Q: Can a judge take away child support & alimony if the receiver was held in contempt for accessing a marital asset?
There is no final in the divorce yet. I accessed a retirement account (per my attorney's instruction) because there was no money to support my 2 children and large home. My attorney never filed anything with the court. My spouse found out and filed contempt. I was found in contempt and he was given credit towards the full amount (not just his share) of his arrearage. Now my spouse says he doesn't have to pay me at all. (It just states that he gets dollar for dollar credit towards his arrearage - it doesn't state that he doesn't have to pay me what he is currently supposed to pay me.) I do have a new attorney, but I'm trying to find some info on my own - case law, preferably.
The answer to your question is somewhat complicated and may not be exactly what you believe it to be. Only under the right set of circumstances would the judge have had the right to do what he or she did.
If the only reason you were in court was because your husband had filed a contempt action, the judge did not have authority to modify the temporary order. If you were in court pursuant to both a contempt action and a motion to modify alimony and child support, then the judge would have had such authority. If you were only notified to come to court for a contempt hearing but the judge modified the temporary order, then what the judge did is violate your right to due process which is “notice and an opportunity to be heard.” Before the hearing, you had notice that you could be found in contempt but not that the judge intended to modify the temporary order. A judge has authority to modify the temporary order but only if a modification action had been filed prior to the hearing.
There is plenty of case law that addresses this issue but only after the divorce is final and not while the divorce is still pending. I just recently filed a discretionary application of the very same issue you are facing. The parties were in court pursuant to several motions, none of which was a motion to modify the temporary order. Discussion arose in court related to the temporary order. Based on the discussion, the trial court modified the temporary order. If the discretionary application is granted, hopefully we will have case law on the issue while the divorce is pending. Check out these cases: Morgan v. Morgan, 288 Ga. 417, 704 S.E.2d 764 (2011); Scherer v. Testino, 291 Ga. 75, 727 S.E.2d 490 (2012); Killingsworth v. Killingsworth, 286 Ga. 234, 686 S.E.2d 640 (2009); Collins v. Billow, 277 Ga. 604, 592 S.E.2d 843 (Ga. 2004); Roquemore v. Burgess, 281 Ga. 593, 594, 642 S.E.2d 41 (2007); Jett v. Jett, 291 Ga. 56, 727 S.E.2d 470 (2012); Cason v. Cason, 281 Ga. 296, 297(1), 637 S.E.2d 716 (2006); Greenwood v. Greenwood, 289 Ga. 163, 709 S.E.2d 803 (2011). Also check out O.C.G.A. §19-6-3(d). The cases may lead you to other relevant cases.
Since your case is a divorce, you may have to wait until the divorce is final to appeal the judge’s adverse ruling. The Georgia Supreme Court grants all non-frivolous discretionary applications in divorce cases. Based upon the facts you stated, your case does not appear to be frivolous.
Any time you feel the need to do something that is contrary to an existing court order, unless there is an emergency situation, your attorney needs to first get permission from the court. This advice most often applies to the court’s Standing Order.
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