MACHELLE P. MORTON F/K/A MACHELLE P. MACATEE v. EDWARD VAN MACATEE ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 15, 2018
In the Court of Appeals of Georgia
A18A0514. MORTON v. MACATEE.
A18A0515. MORTON v. MACATEE.
DILLARD, Chief Judge.
In these consolidated appeals, Machelle P. Morton—f/k/a Machelle P.
Macatee—appeals from the trial court’s order in a contempt proceeding following her
divorce from her ex-husband, Edward Van Macatee, and from the court’s order
correcting a clerical mistake in the final divorce decree. In Case Number A18A0514,
Machelle appeals from the “corrected” divorce order, arguing that (1) the trial court’s
factual findings, as contained in the original divorce order, are unsupported by the
record; (2) the court erred in assessing attorney fees against her without a statutory
basis or findings of fact in support of same; and (3) the “corrected” order contains
additional factual errors. In Case Number A18A0515, Machelle appeals from the trial
court’s order on competing petitions for contempt, arguing, inter alia, that the order
constitutes an impermissible modification of the divorce decree outside the term of
court. For the reasons set forth infra, in Case No. A18A0514, we affirm in part,
vacate in part, and remand the case for further proceedings consistent with this
opinion; and in Case No. A18A0515, we reverse.
The record shows that Van and Machelle were married in April 2011, and
separated in March 2015. At the time of their separation, they had separate IRA
accounts (“Machelle IRA” and “Van SEP”), and shared a Keogh retirement account
and a joint savings account designated as the “Emergency Fund” account. A few
months later (on May 19, 2015), Machelle petitioned for divorce. Then, following a
bench trial on January 3, 2017, the court entered its final judgment and decree of
divorce, in which it stated:
As for the division of the retirement accounts (Emergency Fund,
Joint Emergency Fund, SEP-IRA and [Keogh]) this court finds, based
on the evidence submitted and arguments of counsel, the amount to be
divided is $390,493.00. That is to be divided in half between the parties
($195,246.50 each) with the following adjustments:
[Machelle’s] ½ interest shall be reduced by $30,000.00 to give
[Van] credit for his contributions to the marital property and the Home
Equity Line of Credit.
2
[Machelle’s] ½ interest is further reduced in the amount of
$10,000.00 to give [Van] credit for the charges [Machelle] made to his
American Express credit card which then brings her ½ interest down to
$155,256.50.
[Van] is also awarded attorney’s fees in the amount of $7,056.20
and expenses of litigation in the amount of $500.00 which brings
[Machelle’s] ½ interest further down to $147,690.30.
[Van] shall pay $147,690.30 in full to [his] attorney’s escrow
account, and [his] attorney shall then disburse the amount in full to
[Machelle] all within 30 days of the date this order is signed. [Van]
retains ownership of the accounts and [Machelle] shall indemnify and
hold [him] harmless of the same upon payment of the amount stated
herein to [Machelle’s] attorney.
Thereafter, Van insisted that Machelle accept the $147,690.30 in the form of
a transfer from his IRA to her IRA on the basis that he would suffer tax consequences
if he withdrew the amount from his IRA. When Machelle refused a transfer by this
method, the parties contacted the trial court for clarification of its order, and the court
responded by email that:
Necessarily included in th[e] finding was that no one party would
bear the tax liability on the tax deferred money nor would any one party
get the benefit of only taking his or her share from the already-taxed
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proceeds account[.] I no longer have the exhibits in front of me to know
what was in each account, but the intent was for everyone to share in the
tax deferred money (and any related liability) and the taxed proceed
money equally. I did not intend to create a one-sided windfall or one-
sided liability for either party.
In response to this email, Van again requested that Machelle execute a “Transfer Due
to Divorce” form, indicating to which IRA account Machelle wanted the money
transferred so that it would be a nontaxable event. But Machelle refused to sign the
form, asserting that the trial court’s divorce decree directed Van to pay the amount
owed to Machelle into his attorney’s escrow account before being paid to her.
On March 1, 2017, Van filed a contempt action, seeking to have Machelle held
in contempt for failing to sign the transfer form. Machelle answered and
counterclaimed, seeking to have Van held in contempt for intentionally failing to
abide by the plain terms of the divorce decree—i.e., by refusing to pay $147,690.30
into his attorney’s escrow account for her benefit. Following a hearing on the
competing contempt motions, the trial court declined to hold either party in willful
contempt. But due to the parties’ confusion regarding the division of the various
accounts, the trial court stated that it would “clarify” the divorce decree within the
contempt-motion order.
