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Docket Number

S98A0955.

Attorney(S)

Barry B. McGough, for appellant. Bauer Deitch, Henry R. Bauer, Jr., for appellee.

Judges

CARLEY, Justice.

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Smart Summary

Case Summary: Brown v. Brown, S98A0955 (Ga. Sept. 14, 1998)

Factual and Procedural Background

The parties' marriage was dissolved in 1983 by a final judgment and decree of divorce that approved and incorporated a prior settlement agreement. The incorporated agreement referenced that Beverly Brown would cease to be entitled to alimony "pursuant to OCGA § 19-6-19." In May 1997, Beverly Brown filed a motion for contempt seeking to recover unpaid alimony for 1987 and 1988 and prayed for revival of any dormant portion of the alimony judgment. Clarke Brown answered, asserting he had no liability because the alimony judgment for those years was dormant or, alternatively, that Beverly Brown had "openly cohabited in a meretricious relationship" prior to January 1, 1987. At the contempt hearing the trial court allowed evidence of Beverly Brown's cohabitation as relevant to the contempt issue and, after receiving evidence, denied the contempt motion. The Supreme Court of Georgia granted discretionary review to decide whether the trial court erred in holding that evidence of the meretricious relationship was relevant to Clarke Brown's obligation to pay alimony, and related statutory/retroactivity issues were addressed on appeal.

Legal Issues Presented

Whether evidence of the former spouse's meretricious relationship was relevant to excuse retroactively the obligor spouse's failure to pay alimony where the incorporated agreement conditioned cessation of alimony on cessation "pursuant to OCGA § 19-6-19."
Whether the 1997 amendment to OCGA § 9-12-60, adding subsection (d) excluding child and spousal support from dormancy, applies retroactively so as to revive enforcement of support judgments that became dormant more than ten years before the 1997 contempt action.

Arguments of the Parties

Appellant (Beverly Brown)

She moved for contempt to recover unpaid alimony for 1987 and 1988 and sought revival of any dormant portion of the alimony judgment pursuant to the applicable statutes and precedent.
She argued the 1997 amendment to OCGA § 9-12-60(d) should apply retroactively to defeat the dormancy defense and allow recovery of arrearages predating May 1987.

Appellee (Clarke Brown)

Asserted he had no liability for the 1987-1988 alimony arrearages because the alimony judgment was dormant for those years.
Alternatively contended that Beverly Brown had openly cohabited in a meretricious relationship prior to January 1, 1987, which he argued excused his obligation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parker v. Eason, 265 Ga. 236 (454 S.E.2d 460) (1995)	Revival of dormant judgments and limitations on enforceable arrearages.	Used to support that, absent other renewal, an enforceable claim for unpaid alimony is limited to the ten-year period preceding the May 9, 1997 action unless the dormant portion is revived under OCGA § 9-12-61.
Quillen v. Quillen, 265 Ga. 779 (462 S.E.2d 750) (1995)	Relevance of meretricious-relationship clauses that are self-effectuating.	Referenced for the proposition that evidence of meretricious relationships is relevant if the agreement makes such a relationship a self-effectuating ground to stop payments.
Kent v. Kent, 265 Ga. 211 (452 S.E.2d 764) (1995)	Limitations on obligor spouse's unilateral cessation of payments; requirement of judicial determination under OCGA § 19-6-19.	Cited to show that where the agreement conditions cessation on OCGA § 19-6-19, the obligor must obtain a judicial determination before stopping payments; thus evidence of cohabitation alone cannot retroactively excuse nonpayment.
Weiner v. Weiner, 219 Ga. 44 (131 S.E.2d 561) (1963)	Burden on defendant to show inability to pay a judgment.	Cited to emphasize that the obligor must affirmatively show inability to pay to avoid a finding of contempt for nonpayment.
Brown v. Brown, 237 Ga. 122 (227 S.E.2d 14) (1976), overruled on other grounds by Ensley v. Ensley	Failure to pay may constitute willful contempt absent proof of inability to pay.	Applied to state that, absent a showing of inability, failure to pay unpaid alimony would be willful contempt.
Ensley v. Ensley, 239 Ga. 860 (238 S.E.2d 920) (1977)	Noted as overruling Brown v. Brown on other grounds.	Mentioned to acknowledge that Brown v. Brown was overruled on other grounds; the Court nonetheless relied on the principle regarding contempt and inability to pay as stated in Brown.
Bell v. Hanks, 55 Ga. 274 (1875)	Dormancy classification under OCGA § 9-12-60(a) is determinative of the applicability of the renewal period in OCGA § 9-12-61.	Cited for the longstanding rule tying dormancy classification to the availability of renewal or revival procedures.
Johnson v. Huggins, 7 Ga. App. 553 (67 S.E. 217) (1910)	Same principle as Bell regarding dormancy and renewal periods.	Used to support the determination that dormancy status controls applicability of OCGA § 9-12-61's revival period.
Canton Textile Mills v. Lathem, 253 Ga. 102 (317 S.E.2d 189) (1984)	General rule on retrospective application of statutes that remove time-bars: requires clear legislative intent.	Applied to hold that statutes removing time-bars will be given retrospective effect only when language or the act as a whole demonstrates legislative intent; used to conclude OCGA § 9-12-60(d) was not retroactive.
Reid v. Reid, 232 Ga. App. 304 (502 S.E.2d 269) (1998)	Discusses retroactive application of a remedial statutory amendment (distinguished).	Distinguished by the Court as addressing remedial amendments, not amendments reviving substantive enforcement rights for dormant judgments.
Vaughn v. Vulcan Materials Co., 266 Ga. 163 (465 S.E.2d 661) (1996)	Considerations of legislative intent in statutory interpretation.	Compared in assessing whether the 1997 amendment demonstrates an intent to apply retroactively; cited in support of prospective application.
Wausau Ins. Co. v. McLeroy, 266 Ga. 794 (471 S.E.2d 504) (1996)	Review of statutory enactment as a whole to determine legislative intent regarding retroactivity.	Cited for the principle that review of the enactment did not indicate a legislative intent to give the amendment retroactive effect.
Appalachee Enterprises v. Walker, 266 Ga. 35 (463 S.E.2d 896) (1995)	Same principle: examine the statute as a whole to discern legislative intent about retroactivity.	Used to support the conclusion that OCGA § 9-12-60(d) should be given prospective effect only.

