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Redacted Argument and Citation to Legal Authority from Appellate Brief on Divorce Settlement

by merlin on April 11th, 2013
  • Sumo

I apologize for blatant errors in this document.  I am actually pretty pleased with the reasoning that underlies all of the contract law points, although the difficulties I have faced during the progression of the case from which this now-published Appellant Brief “Argument and Citation to Legal Authority” and “Conclusion” section come from as far as the fundamental contract law essence of divorce settlement have confused me deeply.

This document being now published, I am presenting it to you for your comments (they are welcome, because I asked around but could find no guidance on this topic or in the area of appellate practice as it pertains to divorce issues, which irritates me very much) and your education, where the points presented were previously unknown to you.  This will either add to the growing body of documentation of my downfall, act as documentation of positive steps taken in a growing and expanding career, or simply be text to note.  No matter what, I intend to continue my efforts to achieve the undefinable idea of “right” or “good” as I believe it to be, and to pursue what I believe is logical reasoning to reach that end.  This will continue until I am killed or incarcerated, or both, and will continue through legal channels as long as I am not disbarred.

 

Argument and Citation to Authority

Rather than following the pattern of the enumeration of errors made by Appellant in this case, this brief will address the two specific questions put forth by the Court in its grant of this discretionary appeal, which are presented in Enumerations of Error #15, #16, and #17.  For the facts and legal argument surrounding enumerations of error #1 through #14, Appellant will address these enumerations within the arguments made for each of the three final Enumerations of Error to the Court.  If the conditions argued in Enumerations of Error #15, #16, and #17 are found to be present and valid, the Court is well within its power and authority to grant reversal and also to require that new findings be entered if needed for the remaining issues between the parties.  Enumerations of Error #1 through #14 are not abandoned, but are not presented sequentially.

The third necessary condition given by Section 13-3-1 of the Official Code of Georgia for the existence of a contract between two or more parties is their assent to its terms.  See OCGA § 13-3-1.  A divorce settlement is an executory contract between two parties meant to achieve a particular purpose, defined by Section 13-1-2(b) of the Code as “one in which something remains to be done by one or more parties”, and one of the two necessary parties to this particular contract never agreed to any of its terms before it was adopted by the Court.  In other words, he never gave his assent, and there was no contract created under Georgia law, consequentially.

I.                  The Divorce Settlement Signed by the Court does not accurately represent the Agreement of the Parties.

Section 13-2-3 of the Official Code of Georgia states that the cardinal rule of contract construction is to ascertain the intention of the parties, and it makes it clear that sufficient words and other proof of a clear intention is the end of inquiry.  However, in the case at bar there are no indications in either the document put forward by XXXXX XXXXX’s counsel and signed by the judge or in the transcript of the final hearing between the parties that XXXXX XXXXX ever gave any valid consent to the terms of the Contract and Agreement, a copy of which was attached to and incorporated in the Application for Appeal in this matter as Exhibit “F”.  In that event, the Official Code provides at Section 13-2-4 that “the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.”  In contrast to Exhibit “F”, Appellant points to a letter to the Court containing an alternate version of the Contract and Agreement attached thereto which reflected the negotiation of the parties, termed Exhibit “U” in the Application for Appeal and filed and available to the Court for its consideration almost two hours prior to the spontaneous unilateral approval of the document the Court approved.  The differences between the document approved by the Court as Exhibit “F” and the actual intentions of the parties detailed in full in Exhibit “U” readily shows the discrepancy that would qualify the Contract and Agreement for evaluation under the standards of Sections 13-2-3 and 13-2-4 of the Georgia Code.

Though entitled Contract and Agreement, and reciting the presence of the written consent of the parties that it purportedly governs, XXXXX XXXXX’s signature does not appear on any page of the document, and because the disposition of child custody matters and property settlement issues that existed under the governing interlocutory Order is incredibly different in the document actually signed unilaterally by the Court, it demonstrates that there was no “contract” and no “agreement” between the parties, despite the name it was given.

A.               There were material differences between the version of the settlement negotiated between the parties and the version unilaterally signed by the presiding judge.

