                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, 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


                                                                      March 2, 2018




In the Court of Appeals of Georgia
 A17A1537. BOROTKANICS v. HUMPHREY.

      REESE, Judge.

      Jeremy Borotkanics appeals from a court order finding him in contempt of his

divorce decree.1 He contends that the trial court impermissibly modified the divorce

decree and improperly awarded attorney fees and litigation expenses. For the reasons

set forth, infra, we affirm in part, reverse in part, vacate in part, and remand this case

with direction.

      The record shows the following undisputed facts. Borotkanics and his former

wife, Theresa Humphrey, divorced in November 2012. The final divorce decree

      1
         We granted Borotkanics’s application for discretionary review. Pursuant to
the Appellate Jurisdiction Reform Act of 2016, the Court of Appeals has appellate
jurisdiction over divorce and alimony cases where, as here, the application was filed
on or after January 1, 2017. OCGA § 15-3-3.1 (a) (5); see Ga. L. 2016, p. 883, § 6-1
(c) (effective date).
incorporated a settlement agreement that had been executed by the parties. In March

2016, Humphrey filed a petition for contempt, asserting that Borotkanics had failed

to comply with the following real property division provision of the settlement

agreement:

      [Borotkanics] shall retain the marital home located [on] James Ridge
      Lane, Stockbridge, Georgia and the property located [on] Mount Tabor
      Church Road, Dallas, Georgia. [Humphrey] agrees to execute a Quit
      Claim Deed to [Borotkanics] for each property[.] . . . [Borotkanics] shall
      refinance both marital properties into his own name and thus remov[e]
      [Humphrey’s] name from the mortgages before February 16, 2013.


According to Humphrey, Borotkanics failed to refinance the mortgage on either

property despite his ability to do so, as evidenced by the fact that he had purchased

other properties in 2013, after the divorce decree was final. Humphrey asked the trial

court to find Borotkanics in wilful contempt of the divorce decree and to incarcerate

him in the county jail until he purged himself from his contemptuous conduct. She

also sought attorney fees and litigation expenses.

      The trial court conducted an evidentiary hearing, then entered an order finding

Borotkanics in wilful contempt. The court ruled that

      [Borotkanics] may purge himself from this contemptuous conduct by
      immediately placing the real property [on James Ridge Lane,

                                          2
      Stockbridge] on the market for sale. [Borotkanics] is to allow
      [Humphrey] by and through her counsel of record . . . to select a
      certified real estate broker. The real estate broker will appraise the
      property . . . and determine the list price of the property. . . . The first
      offer made to [Borotkanics] for the purchase of said property amounting
      to 95% of the list price will be accepted by [Borotkanics]. If there is no
      offer made of 95% of the list price within the first six (6) months of
      listing the property for sale, the list price will be reduced by 10%.


The trial court also ordered Borotkanics to “pay as a sanction for contempt the sum

of $3,613.91 in attorney fees and litigation expenses to [Humphrey] and $1,000.00

to [Humphrey’s] attorney[.] This amount shall be paid from the proceeds of the sale

of the real property at the closing.” This appeal followed.2

      It is axiomatic that, on appellate review, we “must affirm a trial court’s

adjudication of contempt so long as there is ‘any evidence’ to support it.”3 On the

other hand, this Court reviews a trial court’s rulings on legal issues de novo.4 With



      2
          See footnote 1, supra.
      3
        Jones v. Jones, 298 Ga. 762, 767 (1) (787 SE2d 682) (2016) (citations
omitted).
      4
       See Colbert v. Colbert, 321 Ga. App. 841 (1) (743 SE2d 505) (2013) (“When
a question of law is at issue, . . . we review the trial court’s decision de novo.”)
(footnote omitted).

                                           3
these guiding principles in mind, we turn now to Borotkanics’s specific claims of

error.

         1. As an initial matter, Humphrey argues that, due to Borotkanics’s failure to

provide this Court with a transcript of the contempt hearing, we must assume that the

court’s order was supported by evidence and, therefore, affirm the order.5 We agree

in part.

