Antonio Robles Castillo v. Jessica Cardenas Lopez

• Court: Court of Appeals of Georgia
• Decided: March 12, 2025
• Docket: A24A1384
• Status: Published

Opinion

FIRST DIVISION BARNES, P. J., GOBEIL and PIPKIN, JJ.

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

March 12, 2025

In the Court of Appeals of Georgia

A24A1384. CASTILLO v. LOPEZ.

BARNES, Presiding Judge.

We granted Antonio Robles Castillo’s request for discretionary review of the

denial of the his motion for new trial following the entry of the final judgment and

divorce decree of Castillo and Jessica Cardenas Lopez. Castillo now appeals and

challenges the award of alimony, the trial court’s analysis used in the division of the

marital property, and the award of attorney’s fees to Lopez. For the reasons that

follow, we affirm the court’s judgment awarding alimony and its division of marital

property, but vacate the award of attorney’s fees, and remand the case for further

proceedings consistent with this opinion. Castillo and Lopez were married in 2001, and have three minor children and

one adult child.1 Lopez filed a complaint for divorce in November 2021, alleging that

the marriage was irretrievably broken, and requesting, among other things, primary

physical and joint legal custody of the children, child support, the equitable division

of the couple’s property, and temporary and permanent alimony. Castillo answered

and also included a counterclaim for divorce on irretrievably broken grounds, and he

further requested that he be awarded his equitable share of the couples assets, debts,

and marital home, pre-marital and non-marital property that belonged to him, and the

temporary and permanent joint legal custody of the children.

In the couple’s January 2023 divorce decree, the trial court, inter alia,

calculated Lopez’s gross monthly income as $3,000 and Castillo’s gross monthly

income as $7,000. The court awarded the marital residence to Lopez and a home

jointly owned by the couple in Mexico to Castillo, ordered Castillo to pay off the

mortgage for the marital residence by November 2024, and awarded Lopez a portion

of the equity in the Mexico property. The court also ordered Castillo to pay $2,000

1 Prior to trial, the couple reached an agreement on parenting time, custody and visitation. 2 in monthly alimony until the mortgage on the marital residence is paid in full. Finally,

the court awarded Lopez $15,000 in attorney fees.

1. Castillo first contends that the trial court’s award of temporary alimony to

Lopez was improper and excessive. In support of this contention, Castillo points to

the contrast between his monthly gross income of $5,505 and the $5,629 total award

to Lopez, which includes $2,000 in monthly temporary alimony, the monthly

mortgage payment of $2334, and monthly child support of $1,295. The trial court

ordered that the temporary alimony be paid “until such time as [Castillo] pays off the

outstanding mortgage on the marital residence as provided for [in the divorce

decree].” Relatedly, the trial court ordered that Castillo pay the monthly mortgage on

the primary residence and “pay off the entirety of the mortgage balance no later than

November 29, 2024.” The divorce decree provided that alimony would terminate

upon proof that the mortgage had been paid in its entirety.

Castillo argues that the temporary alimony award was improper in that it was

not related to pending litigation, as the litigation had concluded, and also was not in

contemplation of an appeal. See OCGA § 19-6-3 (a) (providing in relevant part that

“[w]henever an action for divorce or for permanent alimony is pending, either party

3 may apply at any time to the presiding judge of the court in which the same is pending,

by petition, for an order granting the party temporary alimony pending the issuance

of a final judgment in the case”). Secondarily, he asserts that the award was excessive

in that it did not take into account his ability to pay, given that the amount of total

support – including alimony– exceeded his net monthly income.

Here, however, Castillo did not raise any claim regarding the appropriateness

of the award of temporary alimony in the motion for new trial, and the trial court did

not reach this issue in its order on the motion.2 As a result, Castillo is precluded from

raising such challenge for the first time on appeal. McLendon v. McLendon, 297 Ga.

779, 782-783 (5) ( 778 SE2d 213) (2015) (noting that appellant could not challenge on

appeal issues not raised in written motion for new trial or hearing on the motion for

new trial); Brookfield Country Club v. St. James-Brookfield, LLC, 287 Ga. 408, 413 (3)

(696 SE2d 663) (2010) (“Issues which have not been ruled on by the trial court may

not be raised on appeal.”) (citation and punctuation omitted).

