FOURTH DIVISION DILLARD, C. J., RAY and SELF, 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. http://www.gaappeals.us/rules
February 9, 2018
In the Court of Appeals of Georgia A17A2035. SEDEHI v. CHAMBERLIN.
DILLARD, Chief Judge.
Arya Sedehi appeals the trial court’s final judgment in his divorce action
against his former wife, Amanda Chamberlin, challenging the trial court’s lump-sum
award of alimony to Chamberlin. Specifically, Sedehi argues that the trial court erred
by awarding alimony, over his objection, because Chamberlin never asserted a claim
for alimony in any pleading, sought leave of the court to amend her pleadings, or
presented any evidence to support an alimony award. Alternatively, Sedehi argues
that, even if the trial court was authorized to award alimony, the amount awarded to
Chamberlin was excessive. For the reasons set forth infra, we reverse the final
divorce judgment, in part, as to the alimony award, and affirm the remainder of the
judgment, which is not challenged by either party on appeal. Viewing the evidence in the light most favorable to the trial court’s rulings,1
the record shows that Sedehi and Chamberlin met in college and dated on and off for
at least eight years prior to their 2015 wedding. After graduating college, during a
time when the couple was not romantically involved, Chamberlin moved to
Washington D.C. for a job opportunity, where she bought a house, and Sedehi
remained in Atlanta for graduate school. But the couple stayed in touch, and in 2012,
they began a long-distance dating relationship. Eventually, Chamberlin moved back
to Atlanta, and approximately one year later, in June 2014, Sedehi and Chamberlin
became engaged to be married. After the engagement, Chamberlin moved in to a
condominium with Sedehi that he owned and had lived in for approximately ten
years.2 Almost one year later, in May 2015, Chamberlin received a Facebook message
1 See Gibson v. Gibson, 301Ga. 622, 624 (801 SE2d 40) (2017) (“In reviewing a bench trial, we view the evidence in the light most favorable to the trial court’s rulings, defer to the trial court’s credibility judgments, and will not set aside the trial court’s factual findings unless they are clearly erroneous.”). 2 According to Sedehi, in 2005, the condominium’s original owner, his cousin, transferred the property to him before she got married “as part of the pre-marital counseling.” Sedehi testified that the condominium was purchased by his family to help various family members build credit, and it was transferred to him via a warranty deed at a time when he was a college student who did not have enough money to purchase real estate. Sedehi did not pay rent when he alone resided in the condominium, but when he lived there with Chamberlin, he paid utilities out of their joint account. In early August 2015, one month prior to the wedding, Sedehi
2 from a man who alleged that Sedehi was having a sexual relationship with his wife.
Sedehi denied the allegations and told Chamberlin that the message might be part of
an Internet scam.3
On September 5, 2015, Sedehi and Chamberlin were married in Cape Cod,
Massachusetts, where Chamberlin’s family owns a vacation home. But only 22 days
after the wedding (and approximately one week after the couple returned home from
their honeymoon), the parties separated. The separation resulted from a significant
fight the newlyweds had following a music festival, at which Chamberlin observed
Sedehi taking illegal drugs. Although Sedehi’s family owned the condominium,
transferred the property to his mother because it was “not actually [his.]” Sedehi testified that the condominium was only transferred to him to help build credit, and he transferred it to his mother prior to the wedding as part of “pre-marital planning.” Sedehi further testified that, one month prior to the wedding, he also transferred a lake house, which was held in the name of a company he owned, to his mother as co- trustee of a family trust. Sedehi admitted that he did not receive anything of value for the transfer, but he contended that it was not his property and that he was merely giving it back to his family’s trust. Although these property transfers are referenced extensively throughout the record and at trial, they are irrelevant to the resolution of this appeal. We note this evidence solely to provide context for the fraud claims raised by Chamberlin, which are detailed infra. The trial court denied Chamberlin’s fraud claims, and she has not appealed that judgment. 3 Some time after the wedding, Sedehi admitted to having one sexual encounter with the man’s wife a few months before he married Chamberlin. Again, evidence of Sedehi’s infidelity during the engagement is relevant only to provide context for Chamberlin’s fraud claims.
3 Chamberlin continued living there rent-free after the separation for approximately the
next eight months, while Sedehi moved in with his parents. In November 2015, the
parties attended a marriage-counseling session at which Sedehi told Chamberlin that
he wanted a divorce. Chamberlin wanted to “work on the marriage[,]” but later
testified that, at that time, she did not know the extent of Sedehi’s drug use or that he
“actually had physical relations with [another woman]. . . .” According to
Chamberlin, she “would never have gone through a marriage ceremony . . . if [she]
had known that [Sedehi] was cheating on [her], that he was using drugs, and that he
was lying to [her].”