         (a) On the factual issue of whether Borotkanics was in wilful contempt of the

settlement agreement, we must assume that the evidence presented supported the trial

court’s conclusion and affirm that finding.6

         (b) In contrast, as shown in Division 2, infra, the primary issues on appeal are

purely legal issues, i.e., whether the trial court’s order constituted a modification of



         5
        See Martinez v. Martinez, 301 Ga. App. 330, 332-333 (2) (687 SE2d 610)
(2009) (“In order for the appellate court to determine whether the judgment appealed
from was erroneous, it is the duty of the appellant to include in the record those items
which will enable the appellate court to perform an objective review of the evidence
and proceedings. Thus, where the proof necessary for determination of the issues on
appeal is omitted from the record, an appellate court must assume that the judgment
below was correct and affirm.”) (citations and punctuation omitted); Collier v. D &
N Trucking Co., 273 Ga. App. 271, 272 (614 SE2d 801) (2005) (In the absence of a
transcript of the proceedings below, we must assume that the trial court’s findings of
fact were supported by the evidence.).
         6
             See Collier, 273 Ga. App. at 272.

                                             4
the divorce decree and, if so, whether the court was authorized to make such a

modification as a sanction for contempt under the circumstances presented.

Moreover, because the facts necessary to conduct a de novo review of these legal

issues are undisputed and are part of the record, the absence of a hearing transcript

does not hamper our review.

      2. Borotkanics contends that, because the divorce decree did not require him

to sell the marital home if he failed to comply with his obligation to refinance the

mortgage, the court’s order to sell that property amounts to an impermissible

modification of the divorce decree.

             While the trial court has broad discretion to determine whether the
      divorce decree has been violated and has authority to interpret and
      clarify the decree, it does not have the power in a contempt proceeding
      to modify the terms of the agreement or decree. In other words, in
      response to [wilful] contempt of a divorce decree, a trial court has broad
      discretion to enforce the letter and spirit of the decree, but the court must
      do so without modifying the original judgment that is being enforced.7


Thus, even though a sanction for contempt may seem reasonable, it may nevertheless

violate


      7
       Darroch v. Willis, 286 Ga. 566, 569-570 (3) (690 SE2d 410) (2010) (citations
and punctuation omitted).

                                           5
      the firm rule . . . against modifying the property division provisions of
      a final divorce decree. Those provisions equitably divide marital
      property between the parties, and [the Supreme Court of Georgia has]
      not allowed trial courts later to compel a party who was awarded a
      specific asset to sell or otherwise convert that asset in order to comply
      with some other provision of the decree. While from a purely economic
      standpoint it may not be unreasonable to require a contemnor to convert
      an asset awarded to him or her in a divorce decree into another asset of
      similar value,[8] many assets specifically awarded in a property division
      - homes certainly among them - often mean much more to the recipient
      than the equivalent value in cash, and trial courts cannot alter the
      allocations agreed to by the parties and otherwise embedded in the
      original judgment.9




      8
        See, e.g., Cason v. Cason, 281 Ga. 296, 297-298 (1) (637 SE2d 716) (2006)
(A final divorce decree awarded the wife an interest in an equity account that was
subsequently converted to common stock and cash. When the husband refused to
transfer the stock and cash to the wife for her portion of the account, the trial court
calculated the value of the wife’s interest in the equity account and awarded the
equivalent amount to her in stock and cash. The Court concluded that this was a
“reasonable clarification [of the settlement agreement,] because it was consistent with
the intent and spirit of the final decree,” adding that “[t]o rule otherwise would leave
[the] wife with an illusory or meaningless asset.”) (citation omitted).
      9
          Darroch, 286 Ga. at 570-571 (3) (citations omitted).

                                           6
      The undisputed facts in this case are comparable to those found in Darroch v.

Willis10 and Roquemore v. Burgess.11 In Darroch, the Supreme Court of Georgia held

that the trial court impermissibly modified the divorce decree in a contempt

proceeding, by requiring the former husband to sell the marital residence if he could

not refinance the debt to remove his former wife’s name from the mortgage.12

Similarly, in Roquemore, the Supreme Court held that the trial court impermissibly

modified the divorce decree in a contempt proceeding by requiring the former

husband to sell the marital residence so as to generate funds to pay his former wife

the $15,000 that he owed her in consideration for her relinquishment of her interest

in the residence and other property.13 As the Court noted, the fact that the settlement

agreement gave the former husband different options on how to obtain the money to

pay the debt contradicted the trial court’s finding that the agreement required the

former husband to sell the house in order to pay his former wife from the proceeds.14


      10
           Id. at 569-572 (3).
      11
           281 Ga. 593 (642 SE2d 41) (2007).
      12
           Darroch, 286 Ga. at 569-572 (3).
      13
           Roquemore, 281 Ga. at 595.
      14
           Id.

