FOURTH DIVISION

DILLARD, C. J.,

DOYLE, P. J., and MERCIER, J.

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

May 15, 2018

In the Court of Appeals of Georgia

A18A0514. MORTON v. MACATEE.

A18A0515. MORTON v. MACATEE.

DILLARD, Chief Judge.

In these consolidated appeals, Machelle P. Morton—f/k/a Machelle P.

Macatee—appeals fromthe trial court’s order in a contempt proceeding following her

divorce from her ex-husband, Edward Van Macatee, and from the court’s order

correcting a clerical mistake in the final divorce decree. In Case Number A18A0514,

Machelle appealsfrom the “corrected” divorce order, arguing that (1) the trial court’s

factual findings, as contained in the original divorce order, are unsupported by the

record; (2) the court erred in assessing attorney fees against her without a statutory

basis or findings of fact in support of same; and (3) the “corrected” order contains

additionalfactual errors.InCase Number A18A0515, Machelle appealsfromthe trial
court’s order on competing petitions for contempt, arguing, inter alia, that the order

constitutes an impermissible modification of the divorce decree outside the term of

court. For the reasons set forth infra, in Case No. A18A0514, we affirm in part,

vacate in part, and remand the case for further proceedings consistent with this

opinion; and in Case No. A18A0515, we reverse.

The record shows that Van and Machelle were married in April 2011, and

separated in March 2015. At the time of their separation, they had separate IRA

accounts (“Machelle IRA” and “Van SEP”), and shared a Keogh retirement account

and a joint savings account designated as the “Emergency Fund” account. A few

months later (on May 19, 2015), Machelle petitioned for divorce. Then, following a

bench trial on January 3, 2017, the court entered its final judgment and decree of

divorce, in which it stated:

As for the division of the retirement accounts (Emergency Fund,

Joint Emergency Fund, SEP-IRA and [Keogh]) this court finds, based

on the evidence submitted and arguments of counsel, the amount to be

divided is $390,493.00. That is to be divided in half between the parties

($195,246.50 each) with the following adjustments:

[Machelle’s] 1⁄2 interest shall be reduced by $30,000.00 to give

[Van] credit for his contributions to the marital property and the Home

Equity Line of Credit. 

2
[Machelle’s] 1⁄2 interest is further reduced in the amount of

$10,000.00 to give [Van] credit for the charges [Machelle] made to his

American Express credit card which then brings her 1⁄2 interest down to

$155,256.50.

[Van] is also awarded attorney’s fees in the amount of $7,056.20

and expenses of litigation in the amount of $500.00 which brings

[Machelle’s] 1⁄2 interest further down to $147,690.30.

[Van] shall pay $147,690.30 in full to [his] attorney’s escrow

account, and [his] attorney shall then disburse the amount in full to

[Machelle] all within 30 days of the date this order is signed. [Van]

retains ownership of the accounts and [Machelle] shall indemnify and

hold [him] harmless of the same upon payment of the amount stated

herein to [Machelle’s] attorney. 

Thereafter, Van insisted that Machelle accept the $147,690.30 in the form of

a transfer from hisIRA to her IRA on the basisthat he would suffer tax consequences

if he withdrew the amount from his IRA. When Machelle refused a transfer by this

method, the parties contacted the trial court for clarification of its order, and the court

responded by email that:

Necessarily included in th[e] finding was that no one party would

bear the tax liability on the tax deferred money nor would any one party

get the benefit of only taking his or her share from the already-taxed

3
proceeds account[.] I no longer have the exhibits in front of me to know

what wasin each account, but the intent wasfor everyone to share in the

tax deferred money (and any related liability) and the taxed proceed

money equally. I did not intend to create a one-sided windfall or onesided liability for either party. 

In response to this email, Van again requested that Machelle execute a “Transfer Due

to Divorce” form, indicating to which IRA account Machelle wanted the money

transferred so that it would be a nontaxable event. But Machelle refused to sign the

form, asserting that the trial court’s divorce decree directed Van to pay the amount

owed to Machelle into his attorney’s escrow account before being paid to her. 

On March 1, 2017, Van filed a contempt action,seeking to have Machelle held

in contempt for failing to sign the transfer form. Machelle answered and

counterclaimed, seeking to have Van held in contempt for intentionally failing to

abide by the plain terms of the divorce decree—i.e., by refusing to pay $147,690.30

into his attorney’s escrow account for her benefit. Following a hearing on the

competing contempt motions, the trial court declined to hold either party in willful

contempt. But due to the parties’ confusion regarding the division of the various

accounts, the trial court stated that it would “clarify” the divorce decree within the

contempt-motion order. 

