297 Ga. 21
FINAL COPY


                    S15A0041. POLLARD v. POLLARD.

      BENHAM, Justice.

      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 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


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previous holdings in Cason v. Cason1and Smith v. Smith.2 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 SE2d 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

      1
          281 Ga. 296 (637 SE2d 716) (2006).

      2
          281 Ga. 204 (636 SE2d 519) (2006).

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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 SE2d 53) (2014) (contempt order requiring the husband to pay the wife the


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difference between the value of the jewelry he was ordered in the divorce decree

to deliver to her and the value of the jewelry he actually delivered to her after

he had sold certain pieces was not a modification of the original award but

reflected a reasonable calculation of the value of the assets owed to the wife).

      In the case now before us, however, the contempt order cites no evidence

and contains no analysis to support a conclusion that a $50,000 asset to be paid

to Husband upon Wife’s death is in any way the equivalent to naming Husband

as beneficiary with survivorship rights to Wife’s pension. For example, the

order references evidence that Husband stood to receive monthly payments of

either $1,414 or $1,433 if he had been named the beneficiary of Wife’s pension.

This contingent event, however, requires Husband to survive Wife, and no

evidence was cited nor any conclusion reached regarding the relative life

expectancy of either party or the cash value of the pension benefits awarded to

Husband in the divorce decree. In sum, the order provides no support for the

conclusion that a $50,000 payable-on-death account or a life insurance policy

that would pay $50,000 to Husband if he survives Wife is the equivalent to the

estimated value to Husband of the contingent pension survivor benefits.

Furthermore, unlike the contempt award in Cason, the funds Wife would be


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required to expend in order to comply with the contempt award are not traceable

to any value of the original award or to any asset held by Wife that she was to

convey to Husband. Applying the standard set forth in Cason, neither the

$50,000 account nor the $50,000 life insurance policy is “in essence the same

asset” as the benefit awarded to Husband in the divorce decree. See 281 Ga. at

297-298.

      Instead, the facts of this case are more akin to those in cases in which this

Court has found the trial court’s contempt order amounted to an improper

modification of the terms of the original divorce decree. For example, Morgan

v. Morgan, 288 Ga. 417 (704 SE2d 764) (2011), also involved a final decree that

addressed retirement benefits. Pursuant to the parties’ settlement agreement,

which was incorporated into the decree, the wife was entitled to receive from the

husband’s military retirement benefits “‘only such portion of such benefits as

the Navy requires be paid to her.’” Id. at 417. As the parties later discovered,

the Navy did not require any division of the husband’s retirement benefits to be

paid to the wife, and the wife brought a contempt action when the husband

refused to enter into an Agreed Domestic Relations Order (ADRO) granting her

fifty percent of his retirement benefits. Alternatively, the wife sought an order


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setting aside the divorce decree on the ground of mutual mistake of the parties.

Id. at 417-418. The trial court found the parties had a mutual misunderstanding

of the Navy’s regulations relating to a former spouse’s share of retirement pay,

but, instead of setting aside the decree, the trial court purported to interpret the

agreement to arrive at terms it believed would carry out the parties’ intent.

Because the parties had agreed to divide their other marital assets approximately

evenly, the trial court concluded the parties also intended to divide the marital

portion of the husband’s retirement benefits evenly, and thus awarded the wife

fifty percent of the retirement benefits that accrued during the marriage. It also

found the husband in contempt for refusing to sign the ADRO. Id. at 419. This

Court reversed the contempt order, finding the trial court had made an

unauthorized modification of the final decree by substituting a specific

allocation of the husband’s retirement benefits for what we acknowledged was

“the parties’ ill-advised deference to the Navy . . . .” Id. at 420 (2).3

       3
          See also Friday v. Friday, 294 Ga. 687 (755 SE2d 707) (2014) (where the divorce decree
provided for an equitable division of the parties’ retirement assets, that portion of the contempt order
requiring the husband to pay child support arrearages from his retirement accounts constituted a
reapportionment and thus an improper modification of the decree); Jett v. Jett, 291 Ga. 56 (727
SE2d 470) (2012) (where the divorce decree adopted the parties’ settlement agreement that net
proceeds from the sale of the marital residence would be divided equally or, if house was refinanced,
husband would pay wife half of the home’s equity, the contempt order requiring husband to sell all
available assets to pay down the mortgage and hold the wife harmless from any deficiency owed on
the mortgage upon the sale of the home was clearly a modification of the decree); Greenwood v.

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        We noted, however, that our reversal of the contempt order did not leave

the parties without recourse with respect to the controversy over allocation of

retirement benefits. In Morgan, in addition to filing a motion for contempt, the

wife, alternatively, sought an order setting aside the divorce decree on the

ground of mutual mistake. Id. at 418. Consequently, the case was remanded for

the trial court’s consideration of the motion to set aside the decree. Id. at 420,

n. 2.

        Likewise, in Smith, supra, the contempt order was reversed because we

found it effectively nullified the award of certain assets to the wife in the

divorce decree. The final decree in Smith set forth a detailed scheme whereby

the parties’ marital property was to be divided, including the requirement that

the husband make a number of cash payments along with transfers of stock and

other assets to the wife. 281 Ga. at 204. When the husband failed to make

certain payments and transfers, the wife filed a contempt action. The trial court

found the husband was not in contempt and that his non-compliance was

excused as a result of the impossibility of performance since many of the assets


Greenwood, 289 Ga. 163 (709 SE2d 803) (2011) (where the divorce decree required the husband to
refinance the marital residence by a date certain, or to pay the wife a penalty of $10,000 if the date
were not met, a contempt order converting the penalty to a lien upon the residence and giving the
husband an indefinite time to sell or refinance was an improper modification and was thus reversed).

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identified in the award to the wife had been spent or depleted, even though this

Court noted that the depletion of assets was largely due to the husband’s own

conduct. Most importantly, we found the trial court’s order substantially

modified the decree by effectively nullifying the awards of certain assets to the

wife and altering the amounts to be paid to her from other assets. We noted that

if the husband wished to attack the final decree, he could have filed a timely

direct appeal or a motion to set aside the judgment. The contempt order was

reversed and the case remanded to the trial court because, “[s]imply put, the

contempt proceeding was not the vehicle to alter the decree.” Id. at 207.

       In this case, the contempt order improperly altered and modified the

original decree; it did not merely clarify the terms of the decree. Consequently,

the order is reversed, and the case is remanded for consideration consistent with

this opinion.4

       Judgment reversed and case remanded. All the Justices concur.




       4
           We also note that because it is impossible for Wife to comply with the original decree’s
requirement to name Husband as the beneficiary with survivorship rights in her pension plan,
Husband may have grounds to set aside the final decree in order to seek a final resolution that
reflects the division of assets originally contemplated by the parties.

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                           Decided April 20, 2015.

      Domestic relations. Fulton Superior Court. Before Judge Downs.

      Hamilton Legal Services, Frank W. Hamilton, Kimberly Colmey, for

appellant.

      Brian Pollard, pro se.




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