Mary Messick v. John Messick ( 2021 )

FIFTH DIVISION
MCFADDEN, C. J.,
RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 18, 2021
In the Court of Appeals of Georgia
A21A0600. MESSICK v. MESSICK.
MCFADDEN, Chief Judge.
After filing an action for divorce from John Messick, Mary Messick won a
substantial amount of money in a lottery. She sought to enforce a previously entered
settlement agreement with John Messick to prevent him from claiming equitable
division of the lottery proceeds. The trial court denied her motion to enforce the
settlement agreement, and we granted interlocutory review of that ruling. Because the
lottery proceeds were marital property that the settlement agreement did not address,
we find no error in the trial court’s ruling and affirm.
1. Facts and procedural background.
The appellate record shows the following undisputed facts. On March 5, 2020,
Mary Messick filed an action for divorce from John Messick and asked, among other
things, that the trial court incorporate into the divorce decree the parties’ settlement
agreement, into which they had entered that same day. Mary Messick subsequently
won a substantial amount of money in a lottery. In his answer and counterclaim, John
Messick argued, among other things, that the trial court should set aside the
settlement agreement because it did not address Mary Messick’s lottery winnings.
Mary Messick then filed a motion that, among other things, asked the trial court to
enforce the settlement agreement. After an evidentiary hearing, the trial court denied
Mary Messick’s motion and set aside the settlement agreement, pertinently finding
“that the lottery proceeds are marital property subject to division by the [c]ourt [and
t]he settlement agreement did not contemplate the acquisition of such property, nor
provide for how any such property should be divided.”
2. The lottery proceeds are marital property.
The trial court did not err in concluding that the lottery proceeds are marital
property. “It is a question of law whether a particular category of property may legally
constitute a marital or non-marital asset, but whether a particular item of property
actually is a marital or non-marital asset may be a question of fact for the trier of
fact.” Crowder v. Crowder, 281 Ga. 656, 657 (642 SE2d 97) (2007) (citation
omitted).
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In Georgia, property is a marital asset subject to equitable division “if it is
acquired as a direct result of the labor and investments of the parties during the
marriage.” Pina v. Pina, 290 Ga. 878, 879 (725 SE2d 301) (2012) (citation and
punctuation omitted). Because the trial court has not yet entered a divorce decree in
this case, the marriage has not yet been terminated, so Mary Messick acquired the
lottery proceeds during the marriage. See generally Hodges v. Hodges, 235 Ga. 848,
849-850 (1) (221 SE2d 597) (1976) (marriage is not dissolved until entry of written
judgment).
In addition, the appellate record does not contain a transcript of the evidence
presented to the trial court at the hearing. So we must assume that the evidence
showed that Mary Messick acquired the lottery proceeds as the direct result of her
labor or investment. It follows from that assumption that the trial court’s finding that
the proceeds are marital property subject to division was authorized. See Reed v.
Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (“In accordance with the
presumption of the regularity of court proceedings, we must assume in the absence
of a transcript that there was sufficient competent evidence to support the trial court’s
findings.”) (citation and punctuation omitted).
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3. The settlement agreement does not address the division of the lottery
proceeds.
The trial court declined to enforce the settlement agreement because its terms
did not contemplate the division of the lottery proceeds. Reviewing this ruling de
novo, see Hart v. Hart, 297 Ga. 709, 712 (777 SE2d 431) (2015), we find no error.
“Settlement agreements in divorce cases are construed in the same manner as
all other contractual agreements.” Buckner v. Buckner, 294 Ga. 705, 708 (1) (755
SE2d 722) (2014). The “meaning and effect [of the settlement agreement] should be
determined according to the usual rules for the construction of contracts, the cardinal
rule being to ascertain the intention of the parties.” Hart, 297 Ga. at 711 (citation and
punctuation omitted). In construing the contract, we “are limited to those terms upon
which the parties have actually agreed, for absent the parties’ mutual assent, there is
no enforceable contract.” Id. at 712.
The settlement agreement in this case does not include a term providing for
division of the lottery proceeds. Two terms in the agreement specifically address the
division of marital property. One pertains to the division of real property.
The other term, on which Mary Messick relies heavily in her appellate brief,
provides: “The parties acknowledge that they have previously made a division of their
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household furniture, furnishings, household goods, equipment, and other such
personalty. Neither party shall claim any of the property in the possession of the other
as of the date of the signing of this agreement unless stated below.” (Emphasis
supplied.) By its plain language, this term of the settlement agreement does not
pertain to the division of marital property acquired by a party after the signing of the
agreement. And it is undisputed that Mary Messick acquired the lottery proceeds after
the agreement was signed.
Nevertheless, Mary Messick argues that the above term applies to the lottery
proceeds because those proceeds resulted from an investment she made using
property she possessed before the signing of the agreement. We are not persuaded.
The record evidence does not address the circumstances surrounding Mary Messick’s
lottery win. Moreover, our case law recognizes that property acquired during the
marriage through investments is itself subject to equitable division. See Pina, 290 Ga.
at 879.
Mary Messick also points to two other terms of the settlement agreement that
she argues provide for the division of marital property acquired after the agreement
was signed. But neither of those terms addresses the specific division of any property.
One is a general, prefatory statement of the parties’ “desire to settle between
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themselves all questions of division of property . . . arising out of their marital
relationship,” and the other merely provides that “[t]he parties shall continue to live
separate and apart and each shall be free from interference, molestation, authority and
control, direct or indirect, by the other as fully as if sole and unmarried.”
“The rule of law is clear, parties to a divorce decree must specifically describe
and dispose of the property in which both parties have an interest or the decree will
not divest either party of their interest in the property.” Andrews v. Boykin, 273 Ga.
386, 387-388 (1) (543 SE2d 12) (2001) (citation omitted). Because the plain language
of the settlement agreement does not address the equitable division of a significant
marital asset — the lottery proceeds — any decree incorporating that agreement
would not dispose of all of the parties’ marital property. Under these circumstances,
the trial court did not err in declining to enforce the agreement.
Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.
Phipps concur.
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