                              FIRST DIVISION
                               BARNES, P. J.,
                         MCMILLIAN and MERCIER, 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


                                                                    October 27, 2017




In the Court of Appeals of Georgia
 A17A0918. SAMPSON v. CURETON.
 A17A1070. SAMPSON v. CURETON.

      BARNES, Presiding Judge.

       Joey Sampson, who was joined as a party-defendant in a divorce action,

contests in these related appeals the viability of judgments that collectively: (i) found

him liable for money damages for a vehicle of one of the divorcing spouses; (ii) held

him in contempt; (iii) ordered him to pay attorney fees; and (iv) permitted garnishment

of his funds. For reasons that follow, we reverse the judgments in both cases; we

further remand Case No. A17A0918 for proceedings not inconsistent with this opinion.

      During divorce proceedings between James Cureton (Husband) and Jennifer

Cureton (Wife), Husband cross-claimed that Wife had wrongfully sold certain of his

personal property, including a 1954 Chevrolet Bel Air vehicle. Husband identified the

individuals he believed had purchased his belongings, and made prayer for either the
return of his items, or “[i]n the event said items are no longer available, said third party

defendants should be required to pay the fair market value.” Additionally, Husband

filed a motion seeking to add as party-defendants to his cross-claim those persons he

believed had obtained his property, eventually naming Sampson as the individual who

had received the vehicle.

       The court conducted a hearing on Husband’s motion, and Sampson appeared pro

se. Thereafter, on August 16, 2011, the court entered an order joining the identified

persons. Pertinent to Sampson, the court found that Wife had indeed sold the vehicle

to him and that, without Sampson added as a party, “complete relief cannot be afforded

to [Husband].” The court reserved for subsequent determination issues of whether the

vehicle was marital or separate property, whether Wife had held any ownership interest

in the vehicle when she sold it, and whether the sale of the vehicle was valid and to a

bona fide purchaser. Thereupon, the court ordered that all added parties were “enjoined

from selling . . . or otherwise disposing of said property until further Order.”

       Several years later, a rule nisi was issued in the divorce action, identifying

Sampson as a joined party-defendant and scheduling for March 12, 2015 a hearing to

show why the court should not grant Husband’s prayers:



                                             2
       that each and every sale of the property of [Husband] and the property of
       this marriage be set aside, declared null and void, and all property be
       returned to [Husband] or in the event these items are no longer
       retrievable, the [joined party-defendants] be required to pay an amount
       equivalent to the fair market value of each and every item of [Husband].


Service of the rule nisi was attempted upon Sampson at his residence, but he refused

to accept any document; the rule nisi was left at Sampson’s door. Sampson was neither

present nor represented by counsel at the evidentiary hearing held as scheduled.

Thereafter, on May 14, 2015, the superior court entered an “Order and Judgment in

Resolution of Claims Outside The Domestic Case,” determining that the vehicle was

not marital property, but “the individual property of [Husband].”

       In that order, the court additionally found that Sampson was not a bona fide

purchaser for value, declared Wife’s sale of the vehicle to Sampson void, and directed

the sheriff to accompany Husband to Sampson’s residence to retrieve the vehicle. The

court went on to provide in its order that if the vehicle is not returned to Husband’s

possession within 48 hours of an attempted retrieval, “[Husband] may immediately

petition this court for a citation of contempt on . . . Sampson, and petition for a hearing

for a monetary judgment against . . . [Sampson] in the amount of the fair market value



                                            3
of the car, as testified to at the March [12], 2015 hearing, and all associated cost and

attorney fees.”

      In July 2015, Husband returned to superior court and filed two motions. In a

“Motion to Clarify Order and Judgment In Resolution of Claims Outside the Domestic

Case,” Husband alleged that he had been unable to retrieve the vehicle because

Sampson had sold it on eBay. Husband posited,

      While [Husband] would assert that Sampson is clearly in willful
      contempt of this Court’s August 16, 2011 Order [joining party-defendants
      to the divorce action and enjoining those parties from selling or otherwise
      disposing of certain items], he would also assert that the evidence in this
      case is closed and that the Court can determine [Husband’s] damages
      without the necessity of any additional court hearings.


Thus reciting evidence presented at the March 12, 2015 hearing regarding the fair

market value of the vehicle, Husband requested that judgment be entered in his favor

for “the fair market value of the vehicle, which are the damages of [Husband].”

      In a second motion filed that same day, captioned “Motion for Citation of

Contempt and Expenses of Litigation,” Husband specifically requested that Sampson

be held in contempt for failing to comply with two orders: (i) the August 16, 2011

order, enjoining the added party-defendants from selling or otherwise disposing of


                                           4
certain items, including the vehicle; and (ii) the May 14, 2015 order, mandating the

return of the vehicle to Husband’s possession. Additionally, Husband claimed that

Sampson owed him attorney fees under OCGA § 13-6-11 “for having to pursue this

action.”

