Graham v. Graham

Patricia A. Graham Wife and Michael H. Graham Husband were married in 1997. Wife filed a petition for divorce on January 22, 2010. The central issue in the divorce proceedings was whether the marital residence is subject to equitable division. After a bench trial, the trial court entered a final judgment and decree finding that, although the marital residence was purchased, in part, with funds realized from the sale of Husband’s premarital property, the title of the home was solely in the name of Wife. The court further concluded that Husband gifted the property to Wife in order to protect the property from the numerous creditors that he has obtained due to his recent disbarment for ethical violations and also to provide security for Wife. Therefore, the court found that the marital residence was Wife’s separate property and awarded her sole possession. Husband applied for discretionary appeal, and this Court granted the application pursuant to this Court’s Rule 34 4 regulating applications to appeal in certain divorce and alimony cases. Husband contends that the trial court committed reversible error when it failed to enter a consolidated pretrial order in violation of OCGA § 9-11-16 and a scheduling order entered on February 16, 2011. OCGA § 9-11-16 provides that “upon the motion of any party, or upon its own motion, the court shall direct the attorneys for the parties to appear before it for a conference” and shall make a pretrial order summarizing the action taken and the agreements made at the conference and delineating the issues left for trial. In an order issued February 16, 2011, the trial court ruled that a consolidated pretrial order would be required and stated that “failure to provide the consolidated pre-trial order by the designated time for jury trials will result in the pre-trial conference being rescheduled and for trials before the Court being removed from the Calendar.” App. Ex. B, p. 1. Husband claims that since no pretrial order was filed, he had the right to rely on the language contained in the scheduling order reciting that the case would be removed from the calendar if no pretrial order is entered, and thus the court was in error for holding the bench trial without him present.