Domestic relations. Rabun Superior Court. Before Judge Caudell.
Cook Noell Tolley & Bates, John S. Noell, Jr., Kevin G. Sweat, for appellant.
Warner, Bates, McGough, McGinnis & Portnoy, C. Wilbur Warner, Jr., J. Matthew Anthony, Nancy I. Jordan, for appellee.
Hines, P. J., Benham, Hunstein, Melton, Blackwell, JJ., and Judge Roger B. Lane, Sr. concur.Thompson, C. J., not participating.
William Jackson Hardman III (Father) appeals from the trial court's grant of summary judgment and award of attorney fees to Mary Ann Hardman (Mother), in an action he filed for declaratory judgment and contempt based on their divorce decree. We reverse the grant of summary judgment, reverse in part and vacate in part the award of attorney fees, and remand for further proceedings.
1. The parties were married in 1992 and divorced in Rabun County on March 25, 2013. They have three children, including twin boys who are minors. Under the parties' settlement agreement, which was incorporated into the final divorce decree, Father and Mother share joint legal custody of the minor children, while Mother has primary physical custody. As joint legal custodians, the parties are to participate jointly in decisions regarding, among other issues, the children's education, including the choice of schools. In the event of disagreement, however, Father is given final decision-making authority as to education and health care issues, while Mother is the [295 Ga. 733] final decision-maker as to religion and extracurricular activity issues. The settlement agreement says that Father must pay Mother $7,000 per month, plus 30% of any annual gross income between $200,000 and $500,000, in " alimony" payments for 78 months or until she remarries or dies. The agreement also says that " [n]either party shall pay child support to the other at this time," but if Mother's " alimony" is terminated while the children are minors or in high school, Father's child support obligation will be $2,000 per month. Although the 24-page settlement agreement is quite detailed, it contains no specific provision regarding payment for the children's school expenses, and the child support worksheet attached to the divorce decree does not include any deviation for extraordinary educational expenses.
The parties' oldest child, who is now in college, attended Rabun Gap-Nacoochee School, a private school for grades 6 to 12. The two minor children began attending the same school starting in sixth grade in the 2010-2011 school year, and they have remained there for four school years. The combined tuition for both children is now about $2,605 per month. Before the divorce proceedings, the parties paid the private school tuition using joint marital funds, with Father generally writing the check. After the divorce, Mother refused to pay the tuition and threatened to move the children to a public school in North Carolina, where she lives, unless Father paid it.
Father made an advance tuition payment of $9,453.56 so the boys could enroll for the
2013-2014 school year; he then filed a [295 Ga. 734] complaint seeking reimbursement and a declaratory judgment as to whether Mother is required to pay the tuition out of her $7,000 monthly alimony payments and whether she can remove the children to school in another state. The complaint also sought an order enjoining Mother from removing the boys from the private school, asked that Mother be held in contempt, and requested attorney fees under OCGA § 13-6-11. In response, Mother filed a motion for summary judgment and a motion for attorney fees under OCGA § § 9-15-14 and 19-6-2.
On December 20, 2013, the trial court entered an order granting Mother's motion for summary judgment on the ground that Father's action was barred by the doctrine of res judicata. The court concluded that, if Father " intended for [Mother] to pay the private school costs out of the alimony he pays her each month, he should have written that intent in the Settlement Agreement" rather than trying to " relitigate the Settlement Agreement in order to supplement its terms." The court also rejected Father's argument that he needed clarification of the settlement agreement, noting that " [s]imply writing that [Father] has final authority on educational issues does not create an ambiguity as to payment of private school tuition." Finally, after finding that Father's complaint for declaratory judgment and his action for contempt " ...