Lowry v. Fenzel

FIRST DIVISION
PHIPPS, C. J.,
ELLINGTON, P. J., and MCMILLIAN, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

February 24, 2015

In the Court of Appeals of Georgia
A14A2265. LOWRY v. FENZEL.

MCMILLIAN, Judge.

Heather E. Lowry, as administratrix for the estate of William B. Lowry

(“Lowry”), appeals from the trial court’s grant of summary judgment to defendant

Roberta K. Fenzel f/k/a Roberta K. Lowry (“Fenzel”), directing that Fenzel has the

right to funds held in various accounts upon the death of her ex-husband, William B.

Lowry (“decedent”). Lowry also asserts as error the trial court’s failure to grant her

motion to strike the affidavit of a witness submitted by Fenzel in support of her

motion for summary judgment. For the reasons that follow, we affirm in part and

reverse in part.

“Summary judgments enjoy no presumption of correctness on appeal, and an

appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56
(c) have been met.” (Citations and punctuation omitted.) Rollins v. Rollins, 329 Ga.

App. 768, 772 (3) (a) (766 SE2d 162) (2014). And in our de novo review of the grant

of a motion for summary judgment, we view the evidence, and all reasonable

inferences drawn therefrom, in the light most favorable to the nonmovant. Id.

The relevant facts are largely undisputed. Fenzel and decedent were married

on May 6, 1995. On October 1, 2008, Fenzel and decedent executed a “Settlement

Agreement” that was incorporated into the “Final Judgment and Decree of Divorce”

entered by the Superior Court of Cobb County on October 9, 2008. Decedent died

intestate on March 14, 2011, and Lowry, his niece, was appointed the administratrix

of his estate. At the time of his death, decedent held several checking and investment

accounts with various financial institutions as follows:

1. Ameriprise Financial Services, Inc. brokerage account in the

amount of $225,116.49 (“Ameriprise”);

2. Atlanta Postal Credit Union draft checking account and

certificates of deposit totaling $174,424.34 (“APCU”);

3. GEMC Federal Credit Union checking account in the amount

of $51,734.98 (“GEMC”); and

2
 4. LGE Community Credit Union checking account containing

$27,388.57 (“LGE”).

The Ameriprise account and three of the certificates of deposit held with APCU –

with a subtotal of $60,525.84 – were held solely in decedent’s name with Fenzel

listed as the beneficiary or transfer-on-death recipient. All other accounts were held

jointly in decedent and Fenzel’s names. Fenzel admits that she accepted transfer of

all funds from the Ameriprise, APCU, and GEMC accounts.

On November 1, 2012, LGE filed an interpleader action in the Superior Court

of Cobb County, naming both Lowry and Fenzel as defendants and alleging that

Lowry had presented a demand for payment of the funds on deposit in decedent’s

account and that Fenzel is listed as the joint owner of the account. On December 4,

2012, Lowry filed suit against Fenzel in Fulton County on behalf of decedent’s estate

to recover all funds from the Ameriprise, APCU, and GEMC accounts after Fenzel

refused to return those funds to decedent’s estate.1 On March 11, 2013, the Cobb

County action was transferred to Fulton County where LGE was dismissed as a party

1
Lowry also asserted claims with respect to two life insurance policies in
which Fenzel was identified as the beneficiary, but later conceded that the estate had
no claim to those policies because Terry Hopkins, a friend of decedent, was listed as
the successor beneficiary.

3
following deposit of the interpleader funds into the court registry, and Lowry was

realigned as the plaintiff. The case was then reassigned to the judge who had been

assigned to the December 2012 action filed by Lowry. The trial court subsequently

granted the parties’ motion to consolidate the two actions into one case.2 Following

discovery, Fenzel filed a motion for summary judgment, which the trial court granted

after a hearing. This appeal followed.

1. In her first and second enumerations of error, Lowry asserts that the trial

court erred in granting summary judgment to Fenzel as to the accounts held solely in

decedent’s name, with Fenzel listed as a beneficiary. It is undisputed that decedent

never completed any change of beneficiary forms or removed Fenzel’s name from the

accounts. Rather, Lowry argues that Fenzel waived her interest in any such accounts

through the Settlement Agreement entered into by Fenzel and decedent, pointing

specifically to Paragraphs 3 and 8. Paragraph 3 is entitled “PERSONAL PROPERTY

(GENERAL)” and provides, in toto:

2
Fenzel argues that the two cases should be treated separately for certain
purposes, including on appeal. However, although Fenzel continued to treat the two
cases separately below, it is unclear from the record that the trial court intended
anything other than to consolidate the two cases into one as urged by both parties
below. Thus, we will review the trial court’s grant of summary judgment on all claims
in this appeal. See Thomas v. Brown, 308 Ga. App. 514, 514-515 (1) (707 SE2d 900)
(2011).

