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IN THE SUPERIOR COURT OF DEKALB COUNTY
STATE OF GEORGIA
DIANE DESETA,
PETITIONER,
V. CIVIL ACTION FILE
KKLEMENS
ERIK WENGERT, NUMBER: 22FM4095
RESPONDENT.
RESPONDENT’S MOTION AND BRIEF IN SUPPORT OF AN
AWARD OF ATTORNEY FEES
COMES NOW, Respondent, KLEMENS ERIK WENGERT, by and through his
undersigned counsel and files this Motion and Brief in Support of an Award of Attorney Fees.
Pursuant to the Final Judgement and Decree entered by the Honorable Court on March 18, 2024,
the parties were given 30 days to submit briefs in support of attorney fees and expenses of
litigation. The Court originally provided fifteen days for reply briefs which has been extended an
additional five days by consent of the parties and approval of the Court.
STATEMENT OF THE CASE
Petitioner filed the divorce complaint on April 20, 2022. Service was acknowledged and
Respondent filed his answer and counterclaim on May 26, 2022. The parties mediated a
Temporary Order that was approved by the Court with a substitution of the Guardian ad Litem
from Marcy Millard to Aisha Blanchard Collins on September 21, 2022.
The Guardian ad Litem, Ms. Collins, conducted a lengthy investigation beginning
September 21, 2022 and ending with her written recommendations on October 27, 2023. The
parties agreed to a parenting plan which was submitted to the Court at the Final Trial on March 11,
2024. There were two remaining parental issues of cell phone use and communication through a
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page | of 12
smart phone. Those issues were discussed in a pretrial conference with the Court. Based upon the
Court’s discussions, the remaining two parenting issues were resolved. The Guardian ad Litem
was then released from the trial. The trial was conducted over two half days. The Final Order was
then entered.
FINANCIAL ISSUES
The Court and counsel for the parties conducted a pretrial conference on the first day of
trial on the financial issues. There were two major financial issues at dispute between the parties.
The first was the distribution of the equity in the marital home. Petitioner’s position was that the
50-50 division of the equity of the home would occur with her maintaining all equity in the home
and awarding Respondent/Husband his portion through a larger distribution from the parties’
investment and retirement accounts. There was insufficient cash in the marital estate to equalize
Petitioner /Wife receiving all equity in the marital home. Respondent/Husband’s request was that
each party receive the cash equity from the home with Petitioner having the option to refinance
the home, allowing Respondent to take possession and refinance the home or have it placed on the
market for sale and the net proceeds would be distributed evenly. The equity to be divided was
stipulated to at trial $452,700.11. Respondent’s position was that awarding his $226,350.06
interest in the marital home through investment and retirement accounts was not equitable.
Distribution through those accounts would necessitate penalties and tax consequences.
The Court indicated in the pretrial conference that Respondent’s request was the more
equitable approach. Despite the Court’s indication, Petitioner insisted on trying this issue. The
Final Order granted the relief Respondent requested: Wife was granted 120 days to complete the
refinance and pay to Husband the amount of $226,350.06 for his share of the Marital Residence.
If Wife was unable to complete that step, then Husband was given the option to refinance within
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 2 of 12
120 days and pay to Wife the amount of $226,350.06 or the home would be placed on the market
for sale.
The sum of $226,350.06 as an equitable distribution for a home lived in by the parties for
over 17 years is a significant sum. Petitioner insisted on an unnecessary trial on this issue.
The parties were in dispute over another substantial financial issue. The parties owned
certain cryptocurrency that was subject to a bankruptcy proceeding by the financial holding
company. Respondent/Husband’s position was that no value could be placed on this marital asset
until the bankruptcy claim was resolved, and that any value arising out of the bankruptcy claim
would be evenly divided between the parties. Petitioner/Wife insisted that a value of $125,000.00
be placed ona claim in bankruptcy court and that the $125,000.00 value be placed in the Husband’s
column of the marital balance sheet. During the trial, the Court indicated that the Husband’s
approach to the handling of the bankruptcy claim was equitable and made that ruling in the Final
Judgment.
These two financial issues alone represent over $350,000.00 in marital equity. Counsel
attempted to resolve this issue prior to trial. Respondent attempted to resolve the issues in a
February 26, 2024 settlement offer letter (see attached Exhibit A). In the settlement offer, Husband
requested to average the appraised values and offered the distribution as was indicated by the Court
in the pretrial conference, as well as the Final Order. Further, number five (5) of the settlement
letter offered to equally divide the bankruptcy claim when it was resolved, which is the ruling of
the Court in the Final Order. Petitioner responded to the settlement letter on February 27, 2024
(see attached Exhibit B). Petitioner’s position was to “retain 100% of the equity in the Marital
Residence.” Further, Petitioner’s position on the bankruptcy claim: “Rejected. This will be added
to the Husband’s side ofthe division.” Petitioner forced a trial on these two issues.
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 3 of 12
Based upon the Court’s direction on the financial issues and the ultimate ruling by the
Court, nearly all of the trial was unnecessary and expanded litigation. Petitioner’s position
regarding over $350,000.00 in marital equity was simply wrong and forced the trial and the
significant trial preparation. The amount of $350,000.00 is significant and Respondent had no
choice but to go to trial. The bankruptcy claim alone was $125,000.00. It is untenable to expect
someone to place that value on a claim in bankruptcy and for a volatile asset of cryptocurrency.
This trial issue was unnecessary.
