Driver v. Driver

• Decision Date: 15 April 2013
• Docket Number: No. S13F0152.,S13F0152.
• Citation: Driver v. Driver, 292 Ga. 800, 741 S.E.2d 631 (Ga. 2013)
• Parties: DRIVER v. DRIVER.
• Court: Georgia Supreme Court

292 Ga. 800

741 S.E.2d 631

DRIVER

v.DRIVER.

No. S13F0152.

Supreme Court of Georgia.

April 15, 2013.

Jillyn Marie O'Shaughnessy, John P. Konvalinka, Grant, Konvalinka & Harrison, PC, Chattanooga, for appellant.

Ben Thomas Hickey, Jr., Spicer, Flynn & Rudstrom, PLLC, Chattanooga, for appellee.

NAHMIAS, Justice.

In this divorce case, appellant Randall Craig Driver (Husband) contends that the trial court erred in its equitable division of the marital property, in its lump-sum alimony award to appellee Andria Elizabeth Driver (Wife), in making certain findings that affected the equitable division and the alimony award, and in denying his motion to reopen the proof. We affirm.

1. On December 10, 2008, after 20 years of marriage, Husband filed for divorce. Wife filed an answer and a counterclaim seeking child custody, child support, alimony, equitable division of the marital property, and attorney fees. On August 9, 2011, the trial court conducted a bench trial, at which both parties testified. On January 20, 2012, Husband filed a motion to reopen the proof. On March 7, 2012, the trial court entered a detailed final judgment and decree of divorce.

The marital estate consisted mainly of commercial property holdings and corporate entities in which Husband had an interest, along with the associated liabilities. In equitably dividing the marital property and awarding alimony, the trial court found that Husband had obscured his financial status by constantly maneuvering properties and assets and manipulating financial information. The decree noted that on April 1, 2008, Husband filed a financial statement indicating that his net worth exceeded $11.3 million, but by September 30, 2009, his net worth based on the same properties had allegedly fallen to $2.6 million. The court found the evidence Husband offered in support of this claim to be “very troubling.” The court added that Husband had cross-collateralized the properties, thereby tying them all together and making an award of property in kind insufficient. The court found that Husband was capable of earning at least $150,000 per year. The divorce decree ultimately awarded Wife the sum of $500,000 as equitable division of the marital property, to be paid in two equal installments, and $200,000 in lump-sum alimony, to be paid in monthly installments of $3,500 for the next five years.¹

On March 23, 2012, Husband filed a motion for new trial, and on March 27, he filed a motion to amend and/or make additional findings pursuant to OCGA § 9–11–52. On July 11, 2012, the trial court denied those two motions as well as Husband's motion to reopen the proof. We granted Husband's application for discretionary appeal under Supreme Court Rule 34(4), and he timely appealed.

2. Husband contends first that the trial court failed to divide the marital property equitably. He complains that the court failed to determine the liabilities associated with the marital assets and made no finding as to the value of the marital estate as a whole, making it impracticable to evaluate whether the property division was equitable.

In a divorce case,

the factfinder possesses broad discretion to distribute marital property to assure that property accumulated during the marriage is fairly divided between the parties. While each spouse is entitled to an allocation of the marital property based upon his or her equitable interest therein, an award is not erroneous simply because one party receives a seemingly greater share of the marital property. An equitable division of marital property does not necessarily mean an equal division.

Bloomfield v. Bloomfield, 282 Ga. 108, 110–111, 646 S.E.2d 207 (2007) (citations and punctuation omitted). The trial court's division of marital property will be upheld as long as it falls within the court's broad discretion, see Mathis v. Mathis, 281 Ga. 865, 866, 642 S.E.2d 832 (2007), and the court's factual findings are reviewed using the “ ‘any evidence’ rule, under which a finding ... supported by any evidence must be upheld,” Bloomfield, 282 Ga. at 108, 646 S.E.2d 207 (citation and punctuation omitted).

Here, the trial court's conclusions that an award of property in kind would not provide Wife with a sufficiently equitable division of the marital property, and that a sum of $500,000 was appropriate as her equitable share, were based on the court's findings of fact, were supported by evidence in the record, and were not an abuse of discretion. There is record evidence, for example, to support the findings that Husband had cross-collateralized the commercial properties that constituted most of the marital estate; that his financial status was unclear due to his maneuvering of assets and manipulation of figures; and that his assertions about his income and the value of the commercial properties were supported only by self-serving documents that he prepared or had prepared by others at his direction.

Moreover, we see no error in the trial court's failure to make a precise finding of the total value of the marital estate before determining an equitable division. Husband cites no authority requiring such a finding, and trial courts generally are not required to make findings of fact in nonjury trials unless requested by one of the parties prior to entry of the judgment. See OCGA § 9–11–52(a); Mathis, 281 Ga. at 867, 642 S.E.2d 832. Husband did not request findings of fact until his post-judgment motion to amend and/or make additional findings. At that point, the trial court had discretion to make additional findings but was not obligated to do so. See OCGA § 9–11–52(c) (providing that “[u]pon motion made not later than 20 days after entry of judgment, the court may make ... findings” (emphasis added)); Hunter v. Hunter, 289 Ga. 9, 12, 709 S.E.2d 263 (2011). We cannot say that the trial court abused its discretion in not making the specific total-marital-estate-value finding that Husband belatedly requested, given the other findings the court made in the decree and the evidence in the record. See Hunter, 289 Ga. at 12, 709 S.E.2d 263.

[292 Ga. 803]3. Husband next contends that the trial court erred in awarding Wife $200,000 in lump-sum alimony, to be paid in monthly installments of $3,500 for five years, without considering Husband's ability to pay. Husband cites OCGA § 19–6–1, which says that “alimony is authorized, but is not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay.” We have said that among the factors to be considered in determining the amount of alimony, if any, are “the financial resources of each party, including their separate estates, earning capacity, and their fixed liabilities.” Duncan v. Duncan, 262 Ga. 872, 873, 426 S.E.2d 857 (1993).

The trial court found that Husband was capable of earning a minimum of $150,000 per year based on the more than $660,000 in gross receipts from his income-producing properties during each of the two previous years as well as his monthly income of $5,500 as a consultant for the bank that was the primary mortgage holder of his commercial properties. The court made the lump-sum alimony award for the purpose of assisting Wife in completing her education and becoming financially independent, after finding that she had been forced to leave the marital residence due to its foreclosure, that she worked part-time as a waitress and was enrolled in college, and that she struggled with tuition payments as well as day-to-day living expenses. The court noted that Husband resided with his girlfriend, paid virtually no living expenses, and did not appear to suffer financially.

As with equitable division, “fact-finders are given wide latitude in fixing the amount of alimony ... under the evidence...