                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                      March 2, 2018




In the Court of Appeals of Georgia
 A17A1401. EDEN v. EDEN et al.

      BRANCH, Judge.

      Jill Eden appeals the denial of her second motion for contempt arising out of

a quiet title action and subsequent settlement agreement. Because we find that the

trial court made an unauthorized finding while denying Eden’s motion for contempt,

we vacate the trial court’s order as to that finding.

      The record shows that in 2007, Jill’s brother John proposed to Jill that she

build a home on property that he and his wife owned in Barrow County. Jill alleged

that John also promised to deed her a portion of his property for that purpose. After

Jill constructed the home at her own expense, a dispute arose regarding title to the

relevant property, and Jill filed the present action to quiet title against John and his

wife (the Edens). The trial court eventually ordered a settlement conference following
which the parties entered into a written settlement agreement. As the court explained

in a subsequent order, the settlement agreement provided, among other things, that

the Edens were required to (1) deed to Jill a life estate and an access agreement to the

subject property, (2) provide property insurance and pay taxes on the property during

Jill’s life, and (3) pay Jill $700 per month during her lifetime in consideration of the

improvements she made to the property. The settlement agreement also required the

Edens’ counsel to draft the necessary documents.

      Jill later filed a motion to enforce the settlement agreement, and on October 5,

2015, the trial court granted the motion and expressly made the settlement agreement

the order of the court. The trial court held that, “[b]y its express terms as approved by

the parties, the Agreement constitutes a final resolution of all the issues in this case,

and its terms became binding on the parties at the time of signing.” The agreement

provided that it was the entire agreement between the parties and that it could not be

modified “except in writing executed by all parties with the same or greater

formalities as this Agreement.” It also provided for attorney fees and costs if a party

had to employ an attorney to enforce any of its provisions. Neither party appealed the

court’s order enforcing the settlement agreement.



                                           2
      After the Edens failed to comply with any of the above provisions of the

court’s order, Jill filed her first motion for contempt, as well as a motion for attorney

fees and expenses of litigation. At the March 1, 2016 hearing on those motions, the

Edens admitted that they failed to comply with provisions of the trial court’s order,

and consequently, the trial court found them to be in contempt of that order. The court

issued its order on March 14, 2016 “nunc pro tunc March 1, 2016,” the date of the

hearing. The court held that the Edens had failed to deliver the required access

agreements and failed to pay $9,260.97 of the required payments; the court ordered

that the Edens be incarcerated if they failed to purge the contempt for these items and

awarded attorney fees associated with Jill’s motion for contempt and her defense of

a motion to recuse. With regard to the Edens’ obligation to deed a life estate to Jill,

however, the court found that the Edens had deeded the subject property to Jill in fee

simple, rather than as a life estate. And the court noted in the above-mentioned

attorney fee award that it “gave credit to the [Edens] for their transfer of the subject

property to [Jill] in fee simple and does not award any attorney’s fees on [Jill’s]

Motion to Enforce [the settlement agreement].” The Edens purged themselves of

contempt as required by the order. Neither party appealed the court’s March 14, 2016

ruling on this first motion for contempt.

                                            3
      One month later, Jill filed a second motion for contempt on the grounds that

the Edens failed to make a $700 payment in April 2016 and failed to execute an

unspecified “quitclaim deed”; she later amended the motion to include two more

missed payments but removed any reference to a quitclaim deed from the requested

relief. Following oral argument, on October 6, 2016, the trial court issued its order

declining to hold the Edens in contempt on the ground that contempt is not an

authorized remedy when seeking to enforce a purely monetary obligation. But the

court also stated that “that determination does not put an end to this litigation.” The

court went on to make a second ruling — that no further $700 payments were

required. Is so doing, the court stated that it recognized that a contempt order cannot

modify an existing order, and that therefore “to resolve this dispute the court must

interpret the Mediation[/settlement] Agreement and the October 5[, 2015] order.” The

trial court noted that the settlement agreement and the prior court orders were “silent

regarding the impact of unifying title in [Jill] on future payments.” Nevertheless, the

court found that both the mediation agreement and the October 5 order “tie” the $700

payment obligation to the life estate and constituted compensation for Jill having

made improvements to the property, which improvements would inure to the benefit

of the Edens at the end of Jill’s life. The court then found that “delivery of the Deed

                                          4
was done in open court [at the March 1, 2016 hearing] with all parties and counsel

present.” The court therefore concluded that by accepting the fee simple deed in open

court without protest, Jill “acquiesc[ed] by silence [to] the transfer of title and [to] a

modification of the settlement agreement.” The court thus concluded that the Edens’

obligation to make monthly $700 payments to Jill had been eliminated and therefore,

for this second reason, denied Jill’s second motion for contempt.

