Gunderson v. Sandy

• Court: Supreme Court of Georgia
• Decided: June 30, 2014
• Docket: S14A0759
• Status: Published

Opinion

FINAL COPY 295 Ga. 428

S14A0759. GUNDERSON v. SANDY.

BENHAM, Justice.

Appellant Colleen Gunderson and appellee Ronald Sandy were divorced

in 2010. The decree of divorce incorporates the parties’ settlement agreement,

which provides them with approximately equal physical custody time with their

children and includes the following custody provision:

The parties intend that they both maintain their primary residence in reasonable proximity to the other for so long as any of their children is a minor or is still attending high school full time. Accordingly, neither party shall permanently re-locate his/her primary residence beyond fifteen (15) road miles from [the marital home awarded to Gunderson] for so long as any of their children is a minor or is still attending high school full time. Gunderson remarried and moved, and at the time Sandy filed his contempt

motion, he alleged that she resided 45 miles from the marital home.1 The parties

still have a minor child. The trial court granted Sandy’s motion for contempt

and ordered Gunderson to “move back into the school district in which [Sandy]

1 Sandy states in his brief that Gunderson has now moved to within about twenty-five miles from the marital home but still resides outside the county and, therefore, outside the child’s school district, although this does not appear in the record. Sandy also states that at the contempt motion hearing, in open court, Gunderson agreed to move back within the child’s school district, but this is also not in the record, as there is no transcript of the hearing, and the contempt order does not indicate it is a consent order. Accordingly, this assertion does not appear to make the appeal moot. lives and in which the parties’ minor child attends school.” We granted

Gunderson’s application for discretionary appeal in order to examine the

question of whether the trial court’s contempt order impermissibly modified the

parties’ divorce decree.2

In addition to the geographical restriction on the parties’ relocation of

their respective residences contained within the custody agreement, that

agreement required each party to give thirty days notice to the other party before

moving. It appears undisputed that Gunderson moved more than once without

giving the required notice, and that at the time the contempt motion was filed

she had moved more than 48 road miles from the marital residence referenced

in the agreement. Sandy filed the contempt motion, seeking to have Gunderson

cited for contempt for violation of the relocation agreement incorporated into the

final decree, along with various other alleged violations of the divorce decree

unrelated to the relocation of her residence. Following a hearing, the trial court

cited Gunderson for contempt of the relocation agreement as well as two of the

other grounds for contempt raised in Sandy’s motion. The trial court did not err

2 The application was filed in the Court of Appeals which transferred the case to this Court pursuant to our appellate jurisdiction over divorce cases.

2 in finding Gunderson in contempt, but for the reasons set forth below we find

that portion of the contempt order that addresses the relocation agreement

impermissibly modifies the divorce decree. Therefore, the order is reversed in

part.

1. “[A] trial court lacks the authority to modify the terms of a divorce

decree in a contempt proceeding.” Smith v. Smith, 281 Ga. 204, 206 (2) (636

SE2d 519) (2006). Here, the contempt citation did not simply clarify or enforce

the relocation agreement incorporated into the divorce decree; it changed its

terms. The original decree required Gunderson to live no more than fifteen road

miles from the home in which she resided at the time of the decree. The

contempt order, however, requires her to move into the school district where the

minor child is enrolled in school. But, as Gunderson points out, it would be

possible for her to reside within the geographical limitation imposed by the

decree and still live outside that school district. The trial court’s order requiring

Gunderson to move back into the school district in which the minor child is

enrolled in school amounts to an unauthorized modification of the decree. See

Roquemore v. Burgess, 281 Ga. 593, 595 (642 SE2d 41) (2007); Cason v.

Cason, 281 Ga. 296, 298 (1) (637 SE2d 716) (2006). Accordingly, that portion

3 of the contempt order that modifies the terms of the geographical restrictions of

the parties’ relocation agreement is reversed, and the case is remanded for

further action not inconsistent with this opinion.

2. Given our holding in Division 1, it is unnecessary to address the

additional grounds for reversal of the contempt order raised in the appeal.

Judgment reversed in part and case remanded with direction. All the

Justices concur.

Decided June 30, 2014. Domestic relations. Cobb Superior Court. Before Judge Stedman, pro hac vice. Hill-Macdonald, Vic B. Hill, Brad E. Macdonald, for appellant. Ronald A. Sandy, pro se.