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Divorce decree cannot be modified in contempt case in Georgia

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.

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