Preview:

Final Copy 287 Ga. 842 S10A0929. ROBINSON v. ROBINSON. HINES, Justice. This Court granted the application for discretionary appeal of Tonja Robinson ("Wife") from the trial court's order on a petition for contempt in this divorce case, and we affirm in part and reverse in part that judgment. Tonja Robinson filed a complaint for divorce from Edward Robinson, Jr. ("Husband") in 2007. On July 31, 2007, the trial court entered a temporary order, requiring Husband to pay $3,431 per month in child support for the couple's three minor children, and to provide health and dental insurance for the children and Wife. Husband was also ordered to pay $3,000 per month in temporary alimony beginning on August 1, 2007, and name the children as beneficiaries on an existing life insurance policy. On November 5, 2008, after a bench trial, the trial court entered what it denominated a "Final Judgment and Decree," which required, among other things, that Husband pay $5,440.65 per month in child support, name Wife as successor trustee on his life insurance policy, and pay one-half of his
1

children's uncovered medical expenses. The "Final Judgment and Decree" provided for lump sum permanent alimony to be paid to Wife, but not periodic permanent alimony. On April 30, 2009, the trial court entered an order on Wife's request for attorney fees, which had not been addressed in the "Final Judgment and Decree" of November 5, 2008. On May 15, 2009, Husband filed an application for discretionary appeal in this Court, which this Court denied as frivolous. See Wright v. Wright, 277 Ga. 133 (587 SE2d 600) (2003). After that denial, the remittitur from this Court was entered in the trial court on July 28, 2009. On July 13, 2009, Wife filed a motion for contempt with the trial court, alleging, inter alia, that Husband had failed to fully pay alimony, child support, and medical expenses, as set forth in the temporary order. On August 21, 2009, Wife filed an amended motion for contempt which sought child support for the months of June, July, and August 2009, calculated using the $5,440.65 per month award set forth in the "Final Judgment and Decree"; she also sought temporary alimony for those same months, based upon the July 31, 2007 temporary order. On August 26, 2009, a hearing was conducted on the amended
2

contempt petition.1 The trial court entered an order on September 30, 2009, finding that Husband was not in contempt. The trial court stated that Husband's child support obligations were controlled by the temporary order until the entry of the remittitur in the trial court on July 28, 2009, and that the higher amount set forth in the final decree did not take effect until the remittitur was entered, and such higher amount would be due beginning with the payment required for August 2009. The trial court also addressed Wife's claims for temporary alimony for the months of June, July, and August 2009, while Husband pursued an appeal. The court reasoned that, as Wife was not entitled to periodic permanent alimony under the"Final Judgment and Decree" of November 5, 2008, and the "Final Judgment and Decree" was essentially affirmed by this Court's denial of Husband's application for discretionary appeal, the trial

Husband asserts that he was not given adequate notice of Wife's seeking child support for June, July, and August 2009, calculated at the higher rate set forth in the "Final Judgment and Decree" as the issue was not raised in the pleadings until the amendment to the petition for a contempt citation, filed August 21, 2009, five days before the August 26, 2009 hearing. See Hedquist v. Hedquist, 275 Ga. 188 (563 SE2d 854) (2002). Husband objected at the hearing to the court's consideration of any claims asserted in the amended contempt petition, on this ground. However, he has not filed a cross-appeal challenging the trial court's consideration of the issues raised in the amendment, see Georgia Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987), and lack of adequate notice was not a basis for the trial court's decision on the issue. 3

1

court's ruling that no periodic permanent alimony would be due was effective as of the date the order memorializing that decision was filed (i.e., November 5, 2008), and Husband was thus not obligated to pay temporary alimony for the months of June, July, and August 2009. Consequently, he could not be held in contempt for failing to do so. Wife appeals the order of September 30, 2009. 1. This appeal presents the question of at what point in time do awards of temporary alimony and child support cease to be effective when a final judgment and decree of divorce makes permanent awards in amounts different from those in the temporary order, appeal is sought on the final judgment and decree of divorce, and the case is returned to the trial court with the permanent alimony and child support awards intact, either by the denial of the application, as in this case, or otherwise. It is unquestioned that the application for discretionary appeal, and any resulting notice of appeal, operate as supersedeas of the trial court's final order during the pendency of the application and appeal. OCGA

Download S10A0929. ROBINSON v. ROBINSON.pdf

Georgia Law