the problem of late payment is massive; a recent report from the Department of Human Services showed that four out of every 10 parents paying child support are delinquent. The parent that’s behind on the payments can then wind up in jail for up to three months, costing the taxpayers $1,500 per month. Moreover, when they’re released they have the same problem as before, no job and no money with which to pay support. As a result, many constantly circulate between jail and court, costing taxpayers thousands while accomplishing little to help the children.

Of the programs that have been started across the state there appears to be real potential. In Hall County, the court’s first year of operation saw child support payments from non-custodial parents grow by $45,000. Simultaneously, the cost of incarcerating non-paying parents fell by $178,000 as the program helped people find work.

Parental accountability courts attempt to address the real problem behind delinquent payments, that many people are in need of jobs to pay the money they owe. Throwing them in jail when they don’t pay does little to solve the problem and that’s what Georgia appears to have recognized.

By Connor Alexander, Law Clerk, Meriwether & Tharp, LLC

Frequently Asked Questions: Georgia Child Support

Friday, June 15th, 2012

Question: Can I get a wage garnishment for back child support on Georgia?

Answer: In Georgia, you cannot obtain a garnishment until you have a Court Order establishing that the other party does owe you back owed child support. Thus, in general, until you have obtained an Order on a Contempt action, you cannot do anything. Once you have an Order establishing the amount owed, then you can request the Court to issue the garnishment.

Question: Can a mother sue the biological father of her children for back child support?

Answer: In Georgia, you cannot sue for retroactive child support, unless there was a previous Court Order establishing that support was proper and establishing the amount of support. If a party wants child support, they must seek it right away. That party can then receive support from the time the Order is entered and going forward until the child turns eighteen.

More Frequently Asked Questions: Georgia Divorce

Monday, May 28th, 2012

Question: How do I prevent my ex-spouse from stopping alimony payments?

Answer: If your ex-spouse has a Court Order to may alimony, and a condition has not occurred in the Order that would allow him to terminate the alimony payments (ex: remarriage), then you can file for contempt against your ex-spouse after he stops paying. There is nothing you can do before he stops paying because he has not violated any Order.

Question: Can my attorney of many years, who has seen my mental health records, represent my wife in our separation agreement?

Answer: There is likely a conflict of interest here, especially if your attorney knows information that may impact the divorce proceedings. You may waive this conflict if you would like but,depending on your situation, it may be best for each of you to have separate attorneys.

Question: I want to remove my name from the deed on the house, but how can I make sure that my spouse refinances to remove my name from the home equity loans?

Answer: In this situation, I recommend that the parties arrange to refinance all the loans at once. Both parties can show up to the closing and the quitclaim deed can be signed at the same time the refinance documents are signed. Otherwise, I would not recommend a person signing a quitclaim deed when they still have liability on the house.

Incarceration for Failure to Pay Child Support in Georgia

Monday, April 30th, 2012

In this economy, many fathers in Georgia, despite their best efforts to provide for their children, fall short of meeting their court ordered monthly child support obligation. Imagine for a moment that this has happened and Georgia Department of Human Services has filed an action against you, requesting your incarceration until you pay several thousand dollars in past due support.You are confident that the Judge will understand and you appear in Court ready to explain you situation. You tell the Court that you have been unemployed for months but just landed a new job,which will allow you to pay your current and past due support. You simply request time to bring your past due support current. The Judge disregards your predicament and issues an Order immediately incarcerating you. You spend the next several months in jail, without family or friends to help, unable to pay the past due amount. The practical result is that now you are unemployed, again, because the employer had to fire you. Despite putting yourself back in a position to pay child support, the Court has now eliminated that option for you.

