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Horn v. Shepherd

A trial court does not have the authority to make payment of a new attorneys' fee award a condition for purging contempt of a previous order.

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The trial court held Randy Horn Husband in contempt for violating his divorce decree with Brandie Shepherd Wife and ordered him incarcerated until he purged himself of the contempt. Husband appeals, and we conclude that the trial court erred in requiring him to pay attorney fees associated with the contempt proceeding in order to purge the contempt; we therefore reverse that small portion of the trial court’s judgment. Husband’s many other enumerations of error are without merit, and we affirm the remainder of the judgment.

1. The parties married in 1998 and divorced in Fayette County on April 21, 2009. As relevant to this appeal, the divorce decree designated Wife as the primary legal custodian of the parties’ child, ordered Husband to pay monthly child support of $849.18 plus 86.98 of the child’s uninsured medical and dental expenses, and awarded each party a half-interest in Husband’s two retirement accounts. The decree also ordered Husband to pay Wife $6,479.13 that he owed her under a temporary support order and awarded Wife $3,600 in attorney fees and costs payable at the rate of $100 per month, with the entire balance becoming due immediately if Husband made one payment late. The decree gave each party a right of first refusal to care for the child whenever the other was planning to leave the child in the care of a non-family member overnight or for four or more hours. The decree mandated prior consultation for all but emergency medical care, gave each party the right to attend all the child’s extracurricular activities, obligated each party to keep the other apprised of his or her contact information, and required 30 days’ advance written notice before a change of residence.

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