4
The trial court first noted that there was a scrivener’s error made in the decree

when enumerating the different names of the parties’ accounts, and that the names of

the accounts should have been titled as “Emergency Fund, [Keogh], Machelle IRA

and Van SEP.” Second, the trial court acknowledged that the divorce decree was

silent as to potential tax liability:

[I]t is clear from the record in this case and in the original divorce case

that the Court’s intent was to divide the parties’ funds contained in the

four accounts equally (subject to the offsets to [Machelle’s] share

previously mentioned). . . . [And] it was always the Court’s intention to

put each of the parties on equal footing. No one party wasto bear the tax

liability on any tax deferred money alone, nor would any one party get

the benefit of only taking his or her share solely from any already taxed

proceeds/cash accounts. The Court never intended to create a one-sided

windfall or one-sided liability for either party. 

Thus, the court ordered that Machelle’s $147,690.30 be paid to her as follows:

The [Emergency Fund] account, which the Court understands to

be the only cash account and which should have contained the $110,000

which was added back in by the Court previously, shall be split 50/50.

[Van]is ORDERED to pay one-half of that account to [Machelle] which

should amount to approximately $55,549.50 within ten (10) days of the

signing of this order.

5
The Machelle IRA account, which the Court understands to be a

tax deferred account and already in [Machelle’s] name and under her

control is awarded to her. At the time of the contempt hearing, that

account contained approximately $44,032. . . .

The remaining balance owed to [Machelle] of approximately

$48,108.80 may be paid out of either the [Keogh] account or the Van

SEP account or both. Because the Court understands both of these

accounts to be tax deferred accounts, it is hereby ORDERED that the

transfer of these funds be done in such a way so as to not create a tax

liability for either party if possible. In the event there is an unavoidable

tax penalty, that burden shall be shared equally between the parties.

Both parties shall sign any and all documents and releases necessary to

effectuate the rollover of these funds to [Machelle]. This shall be done

within thirty (30) days of the signing of this order. 

On the same day, June 26, 2017, the trial court also entered a separate order

correcting the clerical mistake in the divorce decree to reflect the proper names of the

accounts but specifying that all other provisions would remain the same. Machelle

then filed applicationsfor discretionary appeal to these two orders, which we granted.

Her appeals follow. We will address each case and its specific enumerations of error

separately.

6
1. In Case No. A18A0514, Machelle appeals from the “corrected” divorce

order and argues that (1) the trial court’s factual findings as to the starting amount of

funds to be distributed are unsupported by the record; (2) the court erred in assessing

attorney fees against her without a statutory basis or findings of fact in support of

same; and (3) the “corrected” order contains an additionalfactual error in itsreference

to the parties’ accounts. We will consider each of these contentions in turn.

1

(a) Machelle first asserts that the trial court’s “corrected” divorce decree, which

merely altered the names of the relevant accounts, maintains factualfindingsfromthe

1We have jurisdiction to entertain these questions on appeal because the trial

court’s corrective action constituted a final order, and Machelle timely filed an

application for discretionary appeal within 30 days of entry of the “corrected” order,

permitting her to assert error as to the original divorce decree. See Underwood v.

Underwood, 282 Ga. 643, 644 (1) (651 SE2d 736) (2007) (“This corrective action

constituted a final order which is directly appealable. [Because] Husband filed his

application for discretionary appeal within 30 days of entry of that final appealable

order, it was timely.” (citation and punctuation omitted)); First S. Bank v. C. & F.

Servs., Inc., 290 Ga. App. 305, 305-06 (1) (659 SE2d 707) (2008) (holding trial

court’s order correcting scrivener’s error contained in earlier order was subject to

direct appeal); Nodvin v. West, 197 Ga. App. 92, 94 (1) (397 SE2d 581) (1990)

(“Such corrective action constituted a final order which is directly appealable.”).

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original order that are unsupported by the record. Specifically, she challengesthe trial

court’s finding that the “starting point” for the division of monetary assets was

$390,493.00. But Machelle abandoned this enumeration of error by failing to provide

a single citation to authority as required by the rules of this Court.

2

(b) Next, Machelle argues that the trial court’s award of attorney fees to Van

in the amount of $7,056.20 and expenses of litigation in the amount of $500.00 was

unsupported by the record. We agree.