      Jill appeals the trial court’s October 6, 2016 order. She contends the trial court

erred by modifying the settlement agreement and final enforcement order in response

to the Edens’ transfer of the fee simple deed, by making that modification outside the

term of court of the original order, and by not finding the Edens in contempt and

awarding attorney fees.

      1. Jill contends the trial court erred by modifying the final enforcement order

by determining that no additional $700 payments were required as a result of the

Edens’ transferring to Jill fee simple title to the subject property. We agree.

      First, however, we hold that the trial court was correct that contempt was not

an available remedy for the Edens’ failure to make $700 payments under the second

motion for contempt. In that motion as amended, Jill sought to enforce a money



                                            5
judgment only.1 And “[i]n the absence of statutory authority or other extraneous

circumstances [not present here], contempt is not an available remedy to enforce a

money judgment.” McKenna v. Gray, 263 Ga. 753, 756 (438 SE2d 901) (1994)

(contempt not available against estate for failure to pay full amount of required

monthly payments owed under a structured settlement agreement); Hill v. Paluzzi,

261 Ga. App. 123, 126 (2) (581 SE2d 730) (2003) (contempt not authorized to

enforce a sum owed under a consent decree). Thus the trial court correctly denied

Jill’s second motion for contempt on this ground.

      The court erred, however, in finding that future $700 payments were no longer

required. “In a contempt proceeding, a court may interpret and clarify an existing

order but may not modify the terms and obligations already set forth.” Harvey v.

Lindsey, 251 Ga. App. 387, 390 (1) (554 SE2d 523) (2001), citing Millner v. Millner,

260 Ga. 495, 497 (2) (397 SE2d 289) (1990), and Gallit v. Buckley, 240 Ga. 621, 626

(3) (242 SE2d 89) (1978).


      1
        Although Jill contends that in her second motion for contempt she sought
contempt for the Edens’ failure to execute an unspecified quit claim deed, she
specifically removed any mention of a “quitclaim deed” from the requested relief, the
settlement agreement and enforcement order do not reference any quitclaim deeds,
and she does not raise any enumerations of error regarding a quitclaim deed on
appeal.

                                         6
      To determine whether an order has been clarified, as opposed to being
      modified, the test is whether the new order is a reasonable clarification
      or so contrary to the apparent intent of the original order as to constitute
      a modification. The intent is found by looking at the content of the order
      and the context in which it was created.


Harvey, 251 Ga. App. at 390 (1) (footnotes omitted). Here, the trial court, in its

October 6, 2016 order, purported to interpret or clarify the settlement agreement and

the October 5, 2015 order enforcing that agreement. It did so in light of single factual

development — that the Edens had unilaterally decided to grant Jill fee simple title

instead of a life estate. Is so doing, however, the trial court impermissibly modified

the settlement agreement.

      As the trial court held in the October 2015 enforcement order, the settlement

agreement set forth the entire agreement between the parties, which included the

Edens granting Jill a life estate and certain easements, paying for insurance and taxes

on the transferred property, and paying Jill $700 a month in consideration of the

improvements she made to the property. As stated in the October 6, 2016 order on

appeal, the trial court is correct that neither the settlement agreement nor the

enforcement order refers in any way to the possibility of the Edens transferring a fee

simple deed rather than a life estate. Indeed, the parties had determined for

                                           7
themselves how they wished to settle the quiet title action, and that resolution

included a life estate and a payment stream as set forth expressly in the settlement

agreement.

