Ford v. Ford

349 Ga.App. 45

825 S.E.2d 449

FORD

v.FORD.

A18A1688

Court of Appeals of Georgia.

March 4, 2019

Certoriari Denied November 4, 2019

Peterson & Harris, Jim N. Peterson ; James L. Ford, Sr., for appellant.

Davis Matthews & Quigley, Elizabeth G. Lindsey, Emily S. Bair, Matthew J. Johnson, for appellee.

McFadden, Presiding Judge.

This is an appeal from an award of attorney fees in a divorce action between James and Claire Ford (respectively, "the husband" and "the wife"). The trial court awarded attorney fees to the wife pursuant to OCGA § 19-6-2, following the entry of a final judgment and decree of divorce that incorporated the parties’ settlement agreement. As detailed below, the award was improper because the terms of the settlement agreement preclude it. We are unpersuaded by the wife's argument that we cannot address this issue on appeal and so by her argument that the appeal is frivolous. We therefore reverse the award of attorney fees and deny the wife's motion for frivolous appeal sanctions.

1. Procedural history and posture.

The wife filed a complaint for divorce on August 15, 2016. Among other things, she asked to be awarded temporary and permanent alimony and attorney fees. The trial court entered a consent temporary order that required the husband to pay monthly support payments to the wife and expressly reserved the issue of attorney fees. The parties conducted discovery and the husband demanded a jury trial. Subsequently, the wife filed a motion seeking interim attorney fees and expenses of litigation under OCGA § 19-6-2. It appears that the parties reached a settlement agreement before the trial court could rule on that motion.

The parties’ settlement agreement contains the following provision entitled "Alimony":

Neither party shall pay any alimony to the other. Each party does forever waive all rights to receive any alimony from the other party, including periodic, lump-sum, alimony in-kind, or any other claims of any nature whatsoever each may have against the other for any payment in the nature of alimony under existing or future laws or statutes of the State of Georgia or any other state or country in which the parties may be residing. Each accepts this Agreement as settlement of all past, present, and future claims of modification of alimony as provided by OCGA § 19-6-19 (a), (b), (c), (d), and any amendments thereto, and any and all future laws regarding modification of alimony as may be enacted in this or any other state, and the parties are specifically relying upon the case of Varn v. Varn , 242 Ga. 309, (1978) [,¹ ] in agreeing to this waiver.

The settlement agreement also contains a provision entitled "Attorney[ ] Fees," which states:

The parties agree that the Honorable Christopher S. Brasher, Superior Court of Fulton County, Georgia shall determine the issue of attorney[ ] fees. Unless otherwise agreed in writing, the parties shall submit their respective Motion for Attorney[ ] Fees to Judge Brasher by letter brief within thirty (30) days of the execution of this Agreement by both parties.

The trial court entered a final judgment and decree of divorce on December 7, 2017, incorporating the parties’ settlement agreement. Subsequently, the wife submitted a letter brief asking the trial court to award her attorney fees under both OCGA § 19-6-2 and OCGA § 9-15-14 (b). The husband filed a letter brief in response, in which he argued that the wife was not entitled to attorney fees under either Code section; he did not mention the settlement agreement's waiver-of-alimony provision in his letter brief. The trial court awarded the wife attorney fees under OCGA § 19-6-2 but denied her request for attorney fees under OCGA § 9-15-14. The husband moved for reconsideration of the award of attorney fees under OCGA § 19-6-2 on the ground that the award constituted alimony in violation of the terms of the parties’ settlement agreement. The trial court had not ruled on the motion for reconsideration when the husband petitioned for a discretionary appeal from the attorney fee award. See generally Threatt v. Forsyth County , 250 Ga. App. 838, 844 (2), 552 S.E.2d 123 (2001) (motion for reconsideration does not extend time for filing notice of appeal). We granted discretionary appellate review of the award.

2. This court may address the question of whether the terms of the settlement agreement preclude the award of attorney fees.

We first consider whether we may address the impact of the terms of the parties’ settlement agreement on the award of attorney fees. The wife argues that we may not address this issue for two reasons — because the husband did not properly preserve it for appellate review and because he did not adequately enumerate it as error in his appellate brief. We disagree on both counts.

(a) Preservation of issue for appellate review.

