Domestic relations. Fulton Superior Court. Before Judge Downs.
Hamilton Legal Services, Frank W. Hamilton, Kimberly Colmey, for appellant.
Brian Pollard, pro se.
BENHAM, Justice. All the Justices concur.
This appeal arises out of a divorce action filed by appellant Kayleen Pollard (Wife) against Brian Pollard (Husband). A bench trial was conducted, after which the final judgment and decree was [297 Ga. 22] entered July 31, 2013. Wife retired in 2012 after the divorce complaint was filed, and she commenced receiving retirement benefits from the Teachers Retirement System of Georgia prior to the date the final judgment was entered. Wife elected not to provide for survivor benefits, thereby entitling her to receive the maximum monthly benefits during her life. Further, the final judgment recited the Husband had already named Wife as the sole beneficiary with survivorship rights of his pension plan, which he was ordered not to change for so long as Wife is alive, and Wife was ordered to " restore" Husband as her sole beneficiary with survivorship rights within thirty days of the date of the order. By the time the final judgment was entered, however, Wife was precluded from changing her survivor benefits election. Whether or not she was aware it was too late to provide for survivor benefits, she apparently did not disclose this fact to the trial court or to Husband. When Husband discovered Wife's failure to comply with this provision on the ground of legal impossibility, he filed a pro se action for contempt.
In the order entered in response to the petition for contempt, the trial court questioned how Wife was able to remove her then-husband as the survivor beneficiary of her plan without notifying him, but noted that this apparently occurred. The trial court further found that it was impossible for Wife to comply with the order since she had already commenced receiving benefits prior to the final decree and was now precluded from making the ordered change. The court found the final decree contemplated Husband's receipt of a portion of Wife's pension if he survived her, which the judge concluded would be between $1,414 and $1,433 per month, depending upon which plan was chosen. The order did not find Wife to be in contempt, but the trial court ordered Wife to take out a life insurance policy in an amount not less than $50,000 naming Husband as the sole beneficiary, or alternatively, to establish a bank account payable on her death to Husband in an amount not less than $50,000. This Court granted Wife's application for
discretionary appeal of the trial court's contempt order to address whether the contempt order improperly modified the divorce decree, and specifically directed the parties to consider this Court's previous holdings in Cason v. Cason  and Smith v. Smith. We find that it did, and reverse.
It is well settled that a court may not modify a divorce decree in a contempt order, but may interpret and clarify its previous decree. See, e.g., Kaufmann v. Kaufmann, 246 Ga. 266, 268 (3) (271 S.E.2d [297 Ga. 23] 175) (1980). " 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." Id. Where, as here, the trial court awards an asset in a contempt proceeding that differs from that which was awarded in the divorce decree,
we look to the nature of the asset the trial court awarded ... to determine whether it is equivalent to the asset [awarded in the] divorce proceedings. If it was in essence the same asset, the court did not improperly modify the terms of the [decree], but merely construed the relevant provision to determine the intent of the [decree]. Conversely, if the court used the contempt proceeding to substantially alter the final decree, it amounted to an unauthorized modification.
Cason, supra, 281 Ga. at 297-298. We agree with Wife that the contempt order in this case impermissibly modified the terms of the divorce decree addressing her obligation to provide survivor pension benefits to Husband.
In Cason, the final decree awarded the wife a stream of equity dividend payments from an agricultural cooperative membership held by the husband that the parties expected the cooperative would pay over a number of years. During the period of time payments were to be made to the wife, the cooperative was converted to a for-profit corporation and the equity position held by the husband was converted to cash and common stock. Consequently, it was impossible for the wife to continue to receive the equity dividend payments awarded in the final decree. In a contempt proceeding brought by the wife, the court ordered the husband to deliver to the wife a sum of cash and corporate stock in lieu of her interest in the former equity account. The trial court was able to arrive at the amount of the award by tracing the value of the wife's interest in the equity account, during the years she was entitled to dividend payments, to the stock and cash the husband received in lieu of such payments. Accordingly, this Court affirmed the trial court's award of assets in the contempt proceeding and found it " was a reasonable clarification because it was consistent with the intent and spirit of the final decree." Id. at 298. See also Doritis v. Doritis, 294 Ga. 421 (754 S.E.2d 53) (2014) (contempt order requiring the husband to pay the wife the ...