301 Ga. 600 FINAL COPY
S17A0001. SPONSLER v. SPONSLER.
MELTON, Presiding Justice.
In this second appearance of this divorce case before us, Jeffrey Sponsler
(Husband), by way of application, appeals the trial court’s order finding him in
contempt of the final decree effectuating his divorce from April Sponsler
(Wife).1 When we granted Husband’s application, we issued two questions for
argument and consideration: (1) Did the trial court err by ordering both parties
to share responsibility for home equity line of credit (HELOC) payments on the
rental home until it is sold? (2) Did the trial court err by ordering Husband to
repair the rental property?2 For the reasons set forth below, we find that,
1 In Sponsler v. Sponsler, 287 Ga. 725 (699 SE2d 22) (2010), we affirmed the trial court’s decision to incorporate a settlement agreement between the parties into the final divorce decree. 2 Rather than focus on these questions, Husband sets forth a litany of arguments in his brief that go well beyond the matters set forth in the specific questions posed to the parties by this Court. Below, the trial court found that Husband attempted to expand the scope of litigation throughout the nearly eight- year conflict over this divorce. Husband’s appellate brief lends support to the although the trial court ultimately did not err in finding Husband to be in
contempt of the divorce decree, the trial court did err by ordering Husband to
share ongoing responsibility for HELOC payments and to make repairs to the
rental property.
1. The record shows that the parties separated in the fall of 2007, and a
divorce decree which incorporated a partial settlement agreement was entered
on June 16, 2009. Thereafter, Husband appealed, and this Court affirmed the
divorce decree on June 28, 2010. In relevant part, the divorce decree awarded
one of the parties’ two homes to Wife.3 The parties had been using this home as
a rental property during the marriage. Pursuant to the decree, Wife was supposed
to sell or refinance the rental property; however, at least partially due to
Husband’s longstanding refusal to cooperate in any effort to get the property
refinanced or sold, the rental property has not been sold to date and has been
allowed to deteriorate to the point of near worthlessness.
trial court’s observation. The other home, which had been used as the marital residence, was 3
awarded to Husband. 2 On January 14, 2013, Wife filed this contempt action,4 contending
Husband failed to satisfy his obligations under two main provisions of the
divorce decree, one of which relates to the questions we posed to the parties.5
Under this relevant provision, Wife argued that Husband failed to execute a
quitclaim deed allowing her to sell the rental property. The provision states:
Wife is awarded exclusive use, possession of and title to the residence located at 1827 Cashmere Court, Lithonia, Georgia, which the parties referred to during the hearing as the "Rental Property." Said residence is currently encumbered by an Equity Line of Credit with Bank of America (Account no. ending 1699) with a current payoff balance of approximately $92,000.00. This debt is currently solely in the Husband's name. The Wife shall sell this property or re-finance same in her own name on or before March 1, 2010, thereby completely removing all financial liability from the Husband. The parties shall timely execute a Quitclaim Deed in order to effectuate this transaction. Beginning on March 1,
4 Husband filed a separate motion for contempt, and the separate contempt actions were consolidated. 5 Wife also sought to enforce the provision of the decree requiring Husband to transfer $89,380 of a 40l(k) retirement plan. This provision states: “Accordingly, the Wife shall receive the sum of $89,380 and the Husband shall be entitled to the remaining balance thereafter. The Husband shall promptly prepare a Qualified Domestic Relations Order (QDRO) to comply with said provisions.” The trial court found that there was “no valid, plausible, acceptable justification for not completing the Qualified Domestic Relations Order the day after this divorce became final.” Because of Husband’s lengthy delay in signing the QDRO, the trial court awarded Wife interest on the portion she should have received after the divorce decree became final and binding. 3 2009, the Wife shall be exclusively liable for all debt, mortgage payments, repairs, maintenance, taxes and insurance for the foregoing property. Until the Wife refinances the rental property in her own name, she shall timely make all payments for the rental property to protect the credit of the Husband, and she shall be solely responsible for any late fees and payments associated with any late payments thereon.
After various scheduling issues, the trial court held an initial hearing on
November 6, 2013. At that time, the trial court appointed a receiver and ordered
the sale of the rental property in an order dated November 22, 2013. Husband
was instructed that a short sale might be required, that part of the HELOC
balance might remain outstanding, and that the determination of which party
would be responsible for satisfying that balance might have to be determined at
a future hearing. Thereafter, the receiver found a buyer for the property, but
Husband, despite the clear instructions from the trial court, refused to fully
cooperate with the sale. He also challenged the work of the receiver and
contended that the receiver had not properly earned the fees he was charging.