2

See Robinson v. Robinson, 239 Ga. 323, 323 (1) (236 SE2d 660) (1977)

(deeming argument abandoned for purposes of appeal when it was not supported by

argument or citation of authority as required by rules); Savage v. Savage, 234 Ga.

853, 856 (218 SE2d 568) (1975) (same); Wolf v. Middleton, 305 Ga. App. 784, 790

(2) (700 SE2d 598) (2010) (“The [appellants], however, failed to support this claim

of error with citation to legal authority or legal analysis, as required by Court of

Appeals Rule 25 (c) (2). Therefore, this claim of error is deemed abandoned.”); Smith

v. State, 214 Ga. App. 631, 633 (4) (448 SE2d 906) (1994) (deeming argument

abandoned when it was not supported by legal authority); Patterson v. Prof’l Res.,

Inc., 140 Ga. App. 315, 316 (3) (231 SE2d 88) (1976) (“[When], as here, the brief

contains nothing more than a statement of contentions unsupported by citation of

legal authority, the enumerations of error must be deemed abandoned under Rule [25

(c) (2)] of this court.”); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration

of error which is not supported in the brief by citation of authority or argument may

be deemed abandoned.”). See generally Flowers v. State, 269 Ga. App. 443, 445 (1)

(604 SE2d 285) (2004) (“As we have explained, legal analysis is, at a minimum, a

discussion of the appropriate law as applied to the relevant facts.” (punctuation

omitted)).

8
Under OCGA § 9-15-14 (a), a trial courtshall award reasonable and necessary

attorney fees when 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 also 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 proceeding

by other improper conduct. But when awarding fees under OCGA § 9-15-14 (a) or

(b), the court “must limit the fees award to those fees incurred because of the

sanctionable conduct.”3 Thus, “lump sum” or unapportioned attorney fees awards are

“not permitted in Georgia.”4 Accordingly, we will vacate and remand for further factfinding when “the trial court’s order, on itsface[,] failsto 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.

5

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

omitted).

4

 Id.

5 Trotman v. Velociteach Project Mgmt., LLC, 311 Ga. App. 208, 214 (6) (715

SE2d 449) (2011) (punctuation omitted).

9
Additionally, 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.” But when review of the record does not reveal whether the trial court

based an attorney-fees award on OCGA § 19-6-2 or OCGA § 9-15-14, “the issue of

attorney fees must be remanded for an explanation of the statutory basis for the award

and any findings necessary to support it.”6

Here, the trial court’s order contains no references to either the statutory basis

for, or the conduct underlying, its attorney-fees award. Indeed, the order merely

provides that “[Van] is also awarded attorney’s fees in the amount of $7,056.20 and

expenses of litigation in the amount of $500.00.” And the transcript of the hearing

that led to the attorney-fees award likewise sheds no light on the statute or conduct

6 Ward v. Ward, 289 Ga. 250, 251 (2) (710 SE2d 555) (2011) (punctuation

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

(“[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 OCGA § 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.” (punctuation omitted)); Gilchrist v. Gilchrist,

287 Ga. App. 133, 133-34 (1) (650 SE2d 795) (2007) (holding that a judgment devoid

of findings supporting an award under OCGA § 9-15-14 “must be vacated and the

case must be remanded for reconsideration” (punctuation omitted)).

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underlying the award.

7 Accordingly, we vacate this portion of the trial court’s order

and remand for explanation of the statutory basis for the award and the findings

necessary to support it.

8

(c) Finally, Machelle takes issue with the divorce decree’s reference to

“retirement accounts” when she contends that the accounts at issue are not all

retirement accounts—i.e., because the Emergency Fund was a post-tax savings

account and not a retirement account. But as with her first enumeration of error,

Machelle fails to provide any citation to authority, in violation of our rules, and thus

abandoned this argument.

9 Additionally, although Machelle contends that this

reference is a “significant mistake,” she fails to allege what, if any, harm resulted

7 Cf. Simmons v. Simmons, 288 Ga. 670, 673-74 (6) (706 SE2d 456) (2011)

(holding that trial court did not abuse its discretion in awarding attorney fees when

it was possible to discern from the record the statutory basis for the court’s award).

