Crotty v. Crotty

• Decision Date: 08 December 1995
• Docket Number: No. A95A1380,A95A1380
• Citation: 465 S.E.2d 517,219 Ga.App. 408
• Parties: CROTTY v. CROTTY.
• Court: Georgia Court of Appeals

Page 517

465 S.E.2d 517

219 Ga.App. 408

CROTTY v. CROTTY.

No. A95A1380.

Court of Appeals of Georgia.

Dec. 8, 1995.

Ashenden, Flynn & Gottlieb, Edward D. Flynn III, Atlanta, for appellant.

C. Alan Mullinax, Stone Mountain, for appellee.

BIRDSONG, Presiding Judge.

This is a direct appeal from the order of the trial court in a suit brought for noncompliance with a settlement agreement incorporated into a divorce decree. Due to the unsettled body of law pertaining to the jurisdiction of the Supreme Court of Georgia, this case has enjoyed an unusual appellate history.

The parties were divorced on June 30, 1989; previously, on June 9, 1989, a divorce (settlement) agreement was executed by both parties and was made a part of the final judgment and decree by incorporation therein. In November 1993, appellant/plaintiff James Crotty filed a motion for contempt alleging in four counts that his former wife, appellee/defendant Roberta L. Crotty, had failed to comply with certain provisions of the settlement agreement requiring her to pay plaintiff certain sums. Shortly thereafter appellee apparently asserted that the action was to enforce contract rights arising from the settlement agreement and was not properly heard as a contempt action. Appellant filed a first amended motion for contempt and multi-count complaint for damages. Appellant moved for summary judgment. The trial court simultaneously held a hearing on the motion for summary judgment and on the motion for contempt and entered final judgment on January 10, 1995. However, in that order, the trial court failed to rule expressly on either motion and recited at the beginning of the order that the case came before it for a final hearing. Appellant directly appealed from the trial court's order based on OCGA §§ 5-6-34(a) and 9-11-56(h).

Originally this appeal was docketed with this court and was dismissed for failure to comply with the discretionary appeals procedures. On motion for reconsideration, we concluded that the Supreme Court had jurisdiction over this appeal as it was a matter arising out of a divorce action. Accordingly, we vacated our order dismissing the appeal. "A judgment rendered by a court without jurisdiction of the subject matter is absolutely void," and the parties cannot extend the scope of a court's subject matter jurisdiction either by waiver or agreement. Williams v. Fuller, 244 Ga. 846, 848(2), 262 S.E.2d 135. We transferred the case to the Supreme Court, which thereafter issued an order dismissing the case for failure to file a discretionary appeal. Appellant filed a motion for reconsideration asserting inter alia that his appeal was not from a domestic relations case pursuant to the holding of the Supreme Court in Eickhoff v. Eickhoff, 263 Ga. 498, 435 S.E.2d 914. The Supreme Court vacated its order dismissing the appeal and transferred the case, without citation of authority, to this Court. In its transfer order the court stated: "It appearing that this is not a divorce case within the meaning of the 1983 Ga. Const., Art. VI, Sec. VI, Par. III, inasmuch as the issues on appeal are matters of contract defense and entitlement to attorney fees under OCGA § 13-6-11, jurisdiction of the appeal is in the Court of Appeals." Note: The Supreme Court, under its precedent, would be required to vacate its order dismissing the appeal upon concluding that it lacked jurisdiction over the appeal. Williams, supra.

The operative facts are as follows. A settlement agreement was incorporated into a divorce decree which awarded, inter alia, appellee a 1987 Toyota Camry, appellant a 1982 Honda, and obligated appellee to pay $4,750 upon the sale of the marital residence to appellant to satisfy the difference in value between the two automobiles. After the parties were divorced their marital home was sold and they took back a second mortgage payable in three annual installments. Appellant agreed to allow appellee to keep the first two installment payments with his understanding that any amounts due him, pursuant to the divorce decree, would be paid from the amount appellee received in the final annual installment. Thus, appellant contends that pursuant to the terms of the divorce settlement agreement he was to be paid the $4,750 from the final installment payment. Appellee received the final $25,000 payment and tendered appellant a cashier's check in the amount of $10,500, which he elected not to accept as full payment. Appellant filed a motion for contempt, but following appellee's assertions that the action was simply an action to enforce appellant's rights pursuant to the divorce settlement agreement and could not be heard as a contempt action, he filed an amended complaint alleging various claims including breach of contract, fraud, misappropriation, and an attorney fees claim pursuant to OCGA § 13-6-11. Appellant waived jury trial. After hearing evidence presented, the trial court awarded appellant $19,077.31 but declined to award him the $4,750 or attorney fees pursuant to his OCGA § 13-6-11 claim. Held:

1. We have grave reservations whether, in determining if this case is subject to the discretionary appeals procedure of OCGA § 5-6-35, Eickhoff v. Eickhoff, supra at 498, 435 S.E.2d 914 (which concerned a settlement agreement that "was not incorporated into the final divorce decree"), is controlling. The settlement agreement in this case was incorporated into and thus became an integral part of the divorce decree and perforce a domestic relations matter for purposes of OCGA § 5-6-35. Breach of the incorporated settlement agreement constituted the breach of the terms of an order issued in a divorce or other form of domestic relations case. Compare Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167, cited in Rebich v. Miles, 264 Ga. 467, 448 S.E.2d 192, with Tobitt v. Tobitt, 249 Ga. 245, 290 S.E.2d 49; but cf., Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71. Our views notwithstanding, this case has been transferred to this Court for appellate adjudication by order of the Supreme Court. An order to this Court issued by the Supreme Court is tantamount to a decision by that court as to the subject matter of the order, and we are compelled to comply therewith. Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI. However, perhaps in the near future the General Assembly will take interest in the substantial and steady increase of our appellate jurisdiction brought about in part by the judicial interpretation of our higher court. Pursuant to the Supreme Court's transfer order, we will now exercise our jurisdiction over this case and adjudicate it on the merits; however, were we at liberty to do so, we would once again dismiss this appeal for failure to file a discretionary application.

2. Any attachments to briefs or to a motion for reconsideration which are not also part of the record cannot be considered on appellate review; a brief and motion for reconsideration or attachments thereto cannot be used as procedural vehicles for adding evidence to the record. Griffin v. Loper, 209 Ga.App. 504, 505, 433 S.E.2d 653; Cotton States Mut. Ins. Co. v. Bogan, 194 Ga.App. 824, 826, 392 S.E.2d 33; see Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga.App. 347, 351, 411 S.E.2d 75.

3. Appellant asserts, as his first enumeration of error, that the trial court erred in ruling appellant "forgave" appellee of her contractual obligation to pay $4,750 "required per the divorce agreement" since there was no new consideration supporting any alleged release of this antecedent debt owed by appellee. (Emphasis supplied.) This enumeration on its face limits the assignment of error as arising from a ruling that an obligation to pay as required solely by a "divorce agreement" was forgiven. By transferring this case, the Supreme Court in effect has ruled that there exists no obligation to pay, arising from a "divorce" agreement, but that any existing obligations arose per force from a separate contractual agreement not the product of a divorce decree. "On appeal an enumeration of error cannot be enlarged by [a] brief to give appellate viability to an issue not contained in the original enumeration." Chezem v. State, 199 Ga.App. 869, 870(2), 406 S.E.2d 522. One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold. West v. Nodvin, 196 Ga.App. 825, 830(4)(b), 397 S.E.2d 567, citing City of College Park v. Ga. Power Co., 188 Ga.App. 223, 224, 372 S.E.2d 493. As this court is compelled to conclude that no contractual obligation arose from...