Morton v. Macatee, A18A0514

• Decision Date: 15 May 2018
• Docket Number: A18A0515,A18A0514
• Citation: 815 S.E.2d 117
• Parties: MORTON v. MACATEE. Morton v. Macatee.
• Court: Georgia Court of Appeals

345 Ga.App. 753

815 S.E.2d 117

MORTON

v.MACATEE.

Morton

v.Macatee.

A18A0514

A18A0515

Court of Appeals of Georgia.

May 15, 2018

Mary Katherine Durant, Brad J. Evans, Atlanta, for Appellant.

Christopher Donald Huskins, Eatonton, for Appellee.

Dillard, Chief Judge.

In these consolidated appeals, Machelle P. Morton—f/k/a Machelle P. Macatee—appeals from the trial court’s order in a contempt proceeding following her divorce from her ex-husband, Edward Van Macatee, and from the court’s order correcting a clerical mistake in the final divorce decree. In Case Number A18A0514, Machelle appeals from the "corrected" divorce order, arguing that (1) the trial court’s factual findings, as contained in the original divorce order, are unsupported by the record; (2) the court erred in assessing attorney fees against her without a statutory basis or findings of fact in support of same; and (3) the "corrected" order contains additional factual errors. In Case Number A18A0515, Machelle appeals from the trial court’s order on competing petitions for contempt, arguing, inter alia , that the order constitutes an impermissible modification of the divorce decree outside the term of court. For the reasons set forth infra , in Case No. A18A0514, we affirm in part, vacate in part, and remand the case for further proceedings consistent with this opinion; and in Case No. A18A0515, we reverse.

The record shows that Van and Machelle were married in April 2011, and separated in March 2015. At the time of their separation, they had separate IRA accounts ("Machelle IRA" and "Van SEP"), and shared a Keogh retirement account and a joint savings account designated as the "Emergency Fund" account. A few months later (on May 19, 2015), Machelle petitioned for divorce. Then, following a bench trial on January 3, 2017, the court entered its final judgment and decree of divorce, in which it stated:

As for the division of the retirement accounts (Emergency Fund, Joint Emergency Fund, SEP-IRA and [Keogh] ) this court finds, based on the evidence submitted and arguments of counsel, the amount to be divided is $390,493.00. That is to be divided in half between the parties ($195,246.50 each) with the following adjustments:

[Machelle’s] ½ interest shall be reduced by $30,000.00 to give [Van] credit for his contributions to the marital property and the Home Equity Line of Credit.

[Machelle’s] ½ interest is further reduced in the amount of $10,000.00 to give [Van] credit for the charges [Machelle] made to his American Express credit card which then brings her ½ interest down to $155,256.50.

[Van] is also awarded attorney’s fees in the amount of $7,056.20 and expenses of litigation in the amount of $500.00 which brings [Machelle’s] ½ interest further down to $147,690.30.

[Van] shall pay $147,690.30 in full to [his] attorney’s escrow account, and [his] attorney shall then disburse the amount in full to [Machelle] all within 30 days of the date this order is signed. [Van] retains ownership of the accounts and [Machelle] shall indemnify and hold [him] harmless of the same upon payment of the amount stated herein to [Machelle’s] attorney.

Thereafter, Van insisted that Machelle accept the $147,690.30 in the form of a transfer from his IRA to her IRA on the basis that he would suffer tax consequences if he withdrew the amount from his IRA. When Machelle refused a transfer by this method, the parties contacted the trial court for clarification of its order, and the court responded by email that:

Necessarily included in th[e] finding was that no one party would bear the tax liability on the tax deferred money nor would any one party get the benefit of only taking his or her share from the already-taxed proceeds account[.] I no longer have the exhibits in front of me to know what was in each account, but the intent was for everyone to share in the tax deferred money (and any related liability) and the taxed proceed money equally. I did not intend to create a one-sided windfall or one-sided liability for either party.

In response to this email, Van again requested that Machelle execute a "Transfer Due to Divorce" form, indicating to which IRA account Machelle wanted the money transferred so that it would be a nontaxable event. But Machelle refused to sign the form, asserting that the trial court’s divorce decree directed Van to pay the amount owed to Machelle into his attorney’s escrow account before being paid to her.