Ultimately, the receiver filed his own separate motion for contempt.
In the underlying order in this case, the trial court granted the motions
filed by Wife and the receiver, and it denied Husband’s motion.
2. (a) With regard to the rental property, the trial court made the following
4 findings of fact. From early September 2007 through May 2009, Husband had
exclusive possession and control of the property. During that period, the title to
the property was in Husband’s name, and Husband was the sole borrower of
record with regard to the HELOC. Pictures taken in August 2007 showed that
the property was in good and marketable condition at that time. Upon Wife’s
first inspection of the rental property in February 2009, however, she discovered
that the property had been damaged and was no longer in good and marketable
condition — a number of windows were broken and the air conditioning unit
had been removed.6 In June 2010, after all appellate proceedings had been
exhausted and the divorce decree became final, Wife sent Husband a request to
file an insurance claim for the damage to the rental property, but Husband
refused to cooperate with the filing of any insurance claims. No repairs were
made, and the property, now abandoned, continued to be vandalized and allowed
to deteriorate. For this entire span of time, Husband refused to sign a quitclaim
deed transferring the property to Wife.7 Ultimately, the trial court found that the
6 The final divorce decree which incorporates the settlement agreement was entered on June 16, 2009. 7 After Wife filed this contempt action, Husband was eventually required to sign a quitclaim deed in open court in July 2013, prior to the appointment of 5 rental property was allowed to be spoiled intentionally by Husband, both by
Husband’s refusal to assist with an insurance claim and his refusal to timely
execute a quitclaim deed. To remedy Husband’s contempt, the trial court
ordered Husband to expend $35,000 to bring the property back to marketable
condition and to share payments on the HELOC equally with Wife until the
rental property was sold.
We have previously explained that
[a] court may not modify a previous decree in a contempt order. [Cit.] However, a court may always interpret and clarify its own orders. [Cits.] The test to determine whether an order is clarified or modified is whether the clarification is reasonable or whether it is so contrary to the apparent intention of the original order as to amount to a modification. [Cit.] “The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.” [Cit.] The trial court in a contempt case has wide discretion to determine whether his orders have been violated. His determination will not be disturbed on appeal in the absence of an abuse of discretion. [Cits.]
Kaufmann v. Kaufmann, 246 Ga. 266, 268-269 (3) (271 SE2d 175) (1980).
Furthermore, “[i]f there is any evidence in the record to support a trial judge's
determination that a party either has or has not wilfully disobeyed the trial
a receiver. 6 court's order, the decision of the trial court will be affirmed on appeal.” (Citation
omitted.) Crowder v. Crowder, 236 Ga. 612 (225 SE2d 16) (1976).
As detailed above, there is ample evidence to support the trial court’s
conclusion that Husband was in contempt for failing to execute a quitclaim deed
in favor of Wife. Therefore, the finding of contempt, itself, was proper. With
regard to the remedies, however, the trial court went too far. With regard to
repairs to the property, the divorce decree places that responsibility on Wife for
all periods of time after March 1, 2009. While Husband might be held
responsible for damages and necessary repairs prior to that operative date, the
trial court was not authorized, in accordance with the divorce decree, to hold
Husband responsible for all repairs needed by the property for damage occurring
after March 1, 2009. Likewise, the trial court erred when it ruled that each party
shall be equally responsible for the HELOC payment and taxes on the property
until the property is sold. This potentially indeterminate and ongoing obligation
is directly contrary to the terms of the decree, which place ongoing
responsibility for the HELOC payments on Wife after March 1, 2009. In both
cases, the remedies set forth by the trial court amount to a modification of the
terms of the divorce decree. See, e.g., Everett v. Everett, 256 Ga. 632 (2) (352
7 SE2d 370) (1987).8 Therefore, the portions of the trial court’s order requiring
that Husband pay $35,000 to repair the rental property and require Husband to
share in HELOC payments until the rental property is sold must be reversed.9
(b) The dissent argues that the trial court properly ordered Husband to pay
$35,000 to bring the rental property back to marketable condition for three main
reasons, each of which is faulty. First, the dissent states that the trial court
properly found that Husband’s contumacious conduct made it impossible for
Wife to make any repairs to the property. The dissent, however, points to no
actual evidence of record supporting a finding that Wife was wholly prevented
from performing her obligations to repair the property in accordance with the
express wording of the divorce decree. The dissent defines neither Husband’s
conduct nor the manner by which any such conduct caused additional damage
8 As a general matter, a trial court may have a broader range of remedies in a modification action. 9 Husband raises numerous other issues in his brief relating both to the trial court’s decision on Husband’s motion for contempt against Wife and the receiver’s motion for contempt against Husband. These issues, however, were argued and litigated extensively below, and the record supports the trial court’s conclusions with respect to all of the other issues raised by Husband relating to this contempt proceeding, other than those issues discussed in this opinion. 8 to the property after Wife took control and possession.10
Second, the dissent relies on Ziyad v. El-Amin, 293 Ga. 871 (750 SE2d
337) (2013), for the proposition that the trial court could require Husband to pay
for all repairs to the property in order to meet the exigencies caused by
Husband’s contumacious conduct. As an initial matter, Ziyad is not applicable
to this case. In Ziyad, the husband was required to pay down the principal
indebtedness on a piece of property in order to make it marketable in order to
remedy his failure to sell that property in accordance with the divorce decree.
