Froehlich v. Froehlich

Opinion

297 Ga. 551 FINAL COPY

S15A0193. FROEHLICH v. FROEHLICH.

NAHMIAS, Justice.

Tigh Froehlich (Husband) appeals the trial court’s order holding him in

contempt of the parties’ divorce decree and a later order approving a modified

parenting plan. Husband challenges four of the court’s five findings of willful

violations of the prior court orders. He also contends that the court

impermissibly modified the divorce decree in the contempt proceeding by

ordering him to transfer to Deirdre Froehlich (Wife) half of his accumulated

Marriott hotel loyalty program points, which the decree awarded to her;

requiring him to make an accounting of the points prior to the transfer; and

obligating him to provide an annual accounting of the points he accumulates in

the future before transferring Wife’s share of the points to her. Finally,

Husband claims that in light of these alleged errors, the trial court erred in

awarding Wife $7,468.33 in attorney fees. We affirm.

1. The parties married in 1996 and were divorced on December 5,

2011. They have two minor children. As relevant here, the divorce decree,

which incorporated the parties’ separation agreement, gave them joint legal custody of the children, designated Wife as the primary physical custodian, and

established a visitation schedule; required Husband to maintain health insurance

for the children and to supply Wife with health insurance cards for them; said

that major decisions regarding the children would be made jointly by the parties,

but specified that “[a]ll disagreements shall result in the primary custodial parent

[i.e., Wife] making the decision”; and stated that both parties would “execute all

documents, perform all acts, and do all things necessary to transfer any of the

assets, or to effectuate any of the provisions and conditions set forth herein, if

any are necessary.”

The divorce decree required Husband, a Gulfstream Aerospace flight

engineer who travels out-of-state or abroad for work for roughly half of each

year, to “transfer or otherwise make available for use by [Wife] . . . one half of

the Marriot[t] points accumulated, (currently 540,419), so long as they are

accumulated.” Wife also received “sole title and exclusive possession” of the

marital home. On December 15, 2011, the parties signed a post-marital

agreement that allowed Husband to temporarily store his tools and

miscellaneous items in a shed adjacent to the marital residence but required him

to notify Wife in advance when he wanted to access his things, except in

2 unusual circumstances and after attempting proper notice.

On June 26, 2013, the trial court entered a modified parenting plan order

incorporating the parties’ agreement to a modified plan. In addition to a new

visitation provision addressing Husband’s uncertain work schedule, the order

continued joint legal custody, which the order explained

contemplates that the parties will consult with each other concerning matters affecting the health, education and welfare of the minor children, including, but not limited to[,] choice of schools and education, summer camps, daycare, medical and dental treatment, treatment and/or counseling for emotional and behavioral problems and religious training.

The order said that Wife would remain the primary physical custodian and again

specified that she would be the “tiebreaker” in the event of any disagreements

between the parties.

On January 14, 2014, Wife filed a motion for contempt, which she

amended twice. The trial court held a three-day evidentiary hearing on May 28-

30, 2014, at which both parties testified and introduced documentary evidence.

On June 5, 2014, the court entered an order finding that Husband willfully

violated the divorce decree by not furnishing Wife with health insurance cards

for the children; entering the marital residence without Wife’s permission; and

3 failing to transfer or otherwise make available for use by Wife one-half of all his

accumulated Marriott points by placing unnecessary and restrictive conditions

not contained in the divorce decree on her use and enjoyment of the points. The

court also found that Husband willfully violated the modified parenting plan

order by refusing to confer and consult with Wife concerning all major decisions

bearing on the children’s lives, including the older child’s education and

extracurricular activities, and by failing to comply with the modified visitation

schedule and refusing to timely return the children to Wife.

To remedy Husband’s contempt, the order required him, among other

things, to make an accounting of Wife’s portion of the accumulated Marriott

points; to transfer those points to Wife within 20 days; and to provide her with

an “annual accounting of all points accumulated by the 15th of January of each

year and then . . . ensure that said points are transferred to [Wife] by the 15th of

February of each year.”1 The order warned Husband that his failure to abide by

its conditions will result in his incarceration for ten days in the county jail.

Finally, the order reserved the matter of attorney fees, directing the parties to

1 In the alternative, the contempt order permits Husband to purchase Wife’s portion of the Marriott points from her at a rate of $12.50 per 1,000 points. Husband does not challenge this part of the order, and neither does Wife, so we express no opinion on it.

