FIFTH DIVISION
MCFADDEN, P. J.,
RICKMAN and REESE, JJ.
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 4, 2019
In the Court of Appeals of Georgia
A18A1688. FORD v. FORD.
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
2
of Varn v. Varn, 242 Ga. 309 [248 SE2d 667] (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
1
The Varn decision concerned the language required to waive the right to
modification of alimony, which is not an issue in this case. See Varn, 242 Ga. at 311
(1).
3
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 SE2d 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.
4
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 SE2d 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
5
Realty Assoc., 269 Ga. 616, 618 (1) (501 SE2d 497) (1998). See also Kammerer Real
Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 399 (740 SE2d
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”) (citation omitted),
disapproved in part on other grounds by Artson, LLC v. Hudson, 322 Ga. App. 859,
862 (2) n. 1 (747 SE2d 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 SE2d 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 (1) n. 5 (779 SE2d 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 SE2d 618) (2005).
6
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 SE2d 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
7
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 SE2d 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 impermissibly expands his enumeration of errors, apparently
because his enumeration of errors does not set forth this specific argument. But the
husband is not required to set forth specific arguments in his enumeration of errors;
he is only required to set forth the legal ruling that he is challenging. Our Supreme
Court explained this important distinction in Felix v. State, 271 Ga. 534 (523 SE2d
1) (1999), holding that the “error” that must be set forth in an enumeration of errors
is “a specific ruling made by the trial court. . . . The individual facets of [an
appellant’s] attack on the legal ruling . . . are arguments in support of a legal position
8
and are not, in and of themselves, errors of law.” Id. at 539. The husband sets forth in
his enumeration of errors the specific ruling of the trial court that he challenges — the
award of attorney fees under OCGA § 19-6-2. His assertion that the terms of the
settlement agreement precluded the award is not a legal ruling that must be included
in the enumeration of errors but merely an argument supporting his challenge to that
legal ruling, and he is not required to include that argument in his enumeration of
errors. See id.
3. The terms of the settlement agreement preclude the attorney fees award.
“As a general rule, Georgia law does not provide for the award of attorney fees
even to a prevailing party unless authorized by statute or contract.” Suarez v. Halbert,
246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (citation omitted). The statute
under which the attorney fees in this case were awarded, OCGA § 19-6-2, permits a
trial court to award attorney fees “as a part of the expenses of litigation, made at any
time during the pendency of the litigation, whether the action is for alimony, divorce
and alimony, or contempt of court arising out of either an alimony case or a divorce
and alimony case.” OCGA § 19-6-2 (a). “Attorney fees . . . awarded to a spouse
pursuant to OCGA § 19-6-2 . . . are considered to be a part of alimony.” Vakharwala
v. Vakharwala, 301 Ga. 251, 254 (1) (b) (799 SE2d 797) (2017) (citations omitted).
9
The parties dispute whether the terms of their settlement agreement, which the
trial court incorporated into the final divorce decree, permit the recovery of attorney
fees under OCGA § 19-6-2. We agree with the husband that the settlement agreement
does not permit the award.
“‘The cardinal rule of [contract] construction is to ascertain the intention of the
parties.’ OCGA § 13-2-3[.]” Sutherlin v. Sutherlin, 301 Ga. 581, 584 (II) (A) (802
SE2d 204) (2017) (citation omitted). “Where any contractual term of a settlement
agreement incorporated into a decree is clear, unambiguous, and capable of only one
interpretation as written, the provision’s plain meaning must be strictly enforced.
However, where there is ambiguity, we must apply well-settled rules of contract
construction.” Cahill v. United States, 303 Ga. 148, 150 (810 SE2d 480) (2018)
(citations and punctuation omitted).
There is ambiguity in the settlement agreement as to whether the parties may
seek attorney fees under OCGA § 19-6-2. As stated above, an award of attorney fees
under OCGA § 19-6-2 is a form of alimony. The “Attorney[ ] Fees” provision of the
agreement sets forth a procedure by which the parties may request attorney fees, but
the “Alimony” provision of the agreement states that neither party has a right to
receive alimony in any form. Under our rules of contract construction, “we must
10
attempt to give clear meaning to th[ese] provision[s], construing [them] in the context
of the entire agreement and giving [them] a construction that will uphold the
agreement rather than rendering it meaningless and ineffective.” Cahill, supra at 151
(citations and punctuation omitted). Accordingly, we “should avoid any construction
that renders portions of the contract language meaningless.” Sutherlin, supra at 585
(II) (A) (citations and punctuation omitted). See OCGA § 13-2-2 (4).
