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Docket Number

31157.

Attorney(S)

R. Wayne Pressley, for appellant. H. Eugene Brown, for appellee.

Judges

JORDAN, Justice.

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Smart Summary

Case Summary: Brown v. Brown, Docket No. 31157 (Supreme Court of Georgia, decided June 22, 1976)

Factual and Procedural Background

This is an appeal from an order of the Fulton Superior Court (before Judge Etheridge) finding the appellant in contempt for failure to pay alimony and child support pursuant to a divorce decree. The trial court found the appellant in wilful contempt for failure to pay an arrearage of $1,650 from August 1975 through October 1975. The trial court ordered the appellant incarcerated in the common jail for five days, directed payment of a fine of $150 to the sheriff and $150 to the movant's attorney for prosecuting the application, and provided that upon serving the five-day sentence and paying the fine and attorney fees the court would consider the contempt purged. Counsel of record: R. Wayne Pressley for appellant; H. Eugene Brown for appellee.

Legal Issues Presented

Whether the trial judge erred in finding the appellant in wilful contempt for failure to pay the alimony and child support arrearage.
Whether the trial court erred in sentencing the appellant to a definite period of imprisonment (allegedly tantamount to imprisonment for debt) and in ordering the payment of a fine and attorney fees as part of the contempt disposition.

Arguments of the Parties

Appellant's Arguments

The appellant assigned as error the sentencing to a definite period of imprisonment, asserting that such a sentence is tantamount to imprisonment for debt and therefore constitutionally prohibited.
The appellant also challenged the ordering of a fine and the requirement to pay attorney fees as part of the contempt disposition.

The opinion does not contain a detailed account of any other specific arguments advanced by the appellee in the trial court or on appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Horton v. Horton, 222 Ga. 430 (150 S.E.2d 630) (1966)	Once a debt has been established, the primary issue in enforcement by contempt is whether the failure to pay is wilful refusal or due to inability.	The Court cited this principle to frame the standard for deciding whether contempt was wilful.
Taylor v. Taylor, 216 Ga. 767 (119 S.E.2d 571) (1961)	Same principle as Horton: distinguishing wilful refusal from inability when enforcing alimony judgments.	Used with Horton to support the legal standard applied to the arrearage here.
Fambrough v. Cannon, 221 Ga. 289 (144 S.E.2d 335) (1965)	When the husband admits an arrearage, he bears the burden of showing in good faith that nonpayment is due to inability and that he exhausted resources to pay.	The Court applied this rule to place the burden on the appellant (who admitted the $1,650 arrearage) to show inability to pay.
Weiner v. Weiner, 219 Ga. 44 (131 S.E.2d 561) (1963)	Same allocation of burden: husband admitting arrearage must show inability and exhaustion of resources.	Reinforced the Court's allocation of the burden of proof to the appellant.
Hawkins v. Edge, 218 Ga. 463 (128 S.E.2d 493) (1962)	Whether the contemnor met the burden is a question for the trial court, and appellate review is limited to whether there was a gross abuse of discretion.	The Court relied on this standard and stated it would not disturb the trial court's finding absent gross abuse; upon review it found no error.
Mathews v. Mathews, 222 Ga. 311 (149 S.E.2d 666) (1966)	Georgia's constitutional prohibition against imprisonment for debt: contemnor may be imprisoned only if shown to have ability to pay and imprisonment must be conditional so contempt can be purged by payment; determinable sentence is permissible only if it ceases upon purging.	The Court used Mathews to hold that the trial court's order, as written, lacked the required conditional purge provision and thus constituted impermissible imprisonment for debt.
Wagner v. Commercial Printers, 203 Ga. 1 (45 S.E.2d 205) (1947)	The purpose of civil contempt to enforce compliance with a decree is remedial (protecting rights of the complaining party), and criminal penalties (e.g., fines) are inappropriate in such civil enforcement proceedings.	The Court cited Wagner to conclude that the imposition of a penal fine was improper in this civil contempt context.
Balasco v. Balasco, 235 Ga. 214 (219 S.E.2d 104) (1975)	A judgment for attorney fees in a contempt case is proper where a finding of contempt is authorized; statutory authority exists for awarding attorney fees.	The Court relied on Balasco (and Code Ann. § 30-219) to conclude that awarding attorney fees was authorized and proper here.

Court's Reasoning and Analysis

The Court proceeded in two primary analytical steps, mirroring the issues raised on appeal.

On the question of wilful contempt: the Court stated the controlling legal standard — once a debt is established the inquiry is whether the contemnor wilfully refused to pay or was unable to pay. Because the husband (appellant) admitted an arrearage of $1,650, the appellant bore the burden to show in good faith that his failure to pay was due to inability to earn income and that he had in good faith exhausted all available resources to satisfy the decree. The Court emphasized that whether the appellant met this burden is a factual determination for the trial court, reviewable only for gross abuse of discretion. After reviewing the trial transcript, the Supreme Court found no error in the trial court's finding of wilful contempt.
On the sentencing and monetary sanctions: the Court reviewed the form and effect of the trial court's order (five days' incarceration, $150 fine to the sheriff, $150 to the movant's attorney, with purge conditioned on serving the sentence and paying the fines/fees). Citing the constitutional prohibition against imprisonment for debt and Mathews, the Court explained that imprisonment for nonpayment of alimony is permissible only when the contemnor has the ability to pay and when imprisonment is conditional and terminable upon the contemnor's payment of what the evidence shows he is able to pay. The Court found the trial court's order defective because it lacked an express condition allowing the contemnor to purge contempt by payment of the arrearage and attorney fees — instead it required serving the five-day sentence even if payment were made before the sentence concluded, which would amount to imprisonment for debt and is constitutionally barred. The Court further ruled that imposition of a penal fine is inappropriate in civil contempt proceedings intended to be remedial (citing Wagner). Finally, the Court concluded that awarding attorney fees in a contempt case is authorized where contempt is found (citing Code Ann. § 30-219 and Balasco) and therefore the attorney-fee award was proper.

