a bench trial, Appellant James R. Flesch
("Husband") and Appellee Debbie W. Flesch
("Wife") were divorced pursuant to an amended final
judgment and decree of divorce. We granted Husband's
discretionary application to address whether the trial court
erred in: (1) determining that Wife's Vanguard retirement
account was her separate, non-marital property; (2)
concluding that certain real estate qualified as marital
property and was subject to equitable division; and, (3)
awarding attorney fees to Wife. Though we agree that the
trial court erred in classifying Wife's retirement
account as entirely non-marital property, there is no merit
to Husband's remaining arguments. Accordingly, we affirm
in part, reverse in part, and remand.
two enumerations, Husband contends that the trial court erred
in classifying Wife's Vanguard account as non-marital
property and in classifying certain real estate as marital
property subject to equitable division.
equitable division of property is an allocation to the
parties of the assets acquired during the marriage, based on
the parties' respective equitable interests."
Payson v. Payson, 274 Ga. 231, 231-232 (1) (552
S.E.2d 839) (2001). In order to equitably divide marital
property, the trial court must classify the disputed property
as either marital or non-marital, as only marital property is
subject to division. See Thomas v. Thomas, 259 Ga.
73, 75 (377 S.E.2d 666) (1989). Marital property includes
real property, personal property, and assets acquired as a
direct result of the labor and investment of the parties
during the marriage. Crowder v. Crowder, 281 Ga.
656, 657 (642 S.E.2d 97) (2007). "Whether a particular
item of property actually constitutes a marital or
non-marital asset may be a question of fact for the trier of
fact to determine from the evidence." (Punctuation and
citations omitted.) Dasher v. Dasher, 283 Ga. 436,
437 (1) (658 S.E.2d 571) (2008). This Court reviews those
findings of fact pursuant to the "any evidence"
rule, "under which a finding by the trial court
supported by any evidence must be upheld."
Southerland v. Southerland, 278 Ga. 188, 188 (598
S.E.2d 442) (2004).
evaluating the merit of Husband's claims, we are mindful
of the substantial deference that is afforded to the trial
court in classifying and dividing the property of the
parties. Mallard v. Mallard, 297 Ga. 274, 278 (773
S.E.2d 274) (2015).
its amended final judgment and decree of divorce, the trial
court concluded that Wife's Vanguard retirement account
was a non-marital asset, finding that Wife "owned"
the account prior to marriage. Husband contends that this was
error because the record shows - and Wife conceded - that
Wife placed marital assets into the retirement account. We
there any evidence in the record that "no marital funds
were placed into the account and its value . . . rose or fell
with the market rather than being the result of any labor or
investment made by [Wife] or the parties together during the
marriage, " the trial court's finding would be
sound. See Highsmith v. Highsmith, 289 Ga. 841,
842-843 (716 S.E.2d 146) (2011). See also Hipps v.
Hipps, 278 Ga. 49 (1) (597 S.E.2d 359) (2004) (entirety
of contributions to Husband's retirement account predated
marriage and, thus, remained his separate property). The
record, however, includes no such evidence. While there is
evidence in the record establishing that the account
predated the marriage, the same cannot be said for the
entirety of the funds included therein. During
direct examination, Wife testified that retirement monies
earned or saved during the course of the marriage had been
transferred into her Vanguard retirement account; Wife, who
is herself an attorney, explicitly acknowledged under oath
that she had placed marital assets in the premarital account,
and this fact remains undisputed. Accordingly, there is no
evidence to support the trial court's finding that the
Vanguard account is entirely Wife's separate, pre-marital
property, and, thus, the finding was reversible error; this
case is remanded for the trial court to determine what
portion of the Vanguard retirement account is marital
property, see Thomas v. Thomas, supra, and to
equitably divide that portion of the account.
Husband also contends that the trial court erred in finding
that a townhouse in Doraville, Georgia, was marital property.