4
The trial court first noted that there was a scrivener’s error made in the decree
when enumerating the different names of the parties’ accounts, and that the names of
the accounts should have been titled as “Emergency Fund, [Keogh], Machelle IRA
and Van SEP.” Second, the trial court acknowledged that the divorce decree was
silent as to potential tax liability:
[I]t is clear from the record in this case and in the original divorce case
that the Court’s intent was to divide the parties’ funds contained in the
four accounts equally (subject to the offsets to [Machelle’s] share
previously mentioned). . . . [And] it was always the Court’s intention to
put each of the parties on equal footing. No one party was to bear the tax
liability on any tax deferred money alone, nor would any one party get
the benefit of only taking his or her share solely from any already taxed
proceeds/cash accounts. The Court never intended to create a one-sided
windfall or one-sided liability for either party.
Thus, the court ordered that Machelle’s $147,690.30 be paid to her as follows:
The [Emergency Fund] account, which the Court understands to
be the only cash account and which should have contained the $110,000
which was added back in by the Court previously, shall be split 50/50.
[Van] is ORDERED to pay one-half of that account to [Machelle] which
should amount to approximately $55,549.50 within ten (10) days of the
signing of this order.
5
The Machelle IRA account, which the Court understands to be a
tax deferred account and already in [Machelle’s] name and under her
control is awarded to her. At the time of the contempt hearing, that
account contained approximately $44,032. . . .
The remaining balance owed to [Machelle] of approximately
$48,108.80 may be paid out of either the [Keogh] account or the Van
SEP account or both. Because the Court understands both of these
accounts to be tax deferred accounts, it is hereby ORDERED that the
transfer of these funds be done in such a way so as to not create a tax
liability for either party if possible. In the event there is an unavoidable
tax penalty, that burden shall be shared equally between the parties.
Both parties shall sign any and all documents and releases necessary to
effectuate the rollover of these funds to [Machelle]. This shall be done
within thirty (30) days of the signing of this order.
On the same day, June 26, 2017, the trial court also entered a separate order
correcting the clerical mistake in the divorce decree to reflect the proper names of the
accounts but specifying that all other provisions would remain the same. Machelle
then filed applications for discretionary appeal to these two orders, which we granted.
Her appeals follow. We will address each case and its specific enumerations of error
separately.
6
1. In Case No. A18A0514, Machelle appeals from the “corrected” divorce
order and argues that (1) the trial court’s factual findings as to the starting amount of
funds to be distributed are unsupported by the record; (2) the court erred in assessing
attorney fees against her without a statutory basis or findings of fact in support of
same; and (3) the “corrected” order contains an additional factual error in its reference
to the parties’ accounts. We will consider each of these contentions in turn.1
(a) Machelle first asserts that the trial court’s “corrected” divorce decree, which
merely altered the names of the relevant accounts, maintains factual findings from the
1
We have jurisdiction to entertain these questions on appeal because the trial
court’s corrective action constituted a final order, and Machelle timely filed an
application for discretionary appeal within 30 days of entry of the “corrected” order,
permitting her to assert error as to the original divorce decree. See Underwood v.
Underwood, 282 Ga. 643, 644 (1) (651 SE2d 736) (2007) (“This corrective action
constituted a final order which is directly appealable. [Because] Husband filed his
application for discretionary appeal within 30 days of entry of that final appealable
order, it was timely.” (citation and punctuation omitted)); First S. Bank v. C. & F.
Servs., Inc., 290 Ga. App. 305, 305-06 (1) (659 SE2d 707) (2008) (holding trial
court’s order correcting scrivener’s error contained in earlier order was subject to
direct appeal); Nodvin v. West, 197 Ga. App. 92, 94 (1) (397 SE2d 581) (1990)
(“Such corrective action constituted a final order which is directly appealable.”).
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original order that are unsupported by the record. Specifically, she challenges the trial
court’s finding that the “starting point” for the division of monetary assets was
$390,493.00. But Machelle abandoned this enumeration of error by failing to provide
a single citation to authority as required by the rules of this Court.2
(b) Next, Machelle argues that the trial court’s award of attorney fees to Van
in the amount of $7,056.20 and expenses of litigation in the amount of $500.00 was
unsupported by the record. We agree.
2
See Robinson v. Robinson, 239 Ga. 323, 323 (1) (236 SE2d 660) (1977)
(deeming argument abandoned for purposes of appeal when it was not supported by
argument or citation of authority as required by rules); Savage v. Savage, 234 Ga.