Ultimately, on December 4, 2015, Sedehi filed a petition for divorce against
Chamberlin, alleging that their marriage was irretrievably broken with no prospects
for reconciliation. In his prayer for relief, Sedehi requested that he be awarded all real
personal property that he acquired prior to the marriage, reasonable attorney fees, a
total divorce from Chamberlin, and any other relief that the court deemed proper. The
court then issued a standing order, which, inter alia, instructed both parties to file a
domestic-relations financial affidavit within 30 days, but only Sedehi filed such an
affidavit. Chamberlin filed an answer to the divorce petition, contesting the divorce,
4 seeking an annulment, and asserting counterclaims for fraudulent inducement to
marry and fraudulent conveyance.
In her answer, Chamberlin admitted many of the divorce petition’s factual
allegations regarding the timing of the parties’ wedding ceremony and separation, but
she asserted that Sedehi’s claim for a divorce was barred due to fraud. Specifically,
in her first counterclaim, Chamberlin asserted a claim of “fraudulent inducement to
marry seeking an annulment[,]” alleging that Sedehi falsely promised her that he had
stopped using illegal drugs, he would not use such drugs during the marriage, he had
been faithful to her during their engagement, and he would remain faithful to her
during the marriage. She further claimed that she reasonably relied on these promises
when she agreed to marry him. According to Chamberlin, Sedehi lied to her in order
to fraudulently induce her to marry him, and as a result, she sustained financial and
mental-health damages. As to this counterclaim, she contended that she was entitled
to no less than $400,000 in actual damages, as well as punitive damages of at least
$1,000,000 and attorney fees. In her second counterclaim, Chamberlin asserted a
claim of fraudulent conveyance, alleging that just prior to the wedding, Sedehi
conspired with his mother to transfer the condominium to her for the purpose of
depriving Chamberlin of any meaningful opportunity to recover damages for her
5 fraudulent-inducement claim. As to this claim, Chamberlin sought an amount of
actual damages to be determined at trial, as well as at least $1,000,000 in punitive
damages.
Sedehi filed a response, asserting several affirmative defenses and denying the
allegations of both counterclaims. He also filed a first amended complaint, adding
physical and mental cruelty as grounds for the divorce. In support, Sedehi provided
extensive factual allegations regarding the tumultuous nature of the parties’ dating
relationship prior to the marriage, as well as his version of the events leading up to
the marriage ceremony and the circumstances of the parties’ separation shortly
thereafter.4
Discovery ensued, and eventually, the case proceeded to a two-day bench trial.
Following trial, the court issued an order granting the parties a divorce on the grounds
that the marriage was irretrievably broken, denying Chamberlin’s request for an
annulment, denying her fraud claims, providing for the equitable division of property,
4 In his amended complaint, based on the detailed background information he provided, Sedehi asserted numerous claims against Chamberlin. But prior to trial, Sedehi voluntarily dismissed those claims, and pursued only his original claim for a divorce.
6 and awarding Chamberlin a lump-sum alimony award of $105,000.5 As a basis for the
alimony award, the trial court first found that Chamberlin had “incurred certain
expenses and costs and [had] become accustomed to a certain lifestyle.” Furthermore,
the court found that Chamberlin required the award for “a rehabilitative period to get
back on her feet.” The court ordered Sedehi to make two lump-sum payments of
$52,500, with the first payment due approximately three months after trial and the
second one due four months later. Thereafter, we granted Sedehi’s application for a
discretionary appeal.
In the appellate review of a bench trial, we will “not set aside the trial court’s
factual findings unless they are clearly erroneous, and this Court properly gives due
deference to the opportunity of the trial court to judge the credibility of the
witnesses.”6 But when a question of law is at issue, we review the trial court’s
5 Although it is unclear on what basis the trial court determined the amount of the alimony award, it is worth noting that, at trial, Chamberlin testified that she spent approximately $100,000 on the Cape Cod wedding, and that she had to sell her house in Washington D.C. to pay for it. 6 Patel v. Patel, 285 Ga. 391, 391 (1) (a) (677 SE2d 114) (2009) (punctuation omitted); see supra note 1.
7 decision de novo.7 With these guiding principles in mind, we turn now to Sedehi’s
specific claims.
1. Sedehi first argues that the trial court erred in awarding alimony to
Chamberlin when she never asserted a claim for alimony in her pleadings, she never
moved to amend her pleadings to include such a claim, he had no notice that alimony
would be an issue at trial, and he objected to litigating that issue when it was raised
for the first time at trial. We agree.
