Smith v. Smith

632 S.E.2d 83, 280 Ga. 620, 2006 Fulton County D. Rep. 1862, 2006 Ga. LEXIS 391

• Court: Supreme Court of Georgia
• Decided: June 12, 2006
• Docket: S06A0631
• Status: Published

Opinions

Hines, Justice.

Curtis Nathaniel Smith II appeals the trial court’s denial of his motion to set aside an earlier order directing that he be incarcerated for contempt of court. For the reasons that follow, we reverse.

Curtis Nathaniel Smith II and Stephanie Lauren Smith were divorced in 2000. Ms. Smith was awarded primary physical custody, and Mr. Smith was ordered to pay $900 a month in support for their two children. After he failed to meet this obligation, Ms. Smith moved for contempt. On February 15, 2001, Mr. Smith was found in contempt and incarcerated. He remained in jail until May 1, 2001, when the parties reached an agreement, pursuant to which the court entered an order declaring that Mr. Smith owed $13,500 in back child support, and that he was to extinguish that debt by paying $1,000 a month through the clerk of court, $900 being his monthly support obligation, and $100 to be applied to the arrears. The order also stated that if he failed to “make a payment of $1,000.00 per month ... an affidavit shall issue to the effect” and the court would then “execute an Order directing the Sheriff to arrest and incarcerate” Mr. Smith until the balance of the $13,500 arrears is paid.

On January 15, 2005, the clerk of court averred that Mr. Smith had paid nothing to the clerk’s office under the release order, and on January 26, 2005, the court entered an order that Mr. Smith be incarcerated until the child support arrearage was paid in full. Mr. Smith moved to set this order aside under OCGA § 9-11-60 (d), asserting that incarcerating him without serving notice or holding a hearing was a violation of due process and constituted a non-amendable defect on the face of the record. On June 30, 2005, the court denied the motion. Mr. Smith filed an application for interlocutory appeal from this order, which this Court granted.

This Court has repeatedly held that “in Georgia, a trial court cannot order incarceration pursuant to a self-effectuating order, regarding future acts, without benefit of a hearing. Floyd v. Floyd, 247 Ga. 551 (1), (2) (277 SE2d 658) (1981). See also Foster v. Foster, 178 Ga. 791 (5) (174 SE 532) (1934) .Burke v. Burke, 263 Ga. 141, 142 (2) (429 SE2d 85) (1993). See also Baldwin v. Vineyard, 275 Ga. 134, 135 (2) (562 SE2d 174) (2002). Ms. Smith nonetheless asserts that this is not the sort of self-effectuating order prohibited by these precedents. She contends that the cited cases do not apply because the release order of May 1, 2001, did not authorize incarceration on the basis of her own affidavit, but on that of a court officer based on objective information, and therefore did not “place the keys to the jail” in her own hands. See Moccia v. Moccia, 277 Ga. 571, 572 (2) (592 SE2d 664) (2004). First, we note that the language of the order contains no provision requiring a court officer to make the affidavit, and only states that “an affidavit shall issue to the effect” that a payment has not been made. We also note that the record is devoid of any information as to what prompted the clerk of the court to issue his affidavit three and one-half years after the entry of the release order; there was no motion made to the court for such an affidavit, or any notice given that the affidavit was filed with the court.

Even more fundamentally, the order is infirm because it attempts to be self-effectuating as to future acts; Mr. Smith is ordered to be incarcerated for his failure to pay the $1,000 a month ordered in the May 1, 2001 order. Ms. Smith argues that incarceration can properly result on a court officer’s affidavit when a contempt hearing has already been had, contempt has been found, an adjudication as to past debts has been made, and future payments are simply the mechanism by which the contemnor purges himself of the contempt. See Floyd, supra at 553-554 (2). While it is the case that in 2001, the court found Mr. Smith in contempt and ordered that he purge himself of that contempt by paying $100 a month for the child support in arrears, we cannot ignore the wording of the order. Mr. Smith was ordered to pay $1,000 in child support each month, $900 of which was to be applied to his ongoing, future, obligation. The order specifically states that incarceration is to result if Mr. Smith “fails to make a payment of $1,000.00 a month”; i.e., a payment the vast majority of which is not to purge himself of contempt. Thus, his ordered incarceration was the result of a self-effectuating order regarding future acts, and could not be lawful without a hearing. See Baldwin, supra; Burke, supra.¹

The face of the record shows that the court’s order that Mr. Smith be incarcerated was based upon an unauthorized provision in its release order. Thus, his motion to set aside the incarceration order under OCGA § 9-11-60 (d) should have been granted.

Judgment reversed.

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

1 Ms. Smith argues that, in any event, Mr. Smith agreed to this procedure when the release order was negotiated. However, this Court has repeatedly stated that a trial court cannot order incarceration based upon a self-effectuating order regarding future acts without a hearing, and the parties cannot by agreement give the trial court a power it cannot exercise.