Lockamy v. Lockamy, S17A0966.

• Decision Date: 13 September 2017
• Docket Number: S17A0966.
• Citation: 805 S.E.2d 5
• Parties: LOCKAMY v. LOCKAMY.
• Court: Georgia Supreme Court

302 Ga. 111

805 S.E.2d 5

LOCKAMY

v.LOCKAMY.

S17A0966.

Supreme Court of Georgia.

Decided: September 13, 2017

Garnett Harrison, Jacqueline NiCole Fortier, GARNETT HARRISON, PC, P.O. Box 3065, Kingsland, Georgia 31548, for Appellant.

Richard Allen Sanders, Jr., ANDREWS & SANDERS LAW OFFICES, 327 West York

Street, Savannah, Georgia 31419, for Appellee.

MELTON, Presiding Justice.

We granted an application for interlocutory appeal in this case to determine whether the trial court erred when it granted Margie Lockamy's (Wife) motion to reform a divorce decree by awarding her permanent periodic alimony where the original divorce decree did not award her alimony. See Douglas v. Cook, 266 Ga. 644, 645 (2), 469 S.E.2d 656 (1996). As explained more fully below, because Wife failed to file her motion in a timely manner, we must reverse the trial court's decision based on the untimeliness of Wife's effort to reform the original decree and we need not address the merits of the case.

By way of background, Ricky Lockamy ("Husband") and Wife were divorced on September 11, 2009 pursuant to a final decree that incorporated the parties' settlement agreement. The settlement agreement provided that Wife would receive 40% of Husband's "military retirement" payments (but that her share of the military retirement payments would never be less than $1,274 per month). The trial court awarded these payments as an equitable division of marital property, and it did not award any alimony to Wife.

In March 2010, the Navy informed Husband that the payments he thought were for military retirement were actually disability benefit payments and that those payments could not be divided with

Wife. As a result, Husband promptly stopped making payments to Wife provided under the "military retirement" provision of the settlement agreement. Six years later, on April 22, 2016, Wife filed a motion to reform the divorce decree to provide for the original 60% to 40% division of the payments from the Navy that the parties originally thought were for Husband's retirement. The trial court determined, among other things, in an order entered on October 13, 2016, that, because Husband's disability benefits could not be divided as marital property, it would enforce the parties' original intent to divide those payments by reforming the decree to award alimony to Wife in the amount of $1,400 per month.

The trial court was not authorized to modify the divorce decree pursuant to Wife's motion, as the motion to reform the decree was untimely. While a settlement agreement, like any contract, may be reformed based on a mutual mistake of the parties, (see Douglas, supra ), once the settlement agreement is incorporated into a final decree, a party may not attack that judgment by seeking to change the settlement agreement. The party must attack the judgment itself through one of the acceptable means outlined in OCGA § 9–11–60. Mehdikarimi v. Emaddazfuli, 268 Ga. 428, 429 (2), 490 S.E.2d 368 (1997). Indeed, "voiding the settlement agreement as an independent contract could have no effect on the validity of the final divorce decree itself[, as] [t]he respective rights of the parties after the entry of judgment are founded upon the judgment itself, and not upon the underlying agreement." (Citation and punctuation omitted.) Id. Once the settlement agreement has been incorporated into a final decree, the parties' obligations "can be affected only by means of an action addressing the underlying divorce decree itself." Id.

In this regard, Wife was not authorized to file an actual petition for a revision of "alimony" here, as it is undisputed that she was not awarded alimony in the original divorce decree. See OCGA § 19–6–21 ("A petition authorized in subsection (a) of Code Section 19–6–19 [regarding the revision of a judgment for permanent alimony] can be filed only where a party has been ordered ... to pay permanent alimony ... and not where the former spouse of such party has been given an award from the corpus of the party's estate in lieu of such periodic [alimony] payment").¹ Instead, in order to challenge the final decree under the circumstances of this case, she had to directly attack the judgment itself through a timely filed motion pursuant to OCGA § 9–11–60 :

A judgment may be attacked by motion for a new trial or motion to set aside.... A motion to set aside may be brought to set aside a judgment based upon: (1) Lack of jurisdiction over the person or the subject matter; (2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant; or (3) A nonamendable defect which appears upon the

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