      Then, as the transcript of the March 1, 2016 hearing makes clear, the Edens

unilaterally2 executed and recorded a fee simple deed prior to the hearing and then

brought the original deed to the hearing. At the hearing, the Edens’ counsel argued

that by deeding the property to Jill, the Edens had increased Jill’s net worth by

perhaps $138,000 as of January 11, 2016 (the date the deed was recorded), and that

therefore, the Edens were not in contempt or they had purged that contempt. Jill’s

counsel acknowledged that he had received a copy of the deed prior to the hearing

and acknowledged that by deeding the subject property in fee simple, the Edens had

“[m]ore than substantially complied with [the] provision [that the Edens deed a life

estate to Jill].” But, as is also clear in the transcript, the parties never discussed or

      2
          The Edens’ counsel explained that he had proposed a solution to his clients
that he admitted had not been previously discussed, that is that the Edens simply
“give [Jill] the land to put her house on.” His clients agreed, and they signed a
warranty deed to Jill and obtained a title policy on the property. The Edens’ counsel
stated that he sent a copy of the deed and policy to Jill’s counsel, that he had the deed
recorded, and that he brought the original deed to the hearing. He continued, “[t]his
is Jill’s deed . . . [a]nd I’m prepared to give it to her today or her lawyer.” The Edens’
counsel summarized, “What [John Eden] did, at my suggestion, is to go ahead and
surrender the remainder.”

                                            8
negotiated a change in the original settlement agreement based on a fee simple deed

instead of a life estate. The parties never discussed exchanging the fee simple deed

for a release from the $700 payment stream obligation. And Jill’s counsel argued that

given the existence of an enforceable written agreement, the Edens were not entitled

to an equitable remedy arising out of their having deeded the property in fee simple

to Jill. Finally, in announcing its ruling in open court, the court stated that even

though the Edens had given Jill fee simple title to the subject property rather than a

life estate, “[I]t doesn’t change the Edens’ obligations”; this ruling, however, was not

expressly included in the trial court’s written order of March 14, 2016. The court also

stated, and reiterated in the March 14, 2016 written order, that it had “significantly

reduced [the attorney fee award], in part because of the deeding of the land.” Nothing

in the court’s oral pronouncements at the March 1, 2016 hearing or in the March 14,

2016 written order, however, suggest that by deeding the subject property in fee

simple, the Edens were released from the obligation to make the $700 payments. And

the Edens did not appeal the March 14, 2016 decision.

      “It is elemental that it is not possible to have a unilateral modification of a

contract previously entered into between the parties.” American Express Travel

Related Svcs. Co. v. Berlye, 202 Ga. App. 358, 360 (2) (414 SE2d 499) (1991)

                                           9
(punctuation omitted); Goldstein v. Ipswich Hosiery Co., 104 Ga. App. 500, 520 (30)

(122 SE2d 339) (1961) (same). Although the trial court’s Solomonic resolution of this

dispute in its October 6, 2016 order has some appeal, the trial court simply was not

authorized to modify the terms of the settlement agreement. And Jill’s agreement at

the March 1, 2016 hearing that the fee simple deed more than satisfied the

requirement that the Edens transfer to her a life estate is not determinative. Regardless

whether Jill Eden accepted the fee simple deed in lieu of a life estate, there is no

evidence in the record to show that she agreed to forego the $700 payments in

exchange for the greater deed; in fact, as shown above, at the March 1, 2016 hearing,

Jill objected to any such argument and the trial court expressly stated that the Edens’

other obligations remained the same. That the Edens’ other obligations remained

unchanged is consistent with the fact that the settlement agreement required any

changes to be in writing. Thus, the Edens acted at their own peril by unilaterally

preparing and recording a fee simple deed to the subject property in favor of Jill. The

trial court therefore erred by construing the settlement agreement and enforcement

order as providing that the Edens were authorized to forego the $700 payment

requirement by unilaterally recording a fee simple deed to the subject property.

Accordingly, although we affirm the trial court’s denial of Jill’s second motion for

                                           10
contempt, we vacate the trial court’s order to the extent that it held that the Edens

were no longer responsible for the $700 payments.

      2. Jill’s second and third enumerations of error are mooted by our decision in

Division 1.

      Judgment affirmed in part and vacated in part. McFadden, P. J., and Bethel,

J., concur.




                                         11
