Mermann v. Tillitski , 297 Ga. 881 ( 2015 )

In the Supreme Court of Georgia
Decided: October 5, 2015
S15A0965. MERMANN v. TILLITSKI.
MELTON, Justice.
Sanna Mermann, formerly known as Sanna Tillitski (Wife), and
Christopher Tillitski (Husband) were divorced in Bibb County pursuant to a
decree signed on February 24 and filed on February 26, 2009. The divorce
decree incorporated a settlement agreement that stated, in relevant part:
[W]ife shall receive 50% of the Husband’s SEP IRA[1] as of the
date of this agreement and shall have her pro rata share of all
investment experience, including earnings and losses. . . . Wife shall
be responsible for the preparation of a Qualified Domestic Relations
Order (QDRO) incorporating the terms of all paragraphs in Item 14
said QDRO to be prepared within thirty (30) days of the signing of
this Agreement.[2] Said QDRO shall be subject to approval of
Husband’s attorney and the Court of proper jurisdiction in this case,
as well as the Administrator(s) of the aforementioned Plan.
1
The parties and the trial court appear to agree that there are actually
multiple SEP IRAs at issue.
2
The settlement agreement attached to the divorce decree is not dated, but
the parties agreed that the signing date should be deemed to be the date the
decree was signed, February 24, 2009.
More than four years later, Wife submitted a QDRO to the trial court,
which signed it on November 29, 2012. Wife claimed the long delay was caused
by Husband’s failure to give her necessary information and documents. On July
19, 2013, after realizing that Husband had not seen the QDRO, Wife filed a
motion asking the court to vacate the QDRO and enter one approved by
Husband. Husband agreed that the QDRO should be vacated, asserting that
some of the information in it was incorrect.
At the hearing on Wife’s motion held on July 9, 2014, Husband argued
that Wife should not receive any earnings on her portion of the IRAs that
accrued after March 26, 2009 — the date 30 days after the settlement agreement
was signed by which she was supposed to have prepared the QDRO. Husband
claimed that the 30-day deadline imposed on Wife was meant to limit her ability
to benefit from the accounts’ investments and that she should not be allowed to
profit from her failure to comply with the divorce decree. The trial court agreed
with Husband, and on August 25, 2014, entered an order vacating the QDRO,
setting March 31, 2009 as the “date of calculating gains and losses to the total
value of the SEP IRAs as of February 24, 2009,” and requesting that the parties
2
submit an amended QDRO within 30 days that “calculat[ed] [new] figures in
accordance with [the trial court’s] Order.” Wife appeals from this ruling,3 and,
for the reasons that follow, we reverse the trial court’s determination that March
31, 2009 is the proper “date [for] calculating gains and losses to the total value
of the SEP IRAs as of February 24, 2009,” and remand the case for a more
proper consideration of the parameters of any new QDRO to be submitted by the
parties.
“The controlling principle to be applied when interpreting a divorce
decree which incorporates the parties' settlement agreement is to find the intent
of the parties by looking to the ‘four corners’ of the agreement and in the light
of circumstances as they existed at the time the agreement was made.” (Citations
3
Wife filed a timely discretionary application seeking to appeal the trial
court’s order, which this Court granted on October 15, 2014. Husband contends
that Wife’s discretionary application was “improvidently granted” because the
trial court’s August 25, 2014 order was not yet final, in that the parties must still
draft and submit an amended QDRO to the trial court. For this reason, Husband
believes that Wife was required to follow the interlocutory appeal provisions of
OCGA § 5-6-34 (b) and seek a certificate of immediate review, which she did
not. However, Husband is incorrect, as the finality of a divorce decree is not
affected by the presence or absence of a QDRO. The divorce decree here is final,
and the absence of a QDRO to be entered at a later date does not make the order
interlocutory.
3
and punctuation omitted.) Doritis v. Doritis, 294 Ga. 421, 423 (3) (754 SE2d 53)
(2014). Further, just as it is in the case of an equitable allocation of property by
a trial court, where, as here, the division of property has been “determined by
settlement [agreement] . . ., the division of the parties' marital property and the
identification of the parties' separate property set forth in a divorce decree is
fixed, and the trial court does not have the power to modify those terms of the
judgment even if the circumstances of the parties change.” (Footnote omitted;
emphasis supplied.) White v. Howard, 295 Ga. 210, 211-212 (2) (758 SE2d
824) (2014).
With these principles in mind, the plain language of the parties’ settlement
agreement makes clear that Wife was entitled to “receive 50% of the Husband’s
SEP IRA as of the date of th[e] agreement and shall have her pro rata share of
all investment experience, including earnings and losses.” Although the
agreement also states that Wife was tasked with preparing a QDRO within thirty
days, there is nothing in the agreement to suggest that if Wife did not prepare
a QDRO within that time frame that she would not receive any earnings on her
portion of the IRAs that accrued after 30 days from the date of the agreement.
Indeed, there is no language in the settlement agreement indicating that Wife’s
4
failure to prepare a QDRO would affect her right to “have her pro rata share of
all investment experience” in the SEP IRAs in any way. By holding otherwise
and imposing an artificial 30-day window for Wife to “calculat[e] gains and
losses to the total value of the SEP IRAs as of February 24, 2009,” the trial court
improperly modified a fixed division of property as set forth in the parties’
settlement agreement.4 See id. We must therefore reverse the trial court’s
decision and remand this case with the direction that the trial court reconsider
its ruling in light of the plain language of the parties settlement agreement as
outlined above.
Judgment reversed and case remanded with direction. All the Justices
concur.
4
We note that, in this regard, if Husband were concerned that Wife had
violated the divorce decree by having failed to timely submit a QDRO, his
remedy would be to pursue an action for contempt. See generally, e.g., Millner
v. Millner, 260 Ga. 495 (397 SE2d 289) (1990). However, even if Husband
were to succeed in a contempt proceeding, (and we make no ruling on the
potential merits of any such action here), the trial court still would not be
authorized to modify the terms of divorce decree as a remedy for Wife’s alleged
contempt. See, e.g., Ziyad v. El-Amin, 293 Ga. 871 (750 SE2d 337) (2013) (“It
is settled law, of course, that a court cannot modify a final decree of divorce on
a motion for contempt”) (citation omitted).
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