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. Arnold v. Arnold . 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