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Borotkanics v. Humphrey

Court of Appeals of Georgia, Second Division

March 2, 2018

BOROTKANICS
v.
HUMPHREY.

          MILLER, P. J., DOYLE, P. J., and REESE, J.

          Reese, Judge.

         Jeremy Borotkanics appeals from a court order finding him in contempt of his divorce decree.[1] He contends that the trial court impermissibly modified the divorce decree and improperly awarded attorney fees and litigation expenses. For the reasons set forth, infra, we affirm in part, reverse in part, vacate in part, and remand this case with direction.

         The record shows the following undisputed facts. Borotkanics and his former wife, Theresa Humphrey, divorced in November 2012. The final divorce decree incorporated a settlement agreement that had been executed by the parties. In March 2016, Humphrey filed a petition for contempt, asserting that Borotkanics had failed to comply with the following real property division provision of the settlement agreement:

[Borotkanics] shall retain the marital home located [on] James Ridge Lane, Stockbridge, Georgia and the property located [on] Mount Tabor Church Road, Dallas, Georgia. [Humphrey] agrees to execute a Quit Claim Deed to [Borotkanics] for each property[.] . . . [Borotkanics] shall refinance both marital properties into his own name and thus remov[e] [Humphrey's] name from the mortgages before February 16, 2013.

         According to Humphrey, Borotkanics failed to refinance the mortgage on either property despite his ability to do so, as evidenced by the fact that he had purchased other properties in 2013, after the divorce decree was final. Humphrey asked the trial court to find Borotkanics in wilful contempt of the divorce decree and to incarcerate him in the county jail until he purged himself from his contemptuous conduct. She also sought attorney fees and litigation expenses.

         The trial court conducted an evidentiary hearing, then entered an order finding Borotkanics in wilful contempt. The court ruled that

[Borotkanics] may purge himself from this contemptuous conduct by immediately placing the real property [on James Ridge Lane, Stockbridge] on the market for sale. [Borotkanics] is to allow [Humphrey] by and through her counsel of record . . . to select a certified real estate broker. The real estate broker will appraise the property . . . and determine the list price of the property. . . . The first offer made to [Borotkanics] for the purchase of said property amounting to 95% of the list price will be accepted by [Borotkanics]. If there is no offer made of 95% of the list price within the first six (6) months of listing the property for sale, the list price will be reduced by 10%.

         The trial court also ordered Borotkanics to "pay as a sanction for contempt the sum of $3, 613.91 in attorney fees and litigation expenses to [Humphrey] and $1, 000.00 to [Humphrey's] attorney[.] This amount shall be paid from the proceeds of the sale of the real property at the closing." This appeal followed.[2]

         It is axiomatic that, on appellate review, we "must affirm a trial court's adjudication of contempt so long as there is 'any evidence' to support it."[3] On the other hand, this Court reviews a trial court's rulings on legal issues de novo.[4] With these guiding principles in mind, we turn now to Borotkanics's specific claims of error.

         1. As an initial matter, Humphrey argues that, due to Borotkanics's failure to provide this Court with a transcript of the contempt hearing, we must assume that the court's order was supported by evidence and, therefore, affirm the order.[5] We agree in part.

         (a)On the factual issue of whether Borotkanics was in wilful contempt of the settlement agreement, we must assume that the evidence presented supported the trial court's conclusion and affirm that finding.[6]

         (b)In contrast, as shown in Division 2, infra, the primary issues on appeal are purely legal issues, i.e., whether the trial court's order constituted a modification of the divorce decree and, if so, whether the court was authorized to make such a modification as a sanction for contempt under the circumstances presented. Moreover, because the facts necessary to conduct a de novo review of these legal issues are undisputed and are part of the record, the absence of a hearing transcript does not hamper our review.

         2. Borotkanics contends that, because the divorce decree did not require him to sell the marital home if he failed to comply with his obligation to refinance the mortgage, the court's order to sell that property ...


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