Arthur v. Arthur

• Decision Date: 20 May 2013
• Docket Number: No. S13F0339.,S13F0339.
• Citation: 293 Ga. 63,743 S.E.2d 420
• Parties: ARTHUR v. ARTHUR.
• Court: Georgia Supreme Court

293 Ga. 63

743 S.E.2d 420

ARTHUR

v.ARTHUR.

No. S13F0339.

Supreme Court of Georgia.

May 20, 2013.

Ben Kirbo, Bainbridge, for appellant.

Joshua Clark Bell, Whigham, for appellee.

BENHAM, Justice.

This appeal is from the grant of a discretionary application pursuant to Rule 34(4) of the Rules of the Supreme Court of Georgia. Appellant Troy Lee Arthur and appellee Vanessa Vickers Arthur were married in April 1995 and are the parents of two minor boys. Husband filed for divorce in October 2010, with Wife filing a counterclaim for divorce shortly thereafter. Following a bench trial, the trial court entered the final judgment and decree on January 31, 2012 (“final judgment”), that awarded the parties joint legal custody of the children, with Wife given primary physical custody and ultimate decision-making authority.

The final judgment also made an equitable division of marital property that, among other things, awarded the marital home to Wife after finding that Husband stated he did not want it. Without making a finding regarding the value of the marital estate, the final judgment made the award of the marital home subject to Wife's obligation to assume and hold Husband harmless from the existing indebtedness on the property. It also required Wife to use her best effort to refinance the indebtedness in order to remove Husband from the indebtedness and generate funds to pay Husband $20,000 for his interest in the marital home and, if not successful in refinancing the home, then “in the event the house is sold in the future” to pay said sum to Husband with interest from the date of the decree. The final judgment acknowledged that the parties previously had divided a portion of the remaining marital property and announced in court an agreement had been reached regarding the division of the remainder of the marital property. Neither party was awarded alimony. Husband filed a motion for new trial which was denied.

Finding fault with the trial court's equitable division of marital property and with the grant of physical custody of the children to Wife, Husband filed an application for discretionary review of the trial court's final judgment and the order denying the motion for new trial. In granting the application, this Court expressed itself as particularly concerned with: whether the trial court erred by failing to make specific findings of fact and conclusions of law in response to Husband's request made pursuant to OCGA § 9–11–52; and whether the trial court erred in its division of marital property by allowing Wife to delay the ultimate division of the marital home's value for an indefinite period of time.

1. Husband asserts the trial court abused its discretion in awarding custody of the parties' two minor children to Wife. Husband timely requested findings of fact and conclusions of law. The final judgment contains the finding that Wife has been the primary caretaker of the minor children. In support of this enumeration of error Husband relies upon additional evidence presented at the hearing relevant to the award of child custody. Neither parent contends that the other is an unfit parent.

Where the trial court has exercised its discretion and awarded custody of children to one fit parent over the other fit parent, this Court will not interfere with that discretion unless the evidence shows the trial court clearly abused its discretion. Where there is any evidence to support the decision of the trial court, this Court cannot say there was an abuse of discretion.

Welch v. Welch, 277 Ga. 808, 809, 596 S.E.2d 134 (2004) (citation omitted). See also Cook v. Cook, 280 Ga. 768(1), 632 S.E.2d 664 (2006). As noted, Husband requested specificfindings of fact and conclusions of law pursuant to OCGA § 9–11–52(a).¹ Nevertheless, because the final judgment contains a finding of fact supported by the evidence that is sufficient to support the award of custody to Wife and from which this Court may make a meaningful appellate review of the award, we find no abuse of discretion and affirm the final judgment with respect to the award of custody.

[293 Ga. 65]2. We also address the issue of whether the trial court erred in its division of marital property in allowing the Wife to delay the ultimate payment of funds to Husband for an indefinite period of time.

(a) With respect to the marital property other than the marital home, the trial court found the parties had previously split certain property and had announced to the court that they agreed to the division of the remaining property. Accordingly, the final judgment awarded the parties their respective motor vehicles and assigned each party the obligation to pay any indebtedness on their respective vehicle; awarded Husband two boats along with the duty to pay any indebtedness on them; awarded each party the retirement account held in that party's name; and awarded each party any and all personal property currently in that party's possession. There appears to be no dispute regarding whether the property awarded to the parties was marital property or with respect to the value of the retirement accounts, boats, certain fishing equipment in Husband's possession and the equity in the marital home, which was estimated to be $78,000. Husband asserts, however, that the trial court abused its discretion with respect to the amount awarded to him from the equity in the marital home without setting forth any findings as to the factual basis for the award.

Unless otherwise specifically provided, the Civil Practice Act applies to actions for divorce, alimony and custody of minor children. OCGA § 19–5–8. Accordingly, where, as in this proceeding, a party makes a timely request pursuant to OCGA § 9–11–52(a), “the court shall upon the request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” Husband filed his written request for findings of fact and conclusions of law pursuant to OCGA § 9–11–52(a) after the hearing in this matter but before the judgment was entered and thus his request was timely. See Payson v. Payson, 274 Ga. 231(2), 552 S.E.2d 839 (2001). He also preserved his right to appeal the adequacy or incompleteness of the findings or conclusions of law to support the judgment by filing a timely motion for new trial. See OCGA § 9–11–52(c); Kuriatnyk v. Kuriatnyk, 286 Ga. 589(2), 690 S.E.2d 397 (2010).

In Driver v. Driver, 292 Ga. 800(2), 741 S.E.2d 631, 634, 2013 WL 1499418 *2 (2013), this Court found “no error in the trial court's failure to make a precise finding of the total value of the marital...