                                          7
       Based upon this precedent and the facts presented in this case, we conclude that

the trial court’s order constitutes an improper modification of the parties’ divorce

decree. Consequently, we reverse the court’s contempt judgment to the extent that it

requires Borotkanics to sell the marital home on James Ridge Lane in Stockbridge.

       However, just as the Supreme Court noted in Darroch, the ruling in the instant

case

       does not mean that the trial court is left with no effective means of
       enforcing the divorce decree. The court might order [Borotkanics] to pay
       [Humphrey] a significant sum every day until he purges his contempt.
       Or the trial court could incarcerate [Borotkanics] until he purges his
       contempt[.15] . . . [Borotkanics] may indeed find the purge conditions
       imposed by the trial court on remand to be far more draconian than those
       imposed by the order he has successfully appealed. If he truly cannot
       refinance the house, he might then turn to the one other readily apparent
       method of purging his contempt - selling the house . . . to remove
       [Humphrey’s] name from the mortgage. If that happens, however, it will
       be based upon [Borotkanics’s] decision to take that action with the
       house specifically awarded to him in the divorce decree, rather than the




       15
        Notably, Humphrey did not ask the court to order Borotkanics to sell any real
property but, instead, asked the court to incarcerate him until he complied with the
divorce decree.

                                           8
      trial court’s impermissible direct modification of that component of the
      decree’s property division.16


Alternatively, Borotkanics could choose to sell the property on Mount Tabor Church

Road in Dallas, which would not only remove Humphrey’s name from that mortgage

(as required by the divorce decree), but may also give Borotkanics the financial

liquidity required to refinance the marital home. And, if that action does not suffice,

Borotkanics could avoid other sanctions for his wilful contempt by selling one or

more properties that he acquired after the divorce in order to accomplish the

necessary debt refinancing.

      Ultimately, we find that Borotkanics has two choices: take whatever measures

are necessary to comply with the refinancing provision to which he agreed in 2012,

or deal with whatever allowable sanctions the trial court may impose for him to purge

himself of his wilful contempt.

      3. Borotkanics challenges the grant of attorney fees and litigation expenses,

pointing out that Humphrey’s motion cited no statutory basis and the trial court’s

order neither identified a statutory basis nor included any findings of fact. According

to Borotkanics, both OCGA §§ 19-6-2 and 9-15-14 are plausible statutory bases for

      16
           Darroch, 286 Ga. at 571-572 (3).

                                          9
the award of attorney fees in this case.17 We agree. Consequently, we vacate the

award of attorney fees and expenses and remand this case for the trial court to identify

the statutory basis for the award and to include the requisite findings of fact

supporting the award.18

      Judgment affirmed in part, reversed in part, and vacated in part, and case

remanded with direction. Miller, P. J., and Doyle, P. J., concur.

      17
         See Cason, 281 Ga. at 299-300 (3) (“OCGA § 19-6-2 authorizes a court,
within its discretion, to award attorney fees in a contempt of court action arising out
of a divorce case; however, the court is to consider the financial circumstances of
both parties in assessing such an award. . . . Alternatively, OCGA § 9-15-14 (b)
authorizes a court to award attorney fees if it finds that a party brought or defended
an action, or any part thereof, that lacked substantial justification or was interposed
for delay or harassment, or if it finds that a party unnecessarily expanded the
proceeding by other improper conduct. An order awarding attorney fees under OCGA
§ 9-15-14 must include findings of conduct that authorize the award.”) (citations and
punctuation omitted).
      18
          See Leggette v. Leggette, 284 Ga. 432, 433 (2) (668 SE2d 251) (2008)
(determining in an appeal from a final divorce decree that the award for attorney fees
had to be reversed and the case remanded for an explanation of the statutory basis for
the award and for any findings necessary to support it, where movant contended at
hearing that attorney fees were justified under both OCGA §§ 19-6-2 and 9-15-14,
and trial court did not specify whether it was awarding fees under OCGA § 19-6-2 or
OCGA § 9-15-14 and did not make any findings in support of its award); Cason, 281
Ga. at 300 (3) (concluding in an appeal from a contempt order awarding attorney fees
that “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,” where both OCGA §§
19-6-2 and 9-15-14 were plausible bases, yet the trial court failed to make findings
sufficient to support such an award under either section).

                                          10
