FIFTH DIVISION
MCFADDEN, P. J.,
MCMILLIAN and GOSS, 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
June 28, 2019
In the Court of Appeals of Georgia
A19A0467. ROWLES v. ROWLES.
A19A0719. ROWLES v. ROWLES.
MCMILLIAN, Judge.
After the trial court partially set aside a final divorce decree and judgment on
the grounds that the husband had only agreed to its terms because the wife had
threatened to disclose the husband’s affair to his employer, both parties appealed. The
wife contends that there was no duress as a matter of law and that the divorce decree
should have been upheld while the husband asserts that because of the duress the
entire divorce decree should have been set aside, not just the portions addressing the
custody of the children. Because our Supreme Court has held that a judgment may
only be set aside for duress when the complaining party was prevented from asserting
a defense and the husband had the opportunity to appear and raise any defenses
before entry of judgment, the trial court erred in partially setting aside the judgment.
Sean Rowles (the “Husband”) and Roberta Rowles (the “Wife”)1 were first
married in 2005. They had two children during the time they were married and then
divorced for the first time in February 2012 (“First Divorce”).2 They remarried in
November 2012, but then they divorced again in July 2014 after the Wife found out
about the Husband’s continuing infidelity with a co-worker (“Second Divorce”). In
January 2016, the Husband filed a petition for contempt based on the Wife’s alleged
failure to abide by the terms of the visitation provisions of the Second Settlement
Agreement incorporated into their Second Divorce Decree. A few weeks later, the
Husband also filed a motion to set aside the judgment, alleging that he agreed to the
1
Following our grant of their applications for review, the Husband and Wife
each timely filed notices of appeal to this Court. The Wife’s appeal was docketed in
this Court as Case No. A19A0467, and the Husband’s appeal was docketed as Case
No. A19A0719. We have consolidated these appeals for our review.
2
Both parties state in their briefs on appeal that they were first divorced in
October 2011, but the record shows that the final judgment of divorce was not entered
until February 2012. This discrepancy appears related to the divorce law of Rhode
Island where the first divorce was entered and is not relevant to this appeal.
2
terms of the Second Settlement Agreement3 under duress due to the Wife’s threats to
expose his extra-marital affairs to his boss and others, which could have resulted in
his termination from his job.4
The trial court held a hearing on the motion to set aside,5 during which the
Husband, the Wife, and three other witnesses testified. The Husband testified that he
entered into the Second Settlement Agreement because he thought that he would lose
his job and deferred compensation if the Wife told his employer about the affair.
Further, the Husband testified that it was only after the Wife ceased allowing him to
visit with his children that he sought the aid of an attorney and filed the petition for
contempt and motion to set aside, and that as of the date of the hearing he had not
3
Among other things, under the Second Settlement Agreement, the Wife
received 60 percent of the parties’ assets, 100 percent of the proceeds of the sale of
their Georgia residence, and about $300,000 in stock options. The Agreement also
required the Husband to pay the Wife 60 percent of his salary “[f]or the rest of his
working career[.]”
4
At the time, the Husband was Chief Operating Officer at Citizens Bank and
stood to lose approximately $3 million dollars in deferred compensation if he were
fired. The Wife disputes making threats to expose his affairs to his employer.
5
The parties agreed that a hearing on the contempt petition would be held at
a later date, pending evaluation of the children by an expert.
3
seen his children in six months although previously he had seen them every few
weeks if not more frequently.
Subsequently, the trial court granted the motion to set aside as to the custody,
parenting time, and visitation provisions of the Second Settlement Agreement but
denied the motion as to the remaining financial portions of the agreement.6 After the
trial court held a five-day trial on the issues of custody, child support, and visitation,
the trial court entered a “Final Order” awarding sole legal and physical custody of the
children to the Husband. The Wife was granted supervised visitation for six months
and then unsupervised visitation thereafter. The Wife was also required to pay child
support to the Husband.
