COLLINS v. BILLOW
S04A0022
Supreme Court of Georgia
FEBRUARY 16, 2004
277 Ga. 604 | 592 S.E.2d 843
HUNSTEIN, Justice.
Judgment affirmed. All the Justices concur.
DECIDED FEBRUARY 16, 2004.
Levenson & Associates, Louis Levenson, Ted Marcus, for appellants.
Kitchens, Kelley & Gaynes, Mark A. Kelley, Stephen V. Kern, for appellee.
HUNSTEIN, Justice.
We granted the application for discretionary appeal in this domestic case to consider whether the trial court erred in holding Wife in contempt of its previously entered child support order. Because we find that Wife made the child support paymеnts required under such order, we reverse.
Husband and Wife were divorced in February 1996 by a final decree awarding primary custody of the parties’ two children to Husband and dirеcting Wife to pay 23% of her annual income, or $115 per week, to Husband in child support. A year later, Husband filed a contempt action asserting Wife was $2,000 in arrears in child support payments. Wife subsequently filed a separate action to modify visitation and child support in order to provide a sum certain award rather thаn a percentage of income. After a consolidated hearing on the two actions, on February 27, 1998, the trial court entered a single order under the cоntempt action case number in which it modified visitation and directed that child support be set at $140 per week. Apparently realizing that the single order was issued under the contempt case number and omitted any reference to the visitation action, counsel for the parties drafted two separate orders аddressing the same issues. The orders were entered on March 10, 1998. The first order addressed the modification of visitation in Wife‘s action. The second order, entered in Husband‘s contempt action, vacated the February 27, 1998 order and set child support at $140 per week.
On August 28, 2001, Husband again filed a contempt action asserting that Wife owed more than $20,000 in child support because she failed to pay child support in the amount of 23% of her gross income. Wife argued that the March 10, 1998 contempt order modified the child support award and that she had paid the $140 modified amount every week since the entry of the March 1998 order.
1. A trial court has no authority to modify the terms of a divorce decree in a contempt proceeding. Harper v. Smith, 261 Ga. 286 (404 SE2d 120) (1991). In the present case, the divorce dеcree required Wife to pay weekly child support payments equal to 23% of her gross income, or $115 per week. The March 10, 1998 contempt order adjusted child support upward to $140 per week. Husband argues that the $140 award constituted 23% of Wife‘s weekly gross income at the time of the contempt hearing and, thus, was simply a сlarification of the child support award in the original decree. We disagree. The record reflects that 23% of Wife‘s then current gross income would have rеquired an award of $158 per week. Had the upward adjustment been a clarification of the amount of support due pursuant to the language of the original decree, Wife‘s child support obligation would have been set at this greater amount. Accordingly, the March 1998 contempt order increasing Wife‘s child support оbligation to $140 was an improper modification of the final judgment.
2. Although we find the $140 child support award was erroneously entered, it is not void as long as it was entered by a court of competent jurisdiction. See State of Ga. v. Harrell, supra, 260 Ga. at 202. In Harrell, we held that:
[a] judgment which is erroneous but not void may be attacked only by direct appeal or by motion to set aside the judgmеnt. [Cit.] There was no appeal and there has been no action to set aside the [previous] judgment. In fact, since more than three years have passеd since the entry of that judgment, the time for setting it aside has passed.
OCGA § 9-11-60 (f) .
Judgment reversed. All the Justices concur, except Carley, J., who concurs specially.
CARLEY, Justice, concurring specially.
While agreеing with the majority that the trial court erred in holding Wife in contempt for failing to pay more than $140 per week in child support, I would not characterize that error as an abuse of discretion. A trial court acts as the trier of fact in a contempt action, and is vested with broad discretionary power when the evidencе is conflicting. Yancey v. Mills, 210 Ga. 684, 685 (1) (82 SE2d 505) (1954). Here, however, there was no conflicting evidence upon which the trial court could exercise its discretion. As recited by the majority on page 605 of its opinion, the undisputed evidence shows that “the March 1998 contempt order increasing Wife‘s child support obligation to $140 was an improper modificаtion of the final judgment[,]” rather than a clarification of her obligation under the decree. Notwithstanding a trial court‘s discretionary authority in matters of contempt, the terms of the final judgment in a divorce case cannot be modified in a subsequent contempt proceeding, as a matter of law. Harper v. Smith, 261 Ga. 286 (404 SE2d 120) (1991).
However, Husband‘s contеmpt action was not the only proceeding involving the divorce decree pending in 1998. Wife‘s modification action was also before the trial court at that time, and in that proceeding she had sought to change the amount that she should pay for child support from a percentage of her income to a sum certain. There is no question that the increase in Wife‘s child support obligation to the specific amount of $140 per week would be valid if it appeared in а separate order entered in her modification action or in a consolidated order entered in both cases. Olliff v. Olliff, 234 Ga. 892 (218 SE2d 622) (1975);
Thus, the actual error that I perсeive in this case consists of the trial court‘s mistaken inclusion of the provision increasing the amount of child support in the context of the order styled in Husband‘s cоntempt proceeding, rather than correctly including it as a
DECIDED FEBRUARY 16, 2004.
Stern & Edlin, George S. Stern, David J. Beaudry, for appellant.
Head, Head & Head, James B. Head, for appellee.