4 submit briefs on that issue.

On July 14, 2014, the trial court entered an order awarding Wife

$7,468.33 in attorney fees pursuant to OCGA § 19-6-2. Husband then filed a

timely notice of appeal directed to the Court of Appeals, which properly

transferred the case to this Court, as it comes within our subject matter

jurisdiction over “[a]ll divorce and alimony cases.” Ga. Const. of 1983, Art. VI,

Sec. VI, Par. III (6). See Morris v. Morris, 284 Ga. 748, 750 (670 SE2d 84)

(2008).

2. We begin by addressing a jurisdictional issue involving appellate

procedure. On November 3, 2014, this Court dismissed Husband’s appeal for

failure to comply with the discretionary appeal procedures in OCGA § 5-6-35.

However, Husband filed a motion for reconsideration, which correctly argued

that an application to appeal was not required because the contempt order was

based in part on the trial court’s ruling that he willfully violated the visitation

provisions of the modified parenting plan order and he was trying to challenge

that ruling on appeal. For purposes of appellate procedure, visitation is treated

as an aspect of child custody. See Edge v. Edge, 290 Ga. 551, 552-553 (722

SE2d 749) (2012) (noting that in some contexts, “custody” includes visitation

5 rights). And as a result of a 2007 amendment to OCGA § 5-6-35 (a) (2), an

application to appeal is no longer required to obtain an appeal from an order

awarding, modifying, or refusing to change child custody, including an order

holding or declining to hold a person in contempt of such a custody order. See

Ga. L. 2007, p. 554, § 3 (amending OCGA § 5-6-35 (a) (2) to delete the

following struck-through text, so that an application to appeal is now required

in “[a]ppeals from judgments or orders in divorce, alimony, child custody, and

other domestic relations cases including, but not limited to, granting or refusing

a divorce or temporary or permanent alimony, awarding or refusing to change

child custody, or holding or declining to hold persons in contempt of such

alimony or child custody judgment or orders”). See also OCGA § 5-6-34 (a)

(11) (authorizing an immediate appeal, without requiring compliance with the

interlocutory appeal procedures, of “[a]ll judgments or orders in child custody

cases awarding, refusing to change, or modifying child custody or holding or

declining to hold persons in contempt of such child custody judgment or

orders”). Accordingly, on November 20, 2014, we granted Husband’s motion

for reconsideration and vacated our prior order dismissing his appeal.

3. Turning now to the merits of the appeal, Husband claims first that

6 the trial court erred in four of its five findings that he willfully violated the

divorce decree and the modified parenting plan order; he accepts only the

finding that he willfully violated the decree by failing to provide Wife with

health insurance cards for the children. “Trial courts have ‘broad discretion’ in

ruling on a motion for contempt, and the trial court’s ruling will be affirmed on

appeal if there is any evidence in the record to support it.” Killingsworth v.

Killingsworth, 286 Ga. 234, 237 (686 SE2d 640) (2009) (citation omitted).

Husband contends that there was no evidence before the trial court that he

entered the marital residence without Wife’s permission; failed to make one-half

of his accumulated Marriott points available for use by Wife; failed to comply

with the visitation schedule or refused to timely return the children; or refused

to confer with Wife on major decisions concerning the children’s education and

extracurricular activities. However, Wife testified to all of these things at the

contempt hearing, and she also introduced documentary evidence like e-mails

and text messages supporting each violation. Moreover, Husband’s own

testimony showed that he failed to comply with the visitation schedule and

refused to confer with Wife on significant decisions about the older child’s

activities. The trial court was able to evaluate the parties’ credibility and was

7 entitled to credit Wife’s testimony (and supporting evidence) over Husband’s

partial denials and excuses for his noncompliance with the court’s orders. See

Horn v. Shepherd, 292 Ga. 14, 18 (732 SE2d 427) (2012) (“‘The essence of civil

contempt is wilful disobedience of a prior court order, and it is for the trial court

to determine the credibility of the witnesses in ruling thereon.’” (citation

omitted)).