In the Temporary Order, a copy of which was attached to and incorporated within the Application for Appeal as Exhibit “J”, the Child Custody and Visitation provisions were as follows:

“Father’s visitation shall begin on XXXXX, 2012, and end on XXXXX, 2012.  Mother’s visitation shall begin on XXXXX, 2012, at 7:00 PM, and end on XXXXX, 2012, at 7:00 PM”.

These conditions were then to continue while the Temporary Order remained in effect, alternating week to week, and were followed by the parties until XXXXX XXXXX opted to unilaterally shift the weeks by enforcing the otherwise invalid Contract and Agreement applied by the Court in its Final Judgment and Decree of Divorce.  A copy of the Final Judgment and Decree of Divorce was attached to and incorporated within the Application for Appeal as Exhibit “E”.  A copy of the text message exchange between XXXXX XXXXX and XXXXX XXXXX dated XXXXX, 2012, demonstrating this alteration in the rotated weeks of visitation and custody is attached hereto and incorporated herein as Exhibit “1” to this document.  This text message provides a very clear explanation of the mechanics of the operation of the parties following the final hearing between them with regards to child custody, indicating the reversal in custodial relationships with the children from the final judgment as opposed to the custodial relationship the parties were operating under prior to its entry.  Section 13-2-2(1) of the Georgia Code permits the Court to examine this document to obtain a clearer picture of the motivations of the parties, stating that “[a]ll the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained”.  Exhibit “1” explains the ambiguity that was present, though arising after the entry of Exhibit “E” in this matter.

In the version of the Contract and Agreement approved unilaterally by the trial court after being unethically and independently put forward by counsel for Appellee, the Child Custody and Visitation provisions were entirely reversed, such that the weeks in which Appellant XXXXX XXXXX spent with his daughters were instead weeks in which the children were placed under the custody and control of Appellee.  Mathematically and practically, this resulted in an additional week of time spent by the girls in the care and custody of Appellee and one week less with Appellant.  These terms were not negotiated by the parties, and were the exact opposite of the terms that they had previously accustomed themselves to under the existing guidelines.  They were put forward independently by Plaintiff and her counsel and approved by the Court without any agreement by Defendant or his attorney as shown by Exhibit “F” on which no signature of Appellant or his counsel appear anywhere.  As terms that directly governed the issues of child custody between the parties, they were very material to the divorce itself, and very material to any purported contract settling the marital relationship of the parties.

1.     A divorce settlement agreement is a contract between the parties and requires consent to all material terms to be binding on them.

“Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract.  In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense”.  Hadley v. Countrywide Home Loans, Inc., 315 Ga.App. 349, 355, 727 S.E.2d 183 (Ga. Ct. App. 2012)(quoting Wilkins v. Butler, 187 Ga.App. 84, 85, 369 S.E.2d 267 (1988)); OCGA § 13-3-1.  The importance of this “meeting of the minds” is self-evident in the context of marital dissolution, especially in a case like the one now pending before the Court, where matters of child custody and child visitation are involved, including the very important issues of extracurricular activities and medical decisions.  Georgia law actually requires the agreement of the parties on all material terms of the contract between them, stating at Section 13-3-2 that “[t]he consent of the parties [is] essential to a contract” and providing that “until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”

2.     There are situations where a divorce contract can be unilaterally created by the Court but they were not present in this case.

The same rules that govern the basic formation of any contract apply to the formation of a settlement agreement, generally, even when contracts have only been reluctantly entered into.  “If the parties to a transaction do not create binding agreements, the courts are powerless to do it for them”.  Scott v. Lewis, 112 Ga.App. 195, 197, 144 S.E.2d 460 (Ga. Ct. App. 1965)(sale of a house contingent on unfulfilled loan proceeds not part of the contract and properly not enforced by the court).  Though the Code itself only speaks in terms of “bid or proposition”, specifying at Section 13-3-2 that without assent as to all terms of a “bid or proposition” there is no contract, and also delineating the time for acceptance of an “offer” by letter in Section 13-3-3, the Code never speaks plainly about the necessity of acceptance but implies its presence throughout.  Every contract necessarily, therefore, involves both an offer and acceptance of that offer, with any modification of the offer being subject itself to acceptance; the Court cannot declare that there has been acceptance without some actual manifestation of the acceptance necessary to create a contract, as these Code sections indicate.  There is no special rule that excepts the contracts made between parties to settle their domestic relationship from contracts made for any other legal activity.