The pretrial conference with the Court also included the Contempt Motion filed by
Respondent based upon the Petitioner’s misuse of marital funds. The undisputed evidence at trial
was that the parties had historically placed funds in a joint marital account and used this account
and a business account for marital expenses and daily living expenses. After the divorce was filed,
Petitioner stopped contributing to both accounts but continued removing funds. Despite repeated
requests for Petitioner to stop depleting accounts to which she no longer contributed, Petitioner
depleted $76,594.82. Respondent’s theory of contempt, as explained in the pretrial conference,
was that Petitioner’s actions were not in the ordinary course of business and therefore in violation
of the Standing Order. The Court indicated it could see the theory behind the argument but that it
was not contempt. Based on that direction, Respondent dismissed the Contempt, and the issue was
tried as an issue of equitable distribution. The Final Order addressed all issues of equitable
distribution. As the funds were part of the equitable distribution decision made by the Court, there
was no unnecessary litigation in this regard.
Given that Petitioner’s insistence on trying issues of over $350,000.0, which were ruled
against her, other financial issues needed to be addressed: the student loan for the graduate degree
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 4 of 12
received by Respondent/Husband during the marriage and the bathroom renovation undertaken by
Petitioner in violation of the Temporary Order.
The testimony was unrefuted that the value of the marital estate increased greatly due to
the degree earned by the Respondent during the marriage. The student loan debt related to the
graduate degree was $51,501.62 and Respondent requested the debt be equally divided between
the parties. The Final Decree establishes $26,000.00 of this debt is marital and the Wife’s portion
of the equitable division was reduced $13,000.00. A trial was necessary to have an accounting of
this marital debt. Respondent attempted to resolve this issue in the February 26, 2024 settlement
letter (see Exhibit A). Petitioner’s response was to reject the request with no counteroffer. Based
on the Court’s ruling, part of the student loan debt was a marital debt and Petitioner’s refusal to
accept any responsibility for that debt lead to the trial on this issue with Respondent receiving
partial relief requested.
In the same vein, Respondent attempted to resolve the bathroom renovation issue by having
that expenditure placed in Petitioner’s side of the marital balance sheet (see Exhibit A, section 3b).
Petitioner refused to even discuss this debt (see Exhibit B). At trial, Respondent presented
evidence that Petitioner acted in violation of the Temporary Order in incurring this renovation cost.
In its Final Order, the Court ruled in Respondent’s favor in the amount of $7,500.00.
Respondent’s position on the distribution of the equity in the marital home, the bankruptcy
claim, the bathroom renovation allocation, and one half of the student loan debt were all decided
in his favor. Petitioner’s stubborn position not supported by the law, facts, or final outcome forced
Respondent to incur unnecessary attorney fees and expenses of litigation.
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 5 of 12
CUSTODY AND PARENTING ISSUES
The attorney fee issues of this matter will be difficult to address as the Guardian Ad Litem
only presented a recommendation to the Court for two issues: use of a cell phone and a smart watch
communication device. After hearing from the Guardian ad Litem and counsel, the Court indicated
its view on the issues. Respondent accepted the Court’s guidance and did not litigate the issue.
The Guardian ad Litem was then released.
Petitioner’s counsel made the remark during the trial that Petitioner would seek attorney
fees as Petitioner received the same parenting time they asked for from the beginning. Respondent
strongly disputes this statement. There are countless emails to establish the continuous nature of
the custody issues and that the Guardian ad Litem addressed these in her final recommendations
on October 27, 2023 (see attached Exhibit C). If Petitioner’s position is that the Guardian ad
Litem’s final recommendation is what Petitioner requested from the beginning, then that testimony
should have been presented prior to release of the Guardian ad Litem. Respondent’s position is
that there were many parenting issues caused by Petitioner that necessitated the involvement of
the Guardian ad Litem. Respondent has attached as Exhibit D, the June 12" letter to the Guardian
ad Litem which includes the introductory letter of October 3, 2022 outlining the issues at that time,
as well as emails of the ongoing parental issues.
One parenting issue that created unnecessary involvement of the Guardian ad Litem has
been Petitioner’s reluctance to have the minor child visit his paternal grandparents in Sweden and
to have dual citizenship. The case began with Petitioner refusing to cooperate in obtaining a
passport for the minor child for a planned trip to Sweden in the Summer of 2022. As a result,
Defense counsel had to address the issue with threat of court involvement (see attached Exhibit E,
April 27, 2022 email). Despite traveling to Sweden in the Summer of 2022, Petitioner booked
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 6 of 12
multiple summer camps including a film camp during the Summer of 2023 to prevent Respondent
from traveling with the child to Sweden to visit his paternal grandparents. The emails are
contained in Exhibit D. Of particular concern is statement by Petitioner’s counsel that “Ms. DeSeta
does not want the GAL’s input regarding summer vacation” (see February 8, 2023 email contained
on page 46 of Exhibit D). “I’m not sure how to make it any clearer-Ms DeSeta is not going to agree
to Thor leaving the county this summer.” (see February 21, 20223 email contained on page 49-50
of Exhibit D). Petitioner felt it more important for the child to attend a film camp rather then visit
his paternal grandparents. This clearly shows Petitioner’s lack of coparenting and the need to
involve the Guardian. Petitioner created unnecessary work of the Guardian.
Petitioner objected to the child having dual citizenship, prompting the Guardian ad Litem
to specifically make this recommendation in her October 27, 2023 report. Petitioner claimed
Sweden was too dangerous for the child to travel to. The Guardian had to address this issue as well
in her report. Petitioner repeatedly refused access, refused to coparent, wanted total control over
the child, and throughout the litigation sought to prevent a bond with the paternal grandparents.
The Guardian ad Litem in her conference with the attorneys just prior to issuing her report stated
that if the child were older, she would have recommended week-on, week-off joint parenting.
A review of the Guardian’s final recommendation shows how she goes to great lengths to
protect the relationship with the Respondent/Father: three weeks of summer parenting time to
allow time to travel to Europe, entire school Christmas holiday in alternating years to allow
sufficient time to travel, Our Family Wizard, “I do not like the computer parameters suggested by
Mom because Dad should also be able to exercise discretion on what is on Thor’s computer”,
mother shall provide the child’s medications during father’s parenting time.
