SECOND DIVISION MILLER, P. J., RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
April 24, 2019
In the Court of Appeals of Georgia A19A0081. DINGLE v. CARTER.
RICKMAN, Judge.
Dhane Brooks Dingle (“the mother”) and Horacio Carter (“the father”) filed
cross-motions for contempt alleging violations of certain provisions of the trial
court’s order governing custody of their minor child, child support, and attorney fees.
Following a hearing, the trial court held the mother in contempt and made several
other rulings. On appeal, the mother contends that the trial court erred by holding her
in contempt for failing to notify the father of her deployment overseas, holding that
the trial court lacked the authority to determine if the mother’s attorney fee award was
a dischargeable debt of the father’s bankruptcy filing, abating a portion of the father’s
child support obligation, and awarding attorney fees to the father pursuant to OCGA §§ 9-15-14 and 19-6-2. For the following reasons, we affirm in part, reverse in part,
and remand the case to the trial court.
The record shows that prior to 2014, the father had physical custody of the
child. In 2014, the mother filed a motion for modification of custody and the trial
court entered a final order finding that it was in the best interest of the child to grant
the mother primary physical custody of the child and grant the father “liberal
visitation.” (the “Final Order). The mother was employed by the United States Army,
and the trial court detailed in its order what should happen regarding custody of the
child in the event of the mother’s deployment: In the event the mother was deployed,
the father would become the child’s temporary guardian. The mother would be
required to notify the father of her impending deployment within 14 days of receiving
her deployment orders or, if the orders did not allow for 14 days notice, immediately
upon receiving notice of her deployment. If the father was unable to become the
child’s temporary guardian, the mother was to designate another family member to
assume the role.
The Final Order also required the father to pay child support to the mother
every month and to maintain a life insurance policy naming the child as the
beneficiary. The issue of attorney fees was reserved, and approximately seven months
2 later, the trial court ordered the father to pay $30,000 in attorney fees to the mother’s
attorney.
In June 2015, the mother filed a motion to hold the father in contempt for
failing to pay child support and obtain the required life insurance policy.
Subsequently, the trial court entered an order holding the father in contempt. That
contempt order was vacated by the trial court, however, due to an issue with service
of process.
Over a year later, the father filed a motion to hold the mother in contempt for,
inter alia, failing to notify him of her deployment overseas. Thereafter, both parties
amended their motions for contempt alleging that the other party violated various
provisions of the Final Order and including the mother’s contention that the father be
held in contempt for failure to pay the ordered attorney fees.
Following a hearing, the trial court issued an order holding the mother in
contempt for failing to notify the father about her deployment (the “Contempt
Order”). In the Contempt Order, the trial court also held that it lacked the authority
to determine if the mother’s attorney fee award constituted a dischargeable debt in the
father’s bankruptcy, abated a portion of the father’s child support obligation, and
awarded attorney fees to the father pursuant to OCGA §§ 9-15-14 and 19-6-2.
3 1. The mother contends that the trial court erred by holding in her contempt for
failing to notify the father about her deployment.
The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion. Therefore, if there is any evidence to support the trial court’s determination that a party has wilfully disobeyed its order, the court’s finding of contempt will be affirmed on appeal.
(Citation and punctuation omitted.) Brochin v. Brochin, 294 Ga. App. 406, 409 (2)
(b) (669 SE2d 203).
Here, in its Final Order, the trial court ordered the mother to notify the father
of her impending deployment within 14 days of receiving her deployment orders or,
if the orders did not allow for 14 days notice, immediately upon receiving notice of
her deployment. At the hearing on the parties’ motions for contempt, the mother
admitted that she did not notify the father about her deployment. The mother testified
that she received her deployment orders in April 2016; however, the father did not
learn of her deployment until July 2016 when the mother’s attorney sent him a letter
notifying him that the mother was deployed. At that point, the mother had already
been deployed to Iraq. Accordingly, we find that the trial court did not abuse its
discretion in holding the mother in contempt for failing to notify the father about her
4 deployment. See Brochin, 294 Ga. App. at 409 (2) (b) (i) (holding that the evidence
supported the trial court’s finding of contempt where the mother admitted that she
failed to return the children to the father after her summer visitation as required by
the custody order).