The Wife filed a motion for new trial, which she twice amended. The trial court
denied the motion but entered an amended final order in which it granted the
Husband’s motion to relocate the children to Maryland, among other things. Later,
the trial court granted the Husband’s motion for attorney fees and awarded him
6
The trial court also entered an order on the Husband’s contempt petition,
finding that it was in the minor children’s best interests for the Husband to have
supervised visitation while the case was pending. Although not the subject of this
appeal, the Wife also filed a petition for contempt, which the trial court denied.
4
$112,189.10 in attorney fees and expenses under both OCGA §§ 19-6-2 and 9-15-14
(b). These appeals followed.
Case No. A19A0467
1. The Wife first argues that the trial court lacked jurisdiction to rule on the
motion to set aside because it was not filed in the same term in which the judgment
was rendered and was not filed as a separate action.
Motions to set aside are governed by OCGA § 9-11-60, and subsection (f)
specifically sets out a three-year time limit for bringing a motion to set aside based
on fraud under OCGA § 9-11-60 (d) (2), such as the one filed by the Husband in this
case.7 The Husband’s motion, which was filed within two years of the entry of the
Second Divorce Decree, was thus timely. See Jones v. Jones, 298 Ga. 762, 765 (1)
(787 SE2d 682) (2016) (“Except for those alleging lack of jurisdiction, [a motion to
set aside under OCGA § 9-11-60] must be made within three years of the entry of the
challenged judgment.”).
7
Subsection (f) provides in pertinent part: “A judgment because of lack of
jurisdiction of the person or subject matter may be attacked at any time. . . . In all
other instances, all motions to set aside judgment, shall be brought within three years
from entry of the judgment complained of.”
5
The record also belies the Wife’s contention that the trial court lacked
jurisdiction to rule on the motion because it was improperly filed as part of a
contempt action. Here, the Husband filed the motion to set aside in the court that
rendered the Second Divorce Decree under the same civil action case number. The
fact that the Husband’s contempt petition was filed before the motion to set aside and
also as part of that same civil action does not mean, as the Wife seems to argue, that
the motion to set aside was filed as a motion in a separate contempt action. Although
the Wife points to the language in subsection (a) that “judgments shall be subject to
attack only by a direct proceeding” that does not mean the Husband was required to
file a separate lawsuit to set aside the decree.8 See Buttacavoli v. Owen, Gleaton,
Egan, Jones & Sweeney LLP, 331 Ga. App. 88, 91 (1) (769 SE2d 794) (2015) (“If one
is dissatisfied with a judgment one does not merely file a new action against the other
party or his counsel. . . . Instead, one must attack the prior judgment by a direct
proceeding in the trial court where the prior suit was litigated.”) (citation omitted);
8
OCGA § 9-11-60 (e) now expressly prohibits the use of a complaint in equity
to set aside a judgment. This is a change from the former law. See Lee v. Restaurant
Mgmt. Svcs. 232 Ga. App. 902 (503 SE2d 59) (1998); Ga. L. 1986, p. 295. Further,
subsection (f) provides that a motion to set aside may be served by the same means
as a complaint “if it cannot be legally served as any other motion.” This is also a
change from the former law, which required a separate complaint and proper service
for a complaint in equity. See Ga. Code Ann. § 81A-160 (f) (1966).
6
see generally Ramchandani v. State Bank & Trus. Co., 324 Ga. App. 235, 241 (2),
n.18 (749 SE2d 797) (2013) (a party cannot collaterally attack a non-void judgment
“in a separate lawsuit, but could only attack the order through a direct proceeding
brought in the trial court that entered the judgment, pursuant to OCGA § 9-11-60 (b)
and (d).”). Accordingly, this enumeration of error is without merit.
2. Turning to the merits,9 the Wife asserts that the trial court erred by setting
aside the Second Divorce Decree on the grounds that the Husband had executed the
the Second Settlement Agreement under duress. We agree.