The wife argues that the husband did not adequately preserve for appellate review the issue of whether the settlement agreement precluded the attorney fees award. The husband made this argument in his motion for reconsideration, but the trial court did not rule on that motion and "[i]ssues which have not been ruled on by the trial court may not be raised on appeal." Brookfield Country Club v. St. James-Brookfield, LLC , 287 Ga. 408, 413 (3), 696 S.E.2d 663 (2010) (citation and punctuation omitted). This rule, however, does not prevent the husband from challenging the sufficiency of the evidence supporting the attorney fees award, and the husband may argue the effect of the settlement agreement in making that challenge.

A party who bears the burden of proof cannot obtain a judgment without demonstrating that he or she is entitled to that judgment. Where the party obtains the judgment without meeting the burden of proof, the opposing party may challenge the judgment on that ground, and in doing so may assert arguments not made to the trial court. We see this principle at play in our case law in several contexts: Where a plaintiff obtains a summary judgment without meeting his or her evidentiary burden of proving a prima facie case, the defendant against whom the summary judgment was entered may challenge the sufficiency of the evidence on appeal even if he or she did not expressly raise that argument in the trial court. See Dental One Assoc. v. JKR Realty Assoc. , 269 Ga. 616, 618 (1), 501 S.E.2d 497 (1998). See also Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC , 319 Ga. App. 393, 399, 740 S.E.2d 635 (2012) ("an argument on a factual issue that is part of the movant's prima facie case is not waived by failing to raise it in the trial court"), disapproved in part on other grounds by Artson, LLC v. Hudson , 322 Ga. App. 859, 862 (2) n. 1, 747 S.E.2d 68 (2013). Where a defendant obtains the dismissal of an action for failure to state a claim without demonstrating the statutory prerequisites for that dismissal, the plaintiff may assert that failure on appeal using a specific argument not made to the trial court. See Procter v. Gwinnett Pulmonary Group, P.C. , 312 Ga. App. 486, 487 (1), 718 S.E.2d 860 (2011). Where a plaintiff fails to present evidence at trial of a specific element of the cause of action, but the defendant does not argue this failure in his motion for directed verdict, he may nevertheless attack that element in challenging the sufficiency of the evidence on appeal. See Redmon v. Daniel , 335 Ga. App. 159, 163–164 (1) n. 5, 779 S.E.2d 778 (2015). Where a plaintiff seeking punitive damages fails to meet a statutorily-imposed procedural burden for obtaining such damages, but the defendant does not properly object to that failure below, he nevertheless may obtain reversal of the award on that ground. See Quay v. Heritage Financial , 274 Ga. App. 358, 361 (1), 617 S.E.2d 618 (2005).

Applying the principle to this case, the husband may argue on appeal that, given the settlement agreement's language, the wife failed to meet her burden of showing her entitlement to the award of attorney fees. See Webb v. Watkins , 283 Ga. App. 385, 386 (2), 641 S.E.2d 611 (2007) (party seeking attorney fees bears burden of showing entitlement to them). The dissent asserts that we cannot consider this argument because the trial court did not have the opportunity to rule on it. But, fundamentally, the husband's argument is a challenge to the sufficiency of the evidence supporting the award, and the trial court's entry of the award was a ruling that the wife had met her evidentiary burden. Cf. OCGA § 5-6-36 (a) ("The entry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court."). We cannot construe the trial court's ruling as anything other than a determination that the evidence was sufficient to support the award.

As explained in Division 3, below, the evidence was not sufficient to support the award. Instead, the evidence showed that the parties agreed neither would be entitled to such an award. We are not compelled on appeal to ignore the insufficiency of the evidence simply because the husband, when he raised before the trial court the issue of the sufficiency of the evidence, did not articulate the best reason for its insufficiency until his motion for reconsideration.

The dissent would have us affirm an award to a party who failed to demonstrate entitlement to that award — an award that contravenes not only the parties’ settlement agreement but the trial court's own final judgment and decree of divorce. Neither Pfeiffer v. Ga. Dept. of Transp. , 275 Ga. 827, 828-829 (2), 573 S.E.2d 389 (2002) (holding that plaintiff opposing summary judgment must present all viable theories of recovery to trial court), nor the other cases cited by the dissent require this result.

(b) Enumeration of issue on appeal.

The wife asserts that the husband's argument regarding the effect of the settlement agreement...