On March 1, 2017, Van filed a contempt action, seeking to have Machelle held in contempt for failing to sign the transfer form. Machelle answered and counterclaimed, seeking to have Van held in contempt for intentionally failing to abide by the plain terms of the divorce decree—i.e. , by refusing to pay $147,690.30 into his attorney’s escrow account for her benefit. Following a hearing on the competing contempt motions, the trial court declined to hold either party in willful contempt. But due to the parties’ confusion regarding the division of the various accounts, the trial court stated that it would "clarify" the divorce decree within the contempt-motion order.

The trial court first noted that there was a scrivener’s error made in the decree when enumerating the different names of the parties’ accounts, and that the names of the accounts should have been titled as "Emergency Fund, [Keogh], Machelle IRA and Van SEP." Second, the trial court acknowledged that the divorce decree was silent as to potential tax liability:

[I]t is clear from the record in this case and in the original divorce case that the Court’s intent was to divide the parties’ funds contained in the four accounts equally (subject to the offsets to [Machelle’s] share previously mentioned).... [And] it was always the Court’s intention to put each of the parties on equal footing. No one party was to bear the tax liability on any tax deferred money alone, nor would any one party get the benefit of only taking his or her share solely from any already taxed proceeds/cash accounts. The Court never intended to create a one-sided windfall or one-sided liability for either party.

Thus, the court ordered that Machelle’s $147,690.30 be paid to her as follows:

The [Emergency Fund] account, which the Court understands to be the only cash account and which should have contained the $110,000 which was added back in by the Court previously, shall be split 50/50. [Van] is ORDERED to pay one-half of that account to [Machelle] which should

amount to approximately $55,549.50 within ten (10) days of the signing of this order.

The Machelle IRA account, which the Court understands to be a tax deferred account and already in [Machelle’s] name and under her control is awarded to her. At the time of the contempt hearing, that account contained approximately $44,032....

The remaining balance owed to [Machelle] of approximately $48,108.80 may be paid out of either the [Keogh] account or the Van SEP account or both. Because the Court understands both of these accounts to be tax deferred accounts, it is hereby ORDERED that the transfer of these funds be done in such a way so as to not create a tax liability for either party if possible. In the event there is an unavoidable tax penalty, that burden shall be shared equally between the parties. Both parties shall sign any and all documents and releases necessary to effectuate the rollover of these funds to [Machelle]. This shall be done within thirty (30) days of the signing of this order.

On the same day, June 26, 2017, the trial court also entered a separate order correcting the clerical mistake in the divorce decree to reflect the proper names of the accounts but specifying that all other provisions would remain the same. Machelle then filed applications for discretionary appeal to these two orders, which we granted. Her appeals follow. We will address each case and its specific enumerations of error separately.

1. In Case No. A18A0514, Machelle appeals from the "corrected" divorce order and argues that (1) the trial court’s factual findings as to the starting amount of funds to be distributed are unsupported by the record; (2) the court erred in assessing attorney fees against her without a statutory basis or findings of fact in support of same; and (3) the "corrected" order contains an additional factual error in its reference to the parties’ accounts. We will consider each of these contentions in turn.¹ (a) Machelle first asserts that the trial court’s "corrected" divorce decree, which merely altered the names of the relevant accounts, maintains factual findings from the original order that are unsupported by the record. Specifically, she challenges the trial court’s finding that the "starting point" for the division of monetary assets was $390,493.00. But Machelle abandoned this enumeration of error by failing to provide a single citation to authority as required by the rules of this Court.²

(b) Next, Machelle argues that the trial court’s award of attorney fees to Van in the amount of $7,056.20 and expenses of litigation in the amount of $500.00 was unsupported by the record. We agree.

Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary attorney fees when a party has asserted a position that lacked any justiciable issue of law or fact so that it could not reasonably be believed that a court would accept it. The court may also award attorney fees under OCGA § 9-15-14 (b) if it finds that a party brought an action or raised a defense that lacked substantial justification, brought an action for delay or harassment, or unnecessarily expanded the proceeding by other improper conduct. But when awarding fees under OCGA § 9-15-14 (a) or (b), the court "must limit the fees award to those fees incurred because of the sanctionable conduct."³ Thus, "lump sum" or unapportioned attorney fees awards are "not permitted in Georgia."⁴ Accordingly, we will vacate and remand for further fact-finding when "the trial court’s order, on its face[,] fails to show the complex decision...