“Duress is but a species of fraud where one is induced contrary to one’s will
from presenting a defense to a suit.” (Citation omitted.) Frost, 235 Ga. 672, 674 (2)
(221 SE2d 567) (1975). “Under Georgia law, duress consists of imprisonment,
threats, or other acts, by which the free will of the party is restrained and his consent
induced.” Hampton Island, LLC v. HAOP, LLC, 306 Ga. App. 542, 544 (2) (702 SE2d
770) (2010). “A duress claim must be based on acts or conduct of the opposing party
which are wrongful or unlawful. Georgia courts are reluctant to void contracts, and
9
Both parties agree that the trial court was not authorized under OCGA § 9-11-
60 (d) (2), to set aside only part of the final divorce decree, the dispute being whether
the court should have set aside all or none of it. However, because we reverse the trial
court’s order on the merits, it is unnecessary for us to parse the issue of the trial
court’s authority to set aside only part of a divorce judgment.
7
we have found no Georgia decision voiding a contract on the theory of economic
duress.” Id. at 544-45 (2).
But the appeals in this case concern a judgment that was set aside because of
duress, not just a contract. Under these circumstances, our Supreme Court has
imposed an additional requirement for setting aside a judgment: “Before . . . a
judgment will be set aside for duress, it must appear that the complainant had a good
defense which [he] was prevented from asserting at the original hearing or trial.”
Frost, 235 Ga. at 675 (2). In Frost, the Supreme Court remanded the case to
determine if the wife, who was threatened with loss of custody of her young child,
had signed a waiver of service and had not received notice of the divorce
proceedings, which would have prevented her from appearing and asserting any
available defenses. Id. at 675-76 (2). See also Keith v. Keith, 231 Ga. 230, 232 (2)
(200 SE2d 891) (1973) (divorce decree set aside where wife was prevented from
retaining counsel to protect her interests due to the husband’s fraud and
misrepresentation and evidence also showed husband beat wife and children in order
to have them comply with his wishes).
Here, the Husband repeatedly testified that he acquiesced to the Wife’s
demands and signed the Second Settlement Agreement because he was afraid of
8
losing his job and significant amounts of deferred compensation, and the trial court
found that the Wife made the threats to gain a financial advantage.10 But the record
also shows the Husband not only participated in the proceedings, he and the Wife
actually meditated the custody and visitation portions of the Second Divorce Decree
Agreement that the trial court found were the product of duress,11 and he testified that
prior to the Wife abruptly cutting off visitation, he believed they were broadly
following the parenting plan they had agreed to during the meditation. Further, the
Husband does not point to a good defense that he was prevented from asserting, and
the trial court essentially found as much by noting that it was the Husband’s own
conduct and not duress that brought about the unfavorable financial provisions of the
Second Divorce Agreement. Thus, due to the Husband’s own actions, he found
himself in an unfavorable and disadvantageous bargaining position during the Second
10
We note that it has long been held that “[a] threat of causing the defendant
to lose his job or his fear of such loss is not duress which would void the contract,”
when the threat is not otherwise wrongful or unlawful. Atlanta Life Ins. Co. v. Mason,
89 Ga. App. 319, 321 (79 SE2d 352) (1953). But we need not definitively decide
whether the Wife’s threats amounted to duress because even if considered to be
duress, the Husband has failed to show that he was precluded from asserting a
defense as a result.
11
The trial court noted in the order on the motion to set aside that the Second
Divorce Decree purported to incorporate a parenting plan but that it was not in the
record.
9
Divorce Proceedings and the fact that the Wife had the upper hand does not mean the
resulting agreement and judgment were subject to being set aside.