      The superior court granted Husband’s motions. In an order entered August 7,

2015 (hereinafter, “Money Damages Judgment”), the superior court ruled,

      This Court finds that the evidence is closed in this matter, as a result of
      the final hearing held on March 12, 2015. [Husband] has shown . . . that
      . . . Sampson has not produced the 1954 Chevrolet Bel Air “vehicle”
      within 48 hours of this Court’s May 14, 2015 Order. As such, the
      defendant is entitled to money damages as proven at the final hearing . .
      . for the value of the 1954 Chevrolet Bel Air “vehicle” . . . in the amount
      of $44,550.00.


In an order entered August 20, 2015 (hereinafter, “Contempt Judgment”), the superior

court held Sampson in contempt of the two orders cited by Husband. The court found

further that Sampson had acted in bad faith, been stubbornly litigious, and caused

Husband unnecessary trouble and expense. The court then ruled that Sampson could

purge himself of the contempt by satisfying the $44,550.00 money judgment and

additionally paying to Husband $6,746.25 for his incurred attorney fees.



                                          5
      With those favorable judgments, Husband commenced in the same superior

court a separate garnishment action, pursuant to which funds were transferred from

Sampson’s bank account into the court’s registry. Meanwhile, Sampson obtained

counsel. In the divorce action, Sampson filed in November 2015 a motion to set aside

the Money Damages Judgment and the Contempt Judgment. Among the arguments

advanced, Sampson claimed that he was never properly served with various pleadings

and orders (such as the order adding him as a party-defendant), and that a judgment for

damages against him as a party-defendant joined in a divorce action was impermissible

as a matter of law. In the garnishment action, Sampson filed a traverse, citing his

challenges to the underlying two judgments.

      Opposing Sampson’s motion to vacate the judgments entered in the divorce

action, Husband cited that OCGA § 9-11-60 (d) permits a judgment to be set aside on

three grounds, then argued that Sampson had failed to establish any of the bases. In the

garnishment action, Husband maintained the validity of the underlying judgments.

      In both cases, the superior court ruled against Sampson, and in favor of Husband

– denying Sampson’s motion to set aside, denying his traverse, and ordering that

monies collected in the garnishment action be disbursed from the court’s registry to



                                           6
Husband. Contesting these rulings, Sampson filed discretionary applications,1 which

this Court granted, giving rise to the instant appeals. We consider first Case No.

A17A1070, wherein Sampson challenges the denial of his motion to set aside the

Money Damages Judgment and the Contempt Judgment entered in the divorce action.

We consider next Case No. A17A0918, wherein Sampson challenges the garnishment.

                                 Case No. A17A1070

      1. Money Damages Judgment. Advancing multiple arguments, Sampson

contends that the superior court erred by refusing to set aside the judgment holding him

liable for money damages for Husband’s vehicle.

      (a) Relying on Shah v. Shah, 270 Ga. 649 (513 SE2d 730) (1999), Sampson

argues that damages were impermissibly granted within the context of a divorce action.

In Shah, the Supreme Court of Georgia addressed the authority of a trial court to join

a third party, who was the grantee of disputed property. Id. at 650 (1) The Court held

that a third party could be joined

      as a party to the divorce action only for the limited purpose of
      determining [the third party’s] relative substantive right in the property
      that [one of the divorcing spouses] claimed was fraudulently conveyed to

      1
        Sampson filed one of the applications in the Supreme Court of Georgia, but
that Court transferred his application to this Court.

                                           7
      [that third party]. [Such divorcing spouse] could not use the fraudulent
      conveyance claim and the joinder of [the third party] in order to make an
      independent tort claim against him. In the absence of any applicable
      joinder provision,[2] that claim would have to be asserted against [the
      third party] in a separate civil action.


(Citation omitted; emphasis supplied.) Id. at 651 (1). “A contrary holding,” the

Supreme Court reasoned, “would mean that every divorce action in which a fraudulent

conveyance claim has been joined would become the potential source of innumerable

independent extraneous claims, counterclaims, and cross-claims between non-parties

to the original proceeding.” Id. Thus, in Shah, the Court concluded that it was error to

allow a recovery of damages from the third party joined in that divorce action. Id.

      In the instant divorce action, Husband accused Wife of wrongfully selling his

vehicle to Sampson, then obtained an order joining Sampson as a party-defendant on

such cross-claim. The superior court determined that neither Wife nor Sampson had

any right to the vehicle and that it belonged solely to Husband. With those favorable

rulings, Husband pursued relief against Sampson on his cross-claim – Husband



      2
        In Shah, the joinder provision invoked was OCGA § 9-11-18 (b). Shah, 270
Ga. at 650-651 (1). Husband has made no claim that he relied upon any other joinder
provision.

