Kirkendall v. Decker
Kirkendall v. Decker
Opinion of the Court
We granted discretionary appeal to ex-husband Kirkendall, to consider the propriety of his being held in wilful contempt of a final judgment and decree of divorce for his failure to maintain a whole or term life insurance policy naming his ex-wife Decker as beneficiary. Because Kirkendall has failed to show that the superior court erred in determining that he was to maintain such life insurance and wilfully failed to do so, we affirm.
Kirkendall and Decker were divorced in 1987 after a 27-year marriage. The final judgment and decree, as amended,
After considering the record and the statements and arguments of counsel,
It is certainly true, as Kirkendall maintains, that a trial court may not modify the terms of a divorce and alimony judgment in a contempt proceeding. Perry v. Perry, 265 Ga. 186, 188 (3) (454 SE2d 122) (1995); Peppers v. Peppers, 238 Ga. 411, 412 (233 SE2d 374) (1977). However, in a contempt case, the trial court has wide discretion in determining whether court orders have been violated, and such determination will not be disturbed on appeal in the absence of an abuse of discretion. Wrightson v. Wrightson, 266 Ga. 493, 496 (4) (467 SE2d 578) (1996); Davis v. Davis, 250 Ga. 206, 207 (296 SE2d
Accidental death insurance is distinct from life insurance, which is called for in the court order. See Moss v. Protective Life Ins. Co., 203 Ga. App. 389 (417 SE2d 340) (1992); Rainey v. Guardian Life Ins. Co. of America, 168 Ga. App. 577 (309 SE2d 649) (1983). What is more, the obvious purpose in requiring Kirkendall to maintain the insurance coverage was to secure his obligation to pay periodic alimony to Decker. See Hawkins v. Hawkins, 268 Ga. 637 (491 SE2d 806) (1997). Such purpose would not be served by coverage triggered only in the event of Kirkendall’s accidental death. Therefore, the court’s determination is consistent with the apparent intention of the decree.
The court’s order will stand for yet another reason; Kirkendall has failed to carry his burden in this appeal. Although Kirkendall’s attorney related at the present contempt hearing that the insurance Kirkendall maintained through his employer Delta at the time of the decree was accidental death insurance, that does not end the inquiry. In reaching its decision the trial court expressly considered the record of the previous contempt proceeding, which Kirkendall has elected not to include in this appeal. In order for an appellate court to make a determination about the correctness of a judgment at issue, it is the appellant’s duty to include in the record on appeal the items necessary for the appellate court to objectively review the evidence and proceedings giving rise to the judgment. Atwood v. Southeast Bedding Co., 236 Ga. App. 116 (1) ( 511 SE2d 232) (1999); McKinney v. Alexander Properties Group, 228 Ga. App. 77 (491 SE2d 131) (1997). See also Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (n. 4) (265 SE2d 791) (1980). Kirkendall has made no attempt to provide evidence of the prior contempt proceeding, nor made any reference to it in the appeal. In the absence of the relevant information, and there being a presumption in favor of the regularity of court proceedings, it must be assumed that the trial court’s findings are supported by sufficient competent evidence and its judgment is thus affirmed. Smallwood v. Mulkey, 198 Ga. App. 496 (402 SE2d 99) (1991).
Judgment affirmed.
In the two years following entry of the final judgment and decree, Kirkendall sought to modify his alimony obligation, and Decker obtained a judgment for more than $18,000 against Kirkendall and filed a garnishment action to collect the judgment. To resolve the litigation, in 1989 Kirkendall and Decker entered into a settlement agreement which modified
It was agreed that statements by Kirkendall’s attorney reflected what Kirkendall himself would testify to. Kirkendall did not take the stand.
This appeal deals only with the life insurance provision.
Dissenting Opinion
dissenting.
The decree in question ordered Kirkendall to make Decker the beneficiary of life insurance “which he maintains through Delta Air Lines, Inc.” It is undisputed that, at the time of the entry of the decree, the only “life insurance” policy which Kirkendall carried
Nothing in the transcript indicates that the trial court considered the record in the previous contempt proceeding with regard to the insurance issue. In fact, the transcript makes it clear that the previous contempt proceeding had nothing to do with Kirkendall’s obligation to maintain life insurance.
I would reverse the judgment of the trial court. Accordingly, I respectfully dissent. I am authorized to state that Justice Carley joins in this dissent.
In the hearing below, Kirkendall’s attorney pointed out, without contradiction, that the insurance policy issue was never raised in a prior contempt proceeding.
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