Lead Opinion
Kurt A. Floyd, Sr., and Livia M. Floyd were divorced in 2008. The decree of divorce incorporates the settlement of the parties, in which Kurt and Livia agreed that Kurt would retain title to, and possession of, the marital residence. The decree and incorporated settlement required Kurt to refinance the existing mortgage on the marital residence and to use the proceeds to pay Livia for her share of the equity. If Kurt were unwilling or unable to refinance the marital residence, the decree and incorporated settlement required him, within 90 days of the entry of the decree, to list the marital residence for sale at its fair market value or a price mutually agreeable to the parties. On cross-motions for contempt, the court below found that Kurt violated the terms of the decree in several respects, including by failing to refinance or list the marital residence, and it held Kurt in contempt of the decree. The court directed Kurt to purge his contempt with respect to the marital residence by making a quitclaim deed for the residence in favor of Livia. Kurt appeals from the contempt order, as well as the denial of his cross-motion for contempt.
1. We turn first to the contention that the court below impermissibly modified the decree by directing Kurt to purge his contempt by executing a quitclaim deed in favor of Livia. It is settled that, “[w]hile the trial court has broad discretion to determine whether the decree has been violated and has authority to interpret and clarify the decree, it does not have the power in a contempt proceeding to modify the terms of the agreement or decree.” Jett v. Jett,
Livia argues that Kurt has waived his contractual interest in the marital residence by his contemptuous conduct, specifically by failing to refinance the marital residence, put it on the market for sale, or pay Livia her share of the equity and by occupying the residence for more than 15 months without paying the mortgage.
“Our ruling does not mean that the trial court is left with no effective means of enforcing the divorce decree.” Darroch,
his obligations and avoid these consequences. If that happens, however, it will be based upon his decision to take that action with the house specifically awarded to him in the divorce decree, rather than the trial court’s impermissible direct modification of that component of the decree’s property division.
Doane,
2. We turn now to the
The Wife may seek a more economical health insurance policy, and for so long as health insurance is made available at a reasonable rate through Husband’s place of employment, Husband shall maintain his current health insurance covering the minor children. . . . Husband shall be responsible for said cost of insurance for each minor child for as long as Husband has a child support obligation for that child; however, if Wife is offered more economical insurance which is comparable to the insurance currently carried by Husband, then Wife shall be able to maintain health insurance for the minor children and to pay the premiums associated with said insurance. As dictated by the current child support guidelines, the cost of health insurance is calculated into the formula which determines the amount each party is obligated to pay for child support.
According to Kurt, it is unclear whether he is required to maintain health insurance if it no longer is available at a reasonable rate from his employer or if Livia is offered a comparable policy which is more economical.
As this Court has explained, “[t]he controlling principle to be applied in interpreting decrees based on agreement of the parties is to find the intent of the parties by looking to the four corners of the agreement.” Crosby v. Lebert,
The subsequent provision, which concerns an offer to Livia of comparable, but more economical, insurance, does not relieve
Kurt relies on the general rule that, “[b]efore a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied.” Hall v. Nelson,
Kurt argues that, even if the medical insurance provisions are not ambiguous, the court below impermissibly modified the divorce agreement by requiring Kurt to reimburse Livia for medical insurance premiums, as nothing in the agreement directly imposes any such requirement. But as we have already explained, Kurt is responsible for the cost of such premiums, and ordering him to reimburse Livia for the cost of premiums incurred during the time that he failed to maintain insurance is a reasonable method of compelling him to fulfill his obligation under the divorce decree. See Roberts v. Roberts,
3. Kurt also complains that the court below erred when it declined to hold Livia in contempt for taking a gold coin, a silver bowl, and silver place settings that Kurt apparently inherited from his aunt.
For
Judgment affirmed in part and reversed in part.