As explained by the Supreme Court of Georgia, “[t]he
constitutionally-guaranteed right to due process of law is, at its core, the right of
notice and the opportunity to be heard.”8 Furthermore,
[n]either the federal nor the state constitution’s due process right guarantees a particular form or method of procedure, but is satisfied if a party has reasonable notice and opportunity to be heard, and to present
7 See, e.g., Colbert v. Colbert, 321 Ga. App. 841, 841 (1) (743 SE2d 505) (2013); see also Brooks-Powers v. Metro. Atlanta Rapid Transit Auth., 260 Ga. App. 390, 390 n.1 (579 SE2d 802) (2003) (“We owe no deference to a trial court’s ruling on questions of law and review such issues de novo.”). 8 CML-GA Smyrna, LLC v. Atlanta Real Estate Investments, LLC, 294 Ga. 787, 788 (1) (756 SE2d 504) (2014) (punctuation omitted); accord Cobb Cty. Sch. Dist. v. Barker, 271 Ga. 35, 37 (2) (518 SE2d 126) (1999); Lewis v. City of Savannah, 336 Ga. App. 126, 133 (2) (b) (784 SE2d 1) (2016).
8 its claim or defense, due regard being had to the nature of the proceeding and the character of the rights which may be affected by it.9
Here, as detailed supra, Chamberlin’s answer to the divorce petition sought an
annulment, as well as actual and punitive damages resulting from fraud. And Sedehi
correctly notes that Chamberlin never amended her answer, either prior to trial or by
motion during trial, to add any alternative forms of relief in the event that the court
granted a divorce, rather than an annulment. In fact, throughout discovery and during
trial, Chamberlin affirmatively indicated that she sought only damages for fraud,
regardless of whether the court rejected her claim for an annulment. For example,
during Sedehi’s pre-trial deposition, his counsel objected to certain questions
regarding Sedehi’s finances and income, stating that those matters have “nothing . .
. to do with this case.” Sedehi’s counsel further contended that such questions were
wasting everyone’s time and were asked only to harass his client. Chamberlin’s
counsel responded that the financial issues were relevant because “[t]his is a
fraudulent conveyance case[,]”10 and thus, he should be able to question Sedehi
9 CML-GA Smyrna, LLC, 294 Ga. at 788 (1) (punctuation omitted); accord Barker, 271 Ga. at 37 (2); Lewis, 336 Ga. App. at 133 (2) (b). 10 (Emphasis supplied).
9 regarding any potential sources of income. Additionally, during her deposition,
Chamberlin reiterated that she sought an annulment, rather than a divorce, due to
Sedehi’s dishonesty.
Also during discovery, Sedehi filed a motion in which he argued that some of
Chamberlin’s discovery requests were unrelated to the divorce action. In defending
her right to the requested discovery, Chamberlin stated the following: “This cannot
be emphasized enough, the Plaintiff[ ] [is] being countersued for fraud. . . . Ms.
Chamberlin has not made a demand for equitable division [of property] because no
such relief is permitted in an annulment action.”11 Then, just prior to trial, the parties
completed a “trial questionnaire” in which they were both asked, inter alia, to briefly
summarize the issues to be tried in the case. Sedehi indicated that the only issue was
a “22[-]day marriage with no marital property to be equitably divided.” Although
Chamberlin’s response was more detailed, she made no mention of alimony or the
11 (Emphasis in original). During trial, Chamberlin also indicated that her marriage to Sedehi was invalid, and as a result, an annulment was warranted. Specifically, she testified, “I agreed that there was a marriage ceremony. I don’t believe that there was a wedding, because the vows exchanged were not truthful.” Because both equitable division of property and alimony are not “permitted in an annulment action[,]” Chamberlin gave Sedehi no reason to believe that she was seeking any relief available only in a divorce proceeding.
10 right to any marital property, but instead, briefly summarized the basis for her fraud
claims.
At the outset of trial, during his opening statement, Sedehi’s counsel described
the case as “nothing more than a young couple getting married and getting divorced,”
specifically noting that “there [was] not a claim for alimony” and that the only marital
property to be divided were the wedding gifts. Then, during his opening statement,
Chamberlin’s attorney began by reiterating that his client was seeking an annulment
based on fraud. In support, he provided extensive detail regarding the evidence he
planned to present as to the misconduct by Sedehi that constituted such fraud, and the
financial and emotional damage that Chamberlin suffered as a result of this behavior.
But at some point, the court interrupted Chamberlin’s attorney and asked him, “So
what does your client want . . .?” In response, the attorney stated that Chamberlin had
suffered emotionally, and he listed numerous specific monetary losses she suffered,
such as the substantial amount of money she spent on the wedding. In sum,
Chamberlin’s attorney asserted that the evidence in this case “demands a finding that
an annulment is appropriate, and . . . a monetary finding in an amount that [he] will
quantify specifically at the appropriate time . . . .” Her attorney also clarified that,
11 even if the court denied an annulment, damages for fraud would still be available in
a divorce.
