Sheppard v. Sheppard

• Decision Date: 06 November 1997
• Docket Number: No. A97A1480,A97A1480
• Citation: 229 Ga.App. 494,494 S.E.2d 240
• Parties: , 97 FCDR 4177 SHEPPARD v. SHEPPARD.
• Court: Georgia Court of Appeals

Page 240

494 S.E.2d 240

229 Ga.App. 494, 97 FCDR 4177

SHEPPARD v. SHEPPARD.

No. A97A1480.

Court of Appeals of Georgia.

Nov. 6, 1997.

Reconsideration Denied Nov. 20, 1997.

Surrett & Coleman, Edward J. Coleman III, Augusta, for appellant.

Shirley A. Sheppard, pro se.

BLACKBURN, Judge.

Kenneth Sheppard appeals the trial court's order in which it found him in breach of the separation agreement entered into between the parties. Sheppard contends that the trial court erred in finding the existence of a valid contract, in its determination of the amount of damages, and in awarding attorney fees.

The facts regarding the underlying separation agreement are not in dispute. The parties were married on October 11, 1957, and separated on August 9, 1990. In contemplation of divorce, Shirley Sheppard prepared a separation agreement which was signed by Sheppard. The agreement provided, in pertinent part, that "[a]fter a period of one (1) year from the date the divorce is legalized the property at 1003 Bedford Drive, Augusta, Ga. ¹ will be sold whereby the total selling price will be divided equally between myself and Shirley Sheppard. Shirley will also receive an additional $2,500.00." Although the parties were subsequently divorced on October 9, 1990, the separation agreement was not made a part of the divorce decree.

It is further undisputed that the marital home was not sold as contemplated by the separation agreement. On September 9, 1991, Sheppard took out a second mortgage on the marital home in the amount of $20,000, and on November 15, 1991, he took out a third mortgage on the marital home in the amount of $45,000. Each additional mortgage was taken out without the knowledge of Shirley Sheppard. The property was foreclosed upon on September 9, 1996. Shirley Sheppard brought the underlying action to recover damages arising out of Sheppard's alleged breach of the separation agreement.

1. After a hearing, the trial court determined that the separation agreement was an enforceable contract. Sheppard argues that the agreement lacks consideration and that it is void for vagueness.

(a) OCGA § 13-3-42(a) provides that "[t]o constitute consideration, a performance or a return promise must be bargained for by the parties to a contract." OCGA § 13-3-42(c)(3) provides that "[t]he performance may consist of: [t]he creation, modification, or destruction of a legal relation." As the separation agreement was entered in contemplation of the parties' uncontested divorce, the trial court did not err in determining it was supported by consideration.

(b) "The test in Georgia to determine whether a contract is unenforceable because of vagueness is as follows: '(It is not) necessary that a contract shall state definitely and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matter which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves.' Milton Frank Allen Publications v. Ga. Assn. of Petroleum Retailers, 219 Ga. 665, 672, 135 S.E.2d 330 (1964) (quoting Dorsey v. Clements, 202 Ga. 820, 824, 44 S.E.2d 783 (1947))." Davidson Mineral Properties v. Baird, 260 Ga. 75, 79, 390 S.E.2d 33 (1990).

It is clear under the terms of the present contract that the parties intended that the marital home be sold after the passage of one year from the date of the divorce decree, and that the parties split the proceeds therefrom with an additional $2,500 going to Shirley Sheppard. As the essential intentions of the parties are established, the trial court did not err in finding that the contract was enforceable.

2. After determining the contract was enforceable, the trial court held a hearing to determine whether the contract was breached, and if so, the fair market value of the marital home at the time of breach. The court determined that the contract was breached as of October 9, 1991, one year after the final decree of divorce was entered. The court determined that as of that date the fair market value of the marital home was $71,200, based on the tax assessment for the home in 1991. The court deducted the amount of the mortgage at that time and seven percent for costs of the sale. On appeal, Sheppard contends that no competent evidence was presented regarding the value of the home in October 1991. He also argues that because the contract did not prohibit him from taking out additional mortgages, the second and third mortgages should have been deducted from the sale price. "The court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. Kimbrell v. Effingham Bd. of Tax Assessors, 191 Ga.App. 544, 382 S.E.2d 388 (1989)." CRS Sirrine v. Dravo Corp., 219 Ga.App. 301, 302(1), 464 S.E.2d 897 (1995).

Sheppard contends that the trial court's consideration of the 1990 and 1991 tax assessments was improper. We must agree. The tax assessment records are hearsay, and they do not fall under the business record exception to hearsay. See OCGA § 24-3-14. "Business records are admissible if the evidence shows the ordinary course of business required the entries to be made (a matter that can be waived) and the records are reflective of an act, occurrence or event,...