Boles v. Lee, No. S98A1852

• Decision Date: 19 January 1999
• Docket Number: No. S98A1853., No. S98A1852
• Citation: 270 Ga. 454,511 S.E.2d 177
• Parties: BOLES et al. v. LEE et al. Boles v. Lee et al.
• Court: Georgia Supreme Court

511 S.E.2d 177

270 Ga. 454

BOLES et al. v. LEE et al.

Boles v. Lee et al.

Nos. S98A1852, S98A1853.

Supreme Court of Georgia.

January 19, 1999.

Sims, Fleming & Spurlin, John Crawford Spurlin, Tifton, for Dilo Lee Boles and Beryl Mills.

Richard Mace Nichols, Douglas, for Winfred Daryl Boles.

Mills & Chasteen, Robert W. Chasteen, Fitzgerald, for Otis Leonard Lee et al.

SEARS, Justice.

Appellants Dilo Boles, Winfred Boles and Beryl Mills appeal the trial court's order granting appellee Otis Lee's request for equitable partitioning of jointly held land. Because appellants have failed to satisfy their burden of affirmatively showing error in the record before this Court, we affirm.

The parties are owners of a parcel of property located in Fitzgerald, Georgia. Appellee Lee owns a 4/6th undivided interest, and appellants Dilo and Winfred Boles and Beryl Mills each own a 1/18th undivided interest. The remaining 1/6th interest in the property is owned by two individuals who are not parties to this matter. The record contains a 1979 deed signed by Emma Clark, the parties' mother and grandmother, now deceased. The 1979 deed conveyed title to the property to the present owners and, in some cases, their predecessors in interest, after reserving a life estate for the benefit of Emma Clark.

In 1997, appellee Lee filed a petition for equitable relief, alleging that appellant Winfred Boles resided on the property, refused Lee access to the property, and refused to pay rent for her occupancy of the residence located on the property. Appellee sought injunctive relief to prevent what he alleged was appellant Boles's continuing trespass on the property. He also sought an equitable partitioning, alleging that due to its size and shape, the property could not be divided in kind among its various owners, and that statutory partitioning was inappropriate, because it would prevent the owners from bidding at a public sale of the property, which Lee desired to do.

On May 26, 1998, the matter was brought for hearing before the superior court. In its subsequent order, issued on June 12, 1998, the superior court found (1) that the property was not subject to division in kind, (2) that the property was subject to equitable partitioning, and (3) that the parties' best interests would be served and protected by the ordering of a public sale of the property at which all owners and the general public would be afforded rights to bid on the property. A public sale was ordered after the passing of the statutorily-prescribed time, with a ruling on the distribution of proceeds reserved until a later date.

1. Appellants contend that the superior court erred by ostensibly holding a hearing on only the temporary use of the property, and then unexpectedly deciding appellee's request for equitable partitioning, without affording the parties a full opportunity to conduct discovery and present evidence. However, when there is notice of an interlocutory hearing, unless one of the parties objects, a trial court is free to exercise its discretion and decide the merits of the case before it.¹ In this case, there is no transcript of the hearing in the trial court included in the record, and the parties concede that no such record was made. Hence, there is no evidence of record that appellants objected to the trial court's decision to rule on the merits of the case at the hearing. A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.² It cannot be presumed from a silent or non-existent transcript of a hearing below that a proper objection was interposed,³ and hence we must conclude that these enumerations are waived.

2. Appellants also contend that the trial court's ruling is in error because it is based upon appellee's assertion that the property passed from Emma Clark by deed executed in 1979, and that Emma Clark died intestate. Appellants assert that the property passed by a recently discovered will executed by Emma Clark sometime after 1979. However, as recently held by this Court in Hart v. Cummings, when a hearing held below is not transcribed and the parties do not come to an agreed-upon statement of facts, it is presumed that the lower court's ruling is amply supported by the evidence of record.⁴ Accordingly, this enumeration is rejected.

3. Finally, appellant Beryl Mills claims that she was not given proper notice of the hearing before the superior court. In its order, the superior court found that prior to the hearing, all parties had been served with a summons and...