Opinion
A23A0646
10-27-2023
PHELPS v. PHELPS.
DOYLE, P. J., GOBEIL, J., AND SENIOR JUDGE FULLER
DOYLE, PRESIDING JUDGE.
In August 2021, Damon E. Phelps ("the Husband") filed a petition for declaratory judgment regarding the 2003 divorce decree entered in his divorce from Kathleen A. Phelps ("the Wife"). The trial court granted the petition and entered an "Amended Clarifying Order on Division of Military Retirement," from which the Wife sought discretionary review. This Court granted the Wife's application, and she now appeals the clarifying order, arguing that the trial court erred (1) by granting the petition because the divorce decree was not ambiguous; (2) by modifying the division of marital property award to provide a different percentage of the Husband's retirement pay than that listed in the decree; and (3) by ordering that the parties take specific action, which was beyond the subject matter jurisdiction of the court. For the reasons that follow, we vacate and remand with direction.
In an appeal from a declaratory judgment, this Court "reviews the trial court's conclusions of law de novo[,]" but will affirm the trial court's findings of fact under the any evidence standard.
Brown v. Brown, 359 Ga.App. 511, 517 (857 S.E.2d 505) (2021), quoting Strange v. Towns, 330 Ga.App. 876, 876 (769 S.E.2d 604) (2015).
The record shows that on November 14, 2003, nunc pro tunc to October 3, 2003, the parties entered into a divorce settlement with custody and child support being determined in Pennsylvania and the division of marital property being determined in Muscogee County, Georgia. Pertinent to these proceedings, the 2003 divorce decree incorporated the settlement that contained this provision:
[t]he [Wife] is awarded, as an equitable division of property, 25 [percent] of the [Husband's] military retirement income. The parties were married for [12] years, during which time the [Husband] performed at least [12] years of credible military service. This court has competent jurisdiction to govern these parties with regards to the division of the
[Husband's] military retirement[,] and this action and the [Husband's] rights under the Soldiers and Sailors Civil Relief Act were observed.
In a filing in the trial court, the Husband stated that he had 14 years of service at the time of the divorce and would have 33 years of service at the time of his upcoming retirement.
In his 2021 petition for declaratory judgment, the Husband asked the trial court to clarify this provision, contending that the parties intended that the Wife receive 25 percent of the retirement he would have received at the time of the divorce, not 25 percent of his final retirement amount including years of service accumulated postdivorce. The Wife responded to the petition, arguing that the Husband's interpretation of the provision was incorrect (i.e., that instead, she should receive 25 percent of his final retirement amount) and that the military law upon which the Husband relied for his position explicitly applied only to divorce proceedings finalized after 2016. Following the submission of briefs by the parties and a zoom hearing that does not appear in our record, the trial court entered an initial order finding that the portion of the decree addressing the military pension was ambiguous. The trial court also found that the original court "did not have authority to award the [Wife] a percentage of any portion of the [Husband's] future military retirement that would accumulate post judgment," and the court then awarded the Wife 42 percent of the Husband's military retirement based on the amount of retirement due at his rank and months of service at the time of the divorce.
A final order was entered on September 8, 2022. In the final order, in addition to again finding that the decree language at issue was ambiguous and subject to a clarifying order, the trial court also found that "[t]he [original c]ourt's intent was (and is) that the [Wife] be awarded a percentage of the [Husband's] disposable military retirement calculated as if the [Husband] retired on the date of the parties' divorce. . . ." The Wife now appeals those orders.
In several enumerations of error, the Wife argues that the trial court erred by granting the Husband's motion for declaratory judgment because the divorce decree was not ambiguous, and the new award constituted an improper modification of the 2003 divorce decree. We agree with the trial court that the provision is ambiguous, but because the trial court's ultimate award was based on an incorrect application of the law, we vacate the orders and remand for further proceedings.
"The State Declaratory Judgment Act gives superior courts the power to declare rights and other legal relations of any interested party in cases of actual controversy under OCGA § 9-4-2 (a) and in any civil case in which it appears to the court that the ends of justice require that the declaration should be made[.]" Nevertheless,
(Citations and punctuation omitted.) Walker v. Owens, 298 Ga. 516, 518 (783 S.E.2d 114) (2016), quoting OCGA § 9-4-2 (a) & (b).
[t]he Declaratory Judgments Act does not authorize a petitioner to brush aside previous judgments of the same court[] and seek a determination of his rights as if they had never been adjudicated. [T]he only tenable exception to the rule that a declaratory judgment proceeding is not an appropriate method of questioning a final judgment or decree, valid on the face of the record, is in case[s in which] the judgment or decree has become the source of definite rights and is unclear or ambiguous.
(Citations and punctuation omitted.) Royal v. Royal, 246 Ga. 229, 230 (271 S.E.2d 144) (1980).
In this case, the original divorce decree awarded the Wife "25 [percent] of the [Husband's] military retirement income." The decree then stated the years of marriage and the Husband's years of service during the divorce, which could be read as a limit on the portion of retirement from which the 25 percent is taken, i.e., the decree was awarding 25 percent of the Husband's entire military retirement amount or 25 percent of the amount he would have gotten if his retirement was calculated at the time of the divorce. What the decree did not award to the Wife was 42 percent of the Husband's military retirement for the amount of retirement due at his rank and years of service at the time of the divorce, and it was error for the trial court to modify the 2003 decree in that way.
See id. (holding that decree was ambiguous as to whether property was given to wife in fee simple or as a life estate). Compare with Smith v. Smith, 366 Ga.App. 418, 425-426 (883 S.E.2d 167) (2023) (vacating the amended divorce decree related to military retirement because it improperly modified the prior decree rather than construing or clarifying the plain language therein). See also OCGA § 13-2-2 (2) ("Words generally bear their usual and common signification[.]").