853, 856 (218 SE2d 568) (1975) (same); Wolf v. Middleton, 305 Ga. App. 784, 790
(2) (700 SE2d 598) (2010) (“The [appellants], however, failed to support this claim
of error with citation to legal authority or legal analysis, as required by Court of
Appeals Rule 25 (c) (2). Therefore, this claim of error is deemed abandoned.”); Smith
v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906) (1994) (deeming argument
abandoned when it was not supported by legal authority); Patterson v. Prof’l Res.,
Inc., 140 Ga. App. 315, 316 (3) (231 SE2d 88) (1976) (“[When], as here, the brief
contains nothing more than a statement of contentions unsupported by citation of
legal authority, the enumerations of error must be deemed abandoned under Rule [25
(c) (2)] of this court.”); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration
of error which is not supported in the brief by citation of authority or argument may
be deemed abandoned.”). See generally Flowers v. State, 269 Ga. App. 443, 445 (1)
(604 SE2d 285) (2004) (“As we have explained, legal analysis is, at a minimum, a
discussion of the appropriate law as applied to the relevant facts.” (punctuation
omitted)).
8
Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary
attorney fees when a party has asserted a position that lacked any justiciable issue of
law or fact so that it could not reasonably be believed that a court would accept it.
The court may also award attorney fees under OCGA § 9-15-14 (b) if it finds that a
party brought an action or raised a defense that lacked substantial justification,
brought an action for delay or harassment, or unnecessarily expanded the proceeding
by other improper conduct. But when awarding fees under OCGA § 9-15-14 (a) or
(b), the court “must limit the fees award to those fees incurred because of the
sanctionable conduct.”3 Thus, “lump sum” or unapportioned attorney fees awards are
“not permitted in Georgia.”4 Accordingly, we will vacate and remand for further fact-
finding when “the trial court’s order, on its face[,] fails to show the complex decision
making process necessarily involved in reaching a particular dollar figure and fails
to articulate why” it awarded one amount of fees rather than another under OCGA §
9-15-14.5
3
Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009) (punctuation
omitted).
4
Id.5
Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 214 (6) (715
SE2d 449) (2011) (punctuation omitted).
9
Additionally, in divorce and alimony cases, a trial court may award attorney
fees under OCGA § 19-6-2 (a) (1), after “consider[ing] the financial circumstances
of both parties.” But when review of the record does not reveal whether the trial court
based an attorney-fees award on OCGA § 19-6-2 or OCGA § 9-15-14, “the issue of
attorney fees must be remanded for an explanation of the statutory basis for the award
and any findings necessary to support it.”6
Here, the trial court’s order contains no references to either the statutory basis
for, or the conduct underlying, its attorney-fees award. Indeed, the order merely
provides that “[Van] is also awarded attorney’s fees in the amount of $7,056.20 and
expenses of litigation in the amount of $500.00.” And the transcript of the hearing
that led to the attorney-fees award likewise sheds no light on the statute or conduct
6
Ward v. Ward, 289 Ga. 250, 251 (2) (710 SE2d 555) (2011) (punctuation
omitted); see Thrasher-Starobin v. Starobin, 299 Ga. 12, 13 (785 SE2d 302) (2016)
(“[I]f a trial court fails to make findings of fact sufficient to support an award of
attorney fees under either OCGA § 19-6-2 or OCGA § 9-15-14, the case must be
remanded to the trial court for an explanation of the statutory basis for the award and
any findings necessary to support it.” (punctuation omitted)); Gilchrist v. Gilchrist,
287 Ga. App. 133, 133-34 (1) (650 SE2d 795) (2007) (holding that a judgment devoid
of findings supporting an award under OCGA § 9-15-14 “must be vacated and the
case must be remanded for reconsideration” (punctuation omitted)).
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underlying the award.7 Accordingly, we vacate this portion of the trial court’s order
and remand for explanation of the statutory basis for the award and the findings
necessary to support it.8
(c) Finally, Machelle takes issue with the divorce decree’s reference to
“retirement accounts” when she contends that the accounts at issue are not all
retirement accounts—i.e., because the Emergency Fund was a post-tax savings
account and not a retirement account. But as with her first enumeration of error,
Machelle fails to provide any citation to authority, in violation of our rules, and thus
abandoned this argument.9 Additionally, although Machelle contends that this
reference is a “significant mistake,” she fails to allege what, if any, harm resulted
7
Cf. Simmons v. Simmons, 288 Ga. 670, 673-74 (6) (706 SE2d 456) (2011)
(holding that trial court did not abuse its discretion in awarding attorney fees when
it was possible to discern from the record the statutory basis for the court’s award).
