SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, 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
March 2, 2018
In the Court of Appeals of Georgia
A17A1537. BOROTKANICS v. HUMPHREY.
REESE, Judge.
Jeremy Borotkanics appeals from a court order finding him in contempt of his
divorce decree.1 He contends that the trial court impermissibly modified the divorce
decree and improperly awarded attorney fees and litigation expenses. For the reasons
set forth, infra, we affirm in part, reverse in part, vacate in part, and remand this case
with direction.
The record shows the following undisputed facts. Borotkanics and his former
wife, Theresa Humphrey, divorced in November 2012. The final divorce decree
1
We granted Borotkanics’s application for discretionary review. Pursuant to
the Appellate Jurisdiction Reform Act of 2016, the Court of Appeals has appellate
jurisdiction over divorce and alimony cases where, as here, the application was filed
on or after January 1, 2017. OCGA § 15-3-3.1 (a) (5); see Ga. L. 2016, p. 883, § 6-1
(c) (effective date).
incorporated a settlement agreement that had been executed by the parties. In March
2016, Humphrey filed a petition for contempt, asserting that Borotkanics had failed
to comply with the following real property division provision of the settlement
agreement:
[Borotkanics] shall retain the marital home located [on] James Ridge
Lane, Stockbridge, Georgia and the property located [on] Mount Tabor
Church Road, Dallas, Georgia. [Humphrey] agrees to execute a Quit
Claim Deed to [Borotkanics] for each property[.] . . . [Borotkanics] shall
refinance both marital properties into his own name and thus remov[e]
[Humphrey’s] name from the mortgages before February 16, 2013.
According to Humphrey, Borotkanics failed to refinance the mortgage on either
property despite his ability to do so, as evidenced by the fact that he had purchased
other properties in 2013, after the divorce decree was final. Humphrey asked the trial
court to find Borotkanics in wilful contempt of the divorce decree and to incarcerate
him in the county jail until he purged himself from his contemptuous conduct. She
also sought attorney fees and litigation expenses.
The trial court conducted an evidentiary hearing, then entered an order finding
Borotkanics in wilful contempt. The court ruled that
[Borotkanics] may purge himself from this contemptuous conduct by
immediately placing the real property [on James Ridge Lane,
2
Stockbridge] on the market for sale. [Borotkanics] is to allow
[Humphrey] by and through her counsel of record . . . to select a
certified real estate broker. The real estate broker will appraise the
property . . . and determine the list price of the property. . . . The first
offer made to [Borotkanics] for the purchase of said property amounting
to 95% of the list price will be accepted by [Borotkanics]. If there is no
offer made of 95% of the list price within the first six (6) months of
listing the property for sale, the list price will be reduced by 10%.
The trial court also ordered Borotkanics to “pay as a sanction for contempt the sum
of $3,613.91 in attorney fees and litigation expenses to [Humphrey] and $1,000.00
to [Humphrey’s] attorney[.] This amount shall be paid from the proceeds of the sale
of the real property at the closing.” This appeal followed.2
It is axiomatic that, on appellate review, we “must affirm a trial court’s
adjudication of contempt so long as there is ‘any evidence’ to support it.”3 On the
other hand, this Court reviews a trial court’s rulings on legal issues de novo.4 With
2
See footnote 1, supra.
3
Jones v. Jones, 298 Ga. 762, 767 (1) (787 SE2d 682) (2016) (citations
omitted).
4
See Colbert v. Colbert, 321 Ga. App. 841 (1) (743 SE2d 505) (2013) (“When
a question of law is at issue, . . . we review the trial court’s decision de novo.”)
(footnote omitted).
3
these guiding principles in mind, we turn now to Borotkanics’s specific claims of
error.
1. As an initial matter, Humphrey argues that, due to Borotkanics’s failure to
provide this Court with a transcript of the contempt hearing, we must assume that the
court’s order was supported by evidence and, therefore, affirm the order.5 We agree
in part.
