Herbert W. Benson v. Donald J. Ward
343 Ga. App. 551
Ga. Ct. App.2017Background
- Donald J. Ward obtained a divorce decree after a bench trial in Cook County; the divorce court issued amended findings of fact and conclusions of law on December 20, 2012.
- Ward, represented by attorney Herbert W. Benson, failed to file a timely application for appellate review of the amended divorce order.
- Ward sued Benson for legal malpractice, alleging Benson’s missed appeal foreclosed a successful challenge to an allegedly disproportionate property division.
- Benson moved for summary judgment arguing Ward could not prove proximate cause — i.e., that the Supreme Court would have reversed the divorce court or that a reversal would have resulted in a larger award to Ward.
- Ward moved for partial summary judgment asserting the divorce court erred legally and factually and that the weight given to alleged adultery required reversal on appeal.
- The trial court denied both motions; Benson appealed the denial of his summary judgment motion and the Court of Appeals granted interlocutory review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ward proved proximate cause for malpractice (would an appeal have succeeded?) | Ward: The divorce court’s legal errors and disproportionate award (and undue weight on adultery) meant an appeal would have succeeded. | Benson: Ward cannot show the Supreme Court would have found abuse of discretion or that reversal would have improved Ward’s share. | Held: Benson entitled to summary judgment — Ward failed to show the Supreme Court would have reversed under the applicable standards. |
| Whether adultery evidence alone required reversal of property division | Ward: Court relied improperly on adultery, requiring reversal. | Benson: Evidence of conduct is admissible and relevant in property division; adultery alone does not mandate reversal. | Held: Adultery and other conduct were properly considered; adultery alone would not compel reversal of an equitable division. |
| Standard for deciding whether an appeal would have succeeded in a malpractice case | Ward: (implicit) appellate review would correct district findings/weighting. | Benson: Whether an appeal would have succeeded is a question of law for the trial court to decide using the appellate standard. | Held: Whether an appeal would have succeeded is a question of law; apply the same standard of review the Supreme Court would have used. |
| Whether an unequal property division, without more, constitutes reversible abuse of discretion | Ward: Imbalance shows abuse. | Benson: Equitable division need not be equal; imbalance alone is insufficient absent abuse of discretion. | Held: An unequal division is not reversible per se; absent abuse of discretion, Ward cannot show proximate cause. |
Key Cases Cited
- Holmes v. Peebles, 251 Ga. App. 417 (2001) (legal-malpractice proximate-cause standard: but-for causation required)
- Fine & Block v. Evans, 201 Ga. App. 294 (1991) (question whether an appeal would have succeeded is one of law)
- Dow Chem. Co. v. Ogletree, Deakins &c., 237 Ga. App. 27 (1999) (apply same standard of review the appellate court would have used)
- Driver v. Driver, 292 Ga. 800 (2013) (marital property division upheld if within broad discretion; factual findings reviewed under any-evidence rule)
- Wood v. Wood, 283 Ga. 8 (2008) (deference to trial court’s credibility determinations in bench trials)
- Peters v. Peters, 248 Ga. 490 (1981) (conduct of parties during marriage and causing divorce is relevant to equitable property division)
- Stanley v. Stanley, 281 Ga. 672 (2007) (the trial court sitting as trier of fact need not award any particular share to a spouse)
- Wright v. Wright, 277 Ga. 133 (2003) (equitable division does not require equal division)