4
 All items of personal property of every kind, nature and description, and
wherever located, currently in the possession of the respective parties,
in addition to all transfers herein provided, shall, upon the signing of
this Agreement, be the sole and exclusive property of that party. Each
shall own and enjoy this property independently free and clear of all
claims or rights of the other; however, in the event a provision below
provides for the later transfer of any personal property, that provision
shall control.

And Paragraph 8, entitled “PERSONAL PROPERTY (SPECIFIC),” includes

a specific list of household and personal items to be given to Fenzel and the manner

in which she may retrieve those items. Paragraph 8 also states that

[e]xcept as may otherwise be stated in this Agreement, each party shall
be entitled to any and all bank accounts, money accounts, investment
accounts, including stock portfolios, in that party’s name and the other
party shall make no claim whatsoever, legal, equitable, or otherwise, to
same.

“Settlement agreements in divorce cases must be construed in the same manner

and under the same rules as all other contractual agreements.” Schwartz v. Schwartz,

275 Ga. 107, 108 (1) (561 SE2d 96) (2002). And, “[c]onstruction of a contract by the

court involves three steps. First, if no ambiguity appears, the trial court enforces the

contract according to its terms irrespective of all technical or arbitrary rules of

5
construction.” (Citations omitted.) Frier v. Frier, 303 Ga. App. 20, 21 (692 SE2d

667) (2010). Then, if ambiguity does appear, the existence or nonexistence of an

ambiguity is a question of law for the court. Id. Thus, “a jury question arises only

when there appears to be an ambiguity in the contract which cannot be negated by the

court’s application of the statutory rules of construction.” Id.

We discern no ambiguity in the language of the Settlement Agreement here.

“Ambiguity in a contract is defined as duplicity, indistinctness, or an uncertainty of

meaning or expression.” (Citation and punctuation omitted.) Frier, 303 Ga. App. at

21. As an initial matter, Paragraph 3 of the Settlement Agreement provides for the

division of personal property in the possession of the parties at the time of the

agreement and does not apply to the financial accounts at issue here. Rather, the more

specific language of Paragraph 8 governs the division of the parties’ accounts. See

Holland v. Holland, 287 Ga. 866, 868 (1) (700 SE2d 573) (2010) (“In construing

contracts, a specific provision will prevail over a general one.”).

Fenzel concedes that Paragraph 8 extinguished any claims she may have had

to the accounts held solely in decedent’s name that arose by virtue of their marriage.

However, she argues that her beneficiary interest in those accounts is not by virtue

of her marriage to decedent, but rather through the contractual agreements between

6
decedent and the financial institutions and that she did not waive her expectancy

interest in those accounts. Lowry contends, however, that the language of Paragraph

8 is broad enough to waive Fenzel’s right to payment as a beneficiary, pointing us to

two cases that addressed similar waiver language.3 We agree and find that Fenzel

waived her expectancy interest as a beneficiary to the accounts held in decedent’s

name.

Kruse v. Todd, 260 Ga. 63 (389 SE2d 488) (1990), is particularly instructive.

In that case, the administratrix of the decedent’s estate and the decedent’s ex-wife

both claimed an interest in a life insurance policy and an IRA in which the ex-wife

remained the designated beneficiary at the time of the decedent’s death. The divorce

settlement agreement provided in part:

3
A third case cited by Lowry is instructive but factually distinguishable. In
Barnett v. Platz, the parties twice married and divorced. 261 Ga. App. 51 (581 SE2d
682) (2003). According to the terms of the first divorce settlement agreement, if the
husband sold the marital residence, remarried, or died, the wife would receive half of
the home’s equity. The second agreement, however, provided that “the parties shall
and do mutually remise, release, and forever discharge each other from any and all
actions, suits, debts, claims, demands and any and all obligations whatsoever against
each other” and that “‘each party hereby waives any past, present or future claim or
right which he may have against the other party.’” Id. at 52. This Court found that the
release included the husband’s contingent obligation to give the wife half the home’s
equity. Id.

7
 Any stocks, bonds, IRA’s or any other monies wherever located
presently is (sic) the sole and exclusive property of the designated
depositor or named owner or recipient, and the other party shall have no
interest therein.

