Sean Rowles v. Roberta Rowles
Sean Rowles v. Roberta Rowles
Opinion of the Court
After the trial court partially set aside a final divorce decree and judgment on the grounds that the husband had only agreed to its terms because the wife had threatened to disclose the husband's affair to his employer, both parties appealed. The wife contends that there was no duress as a matter of law and that the divorce decree should have been upheld while the husband asserts that because of the duress the entire divorce decree should have been set aside, not just the portions addressing the custody of the children. Because our Supreme Court has held that a judgment may only be set aside for duress when the complaining party was prevented from asserting a defense and the husband had the opportunity to appear and raise any defenses before entry of judgment, the trial court erred in partially setting aside the judgment.
Sean Rowles (the "Husband") and Roberta Rowles (the "Wife")
The trial court held a hearing on the motion to set aside,
Subsequently, the trial court granted the motion to set aside as to the custody, parenting time, and visitation provisions of the Second Settlement Agreement but denied the motion as to the remaining financial portions of the agreement.
The Wife filed a motion for new trial, which she twice amended. The trial court denied the motion but entered an amended final order in which it granted the Husband's motion to relocate the children to Maryland, among other things. Later, the trial court granted the Husband's motion for attorney fees and awarded him $112,189.10 in attorney fees and expenses under both OCGA §§ 19-6-2 and 9-15-14 (b). These appeals followed.
Case No. A19A0467
1. The Wife first argues that the trial court lacked jurisdiction to rule on the motion to set aside because it was not filed in the same term in which the judgment was rendered and was not filed as a separate action.
Motions to set aside are governed by OCGA § 9-11-60, and subsection (f) specifically sets out a three-year time limit for bringing a motion to set aside based on fraud under OCGA § 9-11-60 (d) (2), such as the one filed by the Husband in this case.
The record also belies the Wife's contention that the trial court lacked jurisdiction to rule on the motion because it was improperly filed as part of a contempt action. Here, the Husband filed the motion to set aside in *592the court that rendered the Second Divorce Decree under the same civil action case number. The fact that the Husband's contempt petition was filed before the motion to set aside and also as part of that same civil action does not mean, as the Wife seems to argue, that the motion to set aside was filed as a motion in a separate contempt action. Although the Wife points to the language in subsection (a) that "judgments shall be subject to attack only by a direct proceeding " that does not mean the Husband was required to file a separate lawsuit to set aside the decree.
2. Turning to the merits,
"Duress is but a species of fraud where one is induced contrary to one's will from presenting a defense to a suit." (Citation omitted.) Frost ,
But the appeals in this case concern a judgment that was set aside because of duress, not just a contract. Under these circumstances, our Supreme Court has imposed an additional requirement for setting aside a judgment: "Before ... a judgment will be set aside for duress, it must appear that the complainant had a good defense which [he] was prevented from asserting at the original hearing or trial." Frost ,
Here, the Husband repeatedly testified that he acquiesced to the Wife's demands *593and signed the Second Settlement Agreement because he was afraid of losing his job and significant amounts of deferred compensation, and the trial court found that the Wife made the threats to gain a financial advantage.
And despite the surface similarity in some of the facts, Young v. Young ,
Based on the foregoing, the Second Divorce Decree was not subject to being set aside due to duress. Accordingly, the trial court's order setting aside the Divorce Decree must be reversed.
3. The Wife also argues that the trial court erred by awarding attorney fees. "As a general rule, Georgia law does not provide for the award of attorney fees even to a prevailing party unless authorized by statute or by contract." (Citation and punctuation omitted.) Cothran v. Mehosky ,
OCGA § 19-6-2 (a) authorizes attorney fees against either party, upon consideration of their financial circumstances, where *594"the action is for alimony, divorce and alimony, or contempt of court arising out of either an alimony case or a divorce and alimony case[.]" See also Viskup v. Viskup ,
However, that does not end our analysis because by its plain terms, OCGA § 19-6-2 authorizes only an award of attorney fees, and the trial court also awarded the reimbursement of other expenses in its order. We, thus, must examine whether those expenses may have been authorized under OCGA § 9-15-14 (b).
