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Probate Court erred when it imposed fine of more than $19,000 for contempt

In In re Estate of Butler, 356 Ga. App. 287 (2020), Anita Butler filed a petition to probate her father’s Will. Other family members filed an objection and caveat. Ultimately the case was settled with Butler agreeing to offer her late father’s will in Vermont in order to transfer a parcel of real estate located there. When Butler failed to do so, the caveators filed a motion to enforce settlement and for contempt.

One of the caveators filed an affidavit with supporting exhibits stating that Butler could have proceeded with the transfer sooner and that as a result of her not doing so, the caveators had incurred expenses of $33,669.25 and had been barred from selling the Vermont property. Following a hearing, the Probate Court of Chatham County entered an order to enforce the settlement, noting Butler’s willful failure to comply with the consent order and awarding damages of $19,272.18 in damages, which constituted caveator’s carrying costs relating to the Vermonth property.

Initially, Butler failed to file transcripts with the appeal pursuant to OCGA § 5-6-41(c). “In the absence of a transcript of the evidentiary hearing held on September 11, 2019, we must assume that the probate court’s judgment that Butler was in contempt was correct, and we therefore affirm that portion of the judgment.”

Regarding criminal contempt, fines are limited to $1,000. Regarding civil contempt, a civil contempt penalty must be coditional. Also, Caveators failed to file a complaint and a motion for contempt is not sufficient to commence an action for damages. See Opatut v. Guest Pond Club, 254 Ga. 258, 260(5), 327 S.E.2d 487 (1985).

Here, the caveators’ petition asked only that “the [probate court] compel compliance with the [consent order] and/or hold Anita Butler in contempt for her continuing failure to comply” with it. In the absence of a complaint that would commence a civil action authorizing an award of damages, we must reverse the probate court’s award of damages in this case.

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