Court's Reasoning and Analysis

The Court's analysis proceeded in two primary divisions.

Division One: The Court examined whether evidence of the former spouse's meretricious relationship was relevant to Mr. Brown's defense against a contempt motion for unpaid alimony. The Court explained that such evidence would be relevant only if the settlement agreement made meretricious cohabitation a self-effectuating event authorizing cessation of payments (citing Quillen and Kent). The incorporated agreement, however, tied cessation to the statutory mechanism of OCGA § 19-6-19, which requires a prior judicial determination that the former spouse engaged in a meretricious relationship and that termination (not merely reduction) of alimony is warranted. Under Kent, an obligated spouse may not unilaterally stop payments by merely claiming the former spouse's meretricious relationship. Therefore, the Court concluded evidence of meretricious cohabitation was not relevant to retroactively excuse nonpayment for 1987 and 1988 because Mr. Brown had not previously obtained a judicial modification under OCGA § 19-6-19(b). The Court further noted the obligor's burden to show inability to pay (Weiner) and that failure to pay is willful contempt unless inability is shown (Brown v. Brown).

Division Two: The Court addressed the dormancy statutes and the 1997 amendment to OCGA § 9-12-60 adding subsection (d), which excludes child and spousal support from dormancy. It explained that under OCGA § 9-12-60(a) a judgment becomes dormant after seven years and, under OCGA § 9-12-61, may be revived within the ensuing three-year period, limiting enforceable arrearages to ten years preceding the revival attempt (as discussed in Parker). The Court considered whether the 1997 amendment should apply retroactively to revive older support judgments. Applying the general rule that statutes removing time-bars are given retrospective effect only when language or the act as a whole indicates such intent (Canton Textile Mills and related authorities), the Court found no expression of legislative intent to apply the amendment retroactively. It distinguished Reid v. Reid as addressing remedial amendments, not substantive revival of dormant rights. The Court concluded OCGA § 9-12-60(d) must be given prospective effect and applies only to judgments entered after July 1, 1997.

Finally, the Court determined that if the dormant portion of the alimony judgment is properly revived under OCGA § 9-12-61, Beverly Brown would have a viable claim for arrearages only for the period after May 1987 (the ten-year window preceding May 1997). The transcript revealed unresolved factual issues about how much unpaid alimony is attributable to that ten-year period, and the Court found the trial court erred in admitting evidence of meretricious cohabitation as a defense to the contempt motion.