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 7 of 12
Custody and parenting time are always difficult issues. Petitioner though went beyond the
norm by being unreasonable on basic parenting issues and necessitating the involvement of the
Guardian.
CONTEMPT
Respondent filed Respondent’ Application for Citation for Contempt (hereinafter the
“February 15‘ Contempt”) on February 15, 2024 based on Petitioner informing Respondent she
would no longer provide health insurance as of December 31, 2023. The exhibits in the February
15" Contempt demonstrate that counsel attempted to resolve this issue and Respondent was
informed his coverage was no longer active (see attached Exhibit F). It was not until after the filing
of the February 15" Contempt did Petitioner’s counsel provide proof of medical coverage. After
actual proof was sent, Defense counsel emailed “Why not send me the same attachment (proof of
coverage) as today as opposed to just saying she applied for the cards?” (see February 16, 2024
attached as Exhibit G). Respondent and his attorney both sought what it took a court filing for
Petitioner to finally produce. Petitioner is responsible for the filing of the February 15" Contempt
for failure to provide proof
of health care coverage. Once again, Petitioner refuses to communicate
on basic issues and creates unnecessary litigation. Respondent requests all fees incurred as a result
of this issue in the amount of $1,140.00.
Respondent hereby submits the Affidavit of Attorney Fees submitted at trial as Exhibit R39
(attached hereto as Exhibit H).
ARGUMENT AND CITATION OF AUTHORITY
1. O.C.G.A.§19-6-2: Within the sound discretion of the Court
It is well settled law that a Court upon considering the financial circumstances of both
parties has wide discretion in awarding attorney fees pursuant to OCGA § 19-6-2. Hunter v. Hunter,
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 8 of 12
289 Ga. 9, 709 S.E.2d 263 (2011). In the present case, Petitioner has a successful career and
financial resources available to her. Although Respondent does earn more income, it does not rise
to the level to find he has an unfair financial standing. Petitioner never filed for attorney fees in
the matter, offered to waive any request for attorney fees in her offer to settle (see Exhibit B), and
the parties divided a marital estate with a net equity of $1,827,434.31. In considering the financial
circumstances of the parties, it is fair for the Court to consider an award of attorney fees.
Petitioner took an unreasonable position in regard to the distribution of the equity of the
parties’ home. The Court clearly indicated in the pretrial conference that Petitioner’s request would
not be granted. Despite this, Petitioner insisted on trying an issue of $452,700.11. Respondent
attempted to settle this issue by offering in the settlement letter (Exhibit A) of February 26, 2024
the same position of the Court in the pretrial conference as in the Final Order. Petitioner
unnecessarily forced the trial.
In the same regard, the Final Order of the Court reflected exactly what the Respondent
offered in regard to the bankruptcy claim: upon resolution of the claim, it will be divided equally
between the parties (see Exhibit A). Petitioner took the position that the $125,000.00 bankruptcy
claim be placed in Respondent’s asset division. The combined value of these two issues
necessitated a trial. Given Petitioner’s unreasonable position, she should be responsible for
Respondent’s trial fees including preparation for trial.
The Court can consider attempts to settle when determining attorney fees. Fenters v. Fenters,
238 Ga 131, 231 S.E.2d 741 (1977): “the effort needed by counsel to reach settlement is a matter
which can be considered in determining the amount of attorney fees to be awarded”. Respondent
incurred $23,740.50 in fees since the offer letter of February 26, 2024, inclusive of $23,653.00
that was incurred specifically for trial preparation related items and conducting the trial itself.
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 9 of 12
Respondent respectfully requests to be awarded the full $23,740.50, or in the alternative the
$23,653.00 related specifically to trial preparation and trial. Invoices substantiating the foregoing
fees are attached hereto as Exhibit I, with fees related to trial preparation and conducting the trial
highlighted in blue.!
Further, Respondent did prevail on the issue of the bathroom renovation, one half of the
student loan issue, and dismissed the April 7, 2023 Citation of Contempt based upon
misappropriation of marital funds and tried that issue as one of equitable distribution. The Court
recognized the theory and argument of Respondent.
Additionally, Petitioner’s refusal to provide the necessary proof of medical coverage
combined with her stated email intent to cancel Respondent’s insurance, necessitated the filing the
February 15" Contempt. It was not until the filing of the February 15‘ Contempt that Petitioner
fulfilled her obligation to provide proof
of coverage. Respondent expended $1,140.00 in regard to
this unnecessary issue and requests an award of these fees. Invoices substantiating said fees can
be found on Exhibit H (fees highlighted in green).
Finally, the Order of appointment for the Guardian ad Litem provides the fees shall be
evenly divided between the parties. Petitioner’s actions in seeking to undermine Respondent’s
relationship with his son as outlined in Exhibits D and E created unnecessary work by the Guardian
ad Litem. The Guardian ad Litem’s final cost for services was $9,983.00 (see attached Exhibit J).
Respondent’s portion was $4,991.50 and he respectfully requests for Petitioner to reimburse him
for half
of his portion of the fees ($2,495.75).
| Defendant notes that some trial prep was conducted in October, 2023, when the case was originally scheduled for
trial and the October invoices related to trial are included in Exhibit I and the trial fee calculation.
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 10 of 12
2. O.C.G.A.§9-15-14(b): unnecessarily expanded the proceedings
Respondent incorporates the argument contained in section | and respectfully submits that
Petitioner unnecessarily expanded the proceedings. The trial occurred because of Petitioner
making two unreasonable demands that were rejected by the Court: division of the home equity
and the bankruptcy claim. The amount of those two issues alone is more than all other disputed
income issues in the case combined. Petitioner chose to take a position that was clearly wrong and
by unnecessarily expanding litigation, forced Respondent to expend an unreasonable amount of
attorney fees. Respondent respectfully requests the trial fees and trial preparation fees in the
amount of $23,653.00.
This 17 day of April, 2024.