Notwithstanding that Chamberlin’s attorney had still made no mention of
alimony whatsoever, the court raised the issue for the first time, stating that if
Chamberlin failed to prove she was entitled to an annulment, her “exclusive remedy
would be equitable division or alimony, something like that.” Chamberlin’s counsel
did not immediately agree, and instead, he reiterated that, even if the court denied an
annulment, she could still recover damages for her fraudulent-inducement claim in
the divorce. Nevertheless, the court persisted, again asking, “So let’s say the court—if
there is no annulment, do you get [recovery] . . . through some type of alimony, [or]
equitable division?” Chamberlin’s attorney, still not referencing alimony specifically,
responded that generally, “being a court of equity . . . I think that this court has the
authority to fashion an appropriate remedy to right the wrongs.”
Then, finally addressing the issue of alimony for the first time in this entire
litigation, Chamberlin’s counsel argued as follows:
So, whether it is in the form of alimony, lump sum alimony for instance, it could be an approach. Whether it is an equitable division of property, but under a lump sum alimony context, the court could reach into separate property in order to affect that, and so it doesn’t necessarily
12 need to be periodic alimony. But under lump sum alimony, for instance, should the court void the [property] transfers under the fraudulent conveyance [claim], then those properties could be available to satisfy a lump sum alimony award. I think the court would be well within its rights to do that.
Thus, although Chamberlin’s counsel conceded that the court could award lump-sum
alimony, he never actually asked for it, continuing to maintain that the Court would
need to void Sedehi’s property transfers as fraudulent such that he had the means to
pay either damages or lump-sum alimony.
The trial court and Chamberlin’s attorney’s discussion of potential remedies
continued, but Sedehi’s counsel interrupted, reasserting his earlier contention that
“[t]here is no claim for alimony anywhere in this case.” Sedehi’s counsel further
argued:
We have not been put on notice, so this issue that now they’re going to be asking for lump[-]sum alimony, would [warrant] direction from the court that they’re barred from requesting any type of alimony because it wasn’t even prayed for or asked for in any of the pleadings in this case.12
12 During trial, Sedehi testified to his similar understanding of the case, stating, inter alia, that he was not seeking alimony from Chamberlin, and she never sought alimony from him. Chamberlin did not object to this testimony, and she never indicated that she was seeking alimony. Indeed, on cross-examination, Sedehi’s
13 The court responded by asking, “[b]ut don’t [the] pleadings conform to the
evidence[?]” And without any response to that question from either party, the first
witness was called to testify.
Other than the foregoing discussion with the trial court, neither Chamberlin nor
her counsel ever mentioned an award of alimony during trial, or any evidentiary basis
for such an award. Indeed, near the conclusion of her trial testimony, Chamberlin was
specifically asked what she was asking the court to award her. In relevant part,
Chamberlin testified that she wanted an annulment, attorney fees, and approximately
$375,000 to compensate her for expenses that she had incurred as a result of Sedehi’s
dishonesty. Then, Chamberlin was asked on what baiss could a divorce be granted,
if the court declined to grant an annulment, and she responded that it would be fraud.
In his closing argument, Chamberlin’s attorney contended that the evidence supported
her fraud claims, but he made no mention of alimony. And in fact, Chamberlin’s
counsel asked Chamberlin whether, if the court did not grant an annulment, she was now seeking an alimony award. Chamberlin responded by saying, “I’m asking the court, in the way that the court feels is right, to award me costs that I have incurred because your client has lied and deceived [me].” (Emphasis supplied). But as discussed infra, alimony is not a reimbursement for expenses resulting from dishonesty, but instead, it is a statutory remedy providing for post-separation spousal support from one spouse to the other granted after consideration of specific statutory factors. See OCGA § 19-6-5 (a).
14 attorney reiterated his argument that, even if the court granted a divorce, she should
still recover damages for fraud because divorce actions provide remedies for fraud.
As to those damages, Chamberlin’s attorney specifically listed all of the expenses that
she incurred as a result of the wedding and separation, concluding that Chamberlin
was entitled to $359,080 in damages, not including attorney fees.
In response, Sedehi’s counsel argued at length that Chamberlin’s fraud claims
were meritless and an annulment was not warranted. Then, notwithstanding the fact
that neither Chamberlin nor her counsel had ever requested alimony or even
mentioned it during trial other than in response to questions from the trial court,
Sedehi’s counsel, presumably in an abundance of caution, reiterated his objection to
an award of alimony. Specifically, he noted that Chamberlin sought only an
annulment, and she never counterclaimed for alimony, the equitable distribution of
property, or a distribution of debt. Nevertheless, at the conclusion of trial, the court
denied Chamberlin’s request for an annulment, denied both of her fraud claims, and
awarded her $105,000 in alimony to be paid in two lump-sum payments.
