Mary Messick v. John Messick

• Court: Court of Appeals of Georgia
• Decided: June 2, 2021
• Docket: A21A0600
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., RICKMAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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May 18, 2021

In the Court of Appeals of Georgia A21A0600. MESSICK v. MESSICK.

MCFADDEN, Chief Judge.

After filing an action for divorce from John Messick, Mary Messick won a

substantial amount of money in a lottery. She sought to enforce a previously entered

settlement agreement with John Messick to prevent him from claiming equitable

division of the lottery proceeds. The trial court denied her motion to enforce the

settlement agreement, and we granted interlocutory review of that ruling. Because the

lottery proceeds were marital property that the settlement agreement did not address,

we find no error in the trial court’s ruling and affirm.

1. Facts and procedural background.

The appellate record shows the following undisputed facts. On March 5, 2020,

Mary Messick filed an action for divorce from John Messick and asked, among other things, that the trial court incorporate into the divorce decree the parties’ settlement

agreement, into which they had entered that same day. Mary Messick subsequently

won a substantial amount of money in a lottery. In his answer and counterclaim, John

Messick argued, among other things, that the trial court should set aside the

settlement agreement because it did not address Mary Messick’s lottery winnings.

Mary Messick then filed a motion that, among other things, asked the trial court to

enforce the settlement agreement. After an evidentiary hearing, the trial court denied

Mary Messick’s motion and set aside the settlement agreement, pertinently finding

“that the lottery proceeds are marital property subject to division by the [c]ourt [and

t]he settlement agreement did not contemplate the acquisition of such property, nor

provide for how any such property should be divided.”

2. The lottery proceeds are marital property.

The trial court did not err in concluding that the lottery proceeds are marital

property. “It is a question of law whether a particular category of property may legally

constitute a marital or non-marital asset, but whether a particular item of property

actually is a marital or non-marital asset may be a question of fact for the trier of

fact.” Crowder v. Crowder, 281 Ga. 656, 657 (642 SE2d 97) (2007) (citation

omitted).

2 In Georgia, property is a marital asset subject to equitable division “if it is

acquired as a direct result of the labor and investments of the parties during the

marriage.” Pina v. Pina, 290 Ga. 878, 879 (725 SE2d 301) (2012) (citation and

punctuation omitted). Because the trial court has not yet entered a divorce decree in

this case, the marriage has not yet been terminated, so Mary Messick acquired the

lottery proceeds during the marriage. See generally Hodges v. Hodges, 235 Ga. 848,

849-850 (1) (221 SE2d 597) (1976) (marriage is not dissolved until entry of written

judgment).

In addition, the appellate record does not contain a transcript of the evidence

presented to the trial court at the hearing. So we must assume that the evidence

showed that Mary Messick acquired the lottery proceeds as the direct result of her

labor or investment. It follows from that assumption that the trial court’s finding that

the proceeds are marital property subject to division was authorized. See Reed v.

Reed, 295 Ga. 574, 578 (2) (761 SE2d 326) (2014) (“In accordance with the

presumption of the regularity of court proceedings, we must assume in the absence

of a transcript that there was sufficient competent evidence to support the trial court’s

findings.”) (citation and punctuation omitted).

3 3. The settlement agreement does not address the division of the lottery

proceeds.

The trial court declined to enforce the settlement agreement because its terms

did not contemplate the division of the lottery proceeds. Reviewing this ruling de

novo, see Hart v. Hart, 297 Ga. 709, 712 (777 SE2d 431) (2015), we find no error.

“Settlement agreements in divorce cases are construed in the same manner as

all other contractual agreements.” Buckner v. Buckner, 294 Ga. 705, 708 (1) (755

SE2d 722) (2014). The “meaning and effect [of the settlement agreement] should be

determined according to the usual rules for the construction of contracts, the cardinal

rule being to ascertain the intention of the parties.” Hart, 297 Ga. at 711 (citation and

punctuation omitted). In construing the contract, we “are limited to those terms upon

which the parties have actually agreed, for absent the parties’ mutual assent, there is

no enforceable contract.” Id. at 712.

The settlement agreement in this case does not include a term providing for

division of the lottery proceeds. Two terms in the agreement specifically address the

division of marital property. One pertains to the division of real property.

The other term, on which Mary Messick relies heavily in her appellate brief,

provides: “The parties acknowledge that they have previously made a division of their

4 household furniture, furnishings, household goods, equipment, and other such

personalty. Neither party shall claim any of the property in the possession of the other

as of the date of the signing of this agreement unless stated below.” (Emphasis

supplied.) By its plain language, this term of the settlement agreement does not

pertain to the division of marital property acquired by a party after the signing of the

agreement. And it is undisputed that Mary Messick acquired the lottery proceeds after

the agreement was signed.

Nevertheless, Mary Messick argues that the above term applies to the lottery

proceeds because those proceeds resulted from an investment she made using

property she possessed before the signing of the agreement. We are not persuaded.

The record evidence does not address the circumstances surrounding Mary Messick’s

lottery win. Moreover, our case law recognizes that property acquired during the

marriage through investments is itself subject to equitable division. See Pina, 290 Ga.

at 879.

Mary Messick also points to two other terms of the settlement agreement that

she argues provide for the division of marital property acquired after the agreement

was signed. But neither of those terms addresses the specific division of any property.

One is a general, prefatory statement of the parties’ “desire to settle between

5 themselves all questions of division of property . . . arising out of their marital

relationship,” and the other merely provides that “[t]he parties shall continue to live

separate and apart and each shall be free from interference, molestation, authority and

control, direct or indirect, by the other as fully as if sole and unmarried.”

“The rule of law is clear, parties to a divorce decree must specifically describe

and dispose of the property in which both parties have an interest or the decree will

not divest either party of their interest in the property.” Andrews v. Boykin, 273 Ga.

386, 387-388 (1) (543 SE2d 12) (2001) (citation omitted). Because the plain language

of the settlement agreement does not address the equitable division of a significant

marital asset — the lottery proceeds — any decree incorporating that agreement

would not dispose of all of the parties’ marital property. Under these circumstances,

the trial court did not err in declining to enforce the agreement.

Judgment affirmed. Rickman, P. J., and Senior Appellate Judge Herbert E.

Phipps concur.