8, —---
JOHN B. SUMNER
Georgia Bar No. 692126
Attomey for Respondent
ATLANTA DIVORCE LAW GROUP
3560 Old Milton Parkway
Alpharetta, Georgia 30005
Phone: (678) 203-9893
Fax: (770) 854-1008
Email: john@atldivorcegroup.com
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 11 of 12
CERTIFICATE OF SERVICE
This is to certify that I have this day served a copy of the foregoing Respondents Motion
and Briefin Support of An Award of Attorney Fees upon the Petitioner by and through her counsel
of record by statutory electronic service, as follows:
Samantha O. Lennon
Lennon, Giovinazzo & Steele Family Law, LLC
Suite 410-S
Atlanta, GA 30309
samanth@lgsfamilylaw.com
This 17 day of April, 2024.
/ L-
ff
JOHN B. SUMNER
Georgia Bar No. 692126
Attomey for Respondent
ATLANTA DIVORCE LAW GROUP
3560 Old Milton Parkway
Alpharetta, Georgia 30005
Phone: (678) 203-9893
Fax: (770) 854-1008
Email: john@atldivorcegroup.com
Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County/CAFN 22FM4095
Page 12 of 12
pIVORCE z EXHIBITA
“Pr
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2,
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2 yy February 26, 2024
ER apyE®
Via Email Only
Samantha O. Lennon
Lennon, Giovinazzo & Steele Family Law, LLC
1776 Peachtree St NE
Suite 410-S
Atlanta, GA 30309
samantha@lgsfamilylaw.com
Re: Diane DeSeta v. Klemens Erik Wengert
In the Superior Court of DeKalb County
CAEN: 22FM4095
FOR SETTLEMENT AND COMPROMISE PURPOSES ONLY. NOT TO BE USED IN.
TRIAL EXCEPT AS TO THE ISSUE OF ATTORNEY’S FEES
Dear Ms. Lennon,
I have been authorized by my client to present the following terms as a final offer of
settlement. Please note, this communication is intended for settlement purposes only, and is
not admissible except for the purpose of establishing attorney’s fees. If the terms are agreeable
to Ms. DeSeta, I will convert the terms to a full settlement agreement that can be presented to
Judge Adams to fully resolve this case. The proposed settlement terms are as follows:
1 Marital Residence:
a Mr. Wengert; would propose two scenarios regarding the parties’ Marital
Residence:
1 The parties agree to an average of the two appraised values of the Marital
Residence ($702,500) and each party has the opportunity to buy the
other party out of their one-half interest in the Marital Residence.
2. The Marital Residence is sold, and the parties equally divide the net
proceeds.
2. Asset Division:
a The parties shall each keep the financial accounts in their respective names and all
joint accounts shall be equally divided between the parties.
b. In the event the division of individual accounts and joint accounts does not result
in an equal division of the marital estate, Mr. Wengert’s Fidelity Rollover IRA
account ending in *4310 shall be divided to equalize the disparity.
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EXHIBIT A
Debts:
a. Mr. Wengert’s student loans incurred during the marriage as part of obtaining his
graduate school degree shall be equally divided between the parties.
b. The parties shall each keep any other debts incurred in their respective names and
all joint debts shall be equally divided between the parties. Wife’s removal of
approximately $8,000.00 from the parties’ HELOC to complete a bathroom
renovation in October of 2023 will be added to her side of the division.
Business Interest:
a. Mr. Wengert shall maintain Thor Ventures, LLC and Relevant Exchange, LLC
with Ms. DeSeta waiving any interest in same.
Crypto Bankruptcy Claim:
a. In the event Mr. Wengert’s crypto bankruptcy claim is resolved at a later date, the
parties shall equally divide any net proceeds received.
Contempt:
a. Ms. DeSeta shall transfer to Mr. Wengert one-half of the total funds ($76,594.82)
misappropriated from accounts *8882 and *9173 OR the total amount of
($70,421.43) shall be transferred back to the marital estate subject to equalization
between the parties.
b. Mr. Wengert shall dismiss the contempt claim against Ms. DeSeta related to the
misappropriation of funds from accounts *8882 and *9173.
Child Support:
a. Child support will be calculated in accordance with the guidelines of O.C.G.A. $19-
6-15. Any final child support amount paid for the support of the minor child shall
be adjusted proportionately to the amount paid by Mr. Wengert for the minor
child’s school tuition.
Attorney Fees:
a. Both parties will be responsible for payment of their attorney fees.
Itis our hope that the parties can settle this matter without incurring additional attorneys’
fees and pursuing costly litigation. To that end, this offer shall remain open until Monday, March
43,4"
2024. In the event that Ms. DeSeta is not agreeable to the terms herein, please advise if you are
in agreement to stipulate any of the terms discussed above prior to the final hearing in this matter.
I look forward to working with you towards an amicable resolution in this matter. Please
contact me if you wish to discuss the terms further.
Sincerely,
John B. Sumner
Attorney for Defendant
Hes EXHIBIT B
LENNON GInvINAZZO STEELE
A
February 27, 2024
Via E-Mail Only
John B. Sumner, Esq.
3560 Old Milton Parkway
Alpharetta, GA 30005
john@atldivorcegroup.com
Re: Diane DeSeta v. Klemens Erik Wengert
Superior Court of DeKalb County
Civil Action File No. 22FM4095
Dear John,
We are in receipt of your offer dated February 26, 2024. Ms. DeSeta (hereinafter Wife) has
authorized me to make the following counteroffer as a full and final settlement. It is our hope that Mr.
Wengert (hereinafter Husband) will find the terms agreeable so we can bring this case to a final
resolution. This is an offer in compromise of disputed claims; no part of this letter shall be admissible
into evidence except on the issue of attorney’s fees.