The wife argues for a construction that would except from the “Alimony”
provision of the settlement agreement alimony in the form of attorney fees under
OCGA § 19-6-2. Such construction would render meaningless the portion of the
provision stating that the parties waive their right to “any . . . claims of any nature
whatsoever . . . for any payment in the nature of alimony.” (Emphasis supplied.) This
broadly worded waiver leaves no room for the exception the wife proposes.
The husband argues for a construction that would except from the “Attorney[
] Fees” provision of the settlement agreement fees awarded under OCGA § 19-6-2.
This construction would not render meaningless any portions of the “Attorney[ ]
Fees” provision, because that provision does not state either that it applies to all types
of attorney fees or that it applies specifically to attorney fees awarded under OCGA
§ 19-6-2. So even if attorney fees under OCGA § 19-6-2 were excepted from the
11
provision, the provision would still have meaning because it would apply to other
types of attorney fees, such as the attorney fees sought by the wife under OCGA § 9-
15-14 (b).
The construction of the settlement agreement advocated by the husband gives
meaning to both the “Alimony” and “Attorney[ ] Fees” provisions. The settlement
agreement provides the parties with a method for pursuing claims for attorney fees, but
this method does not extend to attorney fees waived by the parties (namely, attorney
fees awarded under OCGA § 19-6-2 that are in the nature of alimony).
The wife asserts that extrinsic evidence shows the parties intended the
settlement agreement to allow them to seek attorney fees under OCGA § 19-6-2. But
as explained above, the terms of the settlement agreement, construed in accordance
with our rules of contract construction, provide otherwise. Moreover, the settlement
agreement includes a provision indicating that it is the parties’ entire agreement. “[I]n
general, the parties’ intent is to be determined from the [agreement’s] text alone, and
extrinsic evidence will be used to interpret the [agreement] only when its text is so
ambiguous that its meaning cannot be determined through application of the ordinary
rules of textual construction.” Atlanta Dev. Auth. v. Clark Atlanta Univ., 298 Ga. 575,
580 (III) (784 SE2d 353) (2016) (citation omitted). Extrinsic evidence “cannot be
12
used to contradict or vary the terms of a valid written agreement[.]” Moreno v. Smith,
299 Ga. 443 (1) (788 SE2d 349) (2016). See OCGA § 13-2-2 (1) (“Parol evidence
is inadmissible to add to, take from, or vary a written contract.”). Unlike Frickey v.
Jones, 280 Ga. 573 (630 SE2d 374) (2006), cited by the wife, this is not a case where
the existence of the contract is in dispute.
4. Motion for frivolous-appeal sanctions.
Given our conclusion in favor of the husband, we deny the wife’s motion for
sanctions under Court of Appeals Rule 7 (e) (2), which permits the imposition of a
penalty for a frivolous appeal.
Judgment reversed. Reese, J., concurs and Rickman, J., dissents.
*”THIS OPINION IS PHYSICAL PRECEDENT ONLY, COURT OF
APPEALS RULE 33.2(a)”.
In the Court of Appeals of Georgia
A18A1688. FORD v. FORD.
RICKMAN, Judge, dissenting.
Because the majority fails to follow our well-established rule that we do not
address issues that were not raised and ruled upon in the trial court, I respectfully
dissent.
In the trial court, the wife sought attorney fees pursuant to OCGA § 19-6-2 and
OCGA § 9-15-14. With respect to the claim for fees under OCGA § 19-6-2, the
husband responded that the wife did not qualify for an award of attorney fees under
the requirements of the statute because the wife had an equal if not greater ability to
2
pay her own attorney fees. The trial court awarded attorney fees to the wife under
OCGA § 19-6-2 and denied her request for fees under OCGA § 9-15-14. The husband
then filed a motion for reconsideration, raising for the first time his argument that the
terms of the parties’ settlement agreement addressing alimony, in conjunction with
case law interpreting OCGA § 19-6-2, precluded the wife from seeking attorney fees
under OCGA § 19-6-2. The trial court did not rule on the motion before the husband
petitioned for and was granted a discretionary appeal. The husband now seeks to raise
his new argument in this Court as his only argument on appeal.
“[A]bsent special circumstances,1 an appellate court need not consider
arguments raised for the first time on appeal.” Pfeiffer v. Ga. Dept. of Transp., 275
Ga. 827, 829 (2) (573 SE2d 389) (2002); see Shelley v. Town of Tyrone, 302 Ga.
