After finalizing a divorce action, some former couples are able to move forward with their lives and not look back. More often, however, one party fails to comply with his/her obligations under the divorce decree and the other party is forced to file a contempt action bringing both parties back to court to argue over issues they thought had been resolved. In Sutherlin v. Sutherlin, the parties divorced in 2012, but the Wife filed for contempt 3 years later, alleging that the Husband failed to comply with several provisions of their Separation and Property Division Agreement. Sutherlin v. Sutherlin, S17F0613 (June 26, 2017).
In her first allegation of contempt, the Wife alleged that the Husband violated the divorce decree by “failing to make timely mortgage payments on the parties’ former marital residence.” Id. The parties’ divorce decree granted the Husband “the sole right to occupy and enjoy” the marital residence (which mortgage was solely in wife’s name) and provides that “Husband shall be solely responsible for any and all indebtedness secured by that residence, as well as ad valorem taxes, insurance premiums and utility bills associated with that residence, and shall indemnify and hold Wife harmless for same.” At the hearing, the Wife presented evidence that Husband had made several late payments on the mortgage. The Husband didn’t contest the fact that he made late payments but “contends that he should not have not have been held in contempt because the language of the agreement requires only that he ‘be solely responsible’ for the mortgage payments and that such responsibility does not encompass an obligation to make payments in a timely manner.” Id. He further contended that inferring a duty to make timely payments was an improper modification of the Agreement by the trial court.
While this is an interesting argument, the trial court did not buy it, nor did the Georgia Supreme Court on appeal. Upon reviewing the case, the Georgia Supreme Court held that “Husband’s responsibility to make mortgage payments clearly encompasses the duty to make those payments on time, an implication that is made even more certain by Husband’s obligation to indemnify Wife.” In other words, because Husband had to indemnify the Wife as it relates to the mortgage, and the mortgage is solely in Wife’s name, it naturally follows that Husband has a duty to make payments on time so that Wife is not penalized as the mortgage holder. This duty is an inference that naturally flows from the terms of the Agreement, and not an improper modification by the trial court. Thus, the contempt stands on this issue.
See subsequent blogs for other contempt issues from this case.