)) Marital Residence: We used the $702,500 value for the marital home when calculating
our counteroffer. Wife shall have sole and exclusive use of the Marital Residence. Wife
shall retain 100% of the equity in the Marital Residence. Wife shall have ninety (90)
days to refinance the Wells Fargo mortgage and Third Federal HELOC into her
individual name. Husband shall quitclaim title to Wife upon proof of refinancing the
Wells Fargo mortgage or sooner if the quitclaim deed is needed by the closing attorney.
2) Asset Division:
a. Bank Accounts: Accepted. Specifically, the parties shall equally divide and close
the joint accounts (Bank of America *8882 and 9907). In addition, Wife shall retain
the Alliant Credit Union Savings Account ending in 8553, Alliant Credit Union
Checking account ending in 8552 and the accounts for her niece, Olivia DeSeta
(UTMA and account ending in 1916). The parties shall equally divide and close the
Bank of America checking account ending in 8882 and Bank of America savings
account ending in 9907.
b Thor’s Accounts: The parties shall continue to maintain Thot’s 529 account ending
in 1095, Bank of America checking account ending in 4710 and Bank of America
savings account ending in 9977. Funds from these accounts shall only be used by
consent of both parties.
Retirement: Each party shall retain the retirement accounts in their respective
names.
Investments: Wife shall retain 100% of the joint Vanguard Brokerage. Husband
shall retain 100% of the Fidelity HSA and Coinbase currency.
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EXHIBIT B
e. Vehicles: Husband shall retain his 2018 Mazda 3 and Wife shall retain her
premarital motorcycle.
3) Debts: Rejected. Each party shall be responsible for all student loans and credit card
debts in their individual names.
4) Business Interest: Accepted. Husband shall indemnify Wife for any and all liabilities
associated with the businesses. Husband shall remove Wife’s name from the
businesses and he shall change the business addresses to reflect his legal home on any
Secretary of State filings and SEO. Husband shall pay all back employment taxes for
2022, 2023 and 2024 and he shall be responsible for all taxes for these years. Husband
shall indemnify Wife for any taxes for the business.
5) Crypto Bankruptcy Claim: Rejected. This will be added to Husband’s side of the
division.
6) Contempt: Rejected.
Child Support: Rejected. Husband shall pay Wife child support in the amount of
$1,562.00 per month pursuant to the Georgia Child Support Guidelines. Child support
shall be paid on the first day of each month and shall begin on March 1, 2024. Wife
shall continue to maintain health insurance for the minor child. All uncovered medical
expenses, including mental health, shall be divided with Husband paying 65% and
Wife paying 35%. The paying party shall be reimbursed within thirty (30) days of
receiving an invoice.
8) Attorney’s Fees: Accepted.
9) Furniture, Furnishings and Personal Items: Each party shall retain the furniture,
furnishings and personal items in their current possession.
10) Medical Insurance: Each party shall maintain their own health insurance once the
divorce is finalized. The parties are immediately responsible for their own medical
expenses. Husband is responsible for the cost of any denied claims for 2023 and 2024.
If the above is agreeable, we will draft the proposed Settlement Agreement, Parenting Plan and Child
Support Addendum. Feel free to contact me after you have had a chance to review the above so that
we can discuss next steps. I look forward to your response and hopeful acceptance of this offer. I
would appreciate it if you would provide a substantive response by Monday, March 4, 2024.
Very truly yours,
¢ le PROV
Samantha O, Lennon
ce: Diane DeSeta (via e-mail)
EXHIBIT C
BLANCHARD
© COLLINS
——---— LAW FIRM, LLC
October 27, 2023
ViA EMAIL
Samantha O, Lennon, Esq. John B. Sumner, Esq.
Ddeseta@gmail.com klemens@relevantexchange.com
samantha@hlfamilylaw.com john@atldivorcegroup.com
Petitioner and Attorney for Petitioner Respondent and Attorney for Respondent
Re: Diane DeSeta v. Klemens Eric Wengert
Superior Court of DeKalb County | CAFN: 22FM4095
Dear Counsel:
| am writing to follow up to our phone meeting today with my recommendations to
ensure clarity. If you have any questions, please do not hesitate to contact me on my cell.
1. Physical Custody:
a) The Mother should be named the Primary Physical Custodian and the Father
should be named the Secondary Physical Custodian. It also appears that the
parents have agreed that the Father will have parenting time the first, third, and
fifth Thursday to Monday. During the second and fourth weeks, Father should
have parenting time overnight on Thursdays.
If understand correctly, Father would like to add a Tuesday dinner to the second
and fourth weeks; if the parents agree to that, | am not opposed to it, however,
that is not my recommendation.
b) Summer: Back in August, | recommended that each parent have three weeks of
parenting time in the summer, broken into two parts, two weeks and one week. |
am in agreement that the parents could each have three consecutive weeks of
time in consideration of Thor travelling to Sweden to visit his paternal
grandparents.
Blanchard Collins Law Firm, LLC
2302 Parklake Drive NE
Sulte 456
Atlanta, Georgla 30345
@ 404.409.1578
8 404,973,0849
a aisha@abc-familyiaw.com
www.abc-familylaw.com
EXHIBIT C
Ms, Lennon and Mr. Sumner
October 27, 2023
Page 2 of 3
©) Christmas 2023: | recommend that the parents follow the agreement they came
to back in October of 2022. Accordingly, Father would have the Christmas holiday
this year. It is my recommendation that the parents rotate the entire holiday every
year thereafter unless they mutually agree otherwise.
egal Custody: The parents should have joint legal custody and they should confer
with each other prior to making any important decision regarding Thor.
a) Inthe event of a disagreement, | recommend that the Mother have final decision-
making authority in education and medical decisions. Each parent should be
allowed to pick two extracurricular activities per year for Thor (perhaps they
alternate who has priority or they pick seasons). Each parent should be allowed
to expose Thor to their respective religious practices.
b) | recommend the parties utilize Our Family Wizard so that all of Thor's important
appointments are in one location, and the parents can cease their email back and
forth and keep their correspondence all in one location.