As evidenced by the foregoing, Chamberlin maintained, from the time she
answered the divorce petition until her counsel’s closing argument at trial, that an
annulment was warranted, the marriage was invalid, and she was entitled to damages
15 for fraud. Indeed, despite being given several opportunities to inform the court of the
relief being sought, neither Chamberlin nor her counsel ever used the word “alimony”
(other than when prompted by the trial court during opening statements).13 Perhaps
most importantly, it was the court, not Chamberlin, that initially raised the issue of
alimony as a potential remedy. And while Chamberlin’s attorney eventually agreed
that the court had the authority to grant “equitable relief” in the form of lump-sum
alimony,14 he never requested alimony, arguing instead that if a divorce were granted,
Chamberlin should still recover damages for fraud. Even during closing arguments,
the only mention of alimony was made by Sedehi, not Chamberlin, in the context of
reiterating his objection that alimony was not an issue in the case. In sum, we agree
with Sedehi that the trial court’s alimony award violated his due-process rights
13 Even in Chamberlin’s appellate brief, the vast majority of her statement of the facts relates to her fraud claims, which makes sense because those were the only claims she pursued below. Indeed, she devotes six out of seven pages of that section to reiterating the evidence she believes supports her allegations that Sedehi (1) lied to her about a sexual affair; (2) concealed his drug use from her; and (3) fraudulently conveyed real estate worth $1,100,000 prior to the wedding. But as previously mentioned, the trial court denied Chamberlin’s fraud claims, and those claims are not at issue in this appeal. 14 Despite Chamberlin’s concession, alimony, which is only authorized in divorce cases, is a statutory remedy, not an equitable one. See OCGA § 19-6-5 (a). Furthermore, divorce is also governed by statute in Georgia. See OCGA 19-5-1, et seq.
16 because Chamberlin never expressly asked for such relief, either prior to or during
trial, and he had no meaningful opportunity to be heard or to prepare a defense to that
claim.15
Nevertheless, Chamberlin argues that the alimony award was authorized
because Sedehi never objected that he was prejudiced by the admission of evidence
at trial, she was not required to amend her pleadings under OCGA § 9-11-15 (b), and
15 See supra notes 8-9 & accompanying text; see also Hedquist v. Hedquist, 275 Ga. 188, 190 (563 SE2d 854) (2002) (holding that a husband’s due-process rights were violated in a divorce proceeding when he did not have notice within a reasonable time before a particular hearing that the trial court would consider and issue a judgment regarding contempt charges against him); Harris v. Harris, 258 Ga. 496, 496 (371 SE2d 399) (1988) (reversing a judgment that granted the parties’ house to the petitioner for a divorce when the defendant was not put on notice by the complaint that he would have to defend against the wife’s claim to the marital home); In the Interest of B. T. H., 326 Ga. App. 531, 534 (1) (757 SE2d 167) (2014) (holding, in a deprivation proceeding, that the parents’ due-process rights were violated when they had notice of a “72-hour hearing,” but not of a full deprivation hearing, which deprived them of notice of the type of proceeding for which they needed to prepare); Williams v. Jones, 291 Ga. App. 395, 398 (662 SE2d 195) (2008) (holding that a party’s due-process rights were violated because the opposing party filed nothing to put her on notice that she would have to defend against a particular claim); Cohen v. Nudelman, 269 Ga. App. 517, 523 (4) (604 SE2d 580) (2004) (holding, in a child- support case, that, even though the father raised a fraud claim in a pleading, the court violated the mother’s due-process rights by awarding damages for fraud following a hearing when the mother had no notice that the fraud claim would be resolved and damages imposed at that particular hearing, which deprived her of any reasonable opportunity to defend against the claim).
17 the pleadings conformed to the evidence.16 And while she acknowledges that Sedehi
objected to the “alternative remedy” of alimony, she argues that he failed to object to
the underlying evidence as prejudicial,17 which relieved her of any obligation to
amend her pleadings. These arguments are misplaced because the threshold 16 Chamberlin also summarily states, without further explanation, that “[t]he evidence supporting [her] damages arising out of [Sedehi’s] fraud and deceit was the very same evidence the Court required to fashion an award of alimony[,]” but she fails to identify any such testimony or other evidence. Furthermore, while there could be some overlap in relevant evidence, damages flowing from fraudulent conduct and alimony awards are generally granted on entirely different bases. Specifically, to recover damages for fraud, Chamberlin was required to prove the actual damages that flowed from Sedehi’s alleged fraudulent conduct, and in contrast, alimony is an allowance out of one party’s estate, made for the support of the other party when living separately. Compare Pampattiwar v. Hinson, 326 Ga. App. 163, 171 (2) (756 SE2d 246) (2014) (“[I]n order to recover for fraud, a plaintiff must prove that actual damages, not simply nominal damages, flowed from the fraud alleged.” (punctuation omitted)), with Hipps v. Hipps, 278 Ga. 49, 49 (1) (597 SE2d 359) (2004) (“Alimony is an allowance out of one party’s estate, made for the support of the other party when living separately. It is either temporary or permanent.” (punctuation omitted)). Also unlike an award of damages for fraud, trial courts must consider certain specific statutory factors in awarding alimony. See OCGA § 19-6-5 (a) (1)-(8). Regardless, as explained infra, even if some of the evidence presented could be relevant to both claims for relief, the alimony award in this case was still erroneous because the parties did not expressly or impliedly consent to litigating that issue. 17 Contrary to Chamberlin’s claim, both parties made several objections to the relevance of certain evidence throughout trial. And when such objections were made, the trial court and Chamberlin repeatedly confirmed Sedehi’s understanding that Chamberlin sought only damages for fraud, as she did not believe the parties were ever married. Significantly, neither party argued and the trial court never expressly ruled that any of the challenged testimony or other evidence was relevant to a claim for alimony.