And despite the surface similarity in some of the facts, Young v. Young, 188
Ga. 29, 34 (3) (2 SE2d 622) (1939) does not compel a different result. First, as to the
facts, the wife’s threats in Young were two-fold – to attempt to have husband fired
from his job and to harm the couple’s child. However, unlike here, the wife’s threat
to have her husband fired from his job was not based on threats of disclosing truthful
information, but getting her father to “unlawfully interfere” with her husband’s
position and get him fired. Id. at 37. And the procedural differences in the case are
also important. In this case, we are reviewing an order partially granting a motion to
set aside a judgment, whereas in Young, the question was whether the denial of the
wife’s demurrer to the husband’s equitable complaint should be upheld. Thus, in
Young, we were merely deciding whether the case could go forward, and in answering
that question in the affirmative, we noted that while the allegations of the complaint
were sufficient to withstand the demurrer, the facts of duress were not “exceedingly
strong.” Id at 36-37. Finally, unlike in Young, the Husband in this case appeared and
participated in the Second Divorce Proceedings, and was not prevented from
appearing to put forth a defense.
10
Based on the foregoing, the Second Divorce Decree was not subject to being
set aside due to duress. Accordingly, the trial court’s order setting aside the Divorce
Decree must be reversed.12
3. The Wife also argues that the trial court erred by awarding attorney fees. “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 by contract.” (Citation and
punctuation omitted.) Cothran v. Mehosky, 286 Ga. App. 640, 641 (649 SE2d 838)
(2007). Here, the Husband sought, and the trial court awarded, attorney fees under
both OCGA §§ 9-15-14 and 19-6-2. We turn first to the award under OCGA § 19-6-2.
OCGA § 19-6-2 (a) authorizes attorney fees against either party, upon
consideration of their financial circumstances, where “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[.]” See also Viskup v. Viskup, 291 Ga. 103, 107 (3) (727
SE2d 97) (2012). An award of attorney fees under OCGA § 19-6-2 is not predicated
on the wrongdoing of either party. Cothran, 286 Ga. App. at 641. Here, both parties
12
We would caution that our holding should not be read too broadly, and
nothing in our opinion should be read to prevent the Husband from seeking a
modification of custody or visitation or the trial court from modifying custody or
visitation based on the best interest of the children. Our holding is simply that the
Second Divorce Decree was not subject to being set aside due to duress.
11
filed petitions for contempt of the original decree and both sought attorney fees. The
transcript from the hearing on the motion for fees shows that the issues related to the
various motions, both the motion to set aside and the petition for contempt, had been
decided by the time the attorney fee award was entered, and the record leaves little
room for doubt that the various issues in this case had become intertwined. Further,
the trial court made its order to reimburse fees and expenses incurred “during this
litigation” and did not limit the award to the motion to set aside, and the trial court
properly considered the parties’ relative financial positions in awarding fees under
OCGA § 19-6-2. We will not disturb that finding absent an abuse of discretion, which
we do not find here. Accordingly, the fee award was authorized under OCGA § 19-6-
2. Waits v. Waits, 280 Ga. App 734, 737 (634 SE2d 799) (2006) (award of attorney
fees under OCGA § 19-6-2 authorized when declaratory judgment action was “part
and parcel” of contempt action); see also McDonough v. O’Connor, 260 Ga. 849, 850
(400 SE2d 310) (1991) (trial court had discretion to award attorney fees incurred in
modification of divorce decree under OCGA § 19-6-2 when the underlying action
also was for contempt of divorce decree).
However, that does not end our analysis because by its plain terms, OCGA §
19-6-2 authorizes only an award of attorney fees, and the trial court also awarded the
12
reimbursement of other expenses in its order. We, thus, must examine whether those
expenses may have been authorized under OCGA § 9-15-14 (b).13 Here, the trial court
found that the Wife’s behavior in alienating the children, her refusal to allow the
Husband to visit with the children, and her unfounded allegations of child abuse had
greatly expanded the litigation, were substantially lacking in justification, and were
interposed for delay and harassment. Although those findings were supported by the
record, the trial court did not go on to make a finding as to how the award was limited
to the prohibited conduct. See Roylston v. Bank of America, N. A., 290 Ga. App. 556,
562-63 (2) (a) (660 SE2d 412) (2008) (“In cases involving OCGA § 9-15-14 (a) or
(b), the trial court must limit the fees award to those fees incurred because of the
sanctionable conduct. Lump sum attorney fees awards are not permitted in Georgia.”)