Q In the event either parent seeks out a second opinion, that decision shall be
treated as an important decision to be discussed with the other parent prior to a
decision being made and irrespective of who is paying for the service. Neither
parent should be restricted from participating in the second opinion, | also
encourage the parents to ensure that their consideration of decisions be made in
conjunction with Thor’s pediatrician and Dr. Perez.
d) The Mother shal! maintain the U.S. Passport and she shall provide it to the Father
for international travel. This provision should not be one that allows approval
from the Mother; only facilitation of the document. °
-
lam in support of Thor becoming a dual! citizen. | am not in support of Thor
travelling to countries with a higher danger rating than 2 though; in many
circumstances, a 2 is too high. Given that Sweden is at a level 2 currently, | do not
think a blanket ban on level 2 countries should be implemented | believe that
anticipated travel to a 2 country should be discussed with the Parent Coordinator
prior to it being done if there is a disagreement.
tam also not in support of Thor travelling with either parent to a country that is
not a signatoryto the Hague Convention.
EXHIBIT C
Ms, Lennon and Mr. Sumner
October 27, 2023
Page 3 of 3
e) | do not like the computer parameters suggested by Mom because Dad should
also be able to exercise discretion on what is on Thor's computer. | recommend
that the parties purchase their own electronic devices for Thor to remedy this
problem; the computers should be connected in meaningful ways that will ease
Thor's life. For example, both devices should have access to Thor's Google Drive.
Alternatively, the parents can continue to utilize one device and inform each other
on any and all software that is being installed on Thor's computer.
| recommend that the Mother provide Thor's medications, however, the parents
should have a joint meeting with Dr. Perez to understand how the medications
should be utilized during the weekend. It’s probably a good idea to continue giving
Thor the XR (long lasting) pill on the weekends exclusively for swim meets.
However, Father should also have the ability to give Thor one short-lasting pill if
he and Thor are working on a project that requires concentration.
It is imperative that all short-lasting pills that are provided to Thor are
communicated to the other parent so that Thor is guaranteed to have one day off
from his medication each week. This notification should include the day and time
in which the short-lasting pill is provided.
3. Thor should have open access to both of his parents. | am in support of a texting
watch in lieu of a smart phone until Thor graduates from 8" grade. | do have a few
caveats, however. The parents should discuss and agree to rules that apply at both
homes regarding its duration of use per day and whether it is utilized as a discipline
tactic for poor behavior and if so, how. The parents could probably figure this out
with the assistance of their Parent Coordinator.
| do believe that the parents need to include a provision in their Parenting Plan that
says that neither parent wilt show Thor legal documents. He is already too involved
in this litigation and that needs to cease.
| hope this helps in getting the remaining custody issues resolved. | remain available
to assist in any way that I can.
Sincerely,
{s/f Aisha Blanchard Collins
Aisha Blanchard Collins
Guardian ad Litem
EXHIBIT D
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My
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TER apy
Via Email only
Aisha Blanchard Collins
Blanchard Collins Law Firm, LLC
2302 Parklake Drive NE
Suite 456
Atlanta, GA 30345
aisha@abc-familylaw.com
Re: DeSeta vy, Wengert
In the Superior Court of DeKalb County
CAFN: 22FM4095
Hello Ms. Collins,
Thope all finds you well. 1 wanted to reach out and provide an overview and supporting
documents on behalf of the father of the minor child at issue in the above case. You will find
enclosed pertinent pleadings, offers to resolve the parenting issues, and relevant emails. I have
enclosed a copy of my October 3, 2022, introductory letter I sent to you. I stand by the letter and
seek here to supplement and state our position on parenting time.
Unfortunately, parenting time issues have worsened over time. The case began in April
2022 with a pressing issue. Prior to the divorce being filed, Mr. Wengert had a trip planned with
Thor to visit Thor's paternal grandparents in Sweden. Ms. DeSeta began to resist the trip and was
being difficult in procuring Thor’s passport. After I reached out to opposing counsel, Ms, DeSeta
did agree to provide the passport, She made many demands, but they were reasonable, and Mr.
Wengert complied without hesitation: itinerary, daily calls, return if the Russian-Ukraine conflict
worsened, etc. The trip went very well, and Thor enjoyed it greatly.
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EXHIBIT D
In summer 2022, the parties, on their own, agreed to a jaint week on week off parenting
schedule with built in vacations. The Sweden trip was July 1-12. The mother took Thor on
vacation July 31-August 7. Since the parents had jointly raised their child throughout his life, the
father was allowed to take his son to Europe over the summer, and the parties met and decided
on a joint physical parenting time, I assumed this would continue into the school year. Mr.
Wengert purposely rented an apartment near the mother and school to continue joint parenting
and minimize the impact on Thor. We were still in discovery on the financial issues but did want
to put a parenting plan in place to best serve the child.
I forwarded an offer letter on August 9, 2022, regarding a request for a temporary consent
order. The letter is included. In that letter, I also addressed the issue of scuba certification. To
recap, prior to the divorce being filed, Thor and his father took up the activity of becoming scuba
certified. The lessons culminate with a certification dive in Florida. That was to occur over
Summer 2022, but the mother objected as she had not had the opportunity to take Thor to the
beach first. Despite the selfish reasoning of the mother, we emphasized the best interest of the
child by having an appropriate temporary order put in place. I was shocked by the letter response
of Ms. Lennon. That August 1, 2022, letter is enclosed. The response completely ignored the
pattern over the child's life and the immediate past summer after the divorce was filed. She
dictated a visitation schedule that my client had not agreed to. Mr. Wengert went from a fully
shared parent who is entrusted with his son in Europe and alternating weeks to every other
weekend and pick up and drop offs to convenience the mother.