297, 308 (3) (806 SE2d 535) (2017) (an appellant may not “on appeal raise questions
or issues neither raised or ruled upon by the trial court”). The reason we do not
consider issues raised for the first time on appeal is because the trial court has not had
an opportunity to consider them. Extremity Healthcare v. Access To Care America,
1
“Special circumstances could include a jurisdictional challenge, a claim of
sovereign immunity, a serious issue of public policy, a change in the law, or an error
that works manifest injustice.” (Citation and punctuation omitted.) Pfeiffer, 275 Ga.
at 829 (2), n.10.
3
339 Ga. App. 246, 258 (3) (793 SE2d 529 (2016). Further, it is well-established that
“this Court is for the correction of errors of law, and when the trial court has not ruled
on an issue, we will not address it.” Findley v. City of Atlanta, 345 Ga. App. 649, 652
(2) (814 SE2d 781) (2018); Stanley v. Govt. Employees Ins. Co., 344 Ga. App. 342,
346 (2) (810 SE2d 179) (2018). Because the husband’s new argument was not raised
and ruled on in the trial court, we should not address it.
The majority seeks to create an exception to our well-established rule, taking
the position that part of the wife’s burden of proof in showing her entitlement to
attorney fees under OCGA § 19-6-2 was a requirement that she demonstrate her
entitlement to those fees under the settlement agreement. As a result, the majority
concludes that the husband is free to raise his new argument based on the terms of the
settlement agreement, and that we should address it. To reach that conclusion, the
majority misconstrues the husband’s initial and very limited response to the wife’s
claim for fees, arguing that it is broad enough to encompass virtually any challenge
to the wife’s claim of entitlement to fees.
The majority relies on Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616
(501 SE2d 497) (1998), which arises in the summary judgment context and provides
that an argument on a factual issue that is part of the movant’s prima facie case is not
4
waived by failing to raise it in the trial court. Id. at 617-618 (1). That case does not,
however, stand for the proposition that a party can raise new legal issues on appeal.
Instead,
that case simply acknowledges that to be entitled to summary judgment,
a party who bears the burden of proof at trial must present the trial court
with the facts showing its entitlement to judgment. When the record fails
to contain the facts supporting the grant of summary judgment, the
non-movant may argue this ground to the appellate court regardless of
whether the non-movant asserted an “objection to the prima facie case.”
Pfeiffer, 275 Ga. at 830 (3). The second case cited by the majority supports a finding
that the husband has waived his new argument in this case. See Kammerer Real
Estate Holdings v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 399-400 (740 SE2d
635) (2012), disapproved in part on other grounds, Artson, LLC v. Hudson, 322 Ga.
App. 859, 862 (2), n.1 (747 SE2d 68) (2013) (where new argument would require us
to construe contract terms to determine whether a contract is ambiguous, argument is
not one asserting that the record fails to contain the facts supporting the grant of
summary judgment, but presents a question of law, or, at best, a mixed question of law
and fact, and argument is waived on appeal). And the remaining cases relied upon by
5
the majority allow new arguments related to the failure to meet statutorily-imposed
burdens or to the plaintiff’s failure to establish the basic elements of a claim.
None of those cases support the creation of an exception to our general rule that
we only consider issues that have been raised and ruled upon in the trial court. The
wife’s burden was to establish a claim under OCGA § 19-6-2, which requires that the
claim be made in an action for alimony or divorce and alimony and that the claimant
provide evidence of the financial circumstances of both parties. See OCGA § 19-6-2
(a). The wife’s complaint for divorce sought temporary and permanent alimony, and
there was evidence that monthly alimony of $2,500 was ordered to be paid by the
husband until further order of court. The trial court’s order indicates that it considered
the evidence presented regarding the financial circumstances of the parties,
determined that the husband was in a superior financial position, and awarded fees on
that basis. Thus, it appears that the wife met her burden to set forth the elements of her
claim, and the husband was obligated to raise any arguments related to that claim in
the trial court. We need not consider a new legal argument that was not raised and
ruled upon in the trial court and that would require us to construe the terms of the
settlement agreement. See Findley, 345 Ga. App. at 652 (2); Kammerer Real Estate
Holdings, 319 Ga. App. at 399-400.
6
James Lee Ford, Sr. v. Claire H. Ford
Combined Opinion