FOURTH DIVISION DOYLE, P. J., COOMER and MARKLE, 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
October 31, 2019
In the Court of Appeals of Georgia A19A1074. ENLOW v. ENLOW.
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
SE2d 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
1 Grandfather eventually pleaded guilty to criminal charges and is incarcerated.
2 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
3 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. An “asset” is defined as
property of the debtor, but the term does not include: (A) Property to the extent that it is encumbered by a valid lien;
4 (B) Property to the extent it is generally exempt under nonbankruptcy law; or (C) An interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.
OCGA § 18-2-71 (2). A “transfer” is defined as “every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of disposing of or parting with an
asset or an interest in an asset and includes payment of money, release, lease, and
creation of a lien or other encumbrance.” OCGA § 18-2-71 (16). The language “every
mode, direct or indirect, absolute or conditional, voluntary or involuntary, of
disposing of or parting with an asset or an interest in an asset” supports the
conclusion that the term “transfer” is defined very broadly under the UVTA. Thus,
the plain language of the UVTA supports the conclusion that the equitable division
of assets within a divorce decree is a transfer within the UVTA.
The parties have not cited, and we have not found, any Georgia case directly
on point. However, courts in a number of other jurisdictions have considered the same
issue. While not precedential, the cases from other jurisdictions are informative given
the similar statutory language in those states. Furthermore, OCGA § 18-2-83 provides
that the UVTA “shall be applied and construed to effectuate its general purpose to
5 make uniform the law with respect to the subject of this article among states enacting
the [UVTA].” Other jurisdictions have applied the UVTA2 in the context of divorce
settlement agreements. See Canty v. Otto, 304 Conn. 546, 558 (II) (41 A3d 280)
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FOURTH DIVISION DOYLE, P. J., COOMER and MARKLE, 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
October 31, 2019
In the Court of Appeals of Georgia A19A1074. ENLOW v. ENLOW.
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
SE2d 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
1 Grandfather eventually pleaded guilty to criminal charges and is incarcerated.
2 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
3 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. An “asset” is defined as
property of the debtor, but the term does not include: (A) Property to the extent that it is encumbered by a valid lien;
4 (B) Property to the extent it is generally exempt under nonbankruptcy law; or (C) An interest in property held in tenancy by the entireties to the extent it is not subject to process by a creditor holding a claim against only one tenant.
OCGA § 18-2-71 (2). A “transfer” is defined as “every mode, direct or indirect,
absolute or conditional, voluntary or involuntary, of disposing of or parting with an
asset or an interest in an asset and includes payment of money, release, lease, and
creation of a lien or other encumbrance.” OCGA § 18-2-71 (16). The language “every
mode, direct or indirect, absolute or conditional, voluntary or involuntary, of
disposing of or parting with an asset or an interest in an asset” supports the
conclusion that the term “transfer” is defined very broadly under the UVTA. Thus,
the plain language of the UVTA supports the conclusion that the equitable division
of assets within a divorce decree is a transfer within the UVTA.
The parties have not cited, and we have not found, any Georgia case directly
on point. However, courts in a number of other jurisdictions have considered the same
issue. While not precedential, the cases from other jurisdictions are informative given
the similar statutory language in those states. Furthermore, OCGA § 18-2-83 provides
that the UVTA “shall be applied and construed to effectuate its general purpose to
5 make uniform the law with respect to the subject of this article among states enacting
the [UVTA].” Other jurisdictions have applied the UVTA2 in the context of divorce
settlement agreements. See Canty v. Otto, 304 Conn. 546, 558 (II) (41 A3d 280)
(2012) (“the plain language of the act supports the conclusion that distribution of
property in a dissolution decree is a transfer under the act.”); Citizens State Bank
Norwood Young America v. Brown, 849 NW2d 55, 61 (III) (Minn. 2014) (“a transfer
made pursuant to an uncontested marital dissolution decree may be set aside as
fraudulent under [the Minnesota] UFTA.”); RES-GA Lake Shadow, LLC v. Kennedy,
227 S3d 522, 527 (Ala. Civ. App. 2017) (interpreting the Alabama Fraudulent
Transfer Act and stating “[t]o be clear, we explicitly hold that there is no prohibition
on a creditor’s ability to seek relief under the AFTA based on an allegation that an
agreement to transfer marital assets in a divorce action was made with the intention
of hindering, delaying, or defrauding a creditor of a spouse.”); Mejia v. Reed, 31 Cal.
4th 657, 668-669 (II) (D) (74 P3d 166) (2003) (“[California’s] UFTA applies to
property transfers under [marriage settlement agreements],” stating that “[i]n view of
[the] overall policy of protecting creditors, it is unlikely that the Legislature intended
2 The UVTA was previously known as the Uniform Fraudulent Transfers Act. OCGA § 18-2-70.
6 to grant married couples a one-time-only opportunity to defraud creditors by
including the fraudulent transfer in a [marriage settlement agreement].”); Estes v.
Titus, 481 Mich. 573, 592 (V) (751 NW2d 493) (2008) (holding that Michigan’s
“UFTA applies to the transfer of property in a divorce judgment that incorporates a
property settlement agreement.”); Fadel v. El-Tobgy, 245 Ore. App. 696, 705 (264
P3d 150) (2011) (concluding that transfers of assets during a divorce can violate
Oregon’s UFTA and noting that “[a] couple may legitimately wish to dissolve their
marriage, yet still act unlawfully by agreeing to divide their assets in a way that
shields those assets from one spouse’s creditors.”); Kardynalski v. Fisher, 135 Ill.
App. 3d 643, 651 (482 NE2d 117) (1985) (“While judicial approval [of a settlement
agreement] may represent a determination that the agreement is fair and equitable as
between the parties to the divorce, it does not represent a determination that the
agreement perpetrates no fraud upon the creditors of one spouse, particularly where
the claims of the creditors are not made known to the court or provided for in the
decree.”). The parties have cited, and we have found, no authority to the contrary.
Thus, the trial court’s conclusion that the UVTA cannot be used to void a transfer
made pursuant to a divorce decree is in conflict with the legislature’s intent as
expressed in OCGA § 18-2-83 that the UVTA be applied and construed to effectuate
7 its general purpose to make the law uniform among states enacting the UVTA. The
UVTA may be used to set aside a voidable transfer contained in a previously entered
divorce decree.
2. Given our holding in Division 1, we vacate the trial court’s order and remand
the case to the trial court to consider whether summary judgment is appropriate under
the analysis required by the UVTA, including whether the property transferred from
Trust I to Trust II is an “asset” as defined in OCGA § 18-2-71 (2). The limited record,
which does not include the Trust I documents, leaves us unable to make this
determination on appeal.
Judgment vacated and case remanded with direction. Doyle, P. J., and Markle,
J., concur.