Castillo also challenges the sufficiency of the evidence supporting the alimony

award. See Ford v. Ford, 349 Ga. App. 45, 47 (2) (a) (825 SE2d 449) (2019) (physical

2 The parties waived an evidentiary hearing on the motion for new trial. 4 precedent only) (noting generally “issues which have not been ruled on by the trial

court may not be raised on appeal” but then finding consideration of the issues raised

on appeal proper when characterized as challenge to sufficiency of the evidence,

which may be raised at any time) (citation and punctuation omitted) (citation and

punctuation omitted). According to Castillo, despite finding that his gross income was

$7,000 in both the child support order and final judgment, the trial court ordered him

to pay cumulative support that was more than his net income. Citing Coker v. Coker,

286 Ga. 20, 22-23 (685 SE2d 70) (2009), Castillo contends that awarding alimony that

is not supported by evidence reflecting the ability to pay is reversible error.

OCGA § 19-6-1 (c) authorizes alimony in accordance with the needs of the

moving party and the ability of the other party to pay. “Among the numerous factors

to be considered in determining the amount of alimony, if any, that is to be awarded

are the financial resources of each party, including their separate estates, earning

capacity, and their fixed liabilities. OCGA § 19-6-5 (a) (4) and (7).” (Footnote

omitted.) Duncan v. Duncan, 262 Ga. 872, 873 (1) (426 SE2d 857) (1993). And, “[i]n

the absence of any mathematical formula, fact-finders are given a wide latitude in

fixing the amount of alimony . . . and to this end they are to use their experience as

5 enlightened persons in judging the amount necessary for support under the evidence

as disclosed by the record and all the facts and circumstances of the case.” (Citation

and punctuation omitted.) Farrish v. Farrish, 279 Ga. 551, 552 (615 SE2d 510) (2005).

Here, although the trial court found that Castillo’s reported monthly income

was $7,000, the trial court was also authorized to consider other evidence reflecting

additional sources of income. Testimony included, among other things, that Castillo

reportedly received substantial rental income from multiple properties in Mexico, had

transferred ownership of various properties into the names of his children and others,

and, in addition to paying the mortgage on the primary residence, was able to pay

$1,500 and $1,200 for his and his son’s apartments, had paid cash for Lopez’s 2019

vehicle, and had access to large amounts of cash. In the final divorce decree, the trial

court recited that it had reviewed and considered, not only the financial documents

tendered by the couple, but also “the testimony and argument pertaining to

[Castillo’s] income and the financials related to properties owned in Mexico.”

“[T]his Court properly gives due deference to the opportunity of the trial court

to judge the credibility of the witnesses.”(Citation and punctuation omitted.) Patel v.

Patel, 285 Ga. 391, 391 (1) (a) (677 SE2d 114) (2009). Based on our review of the

6 record, and given the wide latitude the trial court as fact-finder is given in fixing the

amount of alimony, it cannot be said that the trial court abused its discretion in

determining the amount of alimony awarded to Lopez.

2. Castillo challenges as error the trial court’s analysis used in its equitable

division of the couple’s real property. One of the properties assessed in the division

of real property was located in Mexico. The final divorce decree divided the Mexico

property’s $90,000 in equity equally between the couple, but after the court offset

certain credit card debt attributed to Lopez, she was awarded $31,000 from the

property. Castillo asserts that the trial court was required to use Mexico rather than

Georgia law in calculating the division of the marital property located in Mexico. See

Mbatha v. Cutting, 356 Ga. App. 743, 751 (2) (c) (848 SE2d 920) (2020) (holding that

“the parties’ interests in any real property should be determined under the law of the

jurisdiction in which it is located while interests in personal property should be

determined under the law of the owner’s domicile at the time the property was

acquired”). The result, according to Castillo, would have been that the property

would have been “his or her ‘separate’ property pursuant to a designation of same

made at the time of marriage on the marriage license.”

7 Pretermitting whether the trial court was required to use the law of Georgia or

of Mexico in its determination of the equitable division of the couple’s real property,

the record reflects that Castillo acquiesced to the trial court’s ruling that it would use

Georgia law in its assessment.

Here, at the conclusion of the trial, Castillo’s counsel requested that the court

clarify its decision regarding “the choice of law,” and why it was using Georgia law

to determine the equitable division of the real property. The court explained that

Lopez had said she did not want any of the Mexico properties and the parties had

stipulated to the one property being marital property, “[s]o I gave her half of that at

the — the amount you quoted of equity.” The trial court further explained that

Castillo had received all of the Mexico real property, and that Castillo had

acknowledged that [the property at issue] was marital property and if you want me to further acknowledge it, I’ll use that one and use Mexican law because the Court has personal jurisdiction over both parties here as in person – personal real property and both parties stipulated and agreed that [the Mexico property] was marital property subject to equitable distribution[.]”