In a Georgia contempt action, it is common practice to request the Court to incarcerate the non-paying party for willful and intentional underpayment or nonpayment of court ordered support. The situation I just described happened to five fathers in Georgia, who are now seeking to change the system. In March of 2011, these five fathers, represented by Southern Center for Human Rights,brought suit in the matter of Miller, et al. v. Deal, et al., Fulton County Superior Court Case, Civil Action File No. 2011-CV-198121. The suit challenges a Georgia law allowing Judges to incarcerate unrepresented parents in civil child support proceedings that have been brought against them by Georgia Department of Human Services.

On December 30, 2011, Judge Baxter granted the case class action status but the State has announced that it will be appealing this class action certification to the Supreme Court of Georgia.According to the Law Office for the Southern Center for Human Rights, “[i]n the past two years, Georgia has jailed over 3,500 unrepresented parents for child support debt in proceedings initiated by the State. Many of these parents are held for months – some for over a year – even though they have no money to pay and no way to earn money while in jail.” “Georgia Deprives Children as Indigent Parents Languish In Debtors’ Jail for Inability to Pay Child Support.” Southern Center for Human Rights. Web. 03Feb. 2012.

The case is pending appeal and it will be some time before we know what changes, if any, come about as of the result of this suit. So why does this matter? Is it right that indigent fathers are incarcerated sometimes for months or even longer without having had the benefit of legal counsel? The implications of the required changes to Georgia’s legal system if this suit is successful,are potentially far reaching. Georgia, like many states, is strapped for cash and given the sheer volume of these cases, the State will be forced to come up with the funding to provide counsel for these indigent parents.

By Alyssa Vaughn, Associate, Meriwether & Tharp, LLC

Responsibility for ex-spouse’s medical debt after final divorce in Georgia

Friday, February 24th, 2012

Georgia divorce attorneys are often asked whether a party will remain responsible for an ex-spouse’s personal medical debt after the divorce is final. There are two answers to this question.First, if the party signed a document with the medical provider agreeing to pay part of the bill, then yes, that party could still be liable after the divorce.

The second answer depends on what is in the divorce settlement agreement about debts listed and not listed. Many settlement agreements state that a party is solely liable for debts incurred by that party. However, if the medical provider sues you for the debt, and the settlement agreement lists your ex-spouse as being responsible for it, then you must file a third party lawsuit against your ex-spouse to pull him/her into the lawsuit as well. If your settlement agreement is clear enough, you may also want to file a contempt action against your ex-spouse for failing to pay the debt according to the settlement agreement.

By Patrick L. Meriwether, Partner, Meriwether & Tharp, LLC

Retroactive alimony modification not allowed in Georgia

Friday, February 10th, 2012

The Supreme Court of Georgia recently heard a case addressing the issue of retroactive alimony modification in Georgia. Branham v. Branham, S11A1896 (2012). In that case, under their divorce decree, the husband was required to pay periodic alimony to the wife for 120 months “unless and until Wife dies, remarries, or cohabitates with someone else in a meretricious relationship,” and the wife was required to pay the monthly mortgage on the marital home that she was awarded. Id. Both parties quickly fell behind on these obligations. Id. The husband filed a contempt action against the wife for failing to pay the mortgage and also filed a separate action to cease his alimony obligation, alleging that the wife was cohabitating with someone in a meretricious relationship. Id. The wife subsequently filed a contempt action against the husband for his failure to pay alimony. Id. The trial court heard all three actions together and found both parties in contempt. Id. at 2. In addition, the trial court denied the husband’s motion to cease his alimony obligation, but reduced his obligation for past due alimony to zero. Id.

The wife appealed, contending that the trial court erred by retroactively reducing the husband’s alimony obligation and the Supreme Court of Georgia agreed. Id. The Court quoting longstanding Georgia law in its holding: “Retroactive modification of an alimony obligation would vitiate the finality of the judgment obtained as to each past due installment…[A] judgment modifying an alimony obligation is effective no earlier than the date of the judgment.” Id. at 2-3, quoting Hendrix v. Stone, 261 Ga. 874, 875 (1992). In this case, the ruling that husband’s alimony be extinguished clearly violates this rule, as it modifies a past obligation (i.e. one that had already come due). Thus, the Supreme Court of Georgia reversed the ruling.

