FIFTH DIVISION

MCFADDEN, P. J.,

GOBEIL and PINSON, 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.

https://www.gaappeals.us/rules

June 7, 2022

In the Court of Appeals of Georgia

A22A0413. CLAYBROOKS v. CLAYBROOKS.

PINSON, Judge.

After losing her job, Yolanda Claybrooks stopped making her court-ordered

child-support payments to her former spouse, John Claybrooks. John sued Yolanda

for contempt. The trial court found Yolanda in willful contempt and ordered her to

pay the past-due child support, plus attorney fees and interest. We affirm the finding

of willful contempt, because evidence supported the trial court’sfinding that Yolanda

failed to pay child support even though she had enough money in her 401(k) account

to do so. But we must vacate the awards of attorney fees and interest. The attorney

fees were awarded under OCGA § 19-6-28 (a), but that statute does not authorize the

award of attorney fees in a contempt action. And the interest was awarded under

OCGA § 7-4-12.1, but that statute requires courts to consider four specific factors in
deciding whether and how to apply interest, and the record shows that the trial court

did not consider those statutory factors. So we vacate these awards and remand the

case for further proceedings consistent with this opinion.

Background

John and Yolanda Claybrooks are the divorced parents of a daughter, M. C. In

2016, the parties entered into a consent order modifying their divorce decree, which

provided, among other things, that John would have primary physical custody of

M. C. and that Yolanda would pay $700 per month in child support. 

About four years later, in 2020, John filed a complaint for contempt against

Yolanda. The complaint alleged that Yolanda was behind in her child-support

payments bymore than $8,400 and asked the trial court to find her in willful contempt

of the 2016 child-support order. For relief, the complaint requested that Yolanda pay

all “all monies owed pursuant to the 2016 Order,” as well as John’s attorney fees and

litigation expenses and “such other and further relief as this Court may deem just and

equitable.” Yolanda responded to the complaint, explaining that she had lost her job

in 2019 and that she had not been able to find another one, particularly during the

COVID-19 pandemic. 

2
The court held a hearing. During opening statements, Yolanda’s counsel

explained that Yolanda had about $50,000 in her 401 (k) account and that she had

recently offered to pay her unpaid child support out of that account by the end of that

week. The trial court asked: “So we’re just really here to argue about[attorney]fees?”

Counsel agreed that the question of fees was “basically it.” Both sidesthen presented

argument and testimony about two remaining issues: the reasonableness of the

amount of attorney fees that John was seeking ($6,200), and Yolanda’s contention

that she had already made a series of $25 payments, totaling $575, which should be

credited against the amount of child support she owed. 

The trial court found that Yolanda was in willful contempt of the 2016 child

support order: “I mean, she’s obviously in contempt. It’s obviously willful. She had

the money. She just didn’t pay it.” The trial court did, however, find that Yolanda’s

arrearage should be reduced by the $575 she had already paid. The trial court asked

John’s counsel to prepare an order of payment, leaving blank the amounts of fees and

interest so that the court could determine what amounts were reasonable. 

The next day the trial court issued itsfinal order. The court found that Yolanda

owed $7,825 in child support, giving her credit for the $575 she had already paid. The

court further found that Yolanda was in willful contempt of her child support

3
obligation, since she had a 401 (k) account with enough funds to cover the unpaid

amount. Based on that finding, the court assessed $1,024 in interest on the unpaid

child support under OCGA § 7-4-12.1. Also based on that finding, the court ordered

Yolanda to pay $3,125 in attorney fees under OCGA § 19-6-28 (a), having reduced

the fee amount from the $6,200 that John had originally requested. 

Yolanda applied for a discretionary appeal, which we granted. 

Discussion

1. Yolanda contendsthat the trial court erred by finding her in willful contempt

of her child support obligations. 

“In order to hold a party in contempt, a trial court must find that the party

willfully disobeyed a court order.” Wall v. James, 358 Ga. App. 121, 123 (1) (853

SE2d 881) (2021) (citation and punctuation omitted; emphasis in original). A trial

court has broad discretion in applying thatstandard. Sullivan v. Harper, 352 Ga. App.

427, 433 (2) (834 SE2d 921) (2019). And in reviewing the trial court’s application

of that standard, “if there is any evidence to support [the] court’s determination that

a party has willfully disobeyed its order, the finding of contempt will be affirmed.”

Darroch v. Willis, 286 Ga. 566, 568 (2) (690 SE2d 410) (2010). 