Notes
In her brief to this Court, Livia contends that the court below erred when it denied in part her motion for contempt and effectively relieved Kurt of his obligation to pay a share of certain uninsured medical expenses of their children. Livia failed, however, to file a cross-appeal, and an appellee ordinarily must file a cross-appeal to preserve a claim of error, except when the claim of error is material to, and intertwined with, a claim of error properly raised by the appellant. Georgia Society of Plastic Surgeons v. Anderson,
Livia also argues that Kurt abandoned his interest in the property. But Kurt owns a fee interest in the marital residence, “and title to real property cannot pass by mere abandonment.” 1845 La Dawn Lane v. Bowman,
Even if that were the issue before us, the evidence does not show an essential element of waiver, namely the “voluntary relinquishment of some known right, benefit, or advantage, which, except for such waiver, the party otherwise would have enjoyed.” Hathcock v. Hathcock,
where the only evidence of an intention to waive is what a party does or forbears to do, there is no waiver unless his acts or omissions to act are so manifestly consistent with an intent to relinquish a then-known particular right or benefit that no other reasonable explanation of his conduct is possible.
NW Parkway v. Lemser,
In her brief, Livia argues that “[settlement agreements] in divorce cases must be construed in the same manner and under the same rules as all other contractual agreements.” See Jones v. Jones,
The portion of the contempt order that requires reimbursement of these premiums appears to confuse the identifying terms “Plaintiff” and “Defendant.” At least part of the confusion was probably caused by the fact that each party filed a motion for contempt, and so each was identified variously as the plaintiff with respect to his or her own motion and as the defendant with respect to the other party’s motion. But the parties agree that the court below ordered Kurt to reimburse Livia for premiums that she paid and that he failed to pay. Because any other meaning would make no sense, we share this understanding.
“Responsible” is ordinarily understood to mean “[a]nswerable, accountable, (¡to); liable to be called to account,” 2 New Shorter Oxford English Dictionary, p. 2567 (1993 ed.), or “[l]iable to be required to give account, as of... the discharge of a duty.” American Heritage Dictionary of the English Language, p. 1537 (3d ed. 1992). That is the sense in which we understand the word as it appears in the incorporated settlement.
See American Heritage Dictionary of the English Language, supra at p. 1330 (“pay” means “[t]o give (money) in exchange for goods or services; . . . [t]o discharge or settle (a debt or an obligation)”); 2 New Shorter Oxford English Dictionary, supra at p. 2129 (“pay” means to “[g]ive . . . money etc. that is due for ... a service done, or a debt incurred; . . . [h]and over or transfer money in discharge of (a debt, fee, wage, etc.)”).
We note that, if Livia were required to hear the cost of insurance upon securing a less expensive policy, she would have little, if any, financial incentive in most circumstances to obtain such a policy, and the provision allowing her that option would essentially be rendered meaningless. “[I]t is axiomatic that whenever possible, a contract should not be construed in a manner that renders any portion of it meaningless.” Schwartz,
The court below did find Livia in contempt for failing to foster the relationship between the children and their father and for impeding his visitation rights. Although the court admonished her, it did not order any sanction against her. Kurt has not raised this issue on appeal. But he has raised a question about whether the court below erred when it declined to hold Livia in contempt and to sanction her for failing to comply with various tax provisions of the incorporated settlement. We cannot, however, consider this question, as it has not yet been ruled on. The court below reserved this question for a later hearing, and Kurt did not seek to invoke a ruling before he appealed from the contempt order on the other issues. See Glean v. State,
With the parties’ consent, the court below entered an order reconstructing the proceedings that occurred on the first day of the hearing, which were not transcribed. Livia’s testimony and the court’s ruling regarding the gold and silver occurred on that first day and so are set forth in the consent order.
Livia claims that this issue can he resolved by reference to provisions of the incorporated settlement that indicate that all personal property has been divided in accordance with the agreement. But regardless of such provisions, the parties to a divorce decree still “must specifically describe and dispose of property in which both parties have an interest or the decree will not divest either party of their interest in the property. This is true although title to the personal property of each is adjudicated____” Newborn v. Clay,
The result is that the decree does not affect the title to the gold and silver items, and Kurt may pursue methods other than contempt to determine ownership of those disputed items. Buckley,
Concurrence in Part
concurring in part and dissenting in part.
Although the majority opinion properly affirms the trial court’s finding that the husband was in wilful contempt, I cannot agree with its reversal of the trial court’s order directing the husband to execute a quitclaim deed to the wife. In this case, the husband lived in the marital residence for 15 months without paying the existing mortgage, and he failed to refinance that mortgage or list the property for sale as required under the couple’s divorce decree. Because the majority opinion permits a party with impunity to violate a judgment of the court without losing the benefit of the bargain he made in the divorce settlement, I dissent to Division 1.