The decree required the husband in that case to sell the property, and the trial
court simply ensured that the husband satisfy his obligation that existed on the
face of the decree. In this case, however, the trial court is requiring Husband to
pay for repairs on a piece of property despite the fact that the decree actually
places those obligations on Wife. In other words, the trial court is requiring
exactly the opposite of the express terms of the decree. Ziyad does not support
this remedy, and, in fact, it recognizes that any such modification of a divorce
decree is improper by stating: “As we have explained, ‘a trial court has broad
In fact, the transcripts of record reveal that, at one point, Wife’s family 10
had performed renovations on the property in the past. 9 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 (3) (690 SE2d 410) (2010).” Ziyad, supra, 293 Ga. at
872. So, Ziyad actually recognizes the infirmity of the dissent’s position rather
than supporting it.
Finally, as did the trial court, the dissent fails to cite the operative
language of the divorce decree which begins and ends consideration of the
issues in this case: “Beginning on March 1, 2009, the Wife shall be exclusively
liable for all debt, mortgage payments, repairs, maintenance, taxes and insurance
for the foregoing property.” While the conclusions of the trial court and the
dissent may seem satisfying in the context of this long and exhaustive divorce,
they require that the divorce decree not only be modified, but rewritten. That is
not an appropriate legal remedy.
3. In its order finding Husband in contempt, the trial court also awarded
attorney fees to Wife pursuant to OCGA § 9-15-14. From the trial court’s order,
however, it cannot be determined whether any part of that award flowed from
Husband’s litigation of the remedies for contempt that have been reversed in this
opinion. For this reason, we must vacate the trial court’s award of attorney fees
10 and remand the case for reconsideration of that award in light of this opinion.
Judgment affirmed in part, reversed in part, and vacated in part, and case
remanded with direction. All the Justices concur, except Hunstein and Grant, JJ.,
who concur in part and dissent in part.
GRANT, Justice, concurring in part and dissenting in part.
While I concur in the majority’s conclusion that the trial court properly
held Husband in contempt, and I concur in its determination that requiring
Husband to pay one-half of the HELOC payments and taxes on the rental
property until its sale was an improper modification of the divorce decree, I
disagree with its conclusion that the remedy fashioned with regard to repair of
11 the property was improper. In addition, regardless of any error in the remedies
the trial court fashioned to address Husband’s contempt, I disagree with the
conclusion that the attorney fee award — predicated wholly on Husband’s
harassing and litigious conduct in these protracted contempt proceedings —
must be vacated. Accordingly, I must respectfully dissent, to the extent the
majority reverses that portion of the trial court’s order which requires Husband
to pay the cost of restoring the property to the condition in which it should have
been when Wife assumed possession of it, and to the extent it vacates the award
of attorney fees.
I.
The evidence is more than sufficient to support the trial court’s conclusion
that Husband was in contempt of the divorce decree, not only for failing to
execute a quitclaim deed in favor of Wife, but also for failing to maintain the
rental property in good, marketable condition during the time the property was
in his possession, and failing to cooperate with Wife in filing claims for repairs
covered by insurance on the property. The trial court was likewise well
supported in its express finding that Husband’s sustained pattern of
contumacious conduct made it impossible for Wife to comply with her obligations in regard to the maintenance and repair of the rental property once
that responsibility shifted to her. For this reason, I would find that the trial court
was authorized to order Husband, as a remedy for his contempt, to pay the costs
required to restore the rental property to a marketable condition.11 See Ziyad v.
El-Amin, 293 Ga. 871 (750 SE2d 337) (2013) (affirming contempt order
requiring husband to pay down principal of indebtedness on property, as a
remedy for husband’s failure to sell or refinance property as required by divorce
decree, where the outstanding indebtedness had rendered property unsalable).