Specifically, Husband argues that the evidence shows that the
townhouse was purchased for the benefit of, and held in trust
for, an individual named Thi Vu, thus creating an implied
purchase money resulting trust. See OCGA § 53-12-131 (a)
("A purchase money resulting trust is a resulting trust
implied for the benefit of the person paying consideration
for the transfer to another person of legal title to real or
personal property."). We find no error.
initial matter, though Husband argued below that the
townhouse and any equity therein rightfully belonged to Vu,
Husband failed to advance the "implied purchase money
resulting trust" theory. This distinction is not, as
Husband suggests, a mere formality or a matter of semantics.
Indeed, Husband presented a completely different theory
below, arguing that any agreement between Husband and Vu
regarding the townhouse was "completely
unenforceable" but that Vu should retain the property as
a matter of "equity." Thus, we agree with Wife that
Husband is advancing this legal argument for the first time
on appeal and, accordingly, that this Court need not consider
it. See, e.g., Gotel v. Thomas, 277 Ga. 532, 533
(592 S.E.2d 78) (2004). Nevertheless, even if the argument
were preserved, Husband is still not entitled to relief.
trial, the court heard testimony that the townhouse was
purchased during the course of the marriage without the
knowledge of Wife, that it was purchased using a mortgage
secured in Husband's name, and that Husband purchased
furniture for the residence. The trial court also received
evidence that the townhouse was originally titled to two
people, Husband and Pheera Phan Pai (Vu's now ex-wife and
Husband's former paramour), and that a lease-to-own
agreement was executed between Husband and Pai; the trial
court also learned that, when Pai later left the country
permanently, Pai conveyed her interest in the real estate
back to Husband. According to Husband, he was merely a
broker, and the funds to pay for the townhouse and all
associated expenses, including furniture, were borne
exclusively by Vu and Pai. The trial court, however,
concluded that the townhouse was marital property and awarded
60% of the equity in the townhouse to Wife.
the evidence could be interpreted to support a
finding that Husband held the townhouse in trust for Vu, the
trial court was not required to make such a finding, and the
trial court could have reasonably rejected Husband's
testimony that he was merely a broker in the
transaction. As referenced above, "[i]n a bench
trial, the court sits as the finder of fact and, as such, is
charged with the responsibility of determining whether and to
what extent a particular item is a marital or non-marital
asset and then exercising its discretion and dividing the
marital property equitably." Crowder, 281 Ga.
at 658. The amended final judgment and decree of divorce
entered in this case does not contain any findings of fact
that clarify the rationale used by the trial court to reach
its conclusion that the townhouse was marital property, and
the trial court was not required to make any such findings
absent a request of one of the parties. Id. Because
resolution of this argument depends upon the factual
determinations made by the trial court as fact-finder and
neither party asked the trial court to make factual findings,
we cannot conclude that the trial court's finding that
the townhouse was marital property was improper as a matter
of law or as a matter of fact. Dasher, 283 Ga. at
Finally, Husband contends that the trial court erred in
awarding attorney fees to Wife pursuant to OCGA §
19-6-2. We disagree.
award of attorney fees as part of the expenses of divorce
litigation is left to "the sound discretion of the
[trial] court, except that the court shall consider the
financial circumstances of both parties as a part of its
determination of the amount of attorney's fees, if any,
to be allowed against either party." Id. at (a)
(1). A trial court's decision to exercise its discretion
to award attorney fees pursuant to OCGA § 19-6-2 will
not be disturbed on appeal unless that discretion is
manifestly or flagrantly abused. Hoard v. Beveridge,
298 Ga. 728, 730 (2) (783 S.E.2d 629) (2016).
at the time of the fee award, the trial court was intimately
familiar with the parties' finances, and the order
awarding attorney fees plainly reflects that the trial court
considered the financial circumstances of both parties,
including the parties' disparate incomes. See Rieffel
v. Rieffel, 281 Ga. 891 (1) (644 S.E.2d 140) (2007). The
fee award also reflects that the trial court received and
considered evidence regarding the rates and fees charged by
Wife's attorney, which the trial court found reasonable.
Also, contrary to Husband's argument on appeal, the mere
fact that Wife was not awarded periodic alimony does not
preclude the ...