Holding and Implications

Holding: The Supreme Court of Georgia reversed the trial court's denial of the contempt motion and remanded with direction. The Court held that the trial court erred by admitting evidence of the former spouse's meretricious relationship as a defense to the contempt motion because the settlement agreement conditioned cessation of alimony on OCGA § 19-6-19 and no prior judicial modification had been obtained. The Court also held that OCGA § 9-12-60(d) (effective July 1, 1997) is to be given prospective effect only and does not revive judgments entered before that date.

Implications:

The case is remanded for the trial court to hold a new hearing to (1) determine whether Mr. Brown is in contempt for unpaid alimony and (2) if so, determine the amount of unpaid alimony that became dormant under OCGA § 9-12-60(a) but may be revived under OCGA § 9-12-61 (i.e., arrearages within the ten-year period preceding the 1997 action).
Evidence of the former spouse's meretricious relationship is not a retroactive defense to nonpayment where the agreement requires cessation only upon judicial determination under OCGA § 19-6-19.
OCGA § 9-12-60(d) (1997 amendment) does not apply retroactively to revive pre-July 1, 1997 child or spousal support judgments; it applies only to judgments entered after July 1, 1997.
The decision directs relief for the parties (reversal and remand) and interprets the statutes as to retroactivity; the Court did not state that it was creating any broader novel rule beyond the statutory interpretation and its application to the facts presented.

Disposition: Judgment reversed, and case remanded with direction. All the Justices concur.

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BROWN v. BROWN.

CARLEY, Justice.

The marriage between Beverly and Clarke Brown was dissolved in 1983, pursuant to a final judgment and decree of divorce which approved and incorporated by reference a settlement agreement previously entered into by the parties. The final judgment and decree ordered both parties to comply with the terms of the agreement. The incorporated agreement contained several references to "the event [Ms. Brown] . . . ceases to be entitled to alimony pursuant to OCGA § 19-6-19." In May of 1997, Ms. Brown filed a motion for contempt, seeking to recover alimony for 1987 and 1988. Included in her motion was a prayer for the revival of "any portion of the . . . [alimony] Judgment . . . which may be dormant . . ." See Parker v. Eason, 265 Ga. 236 ( 454 S.E.2d 460) (1995). Mr. Brown answered, asserting that he had no liability because of the dormancy of the alimony judgment for the years 1987 and 1988 or, in the alternative, because Ms. Brown "openly cohabited in a meretricious relationship . . . prior to January 1, 1987." At the hearing, the trial court ruled that evidence of Ms. Brown's cohabitation was "relevant on the issue of contempt." After the presentation of evidence in that regard, the trial court denied the motion for contempt. We granted discretionary review to determine whether the trial court erred in holding that the evidence of her meretricious relationship was relevant to Mr. Brown's obligation to pay alimony.

1. Such evidence would be relevant if the incorporated agreement provided that Ms. Brown's meretricious relationship was a self-effectuating ground authorizing Mr. Brown to cease paying her alimony. Quillen v. Quillen, 265 Ga. 779 (1) ( 462 S.E.2d 750) (1995); Kent v. Kent, 265 Ga. 211, 212 (2) ( 452 S.E.2d 764) (1995). Under those circumstances, he would be entitled to stop paying alimony immediately upon her entry into the meretricious relationship, without any prior judicial proceedings. However, the settlement agreement does not designate the precipitating occurrence as Ms. Brown's meretricious relationship, but as the cessation of her entitlement to alimony "pursuant to OCGA § 19-6-19." She would cease to be entitled to alimony pursuant to that statute only after a judicial determination that she had engaged in a meretricious relationship and that the termination, rather than a mere reduction, of the alimony award was warranted. OCGA § 19-6-19 (b). "[U]nder the statute, the obligated spouse is never authorized to terminate payments by claiming the former spouse is in a meretricious relationship without first seeking judicial relief. [Cit.]" (Emphasis in original.) Kent v. Kent, supra at 213 (2), fn 4.

Accordingly, evidence that Ms. Brown engaged in a meretricious relationship would not be relevant to excuse retroactively Mr. Brown's failure to pay alimony for 1987 and 1988. Her meretricious relationship would constitute a defense only if, pursuant to OCGA § 19-6-19 (b), he had previously obtained a judicial modification terminating her entitlement to alimony for those years. It is undisputed that Mr. Brown did not obtain such a prior order of modification. "The burden is on defendant to show affirmatively that he is unable to pay the judgment of the court." Weiner v. Weiner, 219 Ga. 44 ( 131 S.E.2d 561) (1963). Thus, if Ms. Brown's claim for unpaid alimony is not otherwise barred, Mr. Brown's failure to pay would be a wilful contempt unless he demonstrated a financial inability to meet that obligation. Brown v. Brown, 237 Ga. 122 (1) ( 227 S.E.2d 14) (1976), overruled on other grounds, Ensley v. Ensley, 239 Ga. 860, 864 ( 238 S.E.2d 920) (1977). The trial court erred in allowing Mr. Brown to introduce irrelevant evidence in defense of the motion for contempt.