Castillo responded, “Thank you,” and the judge conveyed that it had divided the real

property in the manner Castillo had requested, but invited Castillo to “take[] it up,”

8 presumably indicating that Castillo could appeal his decision. Castillo then indicated,

that “We’re not planning to do that, judge.”

A party may not idly sit by and watch when possible error is presented and on appeal claim error. It is necessary, in order to make the same a basis for appellate review that opposing counsel make proper objection or invoke some ruling of the court. Consequently, in this case [Castillo’s] failure to object and preserve the issue for appellate review deprives the appellants of the right to complain on appeal.

(Footnotes and punctuation omitted.) Roberts v. First Ga. Community Bank, 335 Ga.

App. 228, 231 (1) (779 SE2d 113) (2015). See Lamb v. Javed, 303 Ga. App. 278, 280

(1) (692 SE2d 861) (2010) (noting that “a litigant cannot submit to a ruling or

acquiesce in the holding, and then complain of the same on appeal. He must stand his

ground. Acquiescence deprives him of the right to complain further.”)(citation and

punctuation omitted).

Given Castillo’s acquiescence to the trial court’s ruling, he cannot challenge

same on appeal.

3. Castillo next contends that the trial court erred by awarding attorney’s fees

without identifying the factual or statutory basis for the award. Castillo asserts as

inadequate a “mere summary statement” to support the $15,000 award of attorney

9 fees. The divorce decree simply stated that “[t]he Court hereby finds that [Lopez] is

awarded attorney’s fees in the amount of fifteen thousand dollars ($15,000.00).” It

further directed the date and location that such attorney’s fees should be remitted.

Under OCGA § 9-15-14 (a), a trial court shall award reasonable and necessary

attorney fees where a party has asserted a position that lacked any justiciable issue of

law or fact so that it could not reasonably be believed that a court would accept it. The

court may award attorney fees under OCGA § 9-15-14 (b) if it finds that a party

brought an action or raised a defense that lacked substantial justification, brought an

action for delay or harassment, or unnecessarily expanded the proceedings by other

improper conduct.

In addition, in divorce and alimony cases, a trial court may award attorney fees

under OCGA § 19-6-2 (a) (1) after “consider[ing] the financial circumstances of both

parties.” In this regard, an OCGA § 19-6-2 award is not premised on a party’s

wrongdoing; rather, “it is to be made with the purpose of ensuring effective

representation of both spouses in an action arising out of a divorce.” Cason v. Cason,

281 Ga. 296, 300 (3) (637 SE2d 716) (2006). Findings of fact regarding the relative

10 financial circumstances of each party thus are prerequisites to an OCGA § 19-6-2 fee

award. Amoakuh v. Issaka, 299 Ga. 132, 134 (3) (786 SE2d 678) (2016).

Similarly, when awarding fees under OCGA § 9-15-14, the court must limit the

award “to those fees incurred because of the sanctionable conduct.” (Citation and

punctuation omitted.) Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009).

Thus, “‘lump sum’ or unapportioned attorney fees awards are not permitted in

Georgia.” Id. “[I]f a trial court fails to make findings of fact sufficient to support an

award of attorney fees under either OCGA § 19-6-2 or § 9-15-14, the case must be

remanded to the trial court for an explanation of the statutory basis for the award and

any findings necessary to support it.”(Citations and punctuation omitted.)

Thrasher-Starobin v. Starobin, 299 Ga. 12, 13 (785 SE2d 302) (2016); see also Trotman

v. Velociteach Project Mgmt., 311 Ga. App. 208, 214 (6) (715 SE2d 449) (2011) (this

Court will vacate and remand for further fact-finding where “the trial court’s order,

on its face[,] fails to show the complex decision making process necessarily involved

in reaching a particular dollar figure and fails to articulate why” it awarded one

amount of fees rather than another under OCGA § 9-15-14) (citation and punctuation

omitted).

11 Here, the divorce decree identifies neither the statutory basis for the lump-sum

fee award nor the facts underlying the award. While the trial court’s findings as to the

parties’ relative income potentially could provide some support for an OCGA § 19-6-2

fee award, the decree here contains no indication that the fee award bore any

relationship to those findings. Given these deficiencies, we vacate the trial court’s

award and remand for further proceedings consistent with this opinion. See Amoakuh,

299 Ga. at 134 (3); Thrasher-Starobin, 299 Ga. at 13.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Gobeil and Pipkin, JJ., concur.