Underwood v. Underwood, S07F1009.

• Decision Date: 05 November 2007
• Docket Number: No. S07F1009.,S07F1009.
• Parties: UNDERWOOD v. UNDERWOOD.
• Court: Georgia Supreme Court

282 Ga. 643

651 S.E.2d 736

UNDERWOOD v. UNDERWOOD.

No. S07F1009.

Supreme Court of Georgia.

October 9, 2007.

Reconsideration Denied November 5, 2007.

Joseph M. Todd, Jonesboro, for Appellant.

Dwight T. Feemster, Duffy & Feemster, LLP, Savannah, for Appellee.

CARLEY, Justice.

Spring Underwood (Wife) filed for divorce from Richard Underwood (Husband), and the case proceeded to a bench trial. On the second day, the parties announced in open court that they had reached a settlement. Counsel read the agreement into the record, and both Husband and Wife testified under oath that they agreed to the settlement.

Before entry of final judgment, however, Husband moved to set aside the agreement, contending that he did not understand its ramifications because of the anxiety and grief he was experiencing over the recent death of his brother. Wife objected, and moved to enforce the settlement. After conducting a hearing, the trial court denied Husband's motion to set aside the agreement and granted Wife's motion to enforce it. The trial court subsequently entered final judgment, granting the divorce, approving the settlement agreement, and incorporating the same into the decree.

Husband moved for a new trial. The trial court denied the motion, but, recognizing a mistake in the final judgment, it did reduce from $150,000 to $100,000 the face amount of the life insurance policy Husband was to maintain for Wife's benefit. In addition, the order provided that "all remaining provisions of the Final Decree . . . shall remain in full force and effect." Husband applied for discretionary appeal, which was granted pursuant to our pilot project in domestic relations cases.

1. OCGA § 5-6-35(d) provides, in relevant part, that an application for discretionary appeal must

be filed with the clerk of the Supreme Court . . . within 30 days of the entry of the order, decision, or judgment complained of. . . . When a motion for new trial . . . has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.

Husband filed a motion for new trial, and then applied for discretionary appeal within 30 days of the final disposition of that motion. However, Wife contends that his motion for new trial was too late, because he filed it within 30 days of the entry of final judgment, rather than within 30 days of the grant of her motion to enforce the agreement.

In urging that Husband's motion for new trial was untimely, Wife relies on the following language from Moore v. Farmers Bank of Union Point, 182 Ga.App. 94, 95(1), 354 S.E.2d 692 (1987): "An order granting a motion to enforce a disputed settlement agreement is tantamount to a final judgment and constitutes an order finally terminating the case. Cit." She contends that, if the grant of her motion to enforce the settlement is the equivalent of a final judgment which ended the case, then he should have filed his motion for new trial within 30 days of the entry of that order. However, Wife's reliance on the language from Moore is misplaced, because it is an incorrect statement of the principle of finality. It is clear that, notwithstanding the trial court's grant of a motion to enforce a settlement, a case is not at an end until such time as the agreement has "been made the judgment of the court, thereby terminating the litigation." Kapiloff v. Askin Stores, 202 Ga. 292, 297, 42 S.E.2d 724 (1947). The proper concept of finality was actually recognized in Moore, supra, when, after making the erroneous statement quoted above, the Court of Appeals then correctly noted that the "final disposition of the case, in a non-jury trial, is the order granting the motion to enforce and judgment of the trial court. . . ." (Emphasis supplied.) See Zeitman v. McBrayer, 201 Ga. App. 767, 768(2)(b), 412 S.E.2d 287 (1991). Thus, the above referenced inaccurate statement of the principle of finality which is set forth in Moore is hereby disapproved.

Wife further contends that, even if it was timely filed, Husband's motion for new trial nevertheless was not a proper post-judgment procedural vehicle by which he could obtain review of the final judgment. "`A motion for a new trial is a proper means of seeking a retrial or reexamination, in the same court, of an issue of fact, or of some part or portion thereof, after decision by a jury or a decision by the court thereon.' Cit." Eldridge v. Ireland, 259 Ga.App. 44, 47(2), 576 S.E.2d 44 (2002). However, we need not decide whether a motion for new trial was proper here, because the trial court did more than deny Husband's motion. As previously noted, it corrected the error in the judgment so as to reduce the face amount of the...