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Oversight – Redacted Brief for Reconsideration after Appeal was Rejected

by merlin on July 10th, 2013
  • Sumo

I was contacted today regarding someone who, after informing me that my earlier  appeal was apparently the only granted motion for reconsideration done recently at all, alerted me to the fact that I never posted a redacted version of that brief for reconsideration.  I now remedy that.  My thoughts and analysis on the reasons why the appeal was unsuccessful are only speculation, and I will keep them to myself (but I welcome your comments).





This brief supports a Motion for Reconsideration filed by XXXXX XXXXX, addressing the material statutes and guiding principles of law implicated by a wrongly-decided case heard before the Superior Court of Hall County, case number XXXXX, in which divorce was erroneously granted on XXXXX, dated improperly by the presiding judge as XXXXX.  These facts and argument support the appeal sought by XXXXX XXXXX from the judgment of the Court.


1.     Does a document entitled Consent and Agreement containing a purported settlement of all issues in a divorce based on a recital of the agreement of the parties but no evidence of their mutual concurrence or even parol evidence of their mutual concurrence bind the parties?

2.     Is a different income tax treatment of minor children a material deviation from agreed-upon terms that will void a divorce settlement agreement?

3.     Can a court direct summary contempt against a party without need for a hearing?


1.     The rules of contract interpretation in Georgia are binding on the parties to a settlement agreement in a divorce case, and there can be no Court-approved agreement absent the legitimate agreement of the parties.

2.     The income tax treatment of the children of the parties is material and substantial, and a unilateral decision by one party will invalidate the agreement necessary for the document to demonstrate the meeting of the minds called for.

3.     The courts are empowered to assess summary contempt penalties against a party without need for a hearing on the issue when willfulness is present in the proven acts of the party.



1.     Settlement Agreements Require Consent of Both Parties to be Binding

A.   Settlement Agreements Use Contract Rules

It is a basic rule that “[s]ettlement agreement[s] in divorce cases must be construed in the same manner and under the same rules as all other contractual agreements.”  Floyd v. Floyd, 732 S.E.2d 258, 262 (Ga. 2012)(quoting Jones v. Jones, 280 Ga. 712, 714(1), 632 S.E.2d 121 (2006)).  Regardless of the straightforward nature of this rule, this case shows that many parties seem to ignore its application in favor of the false idea that Courts can do whatever they want in a divorce case.  In the case at bar, this rule has been disregarded by Plaintiff/Appellee and her counsel, and the record shows it by even a cursory examination of Exhibits “F” and “U” to the Application for Appeal.  Exhibit “F” is the Contract and Agreement incorporated by the Court into its Final Judgment and Decree of Divorce, file-stamped at 12:58 PM on October 1, 2012 (hereafter referred to as the “settlement agreement”).  Exhibit “U” is the Contract and Agreement submitted by Defendant at 10:37 AM.  As the letter that was included with that document plainly explained to the presiding judge, the parties were still negotiating.  Section 13-3-2 of the Official Code of Georgia requires that all of the parties to a valid contract assent to all of the terms, and even states expressly that there can be no binding contract until each has consented to its terms.  Exhibit “F” contains absolutely no signature or initials by Defendant at any point, nor was it endorsed by his counsel.  Exhibit “G”, a copy of the transcript of the final hearing between the parties at which the consent of Defendant to a settlement of claims with Plaintiff was announced to the Court by counsel, similarly contains no explicit discussion of the many different items addressed by the settlement agreement.

There are many, many terms that are different in the document approved by the Court unilaterally two hours later and the document submitted to the Court by Defendant that morning.  The document ultimately approved by the Court later that day lacked any of the indicia of reliability that would indicate the intent of the parties or denote their consent and agreement as recited by the document.  After all, “[t]he controlling principle to be applied in interpreting decrees based on agreement of the parties is to find the intent of the parties by looking to the four corners of the agreement.”  Floyd v. Floyd, 732 S.E.2d 258, 263 (Ga. 2012)(quoting Crosby v. Lebert, 285 Ga. 297, 299, 676 S.E.2d 192 (2009)).  Even though the Court made mention on the Final Judgment and Decree of Divorce, attached to the Application as Exhibit “E”, of the idea that there was consent as shown by the statements of the parties in open court, Exhibit “G” is a copy of the hearing itself, and it does not contain any such statements.

In Exhibit “F”, unapproved by Appellant, 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 discussion and negotiations between the parties, they are to each claim one deduction for a dependant child each year, which reflects the actual living conditions of the children and provides an equitable result, though it does not 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 stated, “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.”  Kreimer v. Kreimer, 274 Ga. 359, 363, 552 S.E.2d 826 (Ga. 2001)(quoting Moss v. Moss, 265 Ga. 802, 803, 463 S.E.2d 9 (1995)).

A document which purports to be an agreement between the parties, even when it has been endorsed by the Court itself over protest of one of the parties to the “agreement”, but which contains materially different terms than those that were agreed-to initially, does not demonstrate any consent between the parties and is not binding as a valid contract.  See generally Roberson v. First National Bank of Atlanta, 99 Ga.App.156, 107 S.E.2d 669 (Ga. App. 1959).  The document that the Court approved shortly after it received a valid counter-proposal was materially different on key points.  The parties are free to deviate mutually from contract terms, under Section 13-4-4 of the Official Code of Georgia, but “[t]he rule supported by weight of authority is, that if the legal import and effect of the instrument is in fact changed, it does not matter how trivial the change may be, or whether it may be beneficial or detrimental to the party sought to be charged on the contract, as where it changes the evidence or mode of proof’ * * * ‘without the consent of the maker, is material and constitutes an alteration.”  Id. at 162 (quoting Cook v. Parks, 46 Ga.App. 749, 752169 S.E. 208, 210 (Ga. App. 1933).

B.   Income Tax Treatment is a Material Term, and an Unagreed-upon Change Voids the Contract Between the Parties.

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 are materially-different treatment for the minor children on income taxes in the document unilaterally submitted by Plaintiff/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 Plaintiff/Appellee but actually hurts Defendant/Appellant financially.

The rules of this Court, and the standards put in place by it that govern applications for appeal, show that there is merit to this application, that a great injustice was done to Defendant/Appellant by means of the inappropriate actions of the trial court, and that the means exist for this Court to immediately remedy this injustice and also provide guidance for any treatment of similar issues by this and other courts in the future.  For these reasons alone, this application for appeal must be granted, but there is an additional mechanism that was ignored by the presiding judge in the trial court but which might have served to remedy this situation before it even arose, had it been taken advantage of.  It provides yet another basis for the Court to accept this case for appeal and to further develop the common law.

2.     A Court Can and Should Direct Summary Contempt Charges Against a Party Without Need for a Hearing

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”.  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 difficulty that the Court seemed to have in the trial of this matter was that 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 contempt and consequent 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.”  Id. at 998.

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 the party 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 could be directed immediately.


 There are no indications of joint consent of the parties to the entry of any binding agreement between them, either by means of manifestations of consent on the documents themselves, such as signatures or initials, or by reference to the spoken words of the parties or their counsel.  Instead, the caprice of one party has been substituted for the mutual consent required by contract law and applicable to the two parties mutually bound by a divorce settlement agreement and the rules of contract that govern it.  Further, the Court had power that it did not exercise, under the law and the Official Code of Georgia, to direct punishment for contempt.  The Court should accept the appeal because of the presence of reversible error, and the desirableness of a precedent for this action in which Courts may be directed in the future to assess contempt punishment in divorces based on applicable civil rules instead of criminal proceedings and the requirement that hearings be held.

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