Holding and Implications

Judgment affirmed with direction.

Holding details:

The Supreme Court affirmed the trial court's finding that the appellant was in wilful contempt for failing to pay the $1,650 arrearage.
The Court found the trial court's procedure for purging contempt defective because the order did not allow the contemnor to purge by payment of the arrearage and attorney fees prior to serving the five-day sentence; as written it would impose imprisonment for debt, which is constitutionally prohibited. The penal fine imposed was also deemed improper in a civil contempt enforcement proceeding.
The award of attorney fees was held to be authorized and proper.

Implications and effect:

Direct effect: The contempt adjudication stands, but the Supreme Court directed the trial court to amend its order so that the appellant may purge the contempt by payment of the attorney fees and the arrearage found to be due, or such part thereof as the trial court determines the appellant is able to pay. The improper penal fine and the order's requirement that the jail term be served notwithstanding payment must be corrected to avoid unconstitutional imprisonment for debt.
The opinion applies and reiterates existing Georgia law on civil contempt, conditional imprisonment to avoid imprisonment for debt, and the propriety of attorney-fee awards in contempt cases; it does not announce a new rule of law beyond applying these precedents to the facts of this case.

All the Justices concurred.

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BROWN v. BROWN.

JORDAN, Justice.

This is an appeal from an order of the trial court finding appellant in contempt of court for failure to pay alimony and child support pursuant to a divorce decree.

1. The first question presented for decision is whether the trial judge erred in holding appellant in wilful contempt of court. Once a debt has been established, the sole issue in a proceeding to enforce an alimony judgment by attachment for contempt is whether the husband wilfully refused to pay, or whether his failure to pay is due to his inability. Horton v. Horton, 222 Ga. 430 ( 150 S.E.2d 630) (1966); Taylor v. Taylor, 216 Ga. 767 ( 119 S.E.2d 571) (1961). The husband having admitted an arrearage of $1,650, has the burden of affirmatively showing that his failure to pay is due to a good faith inability to earn an income and that he has in good faith exhausted all of the resources at his command in an effort to satisfy the decree awarding alimony and child support. Fambrough v. Cannon, 221 Ga. 289 ( 144 S.E.2d 335) (1965); Weiner v. Weiner, 219 Ga. 44 ( 131 S.E.2d 561) (1963). Whether this burden has been met is a question for the trial court, and his decision will not be disturbed except for a gross abuse of discretion. Hawkins v. Edge, 218 Ga. 463 ( 128 S.E.2d 493) (1962).

We have reviewed this transcript and find no error in the trial court's finding of wilful contempt.

2. Appellant assigns as error the sentencing of him to a definite period of imprisonment, such being tantamount to imprisonment for debt, and the ordering of him to pay a fine and attorney fees.

The order in relevant part, reads as follows: "[T]he court finds as a matter of fact that respondent is in wilful contempt of this court's order for his failure to pay the sum of $1,650 from August, 1975 through October, 1975.

"It is therefore ordered that the respondent . . . be incarcerated in the common jail . . . for a period of (5) five days . . . and further that he pay a fine of $150.00 to the sheriff . . . and $150.00 to movants [sic] attorney for prosecuting this application, then the court shall consider his contempt purged."

Georgia has had a long standing constitutional prohibition against imprisonment for debt. Therefore, a husband may not be imprisoned for failure to pay alimony unless it is first found that he has the ability to pay but merely refuses to do so. In such circumstances, the contemnor may be imprisoned only under a conditional sentence pending the contemnor purging himself by paying such sums as the evidence shows he is able to pay. Mathews v. Mathews, 222 Ga. 311 ( 149 S.E.2d 666) (1966). There is no error in the trial court setting a determinable sentence rather than an indefinite one as long as the determinable sentence is made to cease upon the contemnor purging himself of contempt. What is so noticeably absent from the trial court's order is a condition that the sentence discontinue upon the payment of the $1,650 arrearage and the attorney fees. To the contrary, the order provides that the contemnor may purge himself only by serving the five-day sentence and paying a fine and attorney fees. As it presently stands, the order would require the serving of the jail sentence in order to purge the contempt, even though the contemnor might pay the arrearage and attorney fees prior to the conclusion of the five days. Such is an imprisonment for debt and barred by our Constitution.

The decree provides for a fine against the appellant of $150. By its very definition, penal fines are not appropriate in the enforcement of civil or remedial contempt. Such are more indicative of the criminal penalties of direct summary contempt under Code Ann. § 24-2615 (5). See Mathews v. Mathews, supra. The purpose of the civil proceeding, as to enforce a decree of alimony, is to enforce the compliance with a court order for the protection of some right of the complaining party. Wagner v. Commercial Printers, 203 Ga. 1 ( 45 S.E.2d 205) (1947). A criminal sentence, such as a fine, is inappropriate in a proceeding to compel obedience of an order or decree made to enforce the rights of a party to the suit. The fine was improper in this case.

A judgment for attorney fees in a contempt case is proper where a finding of contempt is authorized. Code Ann. § 30-219 (Ga. L. 1947, p. 292); Balasco v. Balasco, 235 Ga. 214 ( 219 S.E.2d 104) (1975). The award of attorney fees was authorized here.

For the foregoing reasons, the contempt decree is affirmed with direction that the trial court amend its order to allow the appellant to purge himself of contempt by payment of the attorney fees and the arrearage found to be due or such part thereof as the court determines the appellant is able to pay.

Judgment affirmed with direction. All the Justices concur.