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Enlow v. Enlow

Court of Appeals of Georgia, Fourth Division

October 31, 2019

ENLOW
v.
ENLOW.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Coomer, Judge.

         M. E., a minor, by and through Deanna Enlow, her parent and guardian, ("Appellant") appeals the trial court's denial of her motion for summary judgment on her claim for fraudulent transfer under the Uniform Voidable Transactions Act ("UVTA") against Glen Enlow ("Grandfather"). On appeal, Appellant contends that the trial court erred in finding that the UVTA can never be used to set aside the terms of a previously entered divorce decree, and, more specifically, that no "transfer" took place as defined by the UVTA. Appellant also contends that the trial court erred in finding that she failed to satisfy the "reasonably equivalent value" and intent elements of her UVTA claim. For the reasons stated below, we vacate and remand.

          This Court reviews de novo a grant or denial of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in the light most favorable to the nonmovant. Norton v. Cobb, 284 Ga.App. 303, 303-304 (643 S.E.2d 803) (2007). "Summary judgment is proper when there is no genuine issue of material fact . . . and the movant is entitled to judgment as a matter of law." Id. at 303 (citations omitted); see OCGA § 9-11-56 (c).

         Viewed in this light, the record shows that in November 2015, Grandfather molested his six-year-old granddaughter, M. E.[1] After he learned Grandfather had molested M. E., her father, Michael Enlow ("Father"), threatened to sue the Enlows. On June 4, 2016, Marilyn Enlow ("Grandmother") wrote an email to Father acknowledging his threat of suit.

         Prior to June 16, 2016, Grandfather and Grandmother held five parcels of real property in a trust, The Trust of Glen A. & Marilyn R. Enlow ("Trust I"). On June 16, 2016, Grandfather and Grandmother, as trustees, executed quitclaim deeds transferring these five parcels of real property from Trust I to Grandmother as trustee of a trust in Grandmother's name, The Marilyn R. Enlow Revocable Trust ("Trust II"). Grandmother and her daughter were named as beneficiaries of Trust II. The quitclaim deeds transferring the five parcels of real estate to Trust II were filed on August 8, 2016.

         Grandfather and Grandmother signed a divorce settlement agreement dated August 18, 2016. In the settlement agreement, Grandfather agreed that all five parcels of real property were to be awarded to Grandmother. After each paragraph awarding Grandmother one of the parcels, the following language was included:

NOTE: at the time of this signing, [Grandfather] has executed a quitclaim deed that was prepared as a part of estate planning that is not a part of this action. In the event that such quitclaim deed has not been properly executed, this provision shall remain in full force and effect.

         Grandfather and Grandmother's final judgment and decree of divorce incorporating the settlement agreement was entered on November 18, 2016.

         On October 11, 2017, Appellant filed a civil action against Grandfather asserting claims for negligence, assault, battery, false imprisonment, negligent and intentional infliction of emotional distress, fraud and fraudulent conveyance under the UVTA, and attorney fees. Grandfather, who is not represented by counsel, sent a pro se correspondence dated November 16, 2017, that appears to be his answer to the complaint. Appellant then filed a partial motion for summary judgment on her claims for negligence, assault and battery, false imprisonment, negligent and intentional infliction of emotional distress, and fraud and fraudulent conveyance under the UVTA. Grandfather submitted a pro se response letter, maintaining that he did not transfer any assets to protect them from any lawsuit.

         The trial court granted summary judgment on all of Appellant's claims except on the UVTA claim. In denying summary judgment on the UVTA claim, the trial court held that the UVTA cannot be used to set aside the terms of a previously entered divorce decree. The trial court stated that it could not conclude that any "transfer" had taken place within the meaning of the UVTA because Grandfather never truly "parted" with any asset because the property at issue was marital property subject to equitable division upon the parties' divorce. The trial court certified its decision for immediate review. Appellant filed a timely application for interlocutory appeal, which we granted. This appeal followed.

         1. Appellant contends that the trial court erred in finding that the UVTA can never be used to set aside the terms of a previously entered divorce decree. We agree.

         The UVTA makes certain transfers of assets by a debtor voidable as to a creditor. See OCGA § 18-2-70 et seq. ...


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