Husband also claims that a legal error underlay the trial court’s finding

that he willfully violated the divorce decree’s provision regarding the Marriott

points. In his testimony at the contempt hearing, Husband admitted that he had

repeatedly refused Wife’s requests to transfer any of the points to her even

though she had her own Marriott points account and it would cost nothing to

transfer the points. But he asserted that the divorce decree expressly gives him

the option to “otherwise make available” for Wife’s use her 50% share of the

points he has accumulated, rather than transferring the points to her. That is

true, but Husband acknowledged that he also told Wife that he would not let her

use the Marriott points unless she acceded to his demands to provide him with

her travel plans and allow him to book her hotel reservations for her. We agree

with the trial court that the divorce decree does not give Husband the right to

8 make the Marriott points available to Wife only with conditions Husband

chooses to add regarding her use of the points that were awarded to her.

Accordingly, we affirm the trial court’s findings that Husband willfully

violated the divorce decree and the modification order in each of the ways the

court identified.

4. In response to Husband’s willful contempt, the trial court ordered

him to make an accounting of the Marriott points accumulated thus far and to

transfer Wife’s share of the points to her within 20 days. As for points

accumulated in the future, the court ordered Husband to make an annual

accounting by January 15 of each year and then to ensure that the points are

transferred to Wife by February 15. Husband contends that these provisions of

the contempt order impermissibly modified the divorce decree. We disagree.

As Husband correctly notes, “in response to willful contempt of a divorce

decree, a trial court has broad discretion to enforce the letter and spirit of the

decree, but the court must do so without modifying the original judgment that

is being enforced.” Darroch v. Willis, 286 Ga. 566, 570 (690 SE2d 410) (2010).

In addressing violations of a divorce decree, however, a “trial court may impose

additional requirements in [a] contempt decree made necessary by [a] party’s

9 refusal to obey [the court’s] original order.” Smith v. Smith, 293 Ga. 563, 564

(748 SE2d 456) (2013). See, e.g., Gooch v. Gooch, 297 Ga. 189 (___ SE2d

___) (2015) (holding that where the husband, contrary to the divorce decree,

made an irrevocable designation of his new wife instead of his former wife as

the recipient of the survivor benefits from his retirement plan, the trial court

could enforce the decree with a contempt order requiring him “to secure

something of the same monetary value as that which was set forth in the violated

order”); Doritis v. Doritis, 294 Ga. 421, 421-422 (754 SE2d 53) (2014)

(affirming a contempt order that required the husband to pay the wife the value

of jewelry that the parties had agreed pursuant to the divorce decree that she

would receive but that husband had sold); Smith, 293 Ga. at 564-565 (upholding

a contempt order requiring the husband to pay the wife the fair market value of

personal property awarded to her in the divorce decree that he had failed to turn

over).

Given Husband’s acknowledged failure to track the Marriott points as they

accumulated and his refusal to transfer or otherwise make unconditionally

available to Wife the points allocated to her in the divorce decree, the

accounting and transfer requirements of the contempt order were reasonable and

10 necessary to implement the terms of the original decree. Thus, we conclude that

“[t]he relief awarded in the contempt order, made necessary by [H]usband’s

refusal to obey the original decree, did not modify that decree but remedied the

harm caused by [H]usband’s contemptuous conduct.” Smith, 293 Ga. at 565.

Husband’s reliance on Killingsworth is misplaced. In that case, we held

that the trial court impermissibly modified the divorce decree by ordering a cash

payment to the wife in lieu of the transfer of half of a 401(k) retirement account,

where “[t]he divorce decree specified both how [Wife’s] interest in the 401(k)

account would be calculated and the manner in which the transfer was to be

accomplished, including requiring her counsel to prepare the QDRO.” 286 Ga.

at 236. We held that “transmuting this award into a presently due cash

obligation” was an impermissible modification. Id. Unlike Killingsworth, the

contempt order in this case does not transmute any property or compel Husband

to relinquish or sell any asset awarded to him by the divorce decree. The

Marriott points at issue are Wife’s property, which Husband’s contempt has

prevented her from receiving.

5. Finally, Husband argues that if we rule in his favor on any other

issue and remand the case to the trial court, we should direct the court to

11 reexamine the amount of attorney fees awarded to Wife. See Killingsworth, 286

Ga. at 237-238. This argument is moot in light of our rejection of Husband’s

other enumerations of error. See Doane v. LeCornu, 289 Ga. 379, 382 (711

SE2d 673) (2011).

Judgment affirmed. All the Justices concur.

12 Decided July 13, 2015. Domestic relations. Effingham Superior Court. Before Judge Woodrum. Dozier & Hillis, Dennis G. Dozier, Sr., Bethany M. Hillis, for appellant. Johnson, Kraeuter & Dunn, Jonathan V. Dunn, for appellee.