Except as otherwise expressly provided, the parties shall and do
mutually remise, release, and forever discharge each other from any and
all actions, suits, claims, demands, and obligations, whatsoever, both in
law and in equity, which each of them ever had, now has, or may
hereafter have against the other upon or by reason of any matter, cause,
or thing up to the date of the execution of this Agreement.

(Punctuation omitted.) Id. at 65. The Supreme Court held that the agreement

expressed no intent that the wife release her expectancy interest as a beneficiary of

the husband’s life insurance policy, finding that “up to the date of the execution” the

wife had no claim or right against the husband to be named beneficiary of his life

insurance policy and he was under no legal or equitable obligation to maintain the

wife as beneficiary. Id. at 67 (1). Thus, any rights the wife had to the proceeds arose

after the husband’s death, and any claim to the proceeds was against the life insurance

company and not against the husband. Id.

However, in addressing the wife’s claim to an IRA account, on which she also

remained the beneficiary at the time of the husband’s death, the Court found that the

8
language clearly and unambiguously expressed the parties’ intent that the wife release

any interest in any IRA of which the husband was the designated depositor and was

sufficiently broad to include her expectancy interest in the IRA. Id. at 69-70 (5).

And in another similar case, Young v. Stump, 294 Ga. App. 351, 353 (669 SE2d

148) (2008), the executrix of the decedent’s estate and the decedent’s ex-wife both

claimed an interest in an IRA in which the ex-wife remained the designated

beneficiary at the time of decedent’s death. The divorce settlement agreement in that

case provided:

Husband shall have all right, title and equity in and to any retirement
account which is presently titled in his name, or which was established
for his benefit, including, but not limited to IRAs. Wife shall make no
claim to or against any such account and herewith specifically waives
and relinquishes any and all claims which she may have to same.

(Punctuation omitted.) Id. at 351. This Court found the language showed that the wife

intended to disclaim any and all interest in the husband’s retirement accounts and

operated as a waiver of her beneficiary designation. Id. at 353 (1).

9
 We are unpersuaded by Fenzel’s attempt to distinguish these cases.4 She argues

that the Settlement Agreement does not cover any beneficiary interests arising outside

of the marriage and that her claims to these funds arise from the contracts with the

financial institutions. In support of her argument, Fenzel points to Paragraph 5 of the

Settlement Agreement, asserting that it makes clear that the Agreement only governs

4
Nor are we persuaded by Fenzel’s reliance on Frier, in which the husband
died following the couple’s divorce, having left his ex-wife as the beneficiary to a
certificate of deposit account. 303 Ga. App. 20. The settlement agreement in that case
provided that the parties “shall have and receive any sums of money in their
respective checking accounts, savings accounts, IRAs, retirement funds or accounts
or other properties in their own individual names.” (Punctuation and footnote
omitted.) Id. at 20. In finding the wife had not waived her expectancy interest (if any)
as a death beneficiary, this Court noted that – unlike in the case at bar – the parties’
agreement did not contain an explicit waiver of any party’s interest. Id. at 22.

10
“matters arising out of the divorce.”5 However, the settlement agreement in Kruse

also included a similar clause:

Except for those rights and claims for which this Agreement provides,
and except for the provisions of any valid Last Will and Testament of
the other, each party hereby waives and releases his or her respective
rights and claims against the other or the estate of the other including
but not limited to, alimony, division of property, curtesy, year’s support,
and any rights or claims he or she may have against the other or the
estate of the other by reason of the marriage of the parties.

(Punctuation omitted; emphasis supplied.) Kruse, 260 Ga. at 65-66. Notwithstanding

that clause, the Supreme Court held the agreement’s waiver language clearly

5
Paragraph 5, entitled “FINAL SETTLEMENT,” provides:

The parties acknowledge that the provisions of this Agreement for the
payment of funds and disposition of assets, transfer of title to assets and
all other matters pertaining to the division of assets were arrived at
through negotiations and that this Agreement constitutes a complete and
final settlement, accord and satisfaction and release of each party to and
of the other, for any and all claims which either may have against the
other for any matters arising out of the divorce. This Agreement is
acknowledged by each party to be sufficient satisfaction and settlement
of all claims of each party against the other.