Where, as here, the contemnor’s misconduct prevents the other party from
complying with her obligations under the divorce decree, a trial court is
empowered to fashion a remedy that “meet[s] the exigencies” resulting from
such misconduct and thereby “enforce its decrees.” OCGA § 23-4-31 (“[a]
superior court shall have full power to mold its decrees so as to meet the
exigencies of each case and shall have full power to enforce its decrees when
rendered”). See also Smith v. Smith, 293 Ga. 563 (1) (748 SE2d 456) (2013)
(affirming award of dollar value of items divorce decree required husband to
11 The trial court noted that the $35,000 repair cost estimate was derived from Husband’s evidence on this subject, and neither of the parties has contested this amount on appeal.
2 return to wife, as remedy for husband’s failure to do so). The trial court stated
at the conclusion of the multi-day contempt hearing that, in ordering Husband
to pay the repair costs, its intent was
to make [Wife] whole under this agreement and [Husband] whole under their agreement, that his HELOC is satisfied and she receives a portion of the asset she thought she was receiving if she had received the house in good, marketable condition.
As the repair cost provision falls squarely within the realm of enforcing the trial
court’s prior decree, I would affirm that portion of the contempt order that
requires Husband to pay up to $35,000 to restore the rental property to a
marketable condition. To hold otherwise is to render the trial court impotent to
employ the most rational of remedies to address Husband’s contempt and
effectuate the intent of the original divorce decree.
II.
In awarding attorney fees to Wife, the trial court stated:
The Court is deeply concerned about the way [Husband] can convince himself to take any position he wants to justify his noncompliance [with] any and all of the Court’s verbal, specific instructions and the Court’s written orders. [Husband] has demonstrated exhaustive measures to find loopholes in provisions of any orders that he does not agree with, but then he uses the ones that are favorable to [Wife] as a club. . . . [Husband] expanded this
3 litigation unnecessarily and uses the legal process to unjustifiably harass and intimidate [Wife].
As a result, the trial court awarded Wife $20,000 in fees under OCGA § 9-15-14
(a) and (b).12 It is apparent that this award was attributable entirely to
Husband’s well-documented recalcitrance in complying with his clear legal
obligations, his reliance on unfounded legal positions, and his prolonging of the
litigation, tactics which Husband employed, in the trial court’s view, “as a way
12 These subsections provide: (a) In any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position. Attorney’s fees and expenses so awarded shall be assessed against the party asserting such claim, defense, or other position, or against that party's attorney, or against both in such manner as is just. (b) The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious. OCGA § 9-15-14.
4 to emotionally abuse [Wife].” Notably, the $20,000 award amounted to
approximately half of the $38,766 in fees that Wife had incurred in connection
with the contempt proceedings; at the final hearing, Wife’s counsel argued with
respect to the attorney fee issue that “[H]usband’s conduct generated at least half
of [Wife’s] fees, at least half, if not more.” Thus, it is clear that the fee award
was designed to compensate Wife for fees attributable to responding to
Husband’s willful and unjustifiable disregard for his obligations under the
divorce decree — a disregard that even the majority agrees constitutes contempt
— as well as his brazen abuse of the legal process. Because the majority
opinion neither disturbs the finding of contempt nor questions the conclusion
that Husband has abused the legal process, even if some or all of the contempt
remedies the trial court devised are subject to reversal, there is no reason to
disturb the fee award, as it rests solidly on findings that remain intact even
taking into account the majority’s disposition.
In addition, even if it were necessary to winnow out the attorney fees
attributable to time spent by Wife’s counsel as to the remedies the majority now
adjudges to be improper, it bears noting that the issue of remedies was raised at
the end of the third day of the third hearing with the third trial judge to preside
over these contempt proceedings. In fact, it was the trial judge who initiated the
5 discussion of remedies and who then, declining to adopt the remedies proposed
by Wife, devised the remedies the majority now invalidates. Any attorney time
spent on the particular remedies the Court’s majority now holds improper was,
therefore, de minimis at best. Given that the actual award represented only
slightly more than half of the total fees incurred, the possibility that some
minimal portion of attorney time was spent advocating for improper remedies
should not require reconsideration of the fee award.
For these reasons, I would affirm the trial court’s award of attorney fees.
I am authorized to state that Justice Hunstein joins in this partial
concurrence and partial dissent.
Decided May 30, 201 – Reconsideration denied June 30, 2017.
Domestic relations. Gwinnett Superior Court. Before Judge Schrader.
Terrence A. Shannon; J. Erik Heath, for appellant.
Margaret G. Washburn, for appellee.
Thompson, O’Brien, Kemp & Nasuti, J. Patrick O’Brien, amicus curiae.