(citation and punctuation omitted.). Accordingly, the award must be vacated to the
13
OCGA § 9-15-14 provides:
In any civil action in any court of record of this state, reasonable and
necessary attorney’s fees and expenses of litigation shall be awarded to
any party against whom another party has asserted a claim, defense, or
other position with respect to which there existed such a complete
absence of any justiciable issue of law or fact that it could not be
reasonably believed that a court would accept the asserted claim,
defense, or other position.
13
extent expenses other than attorney fees were awarded, and the case remanded for
further proceedings consistent with this opinion.
4. Based on our holding in Division 2, the Wife’s remaining enumerations of
error are moot, and we need not consider them.
A19A0719.
5. Based on the foregoing, the errors raised in the Husband’s appeal in
A19A0719 are moot.
Judgment affirmed in part, reversed in part, vacated in part, and case
remanded with direction. Goss, J., concurs. McFadden, P.J., concurs fully in Division
1 and dissents in Divisions 2, 3, 4, and 5.*
*DIVISIONS 2, 3, 4, AND 5 OF THIS OPINION ARE PHYSICAL
PRECEDENT ONLY. COURT OF APPEALS RULE 33.2.
14
A19A0467, A19A0719. ROWLES v. ROWLES; and vice versa.
MCFADDEN, Presiding Judge, concurring in part and dissenting in part.
While I concur in Division 1 of the majority opinion, I respectfully dissent to
the remaining divisions.
This divorce case involves the wife’s credible threats to expose salacious
information about the husband to his employer in an attempt to get him fired unless
he agreed to onerous terms of settlement, including giving the wife a significant
portion of his earnings in perpetuity, severely limiting his access to his young
children, and forcing him to take steps to deprive the children of their rights to dual
Australian citizenship, including seeking to relinquish the citizenship that already had
been conferred upon one child. The trial court found that the wife’s behavior was
wrongful and that the husband had entered into the settlement agreement under
duress. She was well within her discretion to do so.
But the trial court did not address whether the husband was prevented from
asserting this defense before the trial court entered judgment on the decree. That
question must be addressed before the trial court can decide whether the judgment
should be set aside for duress. Moreover, the trial court was not authorized to set
aside only a part of the divorce decree or to apply the doctrine of unclean hands to
leave in place the decree’s financial provisions. So I would vacate both the set-aside
order and the attorney-fee order in their entireties and remand for further proceedings.
1. Set-aside order.
The trial court did not err in finding that the evidence presented at the hearing
showed that the husband had signed the agreement under duress, which can be shown
by “a threat coupled with an apparent intent and ability to carry out the threat so that
the will of the other is overcome.” Frost v. Frost, 235 Ga. 672, 675 (2) (221 SE2d
567) (1975). Our Supreme Court considered a similar issue in Young v. Young, 188
Ga. 29 (2 SE2d 622) (1939), which involved a “wife [who] threatened her husband
with loss of his job if he did not agree to her terms for alimony and child support.”
2
Frost, 235 Ga. at 675 (2) (describing Young, supra). Holding that “threats of unlawful
interference with [the husband’s] job[ ] may amount to duress[,]” the Supreme Court
concluded that the husband’s petition to set aside a judgment based on an alimony
and child custody agreement could proceed to a jury. Young, 188 Ga. at 36-37 (3).
Notably, the father had alleged facts indicating that the wife “would and could carry
out her threat[.]” Frost, 235 Ga. at 675 (2) (discussing Young, supra). See Blalock v.