                                            8
procured an order directing Sampson to return his vehicle to his possession; and when

it became apparent that retrieving his vehicle was not attainable, Husband sought and

was granted money damages for the value of the vehicle. But in light of Shah, we

conclude that the Money Damages Judgment was impermissible because it exceeded

the “only . . . limited purpose” for which Sampson was joined in the divorce action.

Shah, 270 Ga. at 651 (1).

      (i) In so concluding, we are unconvinced by Husband’s arguments that the

Money Damages Judgment should nevertheless stand. Husband points out that

Sampson appeared at the initial hearing on the motion to add parties, asserting further

that Sampson could have – but did not – file any defensive pleadings or otherwise

participate in the case until after the Money Damages Judgment was rendered. In

essence, Husband contends that the superior court was authorized to enter a default

judgment against Sampson in the divorce action based upon his non-participation in

the case. But to the extent that the Money Damages Judgment is akin to a default

judgment, holding Sampson liable for the fair market value of the vehicle was

impermissible as beyond the scope of the “only . . . limited purpose” for which

Sampson was joined to the divorce action. Shah, 270 Ga. 651 (1). Accord Brown v.

Brown, 271 Ga. 887, 887-888 (525 SE2d 359) (2000) (reversing default judgment on

                                          9
equitable claim pursued by divorcing spouse against third-party defendant in a divorce

action, because “a default judgment cannot be entered against the defendant on such

a claim”).

      (ii) Husband cites Huling v. Huling, 289 Ga. 55 (707 SE2d 86) (2011), where

our Supreme Court upheld a judgment against third parties who had been joined in a

divorce action. Id. at 56. But the record in Huling made clear that the third parties had

“induced and expressly acquiesced in the allegedly erroneous judgment.” Id. at 57. No

such circumstances appear here.

      (iii) As set forth above, Husband asserted before the superior court that

Sampson’s motion to set aside was governed by OCGA § 9-11-60 (d), then argued that

Sampson had failed to establish any of the designated grounds.3 However, paragraph

(d) (3) states that a judgment is properly set aside upon a showing of “[a]

nonamendable defect which appears upon the face of the record or pleadings. Under

this paragraph, it is not sufficient that the complaint or other pleading fails to state a

claim upon which relief can be granted, but the pleadings must affirmatively show no


      3
       See Abushmais v. Erby, 282 Ga. 619, 621 (2) (652 SE2d 549) (2007) (“OCGA
§ 9-11-60 provides the sole means of attacking a judgment.”) (citation and punctuation
omitted); Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 700 (3) (234 SE2d 539) (1977)
(concerning collateral attacks upon judgments).

                                           10
claim in fact existed.”4 As the face of the record here confirms, Husband alleged that

Wife had wrongfully sold his vehicle to Sampson, then obtained an order joining

Sampson as a third party to the divorce action. Although Sampson was permissibly

joined “for the limited purpose of determining [Sampson’s] relative substantive right

in the [vehicle], . . . [Husband] could not use the fraudulent conveyance claim and the

joinder of [Sampson] in order to make an independent tort claim against him.” Shah,

270 Ga. at 651 (1). Because no valid claim for damages existed against Sampson, the

reliefgranted to Husband lacked a proper basis. Id. at 651 (2) (summarizing that

“damages against the grantee [of disputed property] can be recovered only in a separate

action, and a money judgment against him can never be entered in the divorce

proceeding”) (emphasis supplied). Because the Money Damages Judgment thus fell

within the ambit of OCGA § 9-11-60 (d) (3), the superior court abused its discretion

in refusing to set it aside.5 See Shah, 270 Ga. at 651 (1); see also Shields v. Gish, 280


      4
        Although when pursuing his motion to vacate, Sampson did not explicitly cite
OCGA § 9-11-60 (d) (3) nor use the term “nonamendable defect,” he sufficiently
raised the key issues before the superior court. See Hiner Transp. v. Jeter, 293 Ga.
App. 704, 706 (667 SE2d 919) (2008).
      5
       See Stamey v. Policemen’s Pension Fund Bd. of Trustees, 289 Ga. 503, 504 (1)
(712 SE2d 825) (2011) (reiterating that a ruling upon a motion to set aside is reviewed
for abuse of discretion).

                                           11
Ga. 556, 558 (2) (629 SE2d 244) (2006) (“Where . . . the record shows on its face that

the default [judgment] was entered on an improper basis, there is a nonamendable

defect on the face of the record.”); Brown, 271 Ga. 887-888. Accord Fulton v. State

of Ga., 183 Ga. App. 570, 572-573 (359 SE2d 726) (1987) (a nonamendable defect

appeared on the face of the record where court granted default judgment based upon

misapplication of a superior court rule). The denial of Sampson’s motion to vacate, as

it pertained to the Money Damages Judgment, is reversed.

