Rowles v. Rowles

Citation351 Ga.App. 246,830 S.E.2d 589
Decision Date28 June 2019
Docket NumberA19A0467, A19A0719
CourtUnited States Court of Appeals (Georgia)
Parties ROWLES v. ROWLES. Rowles v. Rowles.

351 Ga.App. 246
830 S.E.2d 589

ROWLES
v.
ROWLES.


Rowles
v.
Rowles.

A19A0467, A19A0719

Court of Appeals of Georgia.

June 28, 2019
Certiorari Denied February 28, 2020


830 S.E.2d 590

Lisa Young Smith West, Atlanta, for Roberta Rowles.

Michael Andrew Clark, for Sean Rowles.

McMillian, Judge.

351 Ga.App. 246

After the trial court partially set aside a final divorce decree and judgment on the grounds that the husband had only agreed to its terms because the wife had threatened to disclose the husband's affair to his employer, both parties appealed. The wife contends that there was no duress as a matter of law and that the divorce decree should have been upheld while the husband asserts that because of the duress the entire divorce decree should have been set aside, not just the portions addressing the custody of the children. Because our Supreme Court has held that a judgment may only be set aside for duress when the complaining party was prevented from asserting a defense and the husband had the opportunity to appear and raise any defenses before entry of judgment, the trial court erred in partially setting aside the judgment.

Sean Rowles (the "Husband") and Roberta Rowles (the "Wife")1 were first married in 2005. They had two children during the time they were married and then divorced for the first time in February 2012 ("First Divorce").2 They remarried in November 2012, but then they divorced again in July 2014 after the Wife found out about the Husband's continuing infidelity with a co-worker ("Second Divorce"). In January 2016, the Husband filed a petition for contempt based on the Wife's alleged failure to abide by the terms of the visitation provisions of the Second Settlement Agreement incorporated into their Second Divorce Decree. A few weeks later, the Husband also

351 Ga.App. 247

filed a motion to set aside the judgment, alleging that he agreed to the terms of the Second Settlement Agreement 3

830 S.E.2d 591

under duress due to the Wife's threats to expose his extra-marital affairs to his boss and others, which could have resulted in his termination from his job.4

The trial court held a hearing on the motion to set aside,5 during which the Husband, the Wife, and three other witnesses testified. The Husband testified that he entered into the Second Settlement Agreement because he thought that he would lose his job and deferred compensation if the Wife told his employer about the affair. Further, the Husband testified that it was only after the Wife ceased allowing him to visit with his children that he sought the aid of an attorney and filed the petition for contempt and motion to set aside, and that as of the date of the hearing he had not seen his children in six months although previously he had seen them every few weeks if not more frequently.

Subsequently, the trial court granted the motion to set aside as to the custody, parenting time, and visitation provisions of the Second Settlement Agreement but denied the motion as to the remaining financial portions of the agreement.6 After the trial court held a five-day trial on the issues of custody, child support, and visitation, the trial court entered a "Final Order" awarding sole legal and physical custody of the children to the Husband. The Wife was granted supervised visitation for six months and then unsupervised visitation thereafter. The Wife was also required to pay child support to the Husband.

The Wife filed a motion for new trial, which she twice amended. The trial court denied the motion but entered an amended final order in which it granted the Husband's motion to relocate the children to Maryland, among other things. Later, the trial court granted the Husband's motion for attorney fees and awarded him $112,189.10 in attorney fees and expenses under both OCGA §§ 19-6-2 and 9-15-14 (b). These appeals followed.

351 Ga.App. 248

Case No. A19A0467

1. The Wife first argues that the trial court lacked jurisdiction to rule on the motion to set aside because it was not filed in the same term in which the judgment was rendered and was not filed as a separate action.

Motions to set aside are governed by OCGA § 9-11-60, and subsection (f) specifically sets out a three-year time limit for bringing a motion to set aside based on fraud under OCGA § 9-11-60 (d) (2), such as the one filed by the Husband in this case.7 The Husband's motion, which was filed within two years of the entry of the Second Divorce Decree, was thus timely. See Jones v. Jones , 298 Ga. 762, 765 (1), 787 S.E.2d 682 (2016) ("Except for those alleging lack of jurisdiction, [a motion to set aside under OCGA § 9-11-60 ] must be made within three years of the entry of the challenged judgment.").

