Quillen v. Quillen

462 S.E.2d 750, 265 Ga. 779

• Court: Supreme Court of Georgia
• Decided: October 23, 1995
• Docket: S95A1172
• Status: Published

Opinions

Carley, Justice.

Appellant and appellee were divorced pursuant to a decree which incorporated their settlement agreement. One provision of the incorporated settlement agreement obligated appellee to pay monthly alimony until appellant “cohabits as same is defined by Georgia law.” When appellee subsequently failed to pay the alimony, appellant filed this contempt action against him. After conducting a hearing, the trial court found that, as of January 1, 1994, appellant cohabited with a third party. Based upon this finding, the trial court concluded that appellee’s obligation to pay alimony ended on that date and that he was not in contempt for failing to make payments thereafter. We granted appellant’s application for a discretionary appeal from the trial court’s order.

1. Appellant urges that the modification of a final divorce decree can “only be accomplished by proceedings under OCGA § 19-6-19” and that the trial court erroneously exceeded its jurisdiction by modifying the final divorce decree in this contempt action.

To obtain the modification of a final divorce decree, proceedings must be instituted pursuant to OCGA § 19-6-19. However, unless prohibited by statute or public policy, all persons are free to contract on any terms regarding a subject matter in which they have an interest. Porubiansky v. Emory University, 156 Ga. App. 602, 603 (275 SE2d 163) (1980), aff'd, 248 Ga. 391 (282 SE2d 903) (1981). Thus, we have recognized that divorcing parties are free to contract for self-executing changes in an alimony obligation upon the occurrence of certain events. Perry v. Perry, 265 Ga. 186, 187 (2) (454 SE2d 122) (1995); Weaver v. Jones, 260 Ga. 493, 494 (3) (396 SE2d 890) (1990). OCGA § 19-6-19 provides that cohabitation is a ground for seeking a judicial modification of an alimony obligation. However, nothing in that statute provides that the divorcing parties themselves cannot contract for the automatic termination of the alimony obligation of one party upon the cohabitation of the other. Thus, in Kent v. Kent, 265 Ga. 211, 213 (2), fn. 4 (452 SE2d 764) (1995), we held that, if

the parties agree that alimony will terminate on the former spouse’s cohabitation with a third party, [and] that situation occurs, the obligated spouse, under the terms of the agreement, is authorized to stop making alimony payments.

(Emphasis in original.) This holding in Kent recognizes the contractual freedom of divorcing parties to agree to a self-executing termination of an alimony obligation upon the occurrence of cohabitation.

Under Kent, the former spouse who brings a contempt action will not be faced with what, in essence, is the obligated spouse’s impermissible counterclaim for modification of alimony. The holding in Kent is premised upon the divorcing parties’ mutual agreement to an automatic termination of alimony in the event of cohabitation, which agreement has been incorporated into the divorce decree. Thus, when cohabitation is relied upon as the ground for ceasing to pay and a contempt action is filed, the trial court is called upon to determine whether the pre-existing incorporated agreement authorizing the obligated spouse’s automatic termination of the obligation has been triggered by the former spouse’s subsequent cohabitation. Therefore, the question for resolution by the trial court is whether the obligated spouse is in contempt of the existing terms of the divorce decree, not whether the obligated spouse is entitled to a subsequent modification of the existing terms of that decree. The obligated spouse’s determination that the former spouse has cohabited may be a subjective one, but the trial court must make an objective determination in that regard. If the former spouse did cohabit, then the alimony obligation has been terminated in accordance with the pre-existing incorporated agreement and the obligated spouse cannot be found to be in contempt of the divorce decree. If, on the other hand, there was no such cohabitation, the obligated spouse “risks being found in contempt, or, at any rate, liable for all payments. . . .” Kent v. Kent, supra at 213 (2).

It may be true that, under Kent, the former spouse who brings a contempt action will not be afforded the same venue and jury trial options as would be available in a modification proceeding instituted by the obligated spouse pursuant to OCGA § 19-6-19. However, that is entirely a consequence of the former spouse’s own agreement to an automatic termination of alimony upon his or her cohabitation. If a former spouse does not wish to have the alimony obligation subject to an automatic termination upon his or her cohabitation, then he or she should not agree to it. If, on the other hand, the former spouse has made such an agreement, then he or she is bound thereby and must abide by the procedural, as well as the substantive, consequences thereof.

The premise of appellant’s argument is that a modification proceeding pursuant to OCGA § 19-6-19 is the exclusive method by which divorcing parties can accomplish a termination of alimony based upon cohabitation. However, this premise is contrary to Kent, which is based upon established legal principles and to which we adhere. Therefore, appellant’s contention that the trial court exceeded its jurisdiction in this contempt action is without merit.

2. The trial court’s order contains the finding that, “based on the evidence presented, including that of [appellant] herself, [she] has cohabited with a third party.” Although appellant urges that this finding is not supported by the evidence, she has not provided a transcript of the contempt hearing. In the absence of a transcript, we must assume that the evidence presented at the hearing was sufficient to support the finding of the trial court. Everett v. Everett, 256 Ga. 632 (1) (352 SE2d 370) (1987).

Judgment affirmed.

All the Justices concur, except Hunstein, J., who dissents.