MERMANN v. TILLITSKI (2015)

Sanna Mermann, formerly known as Sanna Tillitski (Wife), and Christopher Tillitski (Husband) were divorced in Bibb County pursuant to a decree signed on February 24 and filed on February 26, 2009. The divorce decree incorporated a settlement agreement that stated, in relevant part:

[W]ife shall receive 50% of the Husband's SEP IRA [ 1] as of the date of this agreement and shall have her pro rata share of all investment experience, including earnings and losses․ Wife shall be responsible for the preparation of a Qualified Domestic Relations Order (QDRO) incorporating the terms of all paragraphs in Item 14 said QDRO to be prepared within thirty (30) days of the signing of this Agreement.[ 2] Said QDRO shall be subject to approval of Husband's attorney and the Court of proper jurisdiction in this case, as well as the Administrator(s) of the aforementioned Plan.

More than four years later, Wife submitted a QDRO to the trial court, which signed it on November 29, 2012. Wife claimed the long delay was caused by Husband's failure to give her necessary information and documents. On July 19, 2013, after realizing that Husband had not seen the QDRO, Wife filed a motion asking the court to vacate the QDRO and enter one approved by Husband. Husband agreed that the QDRO should be vacated, asserting that some of the information in it was incorrect.

At the hearing on Wife's motion held on July 9, 2014, Husband argued that Wife should not receive any earnings on her portion of the IRAs that accrued after March 26, 2009—the date 30 days after the settlement agreement was signed by which she was supposed to have prepared the QDRO. Husband claimed that the 30–day deadline imposed on Wife was meant to limit her ability to benefit from the accounts' investments and that she should not be allowed to profit from her failure to comply with the divorce decree. The trial court agreed with Husband, and on August 25, 2014, entered an order vacating the QDRO, setting March 31, 2009 as the “date of calculating gains and losses to the total value of the SEP IRAs as of February 24, 2009,” and requesting that the parties submit an amended QDRO within 30 days that “calculat[ed][new] figures in accordance with [the trial court's] Order.” Wife appeals from this ruling,³ and, for the reasons that follow, we reverse the trial court's determination that March 31, 2009 is the proper “date [for] calculating gains and losses to the total value of the SEP IRAs as of February 24, 2009,” and remand the case for a more proper consideration of the parameters of any new QDRO to be submitted by the parties.

“The controlling principle to be applied when interpreting a divorce decree which incorporates the parties' settlement agreement is to find the intent of the parties by looking to the ‘four corners' of the agreement and in the light of circumstances as they existed at the time the agreement was made.” (Citations and punctuation omitted.) Doritis v. Doritis, 294 Ga. 421, 423(3), 754 S.E.2d 53 (2014). Further, just as it is in the case of an equitable allocation of property by a trial court, where, as here, the division of property has been “determined by settlement [agreement] ․, the division of the parties' marital property and the identification of the parties' separate property set forth in a divorce decree is fixed, and the trial court does not have the power to modify those terms of the judgment even if the circumstances of the parties change.” (Footnote omitted; emphasis supplied.) White v. Howard, 295 Ga. 210, 211–212(2), 758 S.E.2d 824 (2014).

With these principles in mind, the plain language of the parties' settlement agreement makes clear that Wife was entitled to “receive 50% of the Husband's SEP IRA as of the date of th[e] agreement and shall have her pro rata share of all investment experience, including earnings and losses.” Although the agreement also states that Wife was tasked with preparing a QDRO within thirty days, there is nothing in the agreement to suggest that if Wife did not prepare a QDRO within that time frame that she would not receive any earnings on her portion of the IRAs that accrued after 30 days from the date of the agreement. Indeed, there is no language in the settlement agreement indicating that Wife's failure to prepare a QDRO would affect her right to “have her pro rata share of all investment experience” in the SEP IRAs in any way. By holding otherwise and imposing an artificial 30–day window for Wife to “calculat[e] gains and losses to the total value of the SEP IRAs as of February 24, 2009,” the trial court improperly modified a fixed division of property as set forth in the parties' settlement agreement.⁴ See id. We must therefore reverse the trial court's decision and remand this case with the direction that the trial court reconsider its ruling in light of the plain language of the parties settlement agreement as outlined above.

Judgment reversed and case remanded with direction.

MELTON, Justice.

All the Justices concur.