More importantly for the situation that arises in this case, the offer and the acceptance need to be identical to each other under the Georgia Code for that agreement to be binding as a contract on the parties.  See generally O.C.G.A. § 13-3-2.  “An answer to an offer will not amount to an acceptance, so as to result in a contract, unless it is unconditional and identical with the terms of the offer. To constitute a contract, the offer must be accepted unequivocally and without variance of any sort” (Citations and punctuation omitted).  Herring v. Dunning, 213 Ga.App. 695, 698, 446 S.E.2d 199 (1994).  This is no more than the logical explanation of Section 13-3-2 of the Georgia Code, paraphrased above.  The direct words of the Section itself give an easy answer to the dispute involved in this case, since it states “[t]he consent of the parties being essential to a contract, until each has assented to all the terms, there is no binding contract; until assented to, each party may withdraw his bid or proposition.”  A purported acceptance of a settlement offer which imposes conditions or otherwise varies the offer will be construed as a counteroffer to the offer.  Id.; see also Auto–Owners Ins. Co. v. Crawford, 240 Ga.App. 748, 750(1), 525 S.E.2d 118 (1999)(meeting of the minds and mutual assent can be found only when the acceptance of an offer was unconditional, unequivocal, and without variance of any sort).  In this case, there was not even a counter-offer, but rather the sudden institution of an agreement to which one of the two parties did not manifest any consent at all, and the terms were neither accepted nor countered.

3.     All of the material terms in a contract must be written and are binding on the parties once the document is executed.

Where there is no reservation in a contract between the parties, or provision in a decree embracing the contract, reserving to the court the power to review the judgment or modify or abrogate it, such contract or decree is conclusive on the parties.  Swaim v. Wells, 210 Ga. 394, 397, 80 S.E.2d 321 (Ga. 1954)(referencing Estes v. Estes, 192 Ga. 100, 14 S.E.2d 680 (Ga. 1941)).  The Contract and Agreement referenced in this case contains no reservation of power or authority for modification of its terms by the Court at a subsequent date, and the actual understanding of the parties shown by Exhibit “1” hereto indicate that it was considered by XXXXX XXXXX to be a done deal entirely and she would brook no variation from its terms.  Such a serious and final disposition of an important and material aspect of the marital relationship is something that plainly requires the agreement and endorsement of the parties whose fundamental rights are directly affected thereby.  The law indicates that this is the case where divorce agreements are pronounced upon the parties by Georgia Courts.

“Where, after a final verdict, a decree is rendered, dissolving the marital relations between the parties, and a contract between them is embraced in the decree … and the court does not reserve any right or power to modify the decree as to permanent alimony, such decree is res adjudicata [sic] as to the amount of alimony, its payment, and the termination of the same, and the court has no power to modify or abrogate it.”  Christian v. McLeod, 210 Ga. 492, 492, 80 S.E.2d 777 (1954)(reiterating the point made in Swain v. Wells, 210 Ga. 394, 80 S.E.2d 321 (Ga. 1954), that even when the wife subsequently becomes legally incapable of acting for herself, the final decree is binding; the decree passes beyond discretionary control of the judge who thereafter has no authority either to abrogate the decree or to modify the terms).  This point has been made again and again, and it indicates exactly how important and irrevocable the rights in question are considered by Courts.  Being a document addressing the fundamental relationship of two parties subsequently acting as individual and separate but previously acting as one distinct unit, it is not something that can be altered easily or at will by the Courts once entered.  “The trial court has the power to see that there be compliance with the intent and spirit of its decrees and no party should be permitted to take advantage of the letter of a decree to the detriment of the other party.”  Cason v. Cason, 281 Ga. 296, 297, 637 S.E.2d 716 (Ga. 2006)(emphasis supplied; quoting Kaufmann v. Kaufmann, 246 Ga. 266, 269(3), 271 S.E.2d 175 (1980)).