The issue of the father-son scuba activity was completely ignor
Preview
IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA DIANE DESETA, PETITIONER, V. CIVIL ACTION FILE KKLEMENS ERIK WENGERT, NUMBER: 22FM4095 RESPONDENT. RESPONDENT’S MOTION AND BRIEF IN SUPPORT OF AN AWARD OF ATTORNEY FEES COMES NOW, Respondent, KLEMENS ERIK WENGERT, by and through his undersigned counsel and files this Motion and Brief in Support of an Award of Attorney Fees. Pursuant to the Final Judgement and Decree entered by the Honorable Court on March 18, 2024, the parties were given 30 days to submit briefs in support of attorney fees and expenses of litigation. The Court originally provided fifteen days for reply briefs which has been extended an additional five days by consent of the parties and approval of the Court. STATEMENT OF THE CASE Petitioner filed the divorce complaint on April 20, 2022. Service was acknowledged and Respondent filed his answer and counterclaim on May 26, 2022. The parties mediated a Temporary Order that was approved by the Court with a substitution of the Guardian ad Litem from Marcy Millard to Aisha Blanchard Collins on September 21, 2022. The Guardian ad Litem, Ms. Collins, conducted a lengthy investigation beginning September 21, 2022 and ending with her written recommendations on October 27, 2023. The parties agreed to a parenting plan which was submitted to the Court at the Final Trial on March 11, 2024. There were two remaining parental issues of cell phone use and communication through a Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page | of 12 smart phone. Those issues were discussed in a pretrial conference with the Court. Based upon the Court’s discussions, the remaining two parenting issues were resolved. The Guardian ad Litem was then released from the trial. The trial was conducted over two half days. The Final Order was then entered. FINANCIAL ISSUES The Court and counsel for the parties conducted a pretrial conference on the first day of trial on the financial issues. There were two major financial issues at dispute between the parties. The first was the distribution of the equity in the marital home. Petitioner’s position was that the 50-50 division of the equity of the home would occur with her maintaining all equity in the home and awarding Respondent/Husband his portion through a larger distribution from the parties’ investment and retirement accounts. There was insufficient cash in the marital estate to equalize Petitioner /Wife receiving all equity in the marital home. Respondent/Husband’s request was that each party receive the cash equity from the home with Petitioner having the option to refinance the home, allowing Respondent to take possession and refinance the home or have it placed on the market for sale and the net proceeds would be distributed evenly. The equity to be divided was stipulated to at trial $452,700.11. Respondent’s position was that awarding his $226,350.06 interest in the marital home through investment and retirement accounts was not equitable. Distribution through those accounts would necessitate penalties and tax consequences. The Court indicated in the pretrial conference that Respondent’s request was the more equitable approach. Despite the Court’s indication, Petitioner insisted on trying this issue. The Final Order granted the relief Respondent requested: Wife was granted 120 days to complete the refinance and pay to Husband the amount of $226,350.06 for his share of the Marital Residence. If Wife was unable to complete that step, then Husband was given the option to refinance within Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 2 of 12 120 days and pay to Wife the amount of $226,350.06 or the home would be placed on the market for sale. The sum of $226,350.06 as an equitable distribution for a home lived in by the parties for over 17 years is a significant sum. Petitioner insisted on an unnecessary trial on this issue. The parties were in dispute over another substantial financial issue. The parties owned certain cryptocurrency that was subject to a bankruptcy proceeding by the financial holding company. Respondent/Husband’s position was that no value could be placed on this marital asset until the bankruptcy claim was resolved, and that any value arising out of the bankruptcy claim would be evenly divided between the parties. Petitioner/Wife insisted that a value of $125,000.00 be placed ona claim in bankruptcy court and that the $125,000.00 value be placed in the Husband’s column of the marital balance sheet. During the trial, the Court indicated that the Husband’s approach to the handling of the bankruptcy claim was equitable and made that ruling in the Final Judgment. These two financial issues alone represent over $350,000.00 in marital equity. Counsel attempted to resolve this issue prior to trial. Respondent attempted to resolve the issues in a February 26, 2024 settlement offer letter (see attached Exhibit A). In the settlement offer, Husband requested to average the appraised values and offered the distribution as was indicated by the Court in the pretrial conference, as well as the Final Order. Further, number five (5) of the settlement letter offered to equally divide the bankruptcy claim when it was resolved, which is the ruling of the Court in the Final Order. Petitioner responded to the settlement letter on February 27, 2024 (see attached Exhibit B). Petitioner’s position was to “retain 100% of the equity in the Marital Residence.” Further, Petitioner’s position on the bankruptcy claim: “Rejected. This will be added to the Husband’s side ofthe division.” Petitioner forced a trial on these two issues. Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 3 of 12 Based upon the Court’s direction on the financial issues and the ultimate ruling by the Court, nearly all of the trial was unnecessary and expanded litigation. Petitioner’s position regarding over $350,000.00 in marital equity was simply wrong and forced the trial and the significant trial preparation. The amount of $350,000.00 is significant and Respondent had no choice but to go to trial. The bankruptcy claim alone was $125,000.00. It is untenable to expect someone to place that value on a claim in bankruptcy and for a volatile asset of cryptocurrency. This trial issue was unnecessary. The pretrial conference with the Court also included the Contempt Motion filed by Respondent based upon the Petitioner’s misuse of marital funds. The undisputed evidence at trial was that the parties had historically placed funds in a joint marital account and used this account and a business account for marital expenses and daily living expenses. After the divorce was filed, Petitioner stopped contributing to both accounts but continued removing funds. Despite repeated requests for Petitioner to stop depleting accounts to which she no longer contributed, Petitioner depleted $76,594.82. Respondent’s theory of contempt, as explained in the pretrial conference, was that Petitioner’s actions were not in the ordinary course of business and therefore in violation of the Standing Order. The Court indicated it could see the theory behind the argument but that it was not contempt. Based on that direction, Respondent dismissed the Contempt, and the issue was tried as an issue of equitable distribution. The