11
expressed the intent of the parties and was sufficiently broad to include the wife’s

expectancy interest in the IRA. Id. at 69-70 (5). We reach the same result here and

hold that the language in the Settlement Agreement providing that “each party shall

be entitled to any and all bank accounts, money accounts, investment accounts,

including stock portfolios, in that party’s name and the other party shall make no

claim whatsoever, legal, equitable, or otherwise, to same” is unambiguous in

expressing Fenzel and decedent’s intent that the Ameriprise and APCU accounts held

solely in decedent’s name would remain the personal property of decedent and that

Fenzel waived any claim to those accounts, including any expectancy interest

therein.6 (Emphasis supplied). Accordingly, the trial court erred in granting summary

judgment to Fenzel as to the Ameriprise and APCU accounts that were held in

decedent’s name.

2. In her third and fourth enumerations of error, Lowry contends that the trial

court erred in granting summary judgment to Fenzel as to the accounts that were

jointly held by Fenzel and decedent. As explained in Division 1, Paragraph 8 governs

the division of the parties’ financial accounts. However, it merely states that each

6
As in Kruse, we note the record shows that Fenzel was aware of the existence
of the Ameriprise and the APCU accounts before the Settlement Agreement was
executed. See Kruse, 260 Ga. at 70.

12
party shall be entitled to all such accounts in that party’s name. Nowhere does the

Settlement Agreement address accounts that were jointly held by the parties. Thus,

“[t]he agreement is not ambiguous; rather, it completely fails to describe and dispose

of the property” at issue. Newborn v. Clay, 263 Ga. 622, 623 (436 SE2d 654) (1993)

(“agreement is not ambiguous simply because it fails to dispose of or make reference

to the disposition of property in which both parties have an interest”). And where title

to property is not described in the divorce decree, it is unaffected by the decree and

remains titled in the name of the owner. Id. at 623-624. See also Gonzalez v. Crocket,

287 Ga. 430, 432 (696 SE2d 623) (2010) (“a divorce decree must specifically

describe and dispose of property in which both parties have an interest or the decree

will not divest either party of their interest in the property”) (citation omitted).

And under Georgia law, “[s]ums remaining on deposit at the death of a party

to a joint account belong to the surviving party as against the estate of the decedent,

unless there is clear and convincing evidence of a different intention at the time the

account is created. OCGA § 7-1-813 (a).” (Punctuation omitted.) Trust Co. Bank v.

Thornton, 204 Ga. App. 903, 904 (1) (420 SE2d 817) (1992). See also OCGA § 7-1-

815 (“Any transfers resulting from the application of [OCGA 7-1-813] are effective

13
by reason of the account contracts involved in this article and are not to be considered

testamentary.”).

Lowry urges us, however, to find that the joint accounts were included within

the property settlement as defined by Paragraph 13 of the Settlement Agreement:

In consideration of any and all claims, actions, and demands that the
Plaintiff may otherwise have against the Defendant, as a result of the
parties’ marriage, and the property accumulated therein, and in order to
equitably divide said marital property, the [husband] shall pay to the
[wife] the total sum of $186,000.00 as a complete and final satisfaction
of same. . . .

But, by its express terms, Paragraph 13 applies to the settlement of all claims arising

from the parties’ marriage and includes no explicit waiver of any additional interest

either party may have arising outside of the marriage. Because Fenzel did not

specifically waive her interest in the joint accounts, the funds remaining therein upon

decedent’s death were transferred to her according to the account contracts. See Frier,

303 Ga. App. at 22 (“although [wife] had no interest in the account by virtue of her

marriage, [wife’s] expectancy interest (if any) as a death beneficiary was not

waived”). See also Floyd v. Floyd, 291 Ga. 605, 612, n. 12 (732 SE2d 258) (2012)

(divorce decree did not affect title of gold and silver items not sufficiently described

14
therein). Therefore, the trial court did not err in granting summary judgment to Fenzel

as to Lowry’s claims regarding those accounts held jointly in both decedent and

Fenzel’s names.

3. In her final enumeration of error, Lowry asserts that the trial court erred by

failing to grant her motion to strike the affidavit of Terry Hopkins, which was

submitted by Fenzel in support of her motion for summary judgment. However, she

failed to support her enumeration with any briefing, much less citation to authority,

and it is deemed abandoned. See Court of Appeals Rule 25 (c) (2). Moreover, there

is nothing in the record to indicate that the trial court issued a ruling either granting

or denying her motion to strike. And, “[i]ssues which have not been ruled on by the

trial court may not be raised on appeal.” (Citation and punctuation omitted.) Forum

Group at Moran Lake Nursing and Rehabilitation Center, LLC v. Terhune, 318 Ga.

App. 281, 289 (8) (733 SE2d 808) (2012).

Judgment affirmed in part and reversed in part. Phipps, C. J., and Ellington,

P. J., concur.

15