Horn v. Shepherd
292 Ga. 14
| Ga. | 2012Background
- Husband and Wife divorced in 2009; decree designated Wife as primary custodian, set child support, medical expenses, and split retirement accounts.
- Decree required Husband to pay past due amounts and ordered monthly support with a right of first refusal and other shared parenting provisions.
- Wife filed a contempt motion in Fayette County in 2009; Fayette contempt order in 2010 found willful disregard and required purge payments and retirement account documentation.
- Husband lost his job in 2011, stopped child support, and faced additional financial obligations including attorney fees.
- Parties consolidated Fayette contempt with Coweta proceedings; Coweta court later issued contempt and custody-related orders nunc pro tunc to 2011, including jail until purge and attorney fees.
- Husband appealed to the Court of Appeals, challenging multiple aspects of contempt, custody, and fees rulings; the Supreme Court of Georgia issued its decision in 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue and jurisdiction for contempt counterclaim | Husband contends counterclaim must be in Fayette County. | Wife's counterclaim could be heard in Coweta due to modification jurisdiction. | Coweta court properly entertained counterclaim under Buckholts; venue/jurisdiction affirmed. |
| Contempt based on Fayette County order and pending new trial | Contempt based on Fayette order should be barred if new trial was pending and not properly filed. | Contempt proceeded based on clear violations; no valid pending new trial precluded it. | Contempt based in part on Fayette order permitted; no valid pending new trial prevented the counterclaim. |
| Wife's alleged willful violations of visitation terms | Wife willfully disobeyed visitation provisions by failing to consult on certain matters. | Any violations were not willful and were credibly explained. | Trial court did not abuse discretion; findings supported no willful violation. |
| Modification of visitation rights in contempt proceeding | Visitation rights modification is improper in contempt. | OCGA 19-9-3(b) permits modification of visitation without showing a change in circumstances. | Court authorized to remove right of first refusal; visitation modification permitted. |
| Purging contempt and attorney fees burden | Purging contempt may condition release on payment of all amounts including new attorney fees. | Cannot condition purge on payment of new attorney fees not part of the original contempt. | Reversed to the extent purge required payment of $2,500 in new attorney fees; remaining $2,500 remains subject to future contempt action. |
Key Cases Cited
- Buckholts v. Buckholts, 251 Ga. 58 (1983) (jurisdiction to modify decree allows cont. counterclaims)
- Carlson v. Carlson, 284 Ga. 143 (2008) (visitation modification allowed under statute)
- Blalock v. Blalock, 247 Ga. 548 (1981) (visitation modification authority under predecessor provision)
- Moccia v. Moccia, 277 Ga. 571 (2004) (discretion to deny modification when evidence does not compel)
- Alexandrov v. Alexandrov, 289 Ga. 126 (2011) (trial court's discretion in awarding attorney fees)
- Gay v. Gay, 268 Ga. 106 (1997) (charging new attorney fees as purge condition improper)
- Westmoreland v. Westmoreland, 243 Ga. 77 (1979) (standard for material change in custody)
- Killingsworth v. Killingsworth, 286 Ga. 234 (2009) (civil contempt standard and credibility determinations)
- Alexandrov v. Alexandrov, 289 Ga. 126 (2011) (attorney fees—financial circumstances and value of legal services)