4. Based on our holding in Division 2, the Wife's remaining enumerations of error are moot, and we need not consider them.
A19A0719.
5. Based on the foregoing, the errors raised in the Husband's appeal in A19A0719 are moot.
Judgment affirmed in part, reversed in part, vacated in part, and case remanded with direction.
Goss, J., concurs. McFadden, P.J., concurs fully in Division 1 and dissents in Divisions 2, 3, 4, and 5.*
* DIVISIONS 2, 3, 4, AND 5 OF THIS OPINION ARE PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE 33.2.
Following our grant of their applications for review, the Husband and Wife each timely filed notices of appeal to this Court. The Wife's appeal was docketed in this Court as Case No. A19A0467, and the Husband's appeal was docketed as Case No. A19A0719. We have consolidated these appeals for our review.
Both parties state in their briefs on appeal that they were first divorced in October 2011, but the record shows that the final judgment of divorce was not entered until February 2012. This discrepancy appears related to the divorce law of Rhode Island where the first divorce was entered and is not relevant to this appeal.
Among other things, under the Second Settlement Agreement, the Wife received 60 percent of the parties' assets, 100 percent of the proceeds of the sale of their Georgia residence, and about $300,000 in stock options. The Agreement also required the Husband to pay the Wife 60 percent of his salary "[f]or the rest of his working career[.]"
At the time, the Husband was Chief Operating Officer at Citizens Bank and stood to lose approximately $3 million dollars in deferred compensation if he were fired. The Wife disputes making threats to expose his affairs to his employer.
The parties agreed that a hearing on the contempt petition would be held at a later date, pending evaluation of the children by an expert.
The trial court also entered an order on the Husband's contempt petition, finding that it was in the minor children's best interests for the Husband to have supervised visitation while the case was pending. Although not the subject of this appeal, the Wife also filed a petition for contempt, which the trial court denied.
Subsection (f) provides in pertinent part: "A judgment because of lack of jurisdiction of the person or subject matter may be attacked at any time. ... In all other instances, all motions to set aside judgment, shall be brought within three years from entry of the judgment complained of."
OCGA § 9-11-60 (e) now expressly prohibits the use of a complaint in equity to set aside a judgment. This is a change from the former law. See Lee v. Restaurant Mgmt. Svcs .
Both parties agree that the trial court was not authorized under OCGA § 9-11-60 (d) (2), to set aside only part of the final divorce decree, the dispute being whether the court should have set aside all or none of it. However, because we reverse the trial court's order on the merits, it is unnecessary for us to parse the issue of the trial court's authority to set aside only part of a divorce judgment.
We note that it has long been held that "[a] threat of causing the defendant to lose his job or his fear of such loss is not duress which would void the contract," when the threat is not otherwise wrongful or unlawful. Atlanta Life Ins. Co. v. Mason ,
The trial court noted in the order on the motion to set aside that the Second Divorce Decree purported to incorporate a parenting plan but that it was not in the record.
We would caution that our holding should not be read too broadly, and nothing in our opinion should be read to prevent the Husband from seeking a modification of custody or visitation or the trial court from modifying custody or visitation based on the best interest of the children. Our holding is simply that the Second Divorce Decree was not subject to being set aside due to duress.
OCGA § 9-15-14 provides:
In any civil action in any court of record of this state, reasonable and necessary attorney's fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.
Concurring in Part
While I concur in Division 1 of the majority opinion, I respectfully dissent to the remaining divisions.
*595This divorce case involves the wife's credible threats to expose salacious information about the husband to his employer in an attempt to get him fired unless he agreed to onerous terms of settlement, including giving the wife a significant portion of his earnings in perpetuity, severely limiting his access to his young children, and forcing him to take steps to deprive the children of their rights to dual Australian citizenship, including seeking to relinquish the citizenship that already had been conferred upon one child. The trial court found that the wife's behavior was wrongful and that the husband had entered into the settlement agreement under duress. She was well within her discretion to do so.