2. Under OCGA § 9-12-60 (a), a judgment can become dormant after seven years but, pursuant to OCGA § 9-12-61, may be renewed or revived within the ensuing three-year period. Thus, if those statutes are applicable here and Ms. Brown made no other attempt to renew or revive her judgment, she has an enforceable claim for unpaid alimony for no more than the ten-year period preceding May 9, 1997. See Parker v. Eason, supra. Effective July 1, 1997, however, OCGA § 9-12-60 was amended by adding a subsection (d) which provides that the dormancy provisions of subsection (a) "shall not apply to judgments or orders for child support or spousal support." According to Ms. Brown, this amendment applies retroactively, rather than prospectively, so as to defeat Mr. Brown's assertions of the dormancy of the judgment awarding alimony for 1987-1988 and the consequent unenforceability of her claim for arrearage for the pre-May 1987 period.

Classification as a dormant judgment under OCGA § 9-12-60 (a) is determinative of the applicability of the three-year period for renewal or revival established by OCGA § 9-12-61. See Bell v. Hanks, 55 Ga. 274, 275 (2) (1875); Johnson v. Huggins, 7 Ga. App. 553 ( 67 S.E. 217) (1910). Thus, the issue is whether the 1997 legislative removal of judgments for child and spousal support from the definition of dormant judgments applies retroactively so as to revive Ms. Brown's claim for such unpaid alimony which was due more than ten years before she brought this contempt action and prayed for revival of the dormant portion of the judgment. The general rule is that statutes which remove a time-bar to the initiation of legal claims will be given a retrospective application only "when the language imperatively requires it, or when an examination of the act as a whole leads to the conclusion that such was the legislative purpose. It is at last and always a question of legislative intent. [Cit.]" Canton Textile Mills v. Lathem, 253 Ga. 102, 103 (1) ( 317 S.E.2d 189) (1984). Reid v. Reid, 232 Ga. App. 304 ( 502 S.E.2d 269) (1998) is distinguishable, as it addresses the retroactive application of a remedial statutory amendment, rather than a statutory amendment reviving the substantive right to enforce a dormant judgment. The effective date of OCGA § 9-12-60 (d) is July 1, 1997, and there is no expression of any legislative intent that it apply to judgments for child and spousal support entered before that date. Compare Vaughn v. Vulcan Materials Co., 266 Ga. 163 ( 465 S.E.2d 661) (1996); Canton Textile Mills v. Lathem, supra. Giving that amendment a retroactive interpretation would have the far-reaching effect of authorizing initiation of a suit after July of 1997 to recover arrearages on any and all child or spousal support judgments that were entered in this state at any time prior to July of 1987. Our review of the 1997 enactment as a whole does not lead us to the conclusion that the General Assembly's implicit intent was that OCGA § 9-12-60 (d) have such a broad and significant impact. See Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796 (3) ( 471 S.E.2d 504) (1996); Appalachee Enterprises v. Walker, 266 Ga. 35, 36 (2) ( 463 S.E.2d 896) (1995). Accordingly, OCGA § 9-12-60 (d) must be given prospective effect and, thus, it applies only to judgments for child and spousal support entered after July 1, 1997.

It follows that if the dormant portion of the alimony judgment is revived, pursuant to OCGA § 9-12-61, Ms. Brown would have a viable claim for arrearages resulting from the post-May 1987 period, but, in no event, would the judgment be enforceable for the pre-May 1987 period. A review of the transcript shows that an issue of fact remains as to the amount of unpaid alimony which is attributable to that ten-year period between May of 1987 and 1997. Accordingly, the denial of Ms. Brown's motion for contempt is reversed because of the erroneous evidentiary ruling discussed in Division One, and the case is remanded with direction that the trial court conduct another hearing to determine initially whether Mr. Brown is in contempt and, if he is, then to determine the amount of unpaid alimony that became dormant under OCGA § 9-12-60 (a) but the judgment for which can be revived pursuant to OCGA § 9-12-61.

Judgment reversed, and case remanded with direction. All the Justices concur.