8

See, e.g., Viskup v. Viskup, 291 Ga. 103, 106 (3) (727 SE2d 97) (2012)

(“When there is more than one statutory basis for the attorney-fee award and neither

the statutory basis for the award nor the findings necessary to support an award is

stated in the order and a review of the record does not reveal the basis of the award,

the case is remanded for an explanation of the statutory basis for the award and the

entry of any findings necessary to support it.”).

9

See supra note 2.

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from referencing the accounts in this way. Thus, even to the extent that thisreference

is erroneous, it is harmless.10

2. In her second appeal, in Case No. A18A0515, Machelle challenges the trial

court’s order on the parties’ competing petitions for contempt, arguing that the order

constitutes an impermissible modification of a divorce decree in a contempt action.

We agree.

It is well settled that a court “may not modify a divorce decree in a contempt

order, but may interpret and clarify its previous decree.”11 And in order to determine

whether an order is a clarification or a modification, the test is “whether the

clarification is reasonable or whether it is so contrary to the apparent intention of the

original order as to amount to a modification.”

12

 When a trial court awards an asset

10

See Driver v. Driver, 292 Ga. 800, 804 (4) (741 SE2d 631) (2013) (holding

that trial court’s misidentification of documentary source of otherwise correct figure,

which was supported by record evidence, was harmless).

11 Pollard v. Pollard, 297 Ga. 21, 22 (771 SE2d 875) (2015).

12

Id. at 23 (punctuation omitted); accordKaufmann v. Kaufmann, 246 Ga. 266,

268 (3) (271 SE2d 175) (1980).

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in a contempt proceeding that is different from that awarded in a divorce decree, the

reviewing court looks to the nature of the asset awarded

to determine whether it is equivalent to the asset awarded in the divorce

proceedings. If it was in essence the same asset, the court did not

improperly modify the terms of the decree, but merely construed the

relevant provision to determine the intent of the decree. Conversely, if

the court used the contempt proceeding to substantially alter the final

decree, it amounted to an unauthorized modification.

13

Here, the final divorce decree was plain and unambiguous: Van was to pay

$147,690.30 in full to his attorney’s escrow account, and his attorney was then to

disburse $147,690.30 in full to Machelle within 30 days of the divorce decree being

signed. It is undisputed that this order was drafted by Van’s attorney and, thus, he is

responsible for any failure to consider the tax implications of the plain and

unambiguous wording of the divorce decree or in his arguments and presentation of

evidence during the trial. Accordingly, the trial court’s order on the competing

motions for contempt did not “merely construe” the relevant portions of the divorce

decree, which awarded a lump sum of $147,690.30 to Machelle with no reference to

13 Pollard, 297 Ga. at 23 (punctuation omitted); accord Cason v. Cason, 281

Ga. 296, 297-98 (1) (637 SE2d 716) (2006).

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tax implications, to be paid in full to an escrow account and then disbursed to her in

full thereafter. Instead, the contempt proceeding and its resulting order substantially

altered the final divorce decree by not only altering the amount to be paid to Machelle

(due to tax considerations), but also the manner in which that amount was to be

disbursed. Thus, the trial court’s order in the contempt proceeding was

unquestionably an unauthorized modification of the final divorce decree, and as a

result, the order must be reversed.

14 Our holding does not, of course, relieve Van of

his obligation to transfer to Machelle $147,690.30 as required by the divorce decree.

Because we reverse the trial court’s order in the contempt proceeding, we need

not address Machelle’s remaining enumerations of error in Case No. A18A0515,

which are that the court’s order constitutes an impermissible modification of the

divorce decree outside the term of court and that the court’s factual findings are

unsupported by the record. 

14

See Killingsworth v. Killingsworth, 286 Ga. 234, 236 (2) (686 SE2d 640)

(2009) (reversing contempt-proceeding order that husband pay wife $1850 in cash in

lieu of transferring half of his 401(k) funds to her asrequired by divorce decree when

same constituted modification of decree when decree specified how wife’s interest

in 401(k) account would be calculated and manner in which transfer was to be

accomplished, including requiring wife’s counsel to prepare a qualified domestic

relations order, which had not been done, and when contempt-proceeding order

would have transmuted 401(k) award into a cash obligation presently due).

14
For all these reasons, in Case No. A18A0514, we affirm in part, vacate in part,

and remand for further proceedings consistent with this opinion. And in Case No.

A18A0515, we reverse.

Judgment affirmed in part, vacated in part, and case remanded for further

proceedings in Case No. A18A0514. Judgment reversed in Case No. A18A0515.

Doyle, P. J., and Mercier, J., concur.

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