B.               There must be a “meeting of the minds” as to all material terms between the parties to a contract, but the parties that the Contract and Agreement purportedly bound in this case parted ways on several material issues.

In Exhibit “F”, the Contract and Agreement unapproved by Appellant but entered unilaterally by the Court, the parties are purportedly in agreement that they will claim an income tax deduction on both children alternating years, which condition is financially advantageous for Appellee but does not reflect the reality of the living conditions of the children and does not reflect the equity of their shared parenthood.  In Exhibit “U”, a document that was agreed-to in verbal, off-the-record negotiations between the parties, they are each to claim a deduction for one dependant each year, which reflects the actual living conditions of the children and provides an equitable result, nor does it maximize the financial gain of one party to the detriment of the other.  “If a contract fails to establish an essential term, and leaves the settling of that term to be agreed upon later by the parties to the contract, the contract is deemed an unenforceable “agreement to agree.”  Kreimer v. Kreimer, 274 Ga. 359, 363, 552 S.E.2d 826 (Ga. 2001).  More plainly, “no contract exists until all essential terms have been agreed to, and the failure to agree to even one essential term means that there is no agreement to be enforced.”  Id.  (quoting Moss v. Moss, 265 Ga. 802, 803, 463 S.E.2d 9 (1995)).

A contract provision that affects the income tax rights and responsibilities of the parties is necessarily material, and an alteration in the contract that increases or decreases the income tax rights and responsibilities of the parties is such a substantial change that it would necessarily go to the heart of the agreement and invalidate it.  See generally Singer Asset Finance Co. v. CGU Life Insurance Co. of America, 275 Ga. 328, 567 S.E.2d 9 (Ga. 2002).  As has already been established, there is materially-different treatment of the minor children on income taxes in the document unilaterally submitted by Appellee and approved by the Court as Exhibit “F” and the document submitted immediately prior to that document and agreed-to by the parties themselves, denoted Exhibit “U”.  The difference is substantial, financially, since the former is financially advantageous only to Appellee but actually hurts Appellant financially.

II.               The trial court erred by incorporating an “agreement” to which husband did not consent into the divorce decree.

The very first section of Title 13 of the Georgia Code – the very definition of the idea of a “contract” in Section 13-2-1 – is “an agreement between two or more parties for the doing or not doing of some specified thing”.  This definition embraces the idea that there are “two or more parties”, and there is no factual doubt in this case that there were not two or more parties involved in the “Contract and Agreement” that the Court unilaterally imposed on XXXXX XXXXX.  The Court’s only basis for finding some verbal indica of consent of the parties, since there are no signatures or other marks that appear on the Contract and Agreement from XXXXX XXXXX, is embodied in the hand-written note appended by the trial judge to the Final Judgment and Decree, which states “[t]he Court finds and concludes that the Agreement accurately reflects the agreement of the parties announced, affirmed, and acknowledged by the parties and their counsel in open court on XXXXX, 2012”.  A copy of this document was submitted to the Court previously as part of the Application for Appeal in this matter as Exhibit “E”.   However, even a quick check of the announcements made at the hearing before the Court on XXXXX, 2012, a copy of the transcript of which has been submitted to the Court previously as part of the Application for Appeal in this matter as Exhibit “G”, show that the arrangements that were ultimately made the Order of the Court via the one-sided Contract and Agreement were very different from the agreement of the parties, and this chicanery cannot be permitted to prevail.  Section 13-2-4 of the Official Code of Georgia places an emphasis even in the black-and-white world of contract interpretation on substance over procedure, when it recognizes that “[t]he intention of the parties may differ among themselves” and specifies that “[i]n such case, the meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning.”  This is consistent with the idea that parol evidence is deemed admissible under Section 9-12-43 of the Official Code of Georgia for the limited purpose of showing that a topic allegedly pronounced upon by the Court was not actually addressed by it, as in the case at bar.  Here, however, it is unnecessary for the Court to address verbal testimony because there is written extrinsic evidence made contemporaneously to show the true meaning understood by the parties, contrary to the document endorsed by the Court, shown in previously-submitted Exhibit “U”.  For this reason, the direct statements of the parties shown in Exhibit “1” attached hereto are incredibly enlightening and relevant.

