The Importance of “Clear and Certain” Language

 Recently, the Georgia Supreme Court took a discretionary appeal of the trial court’s order finding the wife in criminal and civil contempt of the the court’s divorce decree and related order, awarding the husband over $80,000 in damages and attorneys’ fees.  The Georgia Supreme Court reversed. Scherer v. Testino, S12A0222 (05/07/12).

 In this case, the divorce decree awarded a medical supply business to the husband and established a transitional plan to detangle the wife from the operation and ownership of it. Additional court orders were required to facilitate these transfers, to include establishing a calculable date upon which the wife could close a specific business bank account.

The wife closed the account months after this deadline.  The husband filed a civil and criminal contempt motion. The trial court granted the motion, in part, because it found that the ordered closing date was unrealistic and that the wife had waived the clause by closing the account months after the specified date.

Imagine the wife’s surprise!  She appealed.

The Georgia Supreme Court reversed the contempt order finding that the trial court exceeded its authority in modifying, rather then interpreting the decree or clarifying its order. Further, it was improper to find the wife in contempt of a court order when, in essence, she had no notice that her conduct was improper. The order’s language contained no clear and certain language that wife’s conduct was violative of the order (indeed, it appears just the opposite).

Aside from the legal rules affirmed in this decision, parties are well served by agreements that account for foreseeable complications so that contingencies can be addressed at the time of the event, not later. In drafting settlement agreements, consider the utility of a voluntary or a pre-litigation ADR clause that provides parties with tools to solve anticipated or actual compliance issues without need for litigation.

Ms. Keaton mediates domestic relations matters, including modifications, at One Mediation. Contact her with comments about this article or to schedule mediation at jkeaton@onemediation.com. 

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