2. The mother contends that the trial court erred by holding that it was without
authority to determine if the mother’s attorney fee award was a dischargeable debt in
the father’s bankruptcy.
In July 2015, the father filed a petition in federal court for bankruptcy. The
mother’s attorney was listed as a creditor. Approximately six weeks after the father
filed his petition for bankruptcy, the trial court ordered the father to pay $30,000 in
attorney fees to the mother’s attorney. The mother concedes in her brief to this Court
that her counsel received notice that the father filed for bankruptcy prior to the entry
of the order granting attorney fees. In February 2016, the father was generally
discharged in bankruptcy.
The mother argues that pursuant to 11 U. S. C. § 523 (a) (5),1 attorney fees
arising from a modification of child custody are subject to an exception from
1 “A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt . . . for a domestic support obligation[.]” 11 U. S. C. 523 (a) (5).
5 dischargeability and that the trial court erred when it determined that “[t]he
dischargeability of the debt lies squarely within the jurisdiction of the Bankruptcy
Court.”
“Whether a debt is non-dischargeable under § 523 (a) (5) because it is in the
nature of alimony, maintenance, or support is a question of federal law, with state law
providing guidance in determining whether the obligation should be considered
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SECOND DIVISION MILLER, P. J., RICKMAN and REESE, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
April 24, 2019
In the Court of Appeals of Georgia A19A0081. DINGLE v. CARTER.
RICKMAN, Judge.
Dhane Brooks Dingle (“the mother”) and Horacio Carter (“the father”) filed
cross-motions for contempt alleging violations of certain provisions of the trial
court’s order governing custody of their minor child, child support, and attorney fees.
Following a hearing, the trial court held the mother in contempt and made several
other rulings. On appeal, the mother contends that the trial court erred by holding her
in contempt for failing to notify the father of her deployment overseas, holding that
the trial court lacked the authority to determine if the mother’s attorney fee award was
a dischargeable debt of the father’s bankruptcy filing, abating a portion of the father’s
child support obligation, and awarding attorney fees to the father pursuant to OCGA §§ 9-15-14 and 19-6-2. For the following reasons, we affirm in part, reverse in part,
and remand the case to the trial court.
The record shows that prior to 2014, the father had physical custody of the
child. In 2014, the mother filed a motion for modification of custody and the trial
court entered a final order finding that it was in the best interest of the child to grant
the mother primary physical custody of the child and grant the father “liberal
visitation.” (the “Final Order). The mother was employed by the United States Army,
and the trial court detailed in its order what should happen regarding custody of the
child in the event of the mother’s deployment: In the event the mother was deployed,
the father would become the child’s temporary guardian. The mother would be
required to notify the father of her impending deployment within 14 days of receiving
her deployment orders or, if the orders did not allow for 14 days notice, immediately
upon receiving notice of her deployment. If the father was unable to become the
child’s temporary guardian, the mother was to designate another family member to
assume the role.
The Final Order also required the father to pay child support to the mother
every month and to maintain a life insurance policy naming the child as the
beneficiary. The issue of attorney fees was reserved, and approximately seven months
2 later, the trial court ordered the father to pay $30,000 in attorney fees to the mother’s
attorney.
In June 2015, the mother filed a motion to hold the father in contempt for
failing to pay child support and obtain the required life insurance policy.
Subsequently, the trial court entered an order holding the father in contempt. That
contempt order was vacated by the trial court, however, due to an issue with service
of process.
Over a year later, the father filed a motion to hold the mother in contempt for,
inter alia, failing to notify him of her deployment overseas. Thereafter, both parties
amended their motions for contempt alleging that the other party violated various
provisions of the Final Order and including the mother’s contention that the father be
held in contempt for failure to pay the ordered attorney fees.