A.               There are occasions in which circumstances permit or require the Court to enter an ex parte Order for divorce, but they were not present in the case at bar.

There are circumstances in which the contribution of both parties to a settlement agreement between them cannot or will not be involved.  Section 19-5-8 of the Official Code of Georgia expressly forbids a divorce from being taken by default, and requires the issues that have been contested in this case to be proven “to the satisfaction of the Court”.  However, Section 19-5-10 provides for circumstances in which a judge hearing the issue of divorce when only one party is present can grant ex parte relief, stating at subsection (a) that “[i]n divorce cases which are not defended by the responding party, the judge shall determine that the asserted grounds for divorce are legal and sustained by proof or shall appoint an attorney of the court to discharge that duty for him.” It is also well-established that “[a] trial court may strike a party’s pleadings as a proper sanction for willful refusal to participate in the proceedings pursuant to a court’s inherent power to efficiently administer the cases upon its docket, as well as its power to compel obedience to its orders and control the conduct of everyone connected with a judicial proceeding before that court.”  Pennington v. Pennington, 291 Ga. 165, 166, 728 S.E.2d 230 (Ga. 2012).  Defendant did not willfully refuse to participate in the divorce, and he did not fail to defend the divorce, either.  Instead, the voluntary and active involvement by the husband in the delicate processes of divorce resolution and child custody relationships between the parties after the conclusion of the divorce process was ignored by the trial judge when he decided to grant the relief sought by the Plaintiff without even acknowledging the valid defenses, objections, or even the involvement of Defendant and his counsel.

It has been well-established in Georgia law that when there is no disability restraining the right of a party to contract, there can be no contract binding on them absent their consent to all material terms.  Fredette v. Fredette, 233 Ga. 69 , 69, 209 S.E.2d 594 (Ga. 1974)(judgment awarding wife divorce and property settlement was affirmed in case in which husband never appeared but verdict of the jury was in writing and signed by the foreman; there was a complete trial).  Cases that have appeared at first blush to depart from this rule are easily distinguished.  An example of this is the Fredette case cited above, in which there was certainly a complete trial even if one party refused to participate.  In the case at bar, there was no evidence that a party failed to participate but rather that the other party unethically ignored their participation with the assistance of an improper act by the Court.  The counsel representing parties, with the assent of the Court, can bind them on their own behalf, in the absence of “ express directions by client to counsel, known to the adverse party or counsel, or fraud, accident, or mistake”.  Dixon v. Dixon, 49 S.E.2d 818, 818, 204 Ga. 363 (Ga. 1948).  Here, of course, the trial judge attempted to indicate that this had occurred with his hand-written note at the bottom of Exhibit “E” to the Application for Appeal, but a quick reference to the transcript of that hearing, Exhibit “G” to the Application for Appeal, shows that this is not an accurate statement at all, and no specifics were given.

          The actions of the Court with regard to Appellant XXXXX XXXXX’s efforts to participate in his divorce trial bear remarkable similarity to the actions taken by the trial court in the 1948 Supreme Court of Georgia case of Tatum v. Tatum, 46 S.E.2d 915, 203 Ga. 406.  There, the trial court attempted to enter a divorce in favor of the husband after its term had ended, based on a purported waiver that the wife had tendered.  She attempted to set the decree aside and was overruled by the trial court, with its basis being the fictitious waiver.  The trial court was reversed, and the same logic should apply here.  Recently, the Court reaffirmed its position with regard to the rule that no judgment may be taken in a divorce by default, affirming the actions of the trial court setting aside an improvidently-granted decree after finding it had inappropriately granted a divorce by default in Harold v. Harold, 686 S.E.2d 123, 286 Ga. 175 (Ga. 2009). Broadly, both the matter now before the Court and the Tatum case are examples of the same general rule upheld by the Court in the Harold case that no divorce by default may be taken.

