On January 19, 2007, Evelina Carmela Arkwright (“Wife”) filed for divorce from Dennis Eugene Arkwright (“Husband”) in the Superior Court of DeKalb County. Following an October 10, 2007 bench trial at which Husband and his attorney failed to appear, the *546 trial court awarded Wife alimony, title to the marital residence, ownership of an Italian condominium, 50 percent of Husband’s retirement accounts, and attorney fees. Husband moved for a new trial and to set aside the final order, and the trial court denied this motion. On appeal, Husband contends that the trial court erred in denying his motion because (1) he did not have actual notice of the final trial date before the trial took place, and (2) the final order was manifestly unfair. For the reasons that follow, we affirm.
1. Husband contends that the trial court erred in denying his motion to set aside because he did not have notice of the final trial date. However, Husband concedes that his attorney had actual notice of the trial date, but simply failed to notify him about the date of the trial. Neither Husband nor his counsel appeared at the trial,
1
and the “[failure of a [party] to appear ... in consequence of [a] misunderstanding between him and his counsel, does not afford a meritorious reason for granting a motion to set aside a judgment.”
Drain Tile Machine v. McCannon,
2. Husband argues that the trial court erred in denying his motion for a new trial because the final order was manifestly unfair. Specifically, he claims that (a) the evidence did not support the trial court’s alimony award, (b) the trial court’s division of property was inappropriate, and (c) the trial court improperly awarded attorney fees to Wife. In considering Husband’s challenges to the trial court’s assessment of the evidence relating to the alimony award and division of marital property, “this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses.” (Citations and punctuation omitted.)
Frazier v. Frazier,
(a) “In the absence of any mathematical formula, fact-finders are given a wide latitude in fixing the amount of alimony ... and to this end they are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case.” (Citations and punctuation omitted.)
Farrish v. Farrish,
(b) Similarly, we find no merit to Husband’s claim that the trial court’s division of marital assets is unfair. “[A]n equitable division of marital property does not necessarily mean an equal division.” (Citation and punctuation omitted.)
Fuller v. Fuller,
(c) An award of attorney fees as part of the expenses of litigation is left to “the sound discretion of the [trial] court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” OCGA § 19-6-2 (a) (1). “The purpose of allowing attorney fees is to ensure effective representation of both spouses so that all issues can be fully and fairly resolved.” (Citation omitted.)
Johnson v. Johnson,
Judgment affirmed.
Notes
Husband’s attorney failed to appear at the hearing because he was under the mistaken impression that Wife was going to seek a continuance.
To the extent that Husband argues that the award is unfair because his potential inability to pay it could subject him to incarceration, such argument is without merit. Georgia law has long held that imprisonment for contempt “ought never to be resorted to, except as a penal process, founded on the
unwillingness
of the party to [pay]. The moment it appears there is
inability
[to pay], it would clearly he the duty of the Judge to discharge the party.” (Emphasis supplied.)
Carlton v. Carlton,