Following a hearing, the trial court issued an order holding the mother in
contempt for failing to notify the father about her deployment (the “Contempt
Order”). In the Contempt Order, the trial court also held that it lacked the authority
to determine if the mother’s attorney fee award constituted a dischargeable debt in the
father’s bankruptcy, abated a portion of the father’s child support obligation, and
awarded attorney fees to the father pursuant to OCGA §§ 9-15-14 and 19-6-2.
3 1. The mother contends that the trial court erred by holding in her contempt for
failing to notify the father about her deployment.
The question of whether a contempt has occurred is for the trial court, and its determination will be overturned only if there has been a gross abuse of discretion. Therefore, if there is any evidence to support the trial court’s determination that a party has wilfully disobeyed its order, the court’s finding of contempt will be affirmed on appeal.
(Citation and punctuation omitted.) Brochin v. Brochin, 294 Ga. App. 406, 409 (2)
(b) (669 SE2d 203).
Here, in its Final Order, the trial court ordered the mother to notify the father
of her impending deployment within 14 days of receiving her deployment orders or,
if the orders did not allow for 14 days notice, immediately upon receiving notice of
her deployment. At the hearing on the parties’ motions for contempt, the mother
admitted that she did not notify the father about her deployment. The mother testified
that she received her deployment orders in April 2016; however, the father did not
learn of her deployment until July 2016 when the mother’s attorney sent him a letter
notifying him that the mother was deployed. At that point, the mother had already
been deployed to Iraq. Accordingly, we find that the trial court did not abuse its
discretion in holding the mother in contempt for failing to notify the father about her
4 deployment. See Brochin, 294 Ga. App. at 409 (2) (b) (i) (holding that the evidence
supported the trial court’s finding of contempt where the mother admitted that she
failed to return the children to the father after her summer visitation as required by
the custody order).
2. The mother contends that the trial court erred by holding that it was without
authority to determine if the mother’s attorney fee award was a dischargeable debt in
the father’s bankruptcy.
In July 2015, the father filed a petition in federal court for bankruptcy. The
mother’s attorney was listed as a creditor. Approximately six weeks after the father
filed his petition for bankruptcy, the trial court ordered the father to pay $30,000 in
attorney fees to the mother’s attorney. The mother concedes in her brief to this Court
that her counsel received notice that the father filed for bankruptcy prior to the entry
of the order granting attorney fees. In February 2016, the father was generally
discharged in bankruptcy.
The mother argues that pursuant to 11 U. S. C. § 523 (a) (5),1 attorney fees
arising from a modification of child custody are subject to an exception from
1 “A discharge under section 727 . . . of this title does not discharge an individual debtor from any debt . . . for a domestic support obligation[.]” 11 U. S. C. 523 (a) (5).
5 dischargeability and that the trial court erred when it determined that “[t]he
dischargeability of the debt lies squarely within the jurisdiction of the Bankruptcy
Court.”
“Whether a debt is non-dischargeable under § 523 (a) (5) because it is in the
nature of alimony, maintenance, or support is a question of federal law, with state law
providing guidance in determining whether the obligation should be considered
‘support’ under § 523 (a) (5).” (Citations and punctuation omitted.) Rogers v.
McGahee, 278 Ga. 287, 289 (2) (602 SE2d 582) (2004). “State courts have concurrent
jurisdiction with federal bankruptcy courts to determine whether a debt is in the
nature of alimony, maintenance, or support.” (Citations omitted.) Id. “If either the
debtor spouse or the creditor spouse files a complaint in the bankruptcy court to
obtain a determination of the dischargeability of the debts under § 523(a)(5), the
bankruptcy court’s adjudication of the complaint for determination of dischargeability
is res judicata in state court.” (Citation omitted.) Id. “If no complaint seeking a
specific determination of the dischargeability of a debt under § 523 (a) (5) is filed, the
issue of dischargeability may then be tried in the appropriate state court.” (Citation
and punctuation omitted.) Id.