(a) On the factual issue of whether Borotkanics was in wilful contempt of the
settlement agreement, we must assume that the evidence presented supported the trial
court’s conclusion and affirm that finding.6
(b) In contrast, as shown in Division 2, infra, the primary issues on appeal are
purely legal issues, i.e., whether the trial court’s order constituted a modification of
5
See Martinez v. Martinez, 301 Ga. App. 330, 332-333 (2) (687 SE2d 610)
(2009) (“In order for the appellate court to determine whether the judgment appealed
from was erroneous, it is the duty of the appellant to include in the record those items
which will enable the appellate court to perform an objective review of the evidence
and proceedings. Thus, where the proof necessary for determination of the issues on
appeal is omitted from the record, an appellate court must assume that the judgment
below was correct and affirm.”) (citations and punctuation omitted); Collier v. D &
N Trucking Co., 273 Ga. App. 271, 272 (614 SE2d 801) (2005) (In the absence of a
transcript of the proceedings below, we must assume that the trial court’s findings of
fact were supported by the evidence.).
6
See Collier, 273 Ga. App. at 272.
4
the divorce decree and, if so, whether the court was authorized to make such a
modification as a sanction for contempt under the circumstances presented.
Moreover, because the facts necessary to conduct a de novo review of these legal
issues are undisputed and are part of the record, the absence of a hearing transcript
does not hamper our review.
2. Borotkanics contends that, because the divorce decree did not require him
to sell the marital home if he failed to comply with his obligation to refinance the
mortgage, the court’s order to sell that property amounts to an impermissible
modification of the divorce decree.
While the trial court has broad discretion to determine whether the
divorce decree has been violated and has authority to interpret and
clarify the decree, it does not have the power in a contempt proceeding
to modify the terms of the agreement or decree. In other words, in
response to [wilful] contempt of a divorce decree, a trial court has broad
discretion to enforce the letter and spirit of the decree, but the court must
do so without modifying the original judgment that is being enforced.7
Thus, even though a sanction for contempt may seem reasonable, it may nevertheless
violate
7
Darroch v. Willis, 286 Ga. 566, 569-570 (3) (690 SE2d 410) (2010) (citations
and punctuation omitted).
5
the firm rule . . . against modifying the property division provisions of
a final divorce decree. Those provisions equitably divide marital
property between the parties, and [the Supreme Court of Georgia has]
not allowed trial courts later to compel a party who was awarded a
specific asset to sell or otherwise convert that asset in order to comply
with some other provision of the decree. While from a purely economic
standpoint it may not be unreasonable to require a contemnor to convert
an asset awarded to him or her in a divorce decree into another asset of
similar value,[8] many assets specifically awarded in a property division
- homes certainly among them - often mean much more to the recipient
than the equivalent value in cash, and trial courts cannot alter the
allocations agreed to by the parties and otherwise embedded in the
original judgment.9
8
See, e.g., Cason v. Cason, 281 Ga. 296, 297-298 (1) (637 SE2d 716) (2006)
(A final divorce decree awarded the wife an interest in an equity account that was
subsequently converted to common stock and cash. When the husband refused to
transfer the stock and cash to the wife for her portion of the account, the trial court
calculated the value of the wife’s interest in the equity account and awarded the
equivalent amount to her in stock and cash. The Court concluded that this was a
“reasonable clarification [of the settlement agreement,] because it was consistent with
the intent and spirit of the final decree,” adding that “[t]o rule otherwise would leave
[the] wife with an illusory or meaningless asset.”) (citation omitted).
9
Darroch, 286 Ga. at 570-571 (3) (citations omitted).
6
The undisputed facts in this case are comparable to those found in Darroch v.
Willis10 and Roquemore v. Burgess.11 In Darroch, the Supreme Court of Georgia held
that the trial court impermissibly modified the divorce decree in a contempt
proceeding, by requiring the former husband to sell the marital residence if he could
not refinance the debt to remove his former wife’s name from the mortgage.12
Similarly, in Roquemore, the Supreme Court held that the trial court impermissibly
modified the divorce decree in a contempt proceeding by requiring the former
husband to sell the marital residence so as to generate funds to pay his former wife
the $15,000 that he owed her in consideration for her relinquishment of her interest
in the residence and other property.13 As the Court noted, the fact that the settlement
agreement gave the former husband different options on how to obtain the money to
pay the debt contradicted the trial court’s finding that the agreement required the
former husband to sell the house in order to pay his former wife from the proceeds.14
10
Id. at 569-572 (3).
11
281 Ga. 593 (642 SE2d 41) (2007).
12
Darroch, 286 Ga. at 569-572 (3).
13
Roquemore, 281 Ga. at 595.