But the trial court did not address whether the husband was prevented from asserting this defense before the trial court entered judgment on the decree. That question must be addressed before the trial court can decide whether the judgment should be set aside for duress. Moreover, the trial court was not authorized to set aside only a part of the divorce decree or to apply the doctrine of unclean hands to leave in place the decree's financial provisions. So I would vacate both the set-aside order and the attorney-fee order in their entireties and remand for further proceedings.
1. Set-aside order .
The trial court did not err in finding that the evidence presented at the hearing showed that the husband had signed the agreement under duress, which can be shown by "a threat coupled with an apparent intent and ability to carry out the threat so that the will of the other is overcome." Frost v. Frost ,
As in Young , the husband in this case alleged that the wife would and could carry out her threat of having the husband fired from his job, and the trial court found that the husband "and his witnesses put forth very convincing testimony as to the [wife's] stated intent, actual intent[,] and ability to expose and ruin him in her efforts to obtain a financial advantage in the parties' [a]greement." The hearing evidence authorized that finding.
So the decision in Young supports the trial court's conclusion that the wife's actions constituted duress. Young ,
The majority also notes that a threat of causing one to lose a job cannot constitute duress unless the threat is wrongful or unlawful. The requirement that the threatening conduct be "wrongful or unlawful" is found in many Georgia decisions. See, e.g., Hampton Island, LLC v. HAOP, LLC ,
Even if the wife's actions were not unlawful, I cannot agree that the trial court abused her discretion in finding them to be wrongful. While not using the word "wrongful," the trial court, as factfinder, determined that the wife had threatened to "destroy" or "ruin" the husband and that her actions were "coercive" and "vindictive." The Second Restatement of Contracts states that a threat is improper, for purposes of determining whether there is duress, "if ... the threat itself would be a crime or a tort if it resulted in obtaining property[.]" Restatement (Second) of Contracts § 176 (1) (a) (1981). A threat like the one before us could constitute the crime of theft by extortion if it resulted in obtaining property rather than obtaining a signature on an agreement. See OCGA § 16-8-16 (a) (3) ("A person commits the offense of theft by extortion when he unlawfully obtains property of or from another person by threatening to ... [d]isseminate any information tending to subject any person to hatred, contempt, or ridicule or to impair his credit or business repute[.]"). Similarly, under certain circumstances such a threat could constitute the tort of intentional interference with employment relationship. See Batayias v. Kerr-McGee Corp. ,
I acknowledge that in Tidwell v. Critz ,
Simply put, the trial court found, with support from the hearing evidence, that the wife's actions - threatening to get the husband fired from his job if he did not give up a significant percentage of his income, his access to his children, and his children's own ability to avail themselves of dual citizenship in the future - were egregious. The evidence permitted the trial court to so find and to find that the husband signed the agreement under duress.
Nevertheless, as the majority points out, just because the agreement underlying the judgment was the product of duress does not automatically mean that the trial court could set aside the judgment for duress. Our Supreme Court's decision in Frost v. Frost ,
In addition, the trial court only set aside a portion of the divorce decree, ruling that the husband engaged in "misconduct" that precluded him from setting aside other aspects of the decree under the doctrine of unclean hands. It appears that by "misconduct" the trial court meant the husband's infidelity, although her order did not identify specific acts of misconduct.
But the doctrine of unclean hands applies to petitions brought in equity, and a motion to set aside under OCGA § 9-11-60 (d) is not such a petition. See OCGA § 9-11-60 (e) ("The use of a complaint in equity to set aside a judgment is prohibited."); Holmes v. Henderson ,
Moreover, "a plea of duress ... goes to the whole contract," Williams v. Rentz Banking Co. ,
2. Attorney-fees order.
I agree that the attorney-fees award should be vacated for the reasons explained by the majority. The entire award must be vacated for another reason as well. The trial court based her award of OCGA § 19-6-2 attorney fees on the parties' respective financial positions as determined by the parties' settlement agreement. As explained above, that agreement was the product of duress and so the decree based on it must be set aside and the case must be remanded for further proceedings. Because the outcome of those further proceedings could affect the parties' financial positions, the trial court should reconsider the attorney-fees award on remand.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.