Robertson v. Robertson

Decision Date23 September 2015
Docket NumberNo. A15A0892.,A15A0892.
Citation333 Ga.App. 864,778 S.E.2d 6
CourtGeorgia Court of Appeals

Melissa Gifford Hise, Albert C. Palmour Jr., Summerville, for Appellant.

Larry Bush Hill, for Appellee.



Elizabeth Louise Robertson and her mother, Dorothy Keene, appeal the grant of partial summary judgment to Elizabeth's ex-husband, Robert Robertson, in their action to set aside or modify the Robertsons' divorce decree, for enforcement of an implied trust, and for conversion of property. On appeal, Elizabeth and Dorothy argue that the trial court erred in (1) finding that their request to set aside or modify the divorce decree was barred by a three-year statute of limitation; (2) rejecting their request for equitable relief, which was based on the existence of an implied trust, and finding that it was barred by a seven-year statute of limitation; and (3) finding that Elizabeth's claims were barred because she had unclean hands. For the reasons set forth infra,we affirm in part and reverse in part.

Viewed in the light most favorable to Elizabeth and Dorothy (i.e.,the nonmoving parties),1the record shows that the Robertsons were married on September 2, 1969. At some point during the 1990s, the couple purchased property that is the subject of this dispute, and the deed was in both of their names. Initially, the property was undeveloped, but the Robertsons eventually built their home there. In 2002, the Robertsons executed a warranty deed, conveying the property in fee simple to their only child, Melanie Collins. Elizabeth, who had a serious medical condition that often required hospitalization, testified that they conveyed the property to Collins because she was unable to obtain health insurance and Robert had retired. Specifically, Elizabeth was concerned that if she incurred substantial medical debt due to hospitalizations, a hospital or other medical creditor might obtain a judgment against the property. At the time of the conveyance, the Robertsons had a “verbal agreement” with Collins that they could continue to live on the property for the rest of their lives.

In May 2008, Elizabeth filed a verified complaint for divorce against Robert, asserting, inter alia,that she and Robert did not jointly own any real estate. On July 8, 2008, the superior court issued a final judgment and decree, granting the divorce. During the divorce proceeding, Elizabeth swore under oath that she and Robert were separated and that their marriage was “irretrievably broken.” But, in fact, the couple never separated, discontinued marital relations, or divided any of their assets.2Around that time, the Robertsons learned that Collins had mortgaged ten acres of the property to facilitate the purchase of a car, and they demanded that she convey the property back to them. Subsequently, on August 26, 2008, Collins executed a warranty deed, conveying the property in fee simple solely to Robert in exchange for “ten dollars and other valuable consideration.”

In July 2009, Robert approached Dorothy, Elizabeth's mother, and convinced her to sell her home and move in with them. Robert told Dorothy that he would treat her as if she were his own mother and that she could reside at the property until her death. Thereafter, in December 2009, Dorothy moved in with the Robertsons, where she had a separate living quarters in the upstairs area of the house. Initially, Dorothy paid $450 per month to Robert for rent and utilities, and later, the monthly payments increased to $600.

At some point, while still living with Elizabeth, Robert became romantically involved with another woman, who he eventually married in August 2013. In February 2013, approximately six months before Robert remarried, he sent a letter to Elizabeth and Dorothy, notifying them that they must vacate the property within 60 days. But instead of vacating the property, Elizabeth and Dorothy filed a complaint against Robert, requesting that the trial court set aside the 2008 divorce decree because the Robertsons never actually separated and continued to live as husband and wife. They further contended that, in the alternative, the divorce decree should be modified to provide for disposition of the property, which they claimed had been held in trust for their benefit. Elizabeth and Dorothy also alleged that Robert acted willfully and fraudulently in converting their property to his own use and benefit. Finally, Elizabeth and Dorothy contended that they were each entitled to damages for Robert's conversion of the property. Later on, when Elizabeth and Dorothy failed to vacate the property, Robert filed a dispossessory action against them.

Robert answered Elizabeth and Dorothy's complaint against him, asserting several defenses. Discovery then ensued, and on August 14, 2013, Robert filed a motion for partial summary judgment as to Elizabeth and Dorothy's request to modify or set aside the divorce decree, arguing that they had no legal or equitable interest in the property. Robert further argued that Elizabeth and Dorothy's action to set aside or modify the divorce decree was barred by a three-year statute of limitation. Likewise, he argued that their request for the enforcement of an implied trust was barred by a seven-year statute of limitation. After Elizabeth and Dorothy responded, Robert amended his motion to assert that Elizabeth is precluded from claiming a legal or equitable interest in the property because she has “unclean hands.” Specifically, he contended that Elizabeth conveyed the property to Collins in an attempt to defraud her potential medical creditors. Ultimately, in a summary order, the trial court granted Robert's motion for partial summary judgment.3The court also granted Elizabeth and Dorothy's petition for a certificate of immediate review, and we granted their application for an interlocutory appeal. This appeal follows.4

At the outset, we note that summary judgment is appropriate when the moving party can show that “there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.”5And a movant meets this burden when “the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case.”6Finally, if the moving party satisfies this burden, “the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.”7With these guiding principles in mind, we turn now to Elizabeth and Dorothy's specific claims of error.