4
The trial court’sfinding of willful contempt here was within its discretion. The

court found that Yolanda willfully declined to comply with the 2016 child support

order because she had enough money in her 401(k) account to pay whatshe owed, yet

did not pay it. Yolanda contends that her failure to pay was not willful, because she

was out of work and because she would incur a penalty for withdrawing funds from

her 401(k) account. But “[i]nability to pay is a defense only where the contemnor

demonstrates that [she] has exhausted all resources and assets available and is still

unable to secure the funds necessary to enable compliance with the court’s order.”

Darroch, 286 Ga. at 569 (2). A 401(k) account is justsuch an available resource. See

id. (upholding finding of willful contempt where former spouse failed to refinance the

mortgage on the marital home, as directed in a Marital Dissolution Agreement,

despite having available resources, including a 401(k) account and multiple ways to

borrow money). And there is no dispute that Yolanda had a 401(k) account, or that

she could have withdrawn funds from it to comply with the child-support order.

Because this evidence supports the trial court’s finding of willful contempt, that

finding must be affirmed. Id.;see also Bernard v. Bernard, 347 Ga. App. 429, 435-36

(3) (819 SE2d 688) (2018) (affirming finding of willful contempt where evidence

supported trial court’sfinding that former spouse who failed to pay child support had

5
access to cash accounts, retirement accounts, and the assets of his current wife, and

had not attempted to borrow money or reduce his spending).

2. “Generally, an award of attorney fees is not available in Georgia unless

authorized by statute or contract.” O’Keefe v. O’Keefe, 285 Ga. 805, 805-06 (684

SE2d 266) (2009) (citation omitted). Yolanda contends that the trial court erred by

awarding attorney fees under OCGA § 19-6-28 (a), rather than under OCGA § 19-6-

2. But we conclude that neither statute authorized the fee award.

(a) The trial court awarded attorney fees under OCGA § 19-6-28 (a), but no

part of that provision authorized that award. The first part of that provision gives

courts the power to impose “terms and conditions” they “deem proper to assure

compliance” with divorce, child support, or alimony orders. As a general matter, it

is not clear when, if ever, attorney fees awarded at the close of litigation would serve

as a mechanism for “assur[ing] compliance” with an order. But in any event, there is

no indication in the court’s order or otherwise that these particular attorneys fees were

awarded to assure compliance with the modification order at issue. Instead, they were

awarded in a contempt proceeding, which is meant to punish a failure to comply with

that order. So § 19-6-28 (a)’s power to set “terms and conditions” does not authorize

this fee award. 

6
Neither are attorney fee awards authorized by the part of 19-6-28 (a) that deals

with contempt. That part of the provision extends the contempt power to trial courts

that have issued divorce, child support, or alimony orders.It doesthis by giving these

courts the “power to punish” a party for violating such orders “to the same extent as

is provided by law for contempt of the court in any other action or proceeding.” Id.

(emphasissupplied). But it is wellsettled that the contempt power does not inherently

include a power to award attorney fees. Minor v. Minor, 257 Ga. 706, 709 (2) (362

SE2d 208) (1987) (“No authority exists to award attorney fees merely because an

action isfor contempt.”). Accord Cook v. Campbell-Cook, 349 Ga. App. 325, 332 (3)

(b) (826 SE2d 155) (2019); Tate v. Tate, 340 Ga. App. 361, 364 (3) (797 SE2d 227)

(2017); Stewart v. Tricord, LLC, 296 Ga. App. 834, 835 (1) (676 SE2d 229) (2009);

see also Sampson v. Cureton, 343 Ga. App. 466, 473 (2) (807 SE2d 465) (2017)

(“superior courts do not have authority to require the payment of attorney fees as

punishment for contempt”). If the contempt power does not generally include the

power to award attorney fees, then the contempt power that § 19-6-28 (a) extends to

courts “to the same extent” that it is available in other actions also does not include

7
the power to award attorney fees.

1 So OCGA § 19-6-28 (a) does not authorize the

attorney fee award here.

(b) Code Section § 19-6-2 also does not authorize the attorney fee award. That

provision authorizes attorney fees in an “action ... for alimony, divorce and alimony,

or contempt of court arising out of either an alimony case or a divorce and alimony

case.” OCGA § 19-6-2 (a). This is a contempt action that alleged a failure to comply

with a consent order that modified custody, visitation, and child-support rights and

obligations. Although one might argue that such an action nevertheless “ar[ose] out

of” the Claybrookses’ divorce case, our precedent squarely forecloses awarding

attorney fees in these circumstances: Section 19-6-2 “does not apply to a petition for

modification of child custody or to contempt proceedings unless the allegations are

for failure to comply with the original alimony or divorce decree.” Moore v.