The record also belies the Wife's contention that the trial court lacked jurisdiction to rule on the motion because it was improperly filed as part of a contempt action. Here, the Husband filed the motion to set aside in

830 S.E.2d 592

the court that rendered the Second Divorce Decree under the same civil action case number. The fact that the Husband's contempt petition was filed before the motion to set aside and also as part of that same civil action does not mean, as the Wife seems to argue, that the motion to set aside was filed as a motion in a separate contempt action. Although the Wife points to the language in subsection (a) that "judgments shall be subject to attack only by a direct proceeding " that does not mean the Husband was required to file a separate lawsuit to set aside the decree.8 See Buttacavoli v. Owen, Gleaton, Egan, Jones & Sweeney LLP , 331 Ga. App. 88, 91 (1), 769 S.E.2d 794 (2015) ("If one is dissatisfied with a judgment one does not merely file a new action against the other party or his counsel. ... Instead, one must attack the prior judgment by a direct proceeding in the trial court where the prior suit was litigated.") (citation omitted); see generally

351 Ga.App. 249

Ramchandani v. State Bank & Trus. Co. , 324 Ga. App. 235, 241 (2), n.18, 749 S.E.2d 797 (2013) (a party cannot collaterally attack a non-void judgment "in a separate lawsuit, but could only attack the order through a direct proceeding brought in the trial court that entered the judgment, pursuant to OCGA § 9-11-60 (b) and (d)."). Accordingly, this enumeration of error is without merit.

2. Turning to the merits,9 the Wife asserts that the trial court erred by setting aside the Second Divorce Decree on the grounds that the Husband had executed the Second Settlement Agreement under duress. We agree.

"Duress is but a species of fraud where one is induced contrary to one's will from presenting a defense to a suit." (Citation omitted.) Frost , 235 Ga. 672, 674 (2), 221 S.E.2d 567 (1975). "Under Georgia law, duress consists of imprisonment, threats, or other acts, by which the free will of the party is restrained and his consent induced." Hampton Island, LLC v. HAOP, LLC , 306 Ga. App. 542, 544 (2), 702 S.E.2d 770 (2010). "A duress claim must be based on acts or conduct of the opposing party which are wrongful or unlawful. Georgia courts are reluctant to void contracts, and we have found no Georgia decision voiding a contract on the theory of economic duress." Id. at 544-45 (2), 702 S.E.2d 770.

But the appeals in this case concern a judgment that was set aside because of duress, not just a contract. Under these circumstances, our Supreme Court has imposed an additional requirement for setting aside a judgment: "Before ... a judgment will be set aside for duress, it must appear that the complainant had a good defense which [he] was prevented from asserting at the original hearing or trial." Frost , 235 Ga. at 675 (2), 221 S.E.2d 567. In Frost , the Supreme Court remanded the case to determine if the wife, who was threatened with loss of custody of her young child, had signed a waiver of service and had not received notice of the divorce proceedings, which would have prevented her from appearing and asserting any available defenses. Id. at 675-76 (2), 221 S.E.2d 567. See also Keith v. Keith , 231 Ga. 230, 232 (2), 200 S.E.2d 891 (1973) (divorce decree set aside where wife was prevented from retaining counsel to protect her interests due to the husband's fraud and misrepresentation and evidence also showed husband beat wife and children in order to have them comply with his wishes).

351 Ga.App. 250

Here, the Husband repeatedly testified that he acquiesced to the Wife's demands

830 S.E.2d 593

and signed the Second Settlement Agreement because he was afraid of losing his job and significant amounts of deferred compensation, and the trial court found that the Wife made the threats to gain a financial advantage.10 But the record also shows the Husband not only participated in the proceedings, he and the Wife actually meditated the custody and visitation portions of the Second Divorce Decree Agreement that the trial court found...

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1 cases
  • Paul v. Paul
    • United States
    • Georgia Court of Appeals
    • June 25, 2020
    ...461 S.E.2d 215 (1995).6 (Emphasis supplied.)7 Zepp v. Toporek , 211 Ga. App. 169, 171 (1) (b), 438 S.E.2d 636 (1993).8 351 Ga. App. 246, 248 (1), 830 S.E.2d 589 (2019) (physical precedent only as to Divisions 2, 3, 4, & 5).9 Id.10 See id. See also White v. White , 274 Ga. 884, 885 (2), 561 ......
1 books & journal articles
  • Domestic Relations
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 72-1, September 2020
    • Invalid date
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