In the Supreme Court of Georgia

Decided: June 6, 2016

S16A0263. COURSEY v. COURSEY.

BENHAM, Justice.

On April 24, 2015, the trial court issued an order finding app ellant Husband in willful contempt of the parties’ final order of divo rce which was issued on July 24, 2009 after a jury trial. Based on the jury’ s verdict regarding the division of property, the divorce decree required Husband t o pay appellee Wife one-third (1/3) of the gross of his pension funds 1 until Wife remarried, though a portion of the pension funds payable to Wife was to be withheld for the payment of taxes. The jury declined to award alimony to Wi fe. Neither party appealed the jury’s verdict or the final decree of divorc e. In 2013, Wife moved for contempt when appellant failed to pay her the proport ionate increase in the pension funds. Shortly after Wife filed her motion for contempt,

1 Husband was a former firefighter who received monthly pension checks from Fulton County and the State of Georgia’s firefighters’ fund.2 Husband filed a motion for “t ermination of alimony” because he alleged Wife was remarried and because he alleged he made overpayments of th e pension funds to Wife. After conducting an evidentiary hearing, 2 the trial court found Husband in willful contempt of the divorce decree, concluded Hu sband owed Wife $8,490.25 in unpaid pension payments, and ordered Husband to repay the amount owed in monthly installments. In addition, the trial co urt awarded Wife attorney fees which Husband was also required to pay in mo nthly installments. In this final order on the contempt action, the trial court incorporated a previous order in which it had reiterated the la nguage in the final divorce decree that the pension fund payments to Wife wer e marital property. We granted Husband’s application for discretionary r eview to determine whether the trial court’s final ruling was in error. On appeal, Husband maintains that the payments at issue are not marital pr operty, but, rather, constitute periodic alimony; and, because the jury expr essly denied alimony to Wife, Husband contends he does not owe Wife and cann ot be held

2 Prior to the evidentiary hearing, the trial court also held a bench conference regarding some of the same issues.3 in contempt. 3 We now affirm the order of contempt for the reasons set forth

below.

1. OCGA § 19-6-1 (a) defines alimony as “an allowance out of one party's estate, made for the support of the other party when li ving separately.” Alimony can be either permanent or temporary. Periodic alimony is characterized by an indefinite number of payments and may also be contingent

or indeterminable as to a total amount. See Dillard v. Dillard , 265 Ga. 478 (458 SE2d 102) (1995). Periodic al imony typically terminates o n the death of the paying spouse, the death of the surviving spouse, or the re marriage of the receiving spouse. Stone v. Stone, 254 Ga. 519 (1) (330 SE2d 88 7) (1985).

This Court has defined marital property, on the other hand, as “assets acquired from the labor and investments of the parties during t he marriage.” Goldstein v. Goldstein, 262 Ga . 136 (1) (414 SE2d 474) (1992). Marital property is subject to equitable division. See Shaw v. Shaw, 2 90 Ga. 354 (3) (720 SE2d 614) (2012). “The law is well-settled that retiremen t benefits acquired during the marriage are marital property subject to eq uitable division.” Rabek v. Kellum, 279 Ga. 709, 711 (620 SE2d 387) (2 005). See

3 It appears that Husband is no l onger contending that Wife is r emarried.4 also Hipps v. Hipps, 278 Ga. 49 (1) (597 SE2d 359) (2004). Mor e specifically, retirement benefits are essentially deferred compensation for w ork previously performed. See Andrews v. Whitaker, 265 Ga. 76 (4) (453 SE2d 7 35) (1995). If this work was performed during the marriage, then each spous e has a stake in the retirement benefits upon divorce.

At the time of the divorce in this case, Husband was retired an d receiving his pension benefits in monthly installments. In Andrews v. Wh itaker, we upheld the requirement that the husband pay the wife half of hi s retirement pay, which he began receiving just before trial, concluding the fact that the deferred payments had become vested and payable did not transform the ob ligation into periodic alimony. Id. at 77. See also Plachy v. Plachy, 282 Ga. 614, 615 (652 SE2d 555) (2007) (“That the equitably divided retirement benefi ts are to be distributed to Wife by means of monthly installments does not m ake the payments alimony payments that are terminated at the death of t he recipient former spouse.”) Therefore, the pension benefits at issue here are likewise not transformed into periodic alimony just because they are paid ou t to Wife on a monthly basis. Accordingly, the trial court did not err when i t determined the pension payments to Wife constituted marital property and it di d not err in holding Husband in contempt.5 2. As to the limitation that the pension benefit payments end upon Wife’s remarriage, we agree with Wife that this limitation was an erro r made by the jury and reinforced by its incorporation into the divorce decre e as remarriage of the receiving spouse does not typically terminate an obligat ion that is the result of the equitable division of marital property. See Ston e v. Stone, 254 Ga. at 520 (“Remarriage by the receiving spouse does not terminate the obligation of the paying spouse to continue payments intended a s ...‘equitable division.’”) 4 (Emphasis in original). However, since neither party sought appellate review of the divorce decree or sought modification o f the divorce decree, the limitation stands in this contempt action. See, e. g., Cason v. Cason, 281 Ga. 296 (1) (637 SE2d 716) (2006) (a court may not modify a divorce decree in a contempt action); Collins v. Billow, 277 Ga. 604 (1 ) (592 SE2d 843) (2004) (same).

Judgment Affirmed. All the Justices concur.

4 Citing to Head v. Hook, 248 Ga. 818 (285 SE2d 718) (1982).