Quillen v. Quillen
265 Ga. 779
Ga.
1995
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QUILLEN v. QUILLEN

S95A1172

Supreme Court of Georgia

October 23, 1995

265 Ga. 779 | 462 SE2d 750

CARLEY, Justice.

Aрpellant and appellee were divorced pursuant to a decree which incorporated their settlement agreement. One provision of the incorporated settlement agreement obligated appellee to pay monthly alimony until appellant “cohabits as same is defined by Georgia law.” When appellee subsequently failed to pay the alimony, appellant filed this contempt action against him. After conducting a hearing, the trial court found that, as of January 1, 1994, appellant cohabited with a third party. Based upon this finding, the trial court concludеd that appellee‘s obligation to pay alimony ended on that date and that he was not in contempt for failing to make payments thereafter. We granted appellant‘s application for a discretionary appeal from the trial court‘s order.

1. Appellant urges that the modification of a final divorce decree can “only be accomplished by proceedings under OCGA § 19-6-19” and that the trial court erroneously exceeded its jurisdiction by modifying the final divorce decree in this contempt action.

To obtain the modification of a final divorce decree, proceedings must be instituted pursuant to OCGA § 19-6-19. However, unless prohibited by statute or public policy, all persons are free to contract on any terms regarding a subject matter in which they have аn interest. , aff‘d, . Thus, we have recognized that divorcing parties are free to contract for self-executing changes in an alimony obligation upon the occurrence of certain events. ; . OCGA § 19-6-19 provides that cohabitation is a ground for seeking a judicial modification of an alimony obligation. However, nothing in that statute provides that the divorcing parties themselves cannot contract for the automatic termination of the alimony obligation of one party upon the cohabitation of the other. Thus, in , we held that, if

the parties agree that alimony will terminate on the former spouse‘s cohabitation ‍‌​​‌​​​‌​​​​​​‌‌​‌​​‌​​​‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​‌‌‍with a third party, [and] that situation occurs, the obligated spouse, under the terms of the agreement, is authorized to stop making alimony payments.

(Emphasis in original.) This holding in Kent recognizes the contractual freedom of divorcing parties to agree to a self-executing termination of an alimony obligation upon the occurrence of cohabitation. Under Kent, the former spouse who brings a contempt action will not be faced with what, in essence, is the obligated spouse‘s impermissible counterclaim for modification of alimony. The holding in Kent is premised upon the divorcing parties’ mutual agreement to an automatic termination of alimony in the event of cohabitation, which agreement has been incorporated into the divorce decree. Thus, when cohabitation is relied upon as the ground for ceasing to pay and a contempt action is filed, the trial court is called upon to determine whethеr the pre-existing incorporated agreement authorizing the obligated spouse‘s automatic termination of the obligation has been triggered by the former spouse‘s subsequent cohabitation. Thеrefore, the question for resolution by the trial court is whether the obligated spouse is in contempt of the existing terms of the divorce decree, not whether the obligated spouse is entitled to a subsequent modification of the existing terms of that decree. The obligated spouse‘s determination that the former spouse has cohabited may be a subjective one, but the trial court must make аn objective determination in that regard. If the former spouse did cohabit, then the alimony obligation has been terminated in accordance with the pre-existing incorporated agreement and the obligated spouse cannot be found to be in contempt of the divorce decree. If, on the other hand, there was no such cohabitation, the obligated spouse “risks being found in contempt, or, at any rate, liable for all payments....” .

It may be true that, under Kent, the former spouse who brings a contempt action will not be afforded the same venue and jury trial options as would be available in a modifiсation proceeding instituted by the obligated spouse pursuant to OCGA § 19-6-19. However, that is entirely a consequence of the former spouse‘s own agreement to an automatic termination of alimony upon his or her cohabitation. If a former spouse does not wish to have the alimony obligation subject to an automatic termination upon his or her cohabitation, then he or she should not agree to it. If, on the other hand, the former spouse has made such an agreement, then he or she is bound thereby and must abide by the procedural, as well as the substantive, consequences thereof.

The premise of appellant‘s argument is that a modification proceeding pursuant to OCGA § 19-6-19 is the exclusive method by which divorcing parties can accomplish a termination ‍‌​​‌​​​‌​​​​​​‌‌​‌​​‌​​​‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​‌‌‍of alimony bаsed upon cohabitation. However, this premise is contrary to Kent, which is based upon established legal principles and to which we adhere. Therefore, appellant‘s contention that thе trial court exceeded its jurisdiction in this contempt action is without merit.

