Torres v. Torres
| Decision Date | 01 July 2022 |
| Docket Number | A22A0507 |
| Parties | TORRES v. TORRES. |
| Court | Georgia Court of Appeals |
We granted Angel Torres, Jr.'s (the "husband") application for discretionary review of a trial court order purporting to clarify the provision of his divorce decree pertaining to the portion of his military retirement benefits owed to his ex-wife, Lori Torres (the "wife").[1] On appeal, the husband argues that the trial court (1) erred by clarifying the provision awarding retirement benefits; (2) erroneously modified the equitable division of the husband's retirement benefits; and (3) erred by ordering the husband to reimburse the wife for the amount of retirement benefits to which she was entitled from the date of the husband's retirement to the entry of the trial court's order. For the reasons set forth below, we reverse the trial court's order.
The record shows that parties married in 1991, and divorced in September 2011. The trial court entered a "Final Judgment and Decree of Divorce" on September 19, 2011 which expressly incorporated by reference the parties' settlement agreement and ordered the parties to comply with the terms and provisions therein. The agreement included the following provision (hereinafter referred to as the "provision"), which is at issue in this case The settlement agreement also provided the wife periodic alimony payments for several years. The wife did not appeal the final decree.
A little more than six years later in October 2017, the husband retired from the military. Soon thereafter, the wife contacted the Defense Finance and Accounting Service ("DFAS") to request her portion of the husband's military pension. DFAS acknowledged receipt of the wife's application for payment in a letter, dated January 31, 2018, but stated, in pertinent part:
The court order you submitted provides for a division of retired/retainer pay by means of a hypothetical amount of retired pay as of the time of divorce. However, the court order does not provide enough information to calculate the amount of the hypothetical retired pay. You must obtain a certified copy of a clarifying order which awards the former spouse a fixed dollar amount or percentage of the member's actual disposable retired pay. . . . The wife submitted a letter to the trial court, dated July 30, 2018,[2] in which she sought a "Certified Copy of Clarifying Order of Military Retirement Benefits/Pay" and requested that the court include survivor benefit pay in the event the husband died.[3] The trial court construed the letter as a petition for relief. The husband filed a motion to dismiss, arguing that the wife's request constituted an impermissible modification of the parties' agreement. The trial court denied the motion, finding that the ambiguity created by the decree could not be resolved without evidence as to the parties' intent on the percentage or fixed amount contemplated and ordered a hearing on the issue. After an unsuccessful court-ordered mediation, a hearing was held.
At the hearing, the wife denied that she and the husband renegotiated the division of the military pension after the March 5, 2010 hearing, but she did not testify as to what percentage split they had agreed. The husband did not concede that he agreed to a 50-50 split, but instead testified that he could not remember. Counsel for the wife noted that Neither party presented evidence explaining the "marital" or "spousal" portion of the husband's retirement benefits.
After the hearing, the trial court issued the order now on appeal, finding that the absence of the agreed-upon terms for a percentage split of the pension created an ambiguity, thus it had authority to clarify using parol evidence "to correct the inadvertent omission." The parol evidence upon which it relied was the husband's former counsel's statement at a pre-trial hearing on March 5, 2010 during the parties' divorce proceedings:
Based on its review of the hearing transcript, the court found: Accordingly, the court granted the wife's request to clarify and ordered the parties to prepare a Military Pension Division Order ("MPDO") that equally divided the marital portion of the military pension based on the language from the agreement: "eighteen (18) years of [the husband's] creditable service and paygrade E8 using high three retirement computation." It also ordered the husband to pay $1,000 per month to the wife until DFAS began to pay her directly and to cover whatever arrearage existed from the date she should have first received payment, November 2017. This appeal followed.
While a settlement agreement, like any other contract, may be reformed based on a mutual mistake of the parties, 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. . . . 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.
Lockamy v. Lockamy, 302 Ga. 111, 112 (805 S.E.2d 5) (2011) (citations and punctuation omitted). Here, the settlement had been incorporated into a final decree and the parties did not contest the retirements benefits provision until the present action over six years later. Accordingly, options for seeking relief from such a judgment are limited. OCGA § 9-11-60 (f).[4] We conclude that no such option was invoked successfully in this case.
As an initial matter, the wife's request to "clarify" and the trial court's subsequent order do not clearly state upon what authority they, respectively, pursued or issued the "clarification." Here, the wife did not seek to set aside the final judgment pursuant to OCGA § 9-11-60 (d) ().[5] However, the husband maintains, and the wife concedes on appeal, that her letter requesting clarification was based on OCGA § 9-11-60 (g), which is an option available at any time, but is only authorized for the correction of clerical mistakes.
The dissent contends, on the other hand, that the parties did not raise OCGA § 9-11-60 below,[6] and further contends that we should construe the wife's petition as one for a declaratory judgment. Although declaratory judgments can be used to establish parties' rights and obligations under divorce decrees, Weaver v. Jones, 260 Ga. 493, 493 (1) (396 S.E.2d 890) (1990), it does not appear in this case that the wife or the trial court invoked the Declaratory Judgment Act (OCGA § 9-4-1 et. seq.). For instance, the husband filed a motion to dismiss for failure to state a claim. In its order denying the motion, the trial court did not characterize the wife's petition as one for declaratory relief, but continued to describe her request as seeking "clarification" of the settlement agreement. Moreover, there are statutory requirements that must be followed under the Declaratory Judgment Act that were not met, reinforcing that the Act was not invoked, or at least not invoked properly, in this case. See OCGA § 9-4-1 et seq. For example, parties to a declaratory judgment action are entitled to a jury trial if the petition raises an issue of disputed fact. OCGA § 9-4-6. Here, in its order denying the husband's motion to dismiss, the trial court found that the settlement agreement contained an ambiguity that could only be resolved by looking to competing evidence of the parties' intent. Had this truly been a declaratory judgment action, the husband would have been entitled to a jury trial on this issue - an option that does not appear to have been presented here.
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