          Some of the terms of the agreement that the parties are entering into in a divorce situation are enforceable on their own, even without the contribution of one or the other of the parties, such as child support obligations.  Section 19-6-9 of the Official Code of Georgia provides for the enforcement of a child support obligation against an absent responsible party, even without their consent.  However, the payment of support is for the benefit of the child or children, and the Code section itself begins by qualifying its relief, saying that it applies “[a]bsent the making of a voluntary contract or other agreement…”  In the case at bar, there was absolutely nothing present that would indicate to the trial court that it was either proper or appropriate to enter a decree without the contribution of the actively-involved Appellant and his counsel.

B.               Because of the long duration and binding nature of a divorce decree on the parties, it is important that the document approved by the Court reflect more than just its desire for expediency.

The decree in a divorce case sets out the contractual guidelines that bind two parties’ relationship after the termination of a marriage, and it therefore needs to address many different issues well.  It has been held that it is acceptable for the decree not to happen until after the trial has finished, as in Hiscock v. Hiscock, 227 Ga. 329, 180 S.E.2d 730 (Ga. 1971), and a divorce of the parties themselves can even be entered in the absence of full agreement on all of the child custody matters between two parties while those particular issues were actually pending elsewhere, as in Norowski v. Norowski, 267 Ga. 841, 483 S.E.2d 577 (Ga. 1997), but the trial judge cannot prematurely end the process without addressing the many different pending disagreements of the parties.  See generally Henderson v. Henderson, 258 Ga. 205, 367 S.E.2d 40 (Ga. 1988)(prematurely entered final judgment after concluding at temporary hearing that no common-law marriage existed, where 23 days remained for filing of defensive pleadings and where both parties filed timely demands for jury trial); OCGA § 9-11-40(a) and (b); OCGA § 19-5-1.  The trial court has full authority to grant a divorce even in the absence of full litigation of all of the potential issues, such as the remarriage of one of the parties, similar to the pregnancy of the wife in the case at bar before the termination of all litigation, while deciding issues of property division as opposed to any grant of alimony.  Coleman v. Coleman, 240 S.E.2d 870, 240 Ga. 417 (Ga. 1977).  In other words, the Court can appease matters of expediency, but it cannot do so where, as in the case at bar, it sacrifices the rights of one party to the detriment of the divorce process itself and for the blatantly one-sided benefit of the other.

The Georgia Supreme Court will not reverse the factual findings of the trial court as long as there is any evidence to support such finding.  Berman v. Berman, 238 S.E.2d 27, 239 Ga. 443, appeal after remand, 253 S.E.2d 706, 243 Ga. 246 (Ga. 1977).  However, in the case at bar there is no factual evidence that supports the decision of the trial court to enter a judgment when it did.  There is, in fact, evidence that shows the contrary of even its hand-written notations as to factual determinations that it made and there is evidence in the actual record itself that contradicts these hand-written determinations – specifically the contrary agreement tendered by Defendant mere hours before the sudden and swift final judgment of the court, that may have recited the agreement of the parties but which failed entirely to acknowledge the reality of their post-divorce relationship.

III.           The trial court passed over many instances of contempt of its orders by ignoring them until after they had grown stale or refusing to find contempt until after an unnecessary hearing.

