Appellee Dennis Bielski filed a complaint for equitable partition as to an 8.54-acre property in Walker County the “Round Pond property” he owned jointly with his former fiancee, appellant Janet Lee O’Connor. Bielski and O’Connor had purchased the Round Pond property using proceeds from the sale of another jointly-owned property the “Rosewood property”, which the parties had purchased by pooling assets each owned individually. After the parties broke off their engagement and ceased cohabiting on the Round Pond property, Bielski filed his complaint, seeking the appointment of a special commissioner to oversee the sale of the property and conduct an accounting of the profits, rents, and use thereof. A special commissioner was appointed, who conducted an accounting and issued a recommendation to the court as to the disposition of proceeds from the eventual sale of the property. The property was thereafter sold and the proceeds deposited into the court’s registry pending final resolution of the matter. Following a bench trial at which both parties and the special commissioner testified, the trial court entered its final order, finding that the parties were each entitled to one-half of the approximately $246,000 in sale proceeds from the Round Pond property, with certain adjustments. Specifically, the court directed that O’Connor’s share be reduced and Bielski’s share correspondingly increased by various amounts representing, inter alia, rent owed by O’Connor; O’Connor’s share of miscellaneous expenses incurred in connection with the property’s sale; and attorney fees in the amount of $4,000. In addition, the court ordered O’Connor to pay the sum of $10,486 to appellee Charles Clements, Jr., O’Connor’s initial attorney in the matter, who had obtained a security deed on the Round Pond property to secure his legal fees.1 After payment of the foregoing expenses and other costs including the special commissioner’s fee, the court awarded O’Connor the sum of $105,596.15 and Bielski the sum of $128,597.14.
1. ” ‘Equitable relief is generally a matter within the sound discretion of the trial court . . . . and should be sustained on review where such discretion has not been abused. Cit.’ Cit.” Bruce v. Wallis , 274 Ga. 529, 531 1 556 SE2d 124 2001. “ The findings of fact on which a court relies in fashioning an equitable remedy will not be disturbed unless clearly erroneous. Cit.” Menzies v. Hall , 281 Ga. 223, 225 2 637 SE2d 415 2006. As noted above, the trial court divided the property’s proceeds equally between the parties, before making adjustments for money owed between them. This result was supported by evidence that the parties had invested roughly equal amounts of their separately owned assets in their joint purchase of the Rosewood property, the sale of which yielded the proceeds used to purchase the Round Pond property. Though O’Connor complains of the trial court’s failure to apportion a bank account held in Bielski’s name containing the remaining cash from the sale of the Rosewood property, absent a counterclaim with respect thereto, that account was not the subject of this partition action, and the trial court thus had no authority to order its division. Compare Hughes v. Hughes , 193 Ga. App. 72 387 SE2d 29 1989 equitable partition action involving counterclaim for conversion of personal property. Moreover, insofar as the existence of such funds may have affected the equities of dividing the proceeds from the Round Pond property, there was conflicting evidence presented as to how much money O’Connor had already received from that account, and we must defer to the trial court’s findings in this regard. See generally Smith v. Smith , 206 Ga. 461, 470 6 57 SE2d 611 1950 trial court is “proper tribunal for deciding as to the credibility of the witnesses”. Given the evidence presented, we find neither clear error in any of the court’s factual findings nor any abuse of discretion in the manner in which the trial court divided the property’s proceeds.