14
Id.
7
Based upon this precedent and the facts presented in this case, we conclude that
the trial court’s order constitutes an improper modification of the parties’ divorce
decree. Consequently, we reverse the court’s contempt judgment to the extent that it
requires Borotkanics to sell the marital home on James Ridge Lane in Stockbridge.
However, just as the Supreme Court noted in Darroch, the ruling in the instant
case
does not mean that the trial court is left with no effective means of
enforcing the divorce decree. The court might order [Borotkanics] to pay
[Humphrey] a significant sum every day until he purges his contempt.
Or the trial court could incarcerate [Borotkanics] until he purges his
contempt[.15] . . . [Borotkanics] may indeed find the purge conditions
imposed by the trial court on remand to be far more draconian than those
imposed by the order he has successfully appealed. If he truly cannot
refinance the house, he might then turn to the one other readily apparent
method of purging his contempt - selling the house . . . to remove
[Humphrey’s] name from the mortgage. If that happens, however, it will
be based upon [Borotkanics’s] decision to take that action with the
house specifically awarded to him in the divorce decree, rather than the
15
Notably, Humphrey did not ask the court to order Borotkanics to sell any real
property but, instead, asked the court to incarcerate him until he complied with the
divorce decree.
8
trial court’s impermissible direct modification of that component of the
decree’s property division.16
Alternatively, Borotkanics could choose to sell the property on Mount Tabor Church
Road in Dallas, which would not only remove Humphrey’s name from that mortgage
(as required by the divorce decree), but may also give Borotkanics the financial
liquidity required to refinance the marital home. And, if that action does not suffice,
Borotkanics could avoid other sanctions for his wilful contempt by selling one or
more properties that he acquired after the divorce in order to accomplish the
necessary debt refinancing.
Ultimately, we find that Borotkanics has two choices: take whatever measures
are necessary to comply with the refinancing provision to which he agreed in 2012,
or deal with whatever allowable sanctions the trial court may impose for him to purge
himself of his wilful contempt.
3. Borotkanics challenges the grant of attorney fees and litigation expenses,
pointing out that Humphrey’s motion cited no statutory basis and the trial court’s
order neither identified a statutory basis nor included any findings of fact. According
to Borotkanics, both OCGA §§ 19-6-2 and 9-15-14 are plausible statutory bases for
16
Darroch, 286 Ga. at 571-572 (3).
9
the award of attorney fees in this case.17 We agree. Consequently, we vacate the
award of attorney fees and expenses and remand this case for the trial court to identify
the statutory basis for the award and to include the requisite findings of fact
supporting the award.18
Judgment affirmed in part, reversed in part, and vacated in part, and case
remanded with direction. Miller, P. J., and Doyle, P. J., concur.
17
See Cason, 281 Ga. at 299-300 (3) (“OCGA § 19-6-2 authorizes a court,
within its discretion, to award attorney fees in a contempt of court action arising out
of a divorce case; however, the court is to consider the financial circumstances of
both parties in assessing such an award. . . . Alternatively, OCGA § 9-15-14 (b)
authorizes a court to award attorney fees if it finds that a party brought or defended
an action, or any part thereof, that lacked substantial justification or was interposed
for delay or harassment, or if it finds that a party unnecessarily expanded the
proceeding by other improper conduct. An order awarding attorney fees under OCGA
§ 9-15-14 must include findings of conduct that authorize the award.”) (citations and
punctuation omitted).
18
See Leggette v. Leggette, 284 Ga. 432, 433 (2) (668 SE2d 251) (2008)
(determining in an appeal from a final divorce decree that the award for attorney fees
had to be reversed and the case remanded for an explanation of the statutory basis for
the award and for any findings necessary to support it, where movant contended at
hearing that attorney fees were justified under both OCGA §§ 19-6-2 and 9-15-14,
and trial court did not specify whether it was awarding fees under OCGA § 19-6-2 or
OCGA § 9-15-14 and did not make any findings in support of its award); Cason, 281
Ga. at 300 (3) (concluding in an appeal from a contempt order awarding attorney fees
that “the issue of attorney fees must be remanded for an explanation of the statutory
basis for the award and any findings necessary to support it,” where both OCGA §§
19-6-2 and 9-15-14 were plausible bases, yet the trial court failed to make findings
sufficient to support such an award under either section).
10