One of the most important issues that this case presented was the ability of the Courts to find contempt for disobedience of its lawful decrees and rulings without need for hearing  – a matter that is well-documented in the cases on the issue but which the Court seemed to ignore in favor of an antiquated and costly criminal mechanism, treating every manifestation of contempt as a criminal situation rather than a civil enforcement mechanism and prompting the necessary withdrawal by counsel of motions in deference to timeliness and efficiency.  Section 15-1-4(a) of the Official Code of Georgia permits Courts to punish certain acts with contempt through attachment of summary punishment.  Among the matters which may be so punished are “(2) Misbehavior of any of the officers of the courts in their official transactions; [or] (3) Disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts”.  In Toles v. G & K Services, Inc., 230 Ga.App. 452, 453-454, 496 S.E.2d 550 (Ga. Ct. App. 1998), the Court stated that “[t]he trial court is not required to hold a hearing on the issue of willfulness in every case. “ ‘Such a requirement serves no purpose where the trial court(, as here,) (sic) can otherwise determine willfulness (sic) on the part of the party against whom the sanctions are sought.’ [Cit.]” (citing Champion Mgmt. Assn. v. McGahee, 227 Ga.App. 895, 896(1), 490 S.E.2d 215 (1997))(errors in original).

The power of the Courts to compel obedience to their lawful Orders is well-established, but it was abused by the presiding judge in the court below.  “It is well established that courts possess an inherent ‘power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates.’”  United States v. Neal, 101 F.3d 993, 996 (4th Cir. 1996)(citing International Union, UMWA v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 2559, 129 L.Ed.2d 642 (1994)).  The burden that the Court seemed to place on Appellant arose most noticably because it did not act when presented with disobedience to its orders, but instead seemed to consistently insist on a hearing on the actions taken by the parties, such as would be required before criminal incarceration would result.

The power of the Court to impose criminal contempt penalties is very different in nature to the power to impose sanctions for civil contempt, since criminal contempt is a crime in and of itself, and “requires that the contemnor be afforded fundamental procedural safeguards.”  Neal at 998.  However, no criminal penalties were requested at any time by either Appellant or his counsel for the purging of the Contempt, as such action would only serve to punish but would not remedy the problem that Appellee and her counsel created.  Instead, the relief sought was tailored to address the financial wrong perpetrated against him and abetted by her counsel.  “A contempt fine is considered civil and remedial if it either coerces into compliance with a court order or compensates the [Appellant] for losses sustained.”  International Union, UMWA at 2553.  Criminal contempt is punitive, seeking to vindicate the authority of the court, while civil contempt is remedial in nature and is for the benefit of the complainant.  Id. at 827-828.  At the purposeful and unremedied urging of counsel for Appellant, the contempt became willful and complete, and it was appropriate for the court below to immediately take action against the party in disobedience, rather than dragging the matter out longer; no hearing was necessary on the subject since the willful nature of the actions was undeniable, and punishment for the actions should have been directed.

          Further, by denying the valid counterclaim of Appellant XXXXX XXXXX for damages and reimbursement for the financial costs she inflicted on him initially and for the legal expenses for representation that he incurred because of her admitted and avowed adultery, the Court acted to disregard valid law on both of these points.  The Seventh Edition of Black’s Law Dictionary (1999) defines “equitable distribution” as “[t]he division of marital property by a court in a divorce proceeding, under statutory guidelines that provide for a fair, but not necessarily equal, allocation of property between spouses”.  When the trial court at the hearing on XXXXX, 2012, denied XXXXX XXXXX’s request for temporary alimony even though the Domestic Relations Financial Affidavits of the parties demonstrated a greater financial ability to contest the divorce in Appellee, it acted inequitably, especially in light of the acknowledged misdeeds of Appellee.

Conclusion

          The divorce proceedings begun by Appellee XXXXX XXXXX against Appellant XXXXX XXXXX have demonstrated a consistent disregard of his rights and financial punishment against him even in the face of her established wrongdoing, but the final acts taken by the trial court with regard to the divorce between the parties on XXXXX, 2012, were taken with complete disregard for the rights of parties to contract as to the material matters that govern their relationship following divorce.  They disregard, as well, the contractual nature of divorce settlement agreements, and the pattern of behavior demonstrates a suspicious and partial refusal by the Court to permit XXXXX XXXXX to fully litigate the misdeeds that XXXXX XXXXX inflicted upon him perpetrated fully and knowingly by her counsel and against the interests of the minor daughters of the parties.  There has been no valid divorce between the parties because there has been no valid and binding contractual agreement between them.  Reversal of the judgment in its entirety is urged and merited.

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