The trial court found the defendant, Michael Affatato, guilty of three counts of criminal contempt for violating its prior order requiring him to make certain payments to the plaintiff, Cecily Considine.1 Affatato appeals, arguing that he was improperly denied the right to a trial by jury on the question of whether he and his company lacked the financial ability to make the ordered payments. He also argues that there was insufficient evidence to sustain the trial court’s finding that the failure to make the payments was based upon a willful disobedience of the court’s prior order rather than an inability to pay. Additionally, Affatato argues that his conviction on the second count of criminal contempt for failure to pay must be reversed because there was no clear and definite court order requiring that specific payment. Because there was no clear and definite court order requiring the payment that formed the basis for the second count of criminal contempt, we reverse Affatato’s conviction on that count, vacate his sentence, and remand the case for RE-SENTENCING on the remaining counts. We affirm the judgment in all other respects. This lawsuit arose out of a bitter dispute between Considine and Affatato over the right to manage the business and control the assets of a Georgia company known as “Model Master.”2 Alleging that Affatato had “embarked on a campaign . . . to systematically dismantle and misappropriate the assets of Model Master to the complete exclusion of Considine,” Considine filed the instant action against Affatato for conversion, unjust enrichment, fraud, and multiple other claims. Responding that it was Considine who had embarked on a campaign to plunder the business assets, Affatato answered and asserted several counterclaims, including claims for fraud and embezzlement.
Given the dispute over control of the business, Affatato and Considine entered into a consent order for the appointment of a receiver to oversee Model Master during the pendency of the litigation the “Consent Order”. When Affatato subsequently violated the Consent Order and failed to timely respond to Considine’s discovery requests, the trial court ordered Affatato to make certain payments to Considine out of both his personal funds and out of Model Master’s funds by a specific deadline the “Sanctions Order”.