1. Elizabeth and Dorothy first argue that the trial court erred in finding that their action to set aside or modify the 2008 divorce decree was barred by a three-year statute of limitation.8We disagree.

OCGA § 9–11–60(f)provides, in relevant part, that “all motions to set aside judgments [except motions asserting lack of personal or subject matter jurisdiction, and motions for a new trial] shall be brought within three years from entry of the judgment complained of.” And here, Elizabeth and Dorothy's complaint to set aside or modify the 2008 divorce decree was filed on April 10, 2013, well over three years after the decree was entered. Thus, the trial court did not err to the extent that it found that the request to set aside or modify the divorce decree was time-barred.9

Nevertheless, Elizabeth and Dorothy argue that the divorce decree and the incorporated settlement agreement were the product of fraud, and the statute of limitation for fraud does not begin to run until the parties discover the fraud. And according to Elizabeth and Dorothy, they did not become aware of Robert's “plan to defraud them of their interest in the property” until immediately before they filed this action. To be sure, Elizabeth and Dorothy are correct that under OCGA § 9–3–96,[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff's discovery of the fraud.” And to toll the limitation period under this statute, a plaintiff must show that: (1) a defendant committed actual fraud;10(2) the fraud concealed the cause of action from the plaintiff; and (3) the plaintiff exercised reasonable diligence to discover the cause of action despite her failure to do so within the statute of limitation.11Finally, a plaintiff bringing an action for fraud “has the burden of showing the existence of facts that would toll the statute of limitation.”12

But here, Elizabeth and Dorothy have not presented evidence that Robert committed any act of fraud concealing their action to set aside or modify the divorce decree. Nevertheless, they argue that there is a genuine issue of material fact regarding whether the Robertsons actually intended to divorce because, after the divorce, Elizabeth and Robert continued living as if they were married. But at the time of the divorce, Elizabeth was well aware that she and Robert had no intention of separating, discontinuing marital relations, or dividing assets. Indeed, Elizabeth and Dorothy admit that [t]he divorce was to keep the parties from financial ruin if [Elizabeth] Robertson ... incurred astronomical medical bills and to allow her more benefits financially.” Moreover, Elizabeth falsely represented to the divorce court that she and Robert were separated and that their marriage was “irretrievably broken” when she knew at the time that the divorce was a sham. Thus, although Elizabeth and Dorothy now claim that the divorce decree should be set aside because it was fraudulent, Elizabeth was well aware of the alleged fraud in 2008, more than three years before she filed the instant complaint.13

Elizabeth and Dorothy further contend that their action is not barred by the three-year statute of limitation because the Robertsons' divorce settlement...

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  • Rollins v. LOR, Inc., A18A0638
    • United States
    • Georgia Court of Appeals
    • 21 Mayo 2018
    ...fraud to act or refrain from acting; (4) justifiable reliance; and (5) damages." (punctuation omitted) ).18 Robertson v. Robertson , 333 Ga. App. 864, 868 (1), 778 S.E.2d 6 (2015) (footnote omitted); accord Daniel v. Amicalola Elec. Membership Corp ., 289 Ga. 437, 445 (5) (b), 711 S.E.2d 70......
  • Roberts v. Smith
    • United States
    • Georgia Court of Appeals
    • 20 Junio 2017
    ...implied trust may be either a resulting trust or a constructive trust. OCGA § 53-12-2 (5) ; see also Robertson v. Robertson , 333 Ga. App. 864, 872 (2), 778 S.E.2d 6 (2015). A resulting trust is defined, in relevant part, asa trust implied for the benefit of the settlor or the settlor's suc......
  • S.B. v. Tenet Healthcare Corp.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 18 Abril 2018
    ..."something more tha[n] mere concealment," Gropper v. STO Corp., 552 S.E.2d 118, 123 (Ga. Ct. App. 2001). See Robertson v. Robertson, 778 S.E.2d 6, 11 (Ga. Ct. App. 2015) ("mere silence is insufficient to show fraudulent concealment"). Tolling is appropriate only when a plaintiff establishes......
  • Maxey v. Sapp
    • United States
    • Georgia Court of Appeals
    • 1 Febrero 2017
    ...on appeal involves only whether the evidence is sufficient to authorize the imposition of an implied trust." Robertson v. Robertson, 333 Ga.App. 864, 867, n. 4, 778 S.E.2d 6 (2015). Maxey, therefore, properly file her appeal in this Court. See id. a misrepresentation is fraudulent and inten......
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