Barrett, 28 Ga. App. 444, 444-445 (111 SE 697) (1992) (to constitute duress, threat
to job cannot be mere empty threat; because party asserting duress as defense in
contract action did not allege that plaintiff “could have made this threat effective or
even that [defendant] feared that [plaintiff] could or would cause him to lose his
position[,]” he “failed to set forth facts showing duress in law”).
As in Young, the husband in this case alleged that the wife would and could
carry out her threat of having the husband fired from his job, and the trial court found
that the husband “and his witnesses put forth very convincing testimony as to the
[wife’s] stated intent, actual intent[,] and ability to expose and ruin him in her efforts
to obtain a financial advantage in the parties’ [a]greement.” The hearing evidence
authorized that finding.
3
So the decision in Young supports the trial court’s conclusion that the wife’s
actions constituted duress. Young, 188 Ga. at 34-37 (3). It is true, as the majority
notes, that the husband in Young was also subjected to other coercive actions by the
wife — not only threats to have him fired but also threats to harm their child. Id. at
36 (3). But the Young decision does not suggest that the additional threats were
required to find duress. Rather, that decision indicates that either the threat to the
child or the threat to the job could constitute duress. See id.
The majority also notes that a threat of causing one to lose a job cannot
constitute duress unless the threat is wrongful or unlawful. The requirement that the
threatening conduct be “wrongful or unlawful” is found in many Georgia decisions.
See, e.g., Hampton Island, LLC v. HAOP, LLC, 306 Ga. App. 542, 544-545 (2) (702
SE2d 770) (2010); Charter Medical Mgmt. Co. v. Ware Manor, 159 Ga. App. 378,
381 (3) (283 SE2d 330) (1981). These decisions use the disjunctive “or,” and in
applying this rule we need only consider whether either requirement — wrongful or
unlawful — was met, just as we would in interpreting a legal text under the
“Conjunctive/Disjunctive Canon” described in Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 116-125 (2012). See generally
Hardaway Co. v. Amwest Surety Ins. Co., 263 Ga. 698 (436 SE2d 642) (1993)
4
(applying rule derived from caselaw that was framed in disjunctive to hold that only
one of two enumerated legal requirements need be met). In other words, we should
not conflate “wrongful” conduct with “unlawful” conduct.
Even if the wife’s actions were not unlawful, I cannot agree that the trial court
abused her discretion in finding them to be wrongful. While not using the word
“wrongful,” the trial court, as factfinder, determined that the wife had threatened to
“destroy” or “ruin” the husband and that her actions were “coercive” and
“vindictive.” The Second Restatement of Contracts states that a threat is improper,
for purposes of determining whether there is duress, “if . . . the threat itself would be
a crime or a tort if it resulted in obtaining property[.]” Restatement (Second) of
Contracts § 176 (1) (a) (1981). A threat like the one before us could constitute the
crime of theft by extortion if it resulted in obtaining property rather than obtaining a
signature on an agreement. See OCGA § 16-8-16 (a) (3) (“A person commits the
offense of theft by extortion when he unlawfully obtains property of or from another
person by threatening to . . . [d]isseminate any information tending to subject any
person to hatred, contempt, or ridicule or to impair his credit or business repute[.]”).
Similarly, under certain circumstances such a threat could constitute the tort of
intentional interference with employment relationship. See Batayias v. Kerr-McGee
5
Corp., 267 Ga. App. 848, 849-850 (1) (601 SE2d 174) (2004) (party with no authority
to discharge employee may be liable for tortious interference with employment
relationship if, with intent to injure employee, he maliciously or without just cause
procures employee’s discharge from employment). The trial court was not required
to find that the wife had actually committed a crime or tort in this case to find her
conduct wrongful. Rather, the elements of these crimes and torts serve to illustrate the
type of behavior that could fall within the broader concept of “wrongful,” separate
and apart from “unlawful.”
