This appeal arises out of a divorce action filed by appellant Kayleen Pollard Wife against Brian Pollard Husband. A bench trial was conducted, after which the final judgment and decree was entered July 31, 2013. Wife retired in 2012 after the divorce complaint was filed, and she commenced receiving retirement benefits from the Teacher’s Retirement System of Georgia prior to the date the final judgment was entered. Wife elected not to provide for survivor benefits, thereby entitling her to receive the maximum monthly benefits during her life. Further, the final judgment recited the Husband had already named Wife as the sole beneficiary with survivorship rights of his pension plan, which he was ordered not to change for so long as Wife is alive, and Wife was ordered to “restore” Husband as her sole beneficiary with survivorship rights within thirty days of the date of the order. By the time the final judgment was entered, however, Wife was precluded from changing her survivor benefits election. Whether or not she was aware it was too late to provide for survivor benefits, she apparently did not disclose this fact to the trial court or to Husband. When Husband discovered Wife’s failure to comply with this provision on the ground of legal impossibility, he filed a pro se action for contempt.
In the order entered in response to the petition for contempt, the trial court questioned how Wife was able to remove her then-husband as the survivor beneficiary of her plan without notifying him, but noted that this apparently occurred. The trial court further found that it was impossible for Wife to comply with the order since she had already commenced receiving benefits prior to the final decree and was now precluded from making the ordered change. The court found the final decree contemplated Husband’s receipt of a portion of Wife’s pension if he survived her, which the judge concluded would be between $1,414.00 and $1,433.00 per month, depending upon which plan was chosen. The order did not find Wife to be in contempt, but the trial court ordered Wife to take out a life insurance policy in an amount not less than $50,000 naming Husband as the sole beneficiary, or alternatively, to establish a bank account payable on her death to Husband in an amount not less than $50,000. This Court granted Wife’s application for discretionary appeal of the trial court’s contempt order to address whether the contempt order improperly modified the divorce decree, and specifically directed the parties to consider this Court’s previous holdings in Cason v. Cason1 and Smith v. Smith.2 We find that it did, and reverse.