1 Neither case that John cites supports his contention that OCGA § 19-6-28 (a)

authorizes attorney fees because neither case involved an award of attorney fees

under OCGA § 19-6-28 (a). In Brown v. King, our Supreme Court held that a

contempt action to enforce child support paymentsis an independent proceeding; the

Court then cited the portion of OCGA § 19-6-28 that describesthe processfor serving

the contempt motion and rule nisi. 266 Ga. 890, 890 (1) n.7 (472 SE2d 65) (1996).

In Bridges v. Wooten, we concluded that a plaintiff had no private right of action for

damages for criminal abandonment based on the failure to pay child support, noting

that OCGA § 19-6-28 provided the plaintiff with a civil contempt remedy. 305 Ga.

App. 682, 684-85 (1) (700 SE2d 678) (2010).

8
Hullander, 345 Ga. App. 568, 571 (2) (814 SE2d 423) (2018) (citation and

punctuation omitted; emphasis in original); see also Hall v. Hall, 335 Ga. App. 208,

211-12 (2) (780 SE2d 787) (2015) (OCGA § 19-6-2 not available for attorney fees

in action for modification of child support); Cothran v. Mehosky, 286 Ga. App. 640,

641 (2) (649 SE2d 838) (2007) (“[w]here the action seeks solely to modify the

alimony or divorce decree . . . such as an action for modification of child support . .

. and does not contain any contempt allegations for failure to comply with the original

alimony or divorce decree, it falls outside the parameters of OCGA § 19-6-2”).

(c) In short, neither OCGA § 19-6-28 nor 19-6-2 authorized the attorney fee

award here, so we must vacate the award. We leave for remand the question whether

some other statute authorizes an award of attorney fees. Cf. Viskup v. Viskup, 291 Ga.

103, 106-07 (3) (727 SE2d 97) (2012) (affirming attorney fee award that did notstate

its statutory basis because the language of the order tracked OCGA § 19-9-3 (g) and

the case fell within that section’s parameters).

3. According to OCGA § 7-4-12.1 (a), “[a]ll” awards and judgments rendered

under Title 19 of the Georgia Code—which deals with domestic relations—”shall

accrue interest at the rate of 7 percent per annum.” The statute gives trial courts

“discretion” to apply or waive that interest, or to reduce the amount owed, and it sets

9
out four factors that the court “shall consider” in making that decision. Id. Yolanda

contends that the trial court erred by awarding interest under that statute for her

unpaid child support, both because John did not specifically request interest in his

complaint and because the court failed to consider the statutory factors. We review

the trial court’s interest award for abuse of discretion. McCarthy v. Ashment, 353 Ga.

App. 270, 276 (5) (835 SE2d 745) (2019).

(a) The court did not err in granting interest without a specific request for that

relief. As an initial matter, John’s complaint for contempt requested “such other and

further relief as this Court may deem just and equitable.” But even putting that catchall request aside, OCGA § 7-4-12.1 (a) builds the interest question into each

domestic-relations action by default: it states that “[a]ll” awards and judgments in

domestic relations actions “shall accrue interest at the rate of 7 percent per annum,”

and it givestrial courts discretion to decide whether and how to apply interest in each

case. Id. So John did not need to expressly request interest for the court to consider

whether to apply it.

(b) Thatsaid, we agree with Yolanda that the court erred by not considering the

statutory factors. Code Section 7-4-12.1 (a) states that trial courts “shall consider”

four specific factors in determining whether and how to apply interest, including

10
whether there was “good cause” for nonpayment of child support, hardship to each

party, and the effect of applying interest on the ability to pay child support. Here, the

order “makes no mention of the factors and contains no findings with regard to them.”

Spirnak v. Meadows, 355 Ga. App. 857, 868 (6) (a) (844 SE2d 482) (2020).” And

when Yolanda’s counsel noted at the contempt hearing that “the interest is, of course,

not mandatory,” the court responded, “[w]ell, I generally award interest.” In sum, as

best we can tell, interest was awarded here as a matter of course rather than based on

application of the statutory factors. Under these circumstances, we must vacate the

interest award and remand for consideration of the factors set out in OCGA § 7-4-

12.1 (a). See Spirnak, 355 Ga. App. at 869 (6) (a); cf. McCarthy, 353 Ga. App. at 276

(5) (affirming award of interest where trial court “made several findings of fact

regarding the financial circumstances of both parties” before awarding interest on

child support and attorney fees).

*

To sum up: We affirm the trial court’s finding that Yolanda was in willful

contempt of the 2016 order. But we vacate the trial court’s awards of attorney fees

and interest on Yolanda’s unpaid child support and remand for further proceedings

consistent with this opinion.

11
Judgment affirmed in part and vacated in part, and case remanded in part.

McFadden, P. J., and Gobeil, J., concur.

12