6 “That the debtor former spouse has received a general discharge in bankruptcy
does not deprive the state court of its jurisdiction to determine whether certain debts
of the debtor former spouse are exempt under § 523 (a) (5) from dischargeability.”
Rogers, 278 Ga. at 290 (2). Since there was no evidence that the bankruptcy court
determined whether the attorney fee was dischargeable, the trial court erred by
holding that it lacked jurisdiction to make that determination. Accordingly, this case
is remanded for the trial court to determine the dischargeability of the attorney fee
debt. See id.; Collins v. Collins, 208 Ga. App. 862 (432 SE2d 605) (1993).
3. The mother contends that the trial court erred by abating a portion of the
father’s child support obligation.
The Final Order required the father to make monthly child support payments
to the mother. But, while the order contemplated a potential change in guardianship
for the child in the event of the mother’s deployment, it was silent as to what would
happen to the father’s support obligation if the mother was deployed and the child
was in his care. The mother sought past due child support for the time period that the
child was living with the father while she was deployed. The trial court granted the
father an abatement for the time period that the child was residing with him, and held
7 that “[u]nder the facts of this case[,] allowing an abatement during the time of
deployment would not do an injustice to the mother.”
“In a contempt proceeding, the trial court lacks authority to modify the terms
of a child support order.” Ga. Dept. of Human Resources v. Gamble, 297 Ga. App.
509, 510 (677 SE2d 713) (2009). “A permanent child support judgment is res judicata
and enforceable until modified, vacated or set aside.” Dept. of Human Resources v.
Gould, 222 Ga. App. 489, 490 (1) (474 SE2d 682) (1996). “Until a final decree
amending the child support is properly entered in the modification proceeding, the
permanent judgment stands.” Id. “A child support judgment cannot be modified
retroactively.” Id. See OCGA § 19-6-17 (e) (1-3) (Any payment or installment of
support under any child support order is, on and after the date due: (1) A judgment
by operation of law, with the full force and effect and attributes of a judgment of this
state, including the ability to be enforced; (2) Entitled as a judgment to full faith and
credit; and (3) Not subject to retroactive modification.).
Applying these rules to the facts of this case, the trial court erred by entering
a judgment in a contempt action which modified the final order by abating the father’s
child support obligation for the time period during which the child resided with him
8 while the mother was deployed. See Gamble, 297 Ga. App. at 510-511; Gould, 222
Ga. App. at 490 (1).
4. The mother contends that the trial court erred by awarding attorney fees to
the father pursuant to OCGA §§ 9-15-14 and 19-6-2.
(a) The trial court granted the father’s motion for attorney fees pursuant to
OCGA § 9-15-14 without holding an evidentiary hearing. “To make a valid award of
attorney fees the trial court must conduct an evidentiary hearing to determine the
amount of reasonable and necessary attorney fees.” (Citation and punctuation
omitted.) Fox-Korucu v. Korucu, 279 Ga. 769, 770 (1) (621 SE2d 460) (2005).
Accordingly, the trial court erred by awarding fees pursuant to OCGA § 9-15-14
without a hearing. See Fox-Korucu, 279 Ga. at 770 (1); Evers v. Evers, 277 Ga. 132
(1) (587 SE2d 22) (2003).
(b) OCGA § 19-6-2 only applies to attorney fees in alimony and divorce cases.
See OCGA § 19-6-2 (“The grant of attorney’s fees . . . made at any time during the
pendency of the litigation, whether the action is for alimony, divorce and alimony, or
contempt of court arising out of either an alimony case or a divorce and alimony case
. . . shall be . . .”); Appling v. Tatum, 295 Ga. App. 78, 83 (5) (670 SE2d 795) (2008).
Because this case does not involve alimony or divorce, OCGA § 19-6-2 does not
9 apply. See Appling, 295 Ga. App. at 83 (5). Accordingly, we reverse the trial court’s
award of attorney fees to the father.
Judgment affirmed in part, reversed in part; case remanded. Miller, P. J., and
Reese, J., concur.