18 requirement of OCGA § 9-11-15 (b)—that the parties consent, either explicitly or
implicitly, to litigating an issue not raised in the pleadings—is not satisfied.
Specifically, OCGA § 9-11-15 (b) provides, in its entirety that
[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of the evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet the evidence.18
But Georgia courts have made clear that OCGA § 9-11-15 (b) only applies if the new
issue was actually litigated with the express or implied consent of both parties. And
because Sedehi’s attorney unequivocally objected to evidence of this additional claim
18 (Emphasis supplied).
19 and Chamberlin never pursued it, “it cannot be said that the claim was tried with [his]
express or implied consent.”19
Chamberlin’s sole argument appears to be that Sedehi implicitly consented to
litigating the issue of alimony when he failed to specifically object to the evidence
supporting such an award.20 And she is indeed correct that, under certain
circumstances, we have held that a party’s failure to make a contemporaneous 19 Bland v. Graham, 249 Ga. App. 856, 857 (549 SE2d 809) (2001); see Stroud v. Elias, 247 Ga. 191, 193 (1) (275 SE2d 46) (1981) (reversing a $30,000 award of punitive damages when the pleadings sufficiently alleged a breach-of-contract claim but did not allege sufficient facts to establish a tort, such that punitive damages could be at issue and noting that, absent consent of the parties, an amendment to a pleading must be served on the opposing party); Inv. Props. Co. v. Watson, 278 Ga. App. 81, 87 (4) (628 SE2d 155) (2006) (explaining that, when there was nothing in the record to suggest that a party ever consented to trying additional issues or to allowing an amendment to the pleadings, courts must only determine whether the additional issues were tried by implication); Dwyer v. Anand, 210 Ga. App. 419, 420 (1) (436 SE2d 532) (1993) (“[I]n the absence of an amendment to the complaint, supplemental pleadings, or trial of the [newly-asserted] claims . . . by the express or implied consent of the parties, the trial court was not authorized to enter judgment [on that claim] . . . .”); Burger King Corp. v. Garrick, 149 Ga. App. 186, 188 (253 SE2d 852) (1979) (“Since the appellees in this case made a clear objection to the evidence of the additional claims, it cannot be said that these claims were tried with the appellee[s’] express or implied consent. Thus, in the absence of an amendment to the pleadings, the trial court was not authorized to admit this evidence or to enter judgment for any of the claims based on it.”). Cf. Howington v. Howington, 281 Ga. 242, 244 (2) (637 SE2d 389) (2006) (holding that the trial court was authorized to grant relief not asserted in a pleading by the husband when the wife permitted the issue to be litigated without objection). 20 But see supra note 17.
20 objection to evidence of a new claim can constitute implicit consent to an amendment
of the pleadings.21 But such consent does not arise if “the parties do not squarely
recognize the new issue as an issue in the trial.”22 Moreover, neither the trial court nor
Chamberlin has identified any specific evidence that supported the alimony award.
Rather, as previously mentioned, Chamberlin contends that the evidence she
presented to support her fraud claims also supported the alimony award. But even if
that were true, we have held that when a party “does not object to evidence because
it is relevant to an issue made by the pleadings, and there is no evidence the party
offering such evidence was seeking to amend the pleadings, a non-objecting party can
21 See, e.g., Sugarloaf Mills Ltd. P’ship of Ga. v. Record Town, Inc., 306 Ga. App. 263, 268 (3) (701 SE2d 881) (2010); Ray v. Nat’l Health Inv’rs, Inc., 280 Ga. App. 44, 47-48 (2) (633 SE2d 388) (2006); see also Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 496 (1) (554 SE2d 286) (2001) (holding that, under OCGA § 9-11-15 (b), “[i]mplied consent may be found when a party fails to object to evidence relating to a new issue”). 22 Holliday, 251 Ga. App. at 496 (1) (punctuation omitted) (emphasis supplied); accord Harris v. Eastman Youth Dev. Ctr., 315 Ga. App. 643, 646 (1) (727 SE2d 254) (2012); Watson, 278 Ga. App. at 87 (4); Dildine v. Town & Country Truck Sales, Inc., 259 Ga. App. 732, 735 (3) (577 SE2d 882) (2003); see Smith v. Smith, 235 Ga. 109, 113 (218 SE2d 843) (1975) (holding that a trial court did not err in failing to submit an issue to the jury when it was not raised in a pleading and it was not “squarely recognized as an issue in the trial by the parties” or litigated in the case).