Divorce decree cannot be modified in contempt case in Georgia

Monday, November 21st, 2011

The Georgia Court of Appeals recently heard a case addressing an alleged modification of a divorce decree in a contempt case. In that case, the parties had joint legal and physical custody of their children. Earle v. Earle, A11A1450 (2011). The father had final decision-making authority over extracurricular activities. Id. at 2. The father later filed a motion for contempt, alleging that the mother refused “to allow the daughter to participate in certain golf tournaments during her custodial time, and for continuing to use a golf instructor for the child that [the father] had previously fired.” Id. at 2-3. After a hearing, the court denied the father’s motion, holding that “the mother could use her custodial time with the children ‘in any way she deems appropriate.’” Id. at 3.

The father appealed, contending that “the trial court improperly modified the original divorce decree” by adding the new language above “which results in a material modification of the decree’s provision regarding his final decision making authority concerning the children’s extracurricular activities.” Id. at 4. The Georgia Court of Appeals disagreed with the father, stating that though a court cannot modify a divorce decree in a contempt order, it can interpret and clarify its own orders. Id. at 5. The Court held that, in this case, “the trial court did not impermissibly modify the earlier decree but instead clarified the extent as to which the father’s decision making as to children’s extracurricular activities could encroach upon the mother’s custodial time.” Id.

This case addresses an interesting issue that can come up post-divorce. If you have final decision making regarding extracurricular activities, it now seems that you must take your former spouse’s custodial time into consideration in scheduling these activities. After this case, one probably should not over schedule the children during the times in which they are in the custody of the other parent.

Update on Terrell Owens child support suit in Fulton County, Georgia

Friday, September 16th, 2011

There was recently a new article on ajc.com about the lawsuit against NFL receiver Terrell Owens in Fulton County for failure to pay child support. Lawyer: T.O. could face jail for failure to pay child support, by Christian Boone, The Atlanta Journal-Constitution, September 8, 2011. As mentioned in my previous blog on the subject, one possible punishment for the willful failure to pay child support is incarceration – and it looks like the plaintiff’s lawyer has petitioned the trial court for just that. According to the article, the original contempt petition for June and July child support payments was withdrawn after the full amounts were paid. However, now Owens appears to have failed to pay support for August or September, which is the subject of the current lawsuit.

The plaintiff’s attorney says that Owens has given no reason for his refusal to pay. The article further states that, though he is not currently signed by any NFL team, he is starring in a reality television show and his estimated monthly income is $666,000. If this is true, he should be able to afford the $5,000 child support payments. The case is currently pending, and a judge will decide whether to jail Owens or force him to make all back payments along with attorney’s fees.

Terrell Owens recently sued for child support in Fulton County

Friday, August 19th, 2011

According to the Atlanta Journal Constitution, NFL receiver Terrell Owens was recently sued in Fulton County for failing to pay child support. T.O. sued for child support, by George Mathis, The Atlanta Journal-Constitution, August 11, 2011. Owens has a five-year-old daughter with the woman bringing the lawsuit,which alleges that Owens has not paid his August child support and told the plaintiff that he does not plan to make future payments. According to the article, Owens was ordered in May 2007 to pay$5,000 per month in child support, and made June and July payments only after being threatened with legal action.

In Georgia, if the court finds that Owens’ failure to pay his court-ordered child support is willful (i.e. he has the money to pay, but just doesn’t want to), he could be subject to sanctions for contempt, which may include license revocation and/or incarceration. Owens’ defense may be that, although he has historically made a very large salary in the NFL, he is currently not on a team and, thus, technically has no income. Perhaps he will argue that he is unable to make the large child support payments due to the fact that he is currently unemployed. I would not be surprised if he filed a modification action to lower his child support if an NFL team does not sign him. Given his historic earning potential, it will be interesting to see what the court does.