2. The trial court‘s order contains the finding that, “based on the evidence presented, including that of [appellant] herself, [she] has cohabited with a third party.” Although appellant urges that this finding is not supported by the evidence, she has not provided a transcript of the contempt hearing. In the absence of a transcript, wе must assume that the evidence presented at the hearing was sufficient to support the finding of the trial court. .

Judgment affirmed. All the Justices concur, except Hunstein, J., who dissents.

HUNSTEIN, Justice, dissenting.

This case marks a pivotal рoint in the direction this Court will follow in regard to divorce settlement agreements. Over my dissent, this Court has already allowed parties to circumvent the judicial process altogether by executing judiciаlly-unsupervised contracts that resolve issues arising out of the dissolution of the marriage contract. . With the instant case this Court is now permitting parties, whose settlement agreement was incorporаted into a divorce decree, to divest the trial court of all supervision over its decree by upholding a provision that places unfettered discretion over the unilateral termination оf a judicially-sanctioned obligation, i.e., alimony, into the hands of one party to the decree. If this State wants to move in the direction of self-help divorces with the judiciary acting as a mere rubbеr-stamp license-fee collector, I believe it should be the Legislature that makes that decision, not this Court.

I find that the termination-upon-cohabitation provision in this case violates the public policy of this State, as expressed in our ‍‌​​‌​​​‌​​​​​​‌‌​‌​​‌​​​‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​‌‌‍Constitution and our statutes. As the majority recognizes, the provision results in an implied waiver both of venue rights, see Art. VI, Sec. II, Par. I of the Georgia Constitution (1983), and jury trial rights, see Art. I, Sec. I, Par. XI (a), even though the contract fails to refleсt that such waiver was “clearly intended and expressed by the person so waiving.” .1 The provision directly contradicts the Legislature‘s mandate set forth in OCGA § 19-6-19 (b).2 Last, but not least, the provision violates

public policy by depriving the courts of their duty to oversee modification of their judgments.

While this Court has a long history of authorizing and, indeed, strongly encouraging the private settlement of family affairs, see, e.g., , we have not heretofore apprоved a divorce settlement agreement provision which divests the judiciary of its discretion, implicates constitutional rights, and conflicts with express statutory provisions. None of the case law citеd by the majority justifies or supports its approval of this provision.3

Accordingly, while I concur in the affirmance of the one issue properly before the trial court, namely, the finding that Ralph Quillen was nоt in wilful contempt of court, I would reverse the trial court‘s ruling retroactively terminating Ralph Quillen‘s alimony obligation and would require him to file a modification action in the proper venue pursuant tо OCGA § 19-6-19, with Elaine Quillen entitled, upon proper request, ‍‌​​‌​​​‌​​​​​​‌‌​‌​​‌​​​‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​‌‌‍to a jury trial on the cohabitation issue.

DECIDED OCTOBER 23, 1995.

Garland & Milam, Richard G. Milam, for appellant.

Smith, Welch & Studdard, J. Mark Brittain, for appellee.

Notes

1
¹ Ironically, the majority allows an implied pre-litigation waiver of the right to a jury trial in this divorce settlement agreement, although rejecting in purely commercial contracts those provisions which explicitly waive that right. See ; ; .
2
² The termination-upon-cohabitation provision conflicts with OCGA § 19-6-19 inasmuch as that statute requires the alimony-paying spouse to file a modification action “under the same rules of procedure applicable tо divorce proceedings,” id. at (a); authorizes jury trials in modification actions, upon proper demand, see ; recognizes that cohabitation is merely a ground to modify alimony and disallows autоmatic termination or reduction of the alimony obligation, see ; and prohibits unilateral termination of alimony upon a claim of cohabitation. .
3
³ The majority relies upon footnoted dicta in , a case in which the alimony-paying spouse did file, properly, a modification action to terminate his support paymеnts to his ex-wife on the basis of her alleged cohabitation with a third party. Although the majority cites other cases in which this Court has approved some self-executing future modification ‍‌​​‌​​​‌​​​​​​‌‌​‌​​‌​​​‌‌​‌‌‌‌‌‌​‌​‌‌‌‌​​‌‌‌​‌‌‍provisions, the provisions in those cases are clearly distinguishable, in that those provisions were set forth so explicitly that subjective application was eliminated and the consequences thereof сould be reviewed by the trial court before the provision was incorporated into the divorce decree. See, e.g., and (inversion clause cases where change was not as to amоunt of support but only as to person responsible for making the payment); and (escalation clause cases where fixed base amount of support was awarded and variable future award was made contingent upon objective, specified changes). See also (defining scope of modification actions).