      (b) It is unnecessary to consider Sampson’s remaining arguments challenging

the denial of his motion to set aside the Money Damages Judgment. See Lovett v.

Zeigler, 224 Ga. 144, 145 (160 SE2d 360) (1968).

      2. Contempt Judgment. Sampson contends that, given Shah’s holding, the

superior court erred by holding him in contempt and ordering that he could purge

himself therefrom by paying Husband the fair market value of the vehicle, together

with the attorney fees incurred. We agree.

      When the superior court ruled in its May 14, 2015 order that Sampson had no

ownership in the vehicle, it thereby effected “the limited purpose of determining

[Sampson’s] relative substantive right in the property that [Husband] claimed was

fraudulently conveyed to [Sampson].” Shah, 270 Ga. 657 (1). Nevertheless, when

                                         12
Husband thereafter ascertained that his vehicle could not be recovered from Sampson,

Husband procured from the trial court an order holding Sampson in contempt from

which he could purge himself by paying Husband the fair market value of the vehicle,

plus attorney fees.

      Notably, in his brief to this court, Husband characterizes the Contempt Judgment

as “compensatory contempt in the form of a money award.” As Husband explains,

      Compensatory contempt was awarded because the damages benefitted
      [Husband] directly rather than the State. The purpose of compensatory
      contempt is to restore the victim as nearly as possible to his original
      position which is exactly what the trial court did in this case. By
      awarding [Husband] the value of the vehicle, after the vehicle was not
      returned pursuant to the [c]ourt’s order to do so, the court attempted to
      restore [Husband] to his original position. The same argument applies
      to the attorney fees that were awarded.


      Restoring Husband to his original position within the context of the divorce

action ran afoul of Shah. 270 Ga. at 651 (1). “Nothing in the Civil Practice Act . . .

authorizes the conversion of a divorce case into . . . a multifarious and unfocused

proceeding.” Id. Moreover, as a general rule, “a money judgment may be enforced only

by execution thereon, not by contempt proceedings.” McKenna v. Gray, 263 Ga. 753,

755 (438 SE2d 901) (1994) (emphasis supplied); see Shelley v. Shelley, 212 Ga. App.

                                         13
651, 652 (442 SE2d 847) (1994) (explaining that an action for contempt is not an

available remedy to enforce a money judgment); London v London, 149 Ga. App. 805,

807 (1) (256 SE2d 33) (1979) (reciting that the refusal or failure to pay money

judgment does not amount to contempt of court, and imprisonment for such failure

would be imprisonment for debt).

      Furthermore, superior courts do not have authority to require the payment of

attorney fees as punishment for contempt. See DeKalb County v. Bolick, 249 Ga. 843,

844-845 (2) (295 SE2d 92) (1982). And given our decision in Division 1 (a), supra,

OCGA § 13-6-11 provided no basis for an attorney fees award. See Steele v. Russell,

262 Ga. 651, 651-652 (2) (424 SE2d 272) (1993) (explaining that fees and expenses

recoverable pursuant to OCGA § 13-6-11 are “ancillary and may only be recovered

where other elements of damage are also recoverable”); Brown v. Baker, 197 Ga. App.

466, 467 (2) (398 SE2d 797) (1990) (“OCGA § 13-6-11 does not create an

independent cause of action.”). Husband has misplaced his reliance upon Minor v.

Minor, 257 Ga. 706 (362 SE2d 208) (1987), which affirmed in a domestic relations

case attorney fees awarded pursuant to OCGA § 9-15-14, while reiterating that “[n]o

authority exists to award attorney fees merely because the action is for contempt.” Id.

at 709 (2).

                                          14
      Given the foregoing, we reverse the denial of Sampson’s motion to vacate the

Contempt Judgment.

                                  Case No. A17A0918

      3. In this garnishment action, Sampson contends that the superior court erred by

denying his traverse.

      Husband initiated garnishment proceedings against Sampson relying on the

Money Damages Judgment and the Contempt Judgment. Given Divisions 1 and 2,

supra, we reverse the judgment entered against Sampson in the garnishment action.

Euler-Siac S.P.A. v. Drama Marble Co., 274 Ga. App. 252, 256 (2) (617 SE2d 203)

(2005) (explaining that essential to garnishment is “a valid existing judgment between

the plaintiff and defendant in the prior action”) (citation and punctuation omitted). This

case is remanded for proceedings not inconsistent with this opinion.

      Judgment reversed in Case No. A17A0918 and case remanded; judgment

reversed in Case No. A17A1070. McMillian and Mercier, JJ., concur.




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