See Michel v. Michel, 286 Ga. 892, 894-895 (1) (692 S.E.2d 381) (2010) (explaining that the ten-year marriage requirement is merely a limit on direct payments from the government to the ex-spouse rather than a limit on what a trial court may award an ex-spouse in divorce proceedings).
See Smith, 366 Ga.App. at 425-426.
Moreover, the trial court erred when it determined that the original court "did not have authority to award the [Wife] a percentage of any portion of the [Husband's] future military retirement that would accumulate post judgment" and in basing its decision on the intent of the original court. The parties in this case entered into a settlement agreement, and therefore, unlike a trial court's equitable division of property, which is limited to property accumulated during the marriage, the parties in this case were free to include post-judgment retirement amounts in the award to the
Wife in their settlement agreement. And it was the intent of the parties and not the intent of the court in 2003 that the trial court should have been attempting to ascertain.
See Christian v. Christian, 300 Ga. 263, 267 (3) (794 S.E.2d 51) (2016) ("[S]pouses can bargain away their separate property as part of a contract - a settlement or separation agreement - between them [And the] parties' agreement [can impose] a financial obligation on one party that the trial court could not permissibly impose without such an agreement"), citing Mims v. Mims, 297 Ga. 70, 71 (772 S.E.2d 674) (2015) (a spouse's agreement to pay for a child's college in settlement of a divorce becomes an enforceable order once approved by the court). See also Bullard v. Swafford, 279 Ga. 577, 580 (2) (619 S.E.2d 665) (2005) (reversing the trial court's order and reinstating the father's child support obligation because the parties' consent agreement specified that he would continue to pay child support past the age of majority). Compare with Friedman v. Friedman, 259 Ga. 530, 531-532 (2) (384 S.E.2d 641) (1989) (explaining that in the case of a jury award of division of property, the date for accumulation of marital assets is the date of divorce), overruled on other grounds by Duckworth v. State, 268 Ga. 566, 569 (492 S.E.2d 201) (1997).
Moreover, the trial court erred by considering military retirement law codified after the divorce; it should have applied the governing military retirement law at the time the settlement agreement was entered. The law at the time explained that no award to an ex-spouse in a divorce decree could exceed 50 percent of the service person's disposable retirement, which this award did not (under either interpretation). The law at that time also stated that when a service member had at least 10 years of service, then the settlement amount would be paid by the government directly to the ex-spouse, which may be the reason why the Husband's time in service was so noted in the decree, rather than as a limit on the amount from which the Wife's 25 percent would be calculated.
See 10 USC § 1408 (a) (4) (2017). See P. L. 114-328, Div A, Title VI, Subtitle D, Part II, § 641(b), 130 Stat. 2164 (2016), ("The amendments made by subsection (a) [amending subsec. (a) (4) of this section] shall apply with respect to any division of property as part of a final decree of divorce, dissolution, annulment, or legal separation involving a member of the Armed Forces to which section 1408 of title 10, United States Code, applies that becomes final after the date of the enactment of this Act.").
See 10 USC § 1408 (e) (1) (2003).
See 10 USC § 1408 (d) (2) (2003). See also Michel, 286 Ga. at 894-895 (1).
On remand, the trial court should apply the usual rules of contract construction to determine the intent of the parties, not the intent of the trial court at the time of the award. Because the provision is ambiguous, the trial court should look beyond the paragraph "to determine if the ambiguity was clarified when viewed in the context of the entire [settlement agreement] and if not, should [consider] parol evidence to determine the meaning" of the provision and ultimately allow for a jury determination if the ambiguity remains thereafter. Accordingly, we vacate the trial court's orders in this matter and remand for further proceedings consistent with this opinion.
See, e.g., Chatel v. Carroll, 366 Ga.App. 643, 646-647 (1) (883 S.E.2d 860) (2023). See also OCGA § 13-2-4 ("[T]he meaning placed on the contract by one party and known to be thus understood by the other party at the time shall be held as the true meaning."); Rieffel v. Rieffel, 281 Ga. 891, 894 (3) (644 S.E.2d 140) (2007) ("In the absence of fraud or mistake, a party cannot complain of a judgment, order[,] or ruling that his own conduct produced or aided in causing."); Bradley v. Frank, 264 Ga.App. 772, 773 (1) (592 S.E.2d 138) (2003) ("The meaning of a settlement agreement incorporated into a divorce decree is determined according to the usual rules of contract construction."). If an agreement "is capable of being construed two ways, it will be construed against the preparer and in favor of the non-preparer. OCGA § 13-2-2 (5)." Hertz Equip. Rental Corp. v. Evans, 260 Ga. 532, 533 (397 S.E.2d 692) (1990).
See, e.g., Christian, 300 Ga. at 266-267 (2); Chatel, 366 Ga.App. at 646-647 (1). See also Smith, 366 Ga.App. at 426 n.19 ("It is the function of the [trial] court to construe a divorce decree as written and not to make a new contract for the parties.") (punctuation and emphasis omitted), quoting Greenwood v. Greenwood, 289 Ga. 163, 164 (709 S.E.2d 803) (2011); Envision Printing v. Evans, 336 Ga.App. 635, 640 (3) (786 S.E.2d 250) (2016) (if an ambiguity persists after applying the rules of contract construction then a jury question remains as to the meaning of the language).
Judgment vacated and case remanded with direction.
Gobeil, J., and Senior Judge C. Andrew Fuller concur.