Charity Spurlin Wife and Terry Spurlin Husband were married in 1998 and had two children. In 2007, Wife filed a divorce action, but dismissed it after confessing to an extramarital affair and seeking reconciliation. The parties resumed cohabitation and executed a postnuptial reconciliation agreement which, in contemplation of the possibility of divorce, purported to settle preemptively any future issues between the parties involving child custody, child support, alimony, and property division. That agreement provided that Husband would receive the marital residence and primary physical custody of the minor children, with both parties having legal custody. In 2010, Wife again filed a complaint for divorce. Husband answered and also filed a motion to enforce the postnuptial agreement. After a hearing on that motion, the trial court determined that the agreement was valid and enforceable as to alimony and property division, but that the court retained the duty and authority to make determinations as to child custody and child support. After a bench trial, the trial court entered a final divorce decree, wherein it ratified the postnuptial agreement pursuant to OCGA § 19-9-5 b, finding that joint legal custody and primary physical custody in Husband was in the best interests of the children at the time the agreement was signed and that it is still in their best interests. In a separate paragraph, the trial court also determined that under OCGA § 19-9-3 a 3 A-Q the award of primary physical custody to Husband is in the children’s best interests and supported this determination with several specific findings. The trial court subsequently noted that Wife acknowledged that her move from the marital residence with the children at separation was the only change in circumstances since the signing of the postnuptial agreement, and the court further stated that she “did not present any persuasive evidence that it would not be in the best interests of the minor children to ratify the post-nuptial agreement of 2007 as required under OCGA § 19-9-5 b.” The property awards in the final judgment, including the marital residence, were also consistent with the postnuptial agreement. Wife applied for a discretionary appeal, which was granted pursuant to our Pilot Project in divorce cases.
1. Wife concedes that she declined to participate in and pay for the court reporter’s takedown and, thus, no transcript either of the hearing on the motion to enforce or of the trial is available. See Austell Healthcare v. Scott , 308 Ga. App. 393 1 707 SE2d 599 2011; Giffen v. Burrell , 176 Ga. App. 278, 280 335 SE2d 616 1985 On Motion For Rehearing. Where, as here, ” ‘the evidence has not been brought to this court by any of the methods provided in OCGA § 5-6-41, there is no evidence before this court and the judgment of the trial court on evidentiary matters cannot be reviewed.’ Cits.” Holmes v. Roberson-Holmes , 287 Ga. 358, 360 1 695 SE2d 586 2010. See also Blue v. Blue , 279 Ga. 550 615 SE2d 540 2005. However, the required assumption that an adequate evidentiary basis exists for the trial court’s orders does not automatically require affirmance, as we still must analyze how the law applies to the trial court’s findings of fact. See Sapp v. Canal Ins. Co. , 288 Ga. 681, 686 3 706 SE2d 644 2011.
