Contested Post Divorce Actions - Contempt Motions and Modifications
After a divorce, a party may need to enforce the settlement agreement / final order – called a contempt motion. Or a party may need to change the financial or custodial terms of final order - called a modification action. Atlanta Divorce Attorney Russell Hippe has extensive experience in handling these cases.Contempt Motions
A contempt motion is a request for the Court to enforce the final order and punish the offending party. A party is in "contempt" if he or she has intentionally refused to honor a clear term or the clear "intent and spirit" of the final decree. Common examples are motions to enforce child support obligations or custodial / visitation rights.
Technically, a contempt it is a motion, not a new suit. (Many such motions are styled as "Petitions" for contempt.) Notwithstanding, the respondent must be personally served. As a general rule, the contempt should be filed in the Court that issued the final order. See, Corbett v. Corbett, 236 Ga. App. 299, 511 S.E.2nd 633 (1999). If the party seeking contempt is a custodial parent seeking to enforce child support, the original court will retain jurisdiction even if the non-custodial obligated spouse has moved out of state. See, Baars v. Freeman, 288 Ga. 835, 708 S.E.2nd 273 (2011).
The procedural rules involving contempt motions are complex. For example, a contempt motion cannot be asserted as a "counterclaim" to a contempt motion. (Reciprocal contempt charges should be filed as independent motions and consolidated.) The exception is where there is a new modification action properly pending in a new county. (In this context, a contempt can be asserted as a counterclaim.) Where a modification action is properly pending in a new court, that court will acquire jurisdiction to enforce the order of another court. See, Gignilliat v. Gentry, 17 Ga. App. 518, 457 S.E.2nd 833 (1995).
Before you file a contempt, you must make sure you are in full compliance with the order. And you need evidence that the contempt is "willful".Modification Actions
A modification is a completely new lawsuit (with full discovery and procedural requirements) requesting a change to the financial and/or custodial terms of the prior order. A party can seek to modify periodic alimony, child support, and/or custody. Property division, and certain types of alimony awards, such as "lump sum", or awards in lieu of property division, are not subject to modification as a general rule.
If the defendant resides in Georgia, these actions must be filed in the county where the defendant resides. However, if a Georgia court has issued a final custody determination, and the defendant has moved out of state, yet the plaintiff still resides in Georgia, Georgia will retain jurisdiction to modify custody. See, O.C.G.A. section 19-9-62(a); Odion v. Odion 325 Ga. App. 733, 754 S.E.2nd 778 (2014).Material Change in Circumstance as Condition to a Modification Action
As a general rule, to seek a modification of support or custody, there must be a material change in circumstance. Specifically, in the custody context, since the prior order was entered, there must be a "change in any material conditions or circumstances of a party or the child". O.C.G.A. section 19-9-3(b); See, Morgan v. Fordham, 328 Ga. App. 227, 761 S.E.2nd 621 (2014). In the child support context, since the prior order was entered, there must be a "substantial change in the either parent's income and financial status or the needs of the child." O.C.G.A. section 19-6-15(k)(1). A decrease of 10% of a non-custodial spouse's net income has been held a “substantial change”. See, Rolader v. Pendleton, 231 Ga. 16, 200 S.E. 2nd 108 (1973).
The exception is where a non-custodial parent only wants a limited change to visitation. Provided the visitation change does not increase parenting time above that of the custodial parent, the Court has discretion to modify visitation without a change in circumstance. See, O.C.G.A. section 19-9-3-(b); See, Blackmore v. Blackmore, 311 Ga. App. 855 (2011). Also, a Court can make minor changes to visitation when hearing a contempt motion. See, Horn v. Shepherd, 292 Ga. 14 (2012).