I acknowledge that in Tidwell v. Critz, 248 Ga. 201, 203 (1) (282 SE2d 104)
(1981), our Supreme Court held that “the threat of losing a job or fear of such loss is
not duress which will void a contract.” That decision, however, does not overrule
Young, and its facts are distinguishable. Tidwell concerned one party’s threat to end
their existing business association if the other party did not sign an employment
agreement, a threat that does not implicate either tortious or criminal behavior. The
nature of the wife’s threat, to reveal compromising material to the husband’s
employer with the intent of getting him fired, is qualitatively different than the threat
in Tidwell.
6
Simply put, the trial court found, with support from the hearing evidence, that
the wife’s actions — threatening to get the husband fired from his job if he did not
give up a significant percentage of his income, his access to his children, and his
children’s own ability to avail themselves of dual citizenship in the future — were
egregious. The evidence permitted the trial court to so find and to find that the
husband signed the agreement under duress.
Nevertheless, as the majority points out, just because the agreement underlying
the judgment was the product of duress does not automatically mean that the trial
court could set aside the judgment for duress. Our Supreme Court’s decision in Frost
v. Frost, 235 Ga. at 675 (2), prevented the trial court from setting aside the judgment
unless the husband was prevented from asserting his defense of duress when the trial
court entered the divorce decree. Given that, in the trial court’s view, the settlement
agreement was a product of duress even though it arose through mediation, it follows
that the same duress might have prevented the husband from challenging that
agreement when it was presented to the trial court for entry of a judgment. But the
trial court’s order is silent on the point. So, as in Frost, supra, this case should be
remanded for further findings on whether the husband was prevented from asserting
his duress defense at that time.
7
In addition, the trial court only set aside a portion of the divorce decree, ruling
that the husband engaged in “misconduct” that precluded him from setting aside other
aspects of the decree under the doctrine of unclean hands. It appears that by
“misconduct” the trial court meant the husband’s infidelity, although her order did not
identify specific acts of misconduct.
But the doctrine of unclean hands applies to petitions brought in equity, and a
motion to set aside under OCGA § 9-11-60 (d) is not such a petition. See OCGA §
9-11-60 (e) (“The use of a complaint in equity to set aside a judgment is prohibited.”);
Holmes v. Henderson, 274 Ga. 8, 8-9 (1) (549 SE2d 81) (2001) (“The equitable
doctrine of unclean hands . . . has no application to an action at law.”); Higdon v.
Higdon, 321 Ga. App. 260, 262 (1) (a) (739 SE2d 498) (2013) (“‘Unclean hands’ is
a shorthand reference to OCGA § 23-1-10, which states: ‘He who would have equity
must do equity and must give effect to all equitable rights of the other party
respecting the subject matter of the action.’”).
Moreover, “a plea of duress . . . goes to the whole contract,” Williams v. Rentz
Banking Co., 114 Ga. App. 778, 781 (152 SE2d 825) (1966) (emphasis omitted), and
“OCGA § 9-11-60 (d) . . . does not authorize a court to revise or amend part of a
judgment while leaving the judgment intact.” Epstiner v. Spears, 340 Ga. App. 199,
8
202 (1) (796 SE2d 919) (2017). The trial court’s set-aside order is inconsistent with
these principles. For these reasons, the order should be vacated in its entirety and the
case remanded for the trial court to reconsider whether to set aside the divorce decree.
2. Attorney-fees order.
I agree that the attorney-fees award should be vacated for the reasons explained
by the majority. The entire award must be vacated for another reason as well. The trial
court based her award of OCGA § 19-6-2 attorney fees on the parties’ respective
financial positions as determined by the parties’ settlement agreement. As explained
above, that agreement was the product of duress and so the decree based on it must
be set aside and the case must be remanded for further proceedings. Because the
outcome of those further proceedings could affect the parties’ financial positions, the
trial court should reconsider the attorney-fees award on remand.
9
Sean Rowles v. Roberta Rowles
Combined Opinion