8
See, e.g., Viskup v. Viskup, 291 Ga. 103, 106 (3) (727 SE2d 97) (2012)
(“When there is more than one statutory basis for the attorney-fee award and neither
the statutory basis for the award nor the findings necessary to support an award is
stated in the order and a review of the record does not reveal the basis of the award,
the case is remanded for an explanation of the statutory basis for the award and the
entry of any findings necessary to support it.”).
9
See supra note 2.
11
from referencing the accounts in this way. Thus, even to the extent that this reference
is erroneous, it is harmless.10
2. In her second appeal, in Case No. A18A0515, Machelle challenges the trial
court’s order on the parties’ competing petitions for contempt, arguing that the order
constitutes an impermissible modification of a divorce decree in a contempt action.
We agree.
It is well settled that a court “may not modify a divorce decree in a contempt
order, but may interpret and clarify its previous decree.”11 And in order to determine
whether an order is a clarification or a modification, the test is “whether the
clarification is reasonable or whether it is so contrary to the apparent intention of the
original order as to amount to a modification.”12 When a trial court awards an asset
10
See Driver v. Driver, 292 Ga. 800, 804 (4) (741 SE2d 631) (2013) (holding
that trial court’s misidentification of documentary source of otherwise correct figure,
which was supported by record evidence, was harmless).
11
Pollard v. Pollard, 297 Ga. 21, 22 (771 SE2d 875) (2015).
12
Id. at 23 (punctuation omitted); accord Kaufmann v. Kaufmann, 246 Ga. 266,
268 (3) (271 SE2d 175) (1980).
12
in a contempt proceeding that is different from that awarded in a divorce decree, the
reviewing court looks to the nature of the asset awarded
to determine whether it is equivalent to the asset awarded in the divorce
proceedings. If it was in essence the same asset, the court did not
improperly modify the terms of the decree, but merely construed the
relevant provision to determine the intent of the decree. Conversely, if
the court used the contempt proceeding to substantially alter the final
decree, it amounted to an unauthorized modification.13
Here, the final divorce decree was plain and unambiguous: Van was to pay
$147,690.30 in full to his attorney’s escrow account, and his attorney was then to
disburse $147,690.30 in full to Machelle within 30 days of the divorce decree being
signed. It is undisputed that this order was drafted by Van’s attorney and, thus, he is
responsible for any failure to consider the tax implications of the plain and
unambiguous wording of the divorce decree or in his arguments and presentation of
evidence during the trial. Accordingly, the trial court’s order on the competing
motions for contempt did not “merely construe” the relevant portions of the divorce
decree, which awarded a lump sum of $147,690.30 to Machelle with no reference to
13
Pollard, 297 Ga. at 23 (punctuation omitted); accord Cason v. Cason, 281
Ga. 296, 297-98 (1) (637 SE2d 716) (2006).
13
tax implications, to be paid in full to an escrow account and then disbursed to her in
full thereafter. Instead, the contempt proceeding and its resulting order substantially
altered the final divorce decree by not only altering the amount to be paid to Machelle
(due to tax considerations), but also the manner in which that amount was to be
disbursed. Thus, the trial court’s order in the contempt proceeding was
unquestionably an unauthorized modification of the final divorce decree, and as a
result, the order must be reversed.14 Our holding does not, of course, relieve Van of
his obligation to transfer to Machelle $147,690.30 as required by the divorce decree.
Because we reverse the trial court’s order in the contempt proceeding, we need
not address Machelle’s remaining enumerations of error in Case No. A18A0515,
which are that the court’s order constitutes an impermissible modification of the
divorce decree outside the term of court and that the court’s factual findings are
unsupported by the record.
14
See Killingsworth v. Killingsworth, 286 Ga. 234, 236 (2) (686 SE2d 640)
(2009) (reversing contempt-proceeding order that husband pay wife $1850 in cash in
lieu of transferring half of his 401(k) funds to her as required by divorce decree when
same constituted modification of decree when decree specified how wife’s interest
in 401(k) account would be calculated and manner in which transfer was to be
accomplished, including requiring wife’s counsel to prepare a qualified domestic
relations order, which had not been done, and when contempt-proceeding order
would have transmuted 401(k) award into a cash obligation presently due).
14
For all these reasons, in Case No. A18A0514, we affirm in part, vacate in part,
and remand for further proceedings consistent with this opinion. And in Case No.
A18A0515, we reverse.
Judgment affirmed in part, vacated in part, and case remanded for further
proceedings in Case No. A18A0514. Judgment reversed in Case No. A18A0515.
Doyle, P. J., and Mercier, J., concur.
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