21 scarcely be held to have given him implied consent to trial of unpled issues.”23 And
here, given that Chamberlin never expressly requested alimony as an alternative
prayer for relief, and Sedehi repeatedly objected to litigating the issue of alimony,
neither party “squarely recognized” alimony as an issue at trial.
We recognize, of course, that whether an issue has been tried by the implied
consent of the parties is “a question of fact and a decision on this question is
generally considered to be within the sound discretion of the trial court.”24 But here,
after an exhaustive review of the record and trial transcripts, we find no evidentiary
basis to support a finding that Chamberlin ever explicitly requested an alimony
award, that the parties litigated that issue, or that anyone other than the trial court
“squarely recognized” it as an issue in the case. Under these particular circumstances,
OCGA § 9-11-15 (b) does not authorize an amendment to the pleadings, and the trial
court erred in awarding alimony to Chamberlin.25 23 Holliday, 251 Ga. App. at 496 (1) (punctuation omitted); accord Home Depot v. Pettigrew, 298 Ga. App. 501, 504 (1) (680 SE2d 450) (2009); Dildine, 259 Ga. App. at 735 (3). 24 Smith, 235 Ga. at 113; accord Andean Motor Co. v. Mulkey, 251 Ga. 32, 34 (2) (302 SE2d 550) (1983). 25 See supra notes 15, 19, 22 & accompanying text. Although not decided in the specific context of OCGA § 9-11-15, in Pray v. Pray, 223 Ga. 215 (154 SE2d 208) (1967), the Supreme Court of Georgia reversed an alimony award materially
22 2. Given our holding in Division 1 supra, reversing the trial court’s alimony
award, we need not address Sedehi’s alternative argument that the amount of alimony
awarded was excessive. But even if the trial court were permitted to award alimony
to Chamberlin, the record reveals very little, if any, evidentiary basis to support an
award of any amount of alimony to either party. Thus, any amount of alimony
awarded to Chamberlin would appear to be excessive.
Nevertheless, given the substantial lump-sum alimony award in this case and
the absence of any evidence to support it, it is helpful to review the statutory
considerations that must be taken into account in awarding alimony when it is
indistinguishable circumstances from this case, except that, in Pray, the wife at least requested alimony at trial. See Pray, 223 Ga. at 215. In Pray, the husband filed a petition for divorce, which the wife opposed, and following a bench trial, the court granted the divorce. See id. At the close of evidence, when the court indicated that it was inclined to grant the divorce, the wife responded by requesting alimony for the first time. See id. Over the husband’s objection that alimony had never been an issue in the case, the court heard testimony regarding the financial conditions of the parties, and ultimately, granted alimony to the wife based on the general prayer for relief in her answer for “such other and further relief as the court deem[ed] proper in the premises.” See id. The Supreme Court reversed, holding that the wife “waived whatever right she may have had to alimony . . . [because] [i]t is well established that relief cannot be granted for matter not alleged or prayed for.” Id.; see also Lambert v. Gilmer, 228 Ga. 774, 774-76 (187 SE2d 855) (1972) (holding that an award of alimony to the wife in a divorce judgment was void because the husband had no notice that the issue of alimony would be tried and gave no express or implied consent to litigating that issue at trial).
23 requested. Specifically, OCGA § 19-6-5 (a) provides:
The finder of fact may grant permanent alimony to either party, either from the corpus of the estate or otherwise. The following shall be considered in determining the amount of alimony, if any, to be awarded:
(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of both parties;
(4) The financial resources of each party;
(5) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him to find appropriate employment;
(6) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(7) The condition of the parties, including the separate estate, earning capacity, and fixed liabilities of the parties; and
(8) Such other relevant factors as the court deems equitable and proper.
While a trial court has wide latitude under OCGA § 19-6-5 (a) (8) to consider factors
not specifically enumerated,26 none of the enumerated factors, including those relied
26 See Sprouse v. Sprouse, 285 Ga. 468, 470 (678 SE2d 328) (2009) (“[I]n addition to several specific factors, OCGA § 19-6-5 (a) [8] gives the factfinder broad discretion to consider such other relevant factors as the court deems equitable and
24 upon by the trial court, appear to weigh in favor of an alimony award to Chamberlin
(or to Sedehi for that matter). Indeed, it is undisputed that the duration of the marriage
was extremely short, and the parties are both relatively young with higher-education
degrees and well-paying jobs. Further, at the time of trial, Chamberlin had a second
job at a gym as a personal trainer, and each party was able to financially support
themselves. Moreover, each party has stable employment that does not require
additional education, Chamberlin’s salary even exceeded Sedehi’s salary, and neither
party had contributed any services to the marriage such as childcare or career-
building of the other party.
Although the trial court was not required to include factual findings in the
divorce decree,27 the factors that the court did reference in the decree appear to have
no evidentiary basis. In awarding alimony, the court noted that Chamberlin “had
incurred certain expenses and costs[,]” she had “become accustomed to a certain
lifestyle[,]” and she “require[d] lump[-]sum alimony for a rehabilitative period to get
back on her feet.” But, Chamberlin testified that both she and Sedehi incurred
proper.” (punctuation omitted)). 27 See Smelser v. Smelser, 280 Ga. 92, 94 (2) (623 SE2d 480) (2005) (“With respect to alimony, there is no statutory requirement that findings be included in the decree.”).
25 significant expenses as a result of the wedding, and given that the court found that
Sedehi did not fraudulently induce Chamberlin to marry him, it is unclear why only
her expenses should be taken into consideration. In this respect, Chamberlin testified
that Sedehi’s family had paid $40,000 in wedding expenses, and they also paid for the
couple’s two-week long honeymoon to Africa.
Additionally, while Chamberlin collected short-term disability benefits to take
some time off of work following the separation due to mental-health issues,28 there
was no evidence that, at the time of the divorce decree, she was unable to work or
needed additional time to “get back on her feet.” In fact, Chamberlin never even
suggested that she wanted alimony, much less that she needed it for a rehabilitative
period, arguing instead that she wanted to recoup certain expenses and that she was
entitled to damages for fraud. Furthermore, although Chamberlin never submitted a
domestic-relations financial affidavit, she testified that she currently earned $90,000
per year with the potential for bonuses, she also worked as a gym trainer, and she was
able to afford $2,000 rent per month for her new apartment. Sedehi’s financial
affidavit indicated that he had certain assets and bank accounts that he acquired prior
28 Following the parties’ separation, Chamberlin attended therapy and was diagnosed with a single episode of “depressive disorder.”
26 to the marriage, but his undisputed testimony was that his then-salary was
approximately $70,000 to $72,000 annually, working for a food-manufacturing
company.
Finally, while the trial court found that Chamberlin had become accustomed
to a certain “lifestyle” during the parties’ extremely brief marriage, the only evidence
of any financial benefit that Chamberlin received as a result of the marriage was that
Sedehi’s family allowed her to live in their penthouse condominium rent-free during
the engagement and for eight months following the couple’s separation. We fail to see
how an act of generosity by one spouse’s family to the other spouse for a limited
period of time constitutes the establishment of a “lifestyle.” In sum, even if we agreed
with Chamberlin that the court was authorized to award alimony (which we do not),
there was no evidence to justify such an award when both Sedehi and Chamberlin
were equally self-sufficient, and there was no evidence suggesting that she needed
any amount of alimony from Sedehi to support herself.29
29 See Sims v. Sims, 245 Ga. 680, 683 (5) (266 SE2d 493) (1980) (“The strongest governmental purpose for Georgia’s alimony laws is the provision of support for a needy spouse.” (emphasis supplied)); Worrell v. Worrell, 242 Ga. 44, 47 (4) (247 SE2d 847) (1978) (“The two controlling factors in determining whether or not an alimony . . . award is excessive are the wife’s . . . need for the award and the husband’s ability to pay it.” (punctuation omitted) (emphasis supplied)); Kosikowski v. Kosikowski, 240 Ga. 381, 382 (1) (240 SE2d 846) (1977) (noting that “[a] wife’s
27 For all these reasons, we reverse the trial court’s final judgment, in part, only
as to its lump-sum alimony award to Chamberlin, and affirm the remainder of the
judgment.
Judgment affirmed in part and reversed in part. Self, J., concurs. Ray, J.,
concurs in judgment only as to Division 2 and fully as to Division 1.
* DIVISION 2 OF THIS OPINION IS PHYSICIAL PRECEDENT ONLY.
COURT OF APPEALS RULE 33.2 (a).
manner of living, her material resources, and her income, if any, are factors the jury may take into consideration in determining what amount may be necessary for the support and maintenance of the wife” (emphasis supplied)); Thomas v. Thomas, 233 Ga. 916, 918 (213 SE2d 877) (1975) (“Alimony is never for the purpose of penalizing the wife or the husband for her or his misconduct.”). Cf. Driver v. Driver, 292 Ga. 800, 803 (3) (741 SE2d 631) (2013) (upholding an award of lump-sum alimony, which was awarded for the purpose of assisting the wife in completing her education and becoming financially independent when there was evidence that the husband could pay the award and the wife needed it, given that her “income was comparatively low and her financial status precarious”).