Final Order addressed all issues of equitable distribution. As the funds were part of the equitable distribution decision made by the Court, there was no unnecessary litigation in this regard. Given that Petitioner’s insistence on trying issues of over $350,000.0, which were ruled against her, other financial issues needed to be addressed: the student loan for the graduate degree Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 4 of 12 received by Respondent/Husband during the marriage and the bathroom renovation undertaken by Petitioner in violation of the Temporary Order. The testimony was unrefuted that the value of the marital estate increased greatly due to the degree earned by the Respondent during the marriage. The student loan debt related to the graduate degree was $51,501.62 and Respondent requested the debt be equally divided between the parties. The Final Decree establishes $26,000.00 of this debt is marital and the Wife’s portion of the equitable division was reduced $13,000.00. A trial was necessary to have an accounting of this marital debt. Respondent attempted to resolve this issue in the February 26, 2024 settlement letter (see Exhibit A). Petitioner’s response was to reject the request with no counteroffer. Based on the Court’s ruling, part of the student loan debt was a marital debt and Petitioner’s refusal to accept any responsibility for that debt lead to the trial on this issue with Respondent receiving partial relief requested. In the same vein, Respondent attempted to resolve the bathroom renovation issue by having that expenditure placed in Petitioner’s side of the marital balance sheet (see Exhibit A, section 3b). Petitioner refused to even discuss this debt (see Exhibit B). At trial, Respondent presented evidence that Petitioner acted in violation of the Temporary Order in incurring this renovation cost. In its Final Order, the Court ruled in Respondent’s favor in the amount of $7,500.00. Respondent’s position on the distribution of the equity in the marital home, the bankruptcy claim, the bathroom renovation allocation, and one half of the student loan debt were all decided in his favor. Petitioner’s stubborn position not supported by the law, facts, or final outcome forced Respondent to incur unnecessary attorney fees and expenses of litigation. Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 5 of 12 CUSTODY AND PARENTING ISSUES The attorney fee issues of this matter will be difficult to address as the Guardian Ad Litem only presented a recommendation to the Court for two issues: use of a cell phone and a smart watch communication device. After hearing from the Guardian ad Litem and counsel, the Court indicated its view on the issues. Respondent accepted the Court’s guidance and did not litigate the issue. The Guardian ad Litem was then released. Petitioner’s counsel made the remark during the trial that Petitioner would seek attorney fees as Petitioner received the same parenting time they asked for from the beginning. Respondent strongly disputes this statement. There are countless emails to establish the continuous nature of the custody issues and that the Guardian ad Litem addressed these in her final recommendations on October 27, 2023 (see attached Exhibit C). If Petitioner’s position is that the Guardian ad Litem’s final recommendation is what Petitioner requested from the beginning, then that testimony should have been presented prior to release of the Guardian ad Litem. Respondent’s position is that there were many parenting issues caused by Petitioner that necessitated the involvement of the Guardian ad Litem. Respondent has attached as Exhibit D, the June 12" letter to the Guardian ad Litem which includes the introductory letter of October 3, 2022 outlining the issues at that time, as well as emails of the ongoing parental issues. One parenting issue that created unnecessary involvement of the Guardian ad Litem has been Petitioner’s reluctance to have the minor child visit his paternal grandparents in Sweden and to have dual citizenship. The case began with Petitioner refusing to cooperate in obtaining a passport for the minor child for a planned trip to Sweden in the Summer of 2022. As a result, Defense counsel had to address the issue with threat of court involvement (see attached Exhibit E, April 27, 2022 email). Despite traveling to Sweden in the Summer of 2022, Petitioner booked Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 6 of 12 multiple summer camps including a film camp during the Summer of 2023 to prevent Respondent from traveling with the child to Sweden to visit his paternal grandparents. The emails are contained in Exhibit D. Of particular concern is statement by Petitioner’s counsel that “Ms. DeSeta does not want the GAL’s input regarding summer vacation” (see February 8, 2023 email contained on page 46 of Exhibit D). “I’m not sure how to make it any clearer-Ms DeSeta is not going to agree to Thor leaving the county this summer.” (see February 21, 20223 email contained on page 49-50 of Exhibit D). Petitioner felt it more important for the child to attend a film camp rather then visit his paternal grandparents. This clearly shows Petitioner’s lack of coparenting and the need to involve the Guardian. Petitioner created unnecessary work of the Guardian. Petitioner objected to the child having dual citizenship, prompting the Guardian ad Litem to specifically make this recommendation in her October 27, 2023 report. Petitioner claimed Sweden was too dangerous for the child to travel to. The Guardian had to address this issue as well in her report. Petitioner repeatedly refused access, refused to coparent, wanted total control over the child, and throughout the litigation sought to prevent a bond with the paternal grandparents. The Guardian ad Litem in her conference with the attorneys just prior to issuing her report stated that if the child were older, she would have recommended week-on, week-off joint parenting. A review of the Guardian’s final recommendation shows how she goes to great lengths to protect the relationship with the Respondent/Father: three weeks of summer parenting time to allow time to travel to Europe, entire school Christmas holiday in alternating years to allow sufficient time to travel, Our Family Wizard, “I do not like the computer parameters suggested by Mom because Dad should also be able to exercise discretion on what is on Thor’s computer”, mother shall provide the child’s medications during father’s parenting time. Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 7 of 12 Custody and parenting time are always difficult issues. Petitioner though went beyond the norm by being unreasonable on basic parenting issues and necessitating the involvement of the Guardian. CONTEMPT Respondent filed Respondent’ Application for Citation for Contempt (hereinafter the “February 15‘ Contempt”) on February 15, 2024 based on Petitioner informing Respondent she would no longer provide health insurance as of December 31, 2023. The exhibits in the February 15" Contempt demonstrate that counsel attempted to resolve this issue and Respondent was informed his coverage was no longer active (see attached Exhibit F). It was not until after the filing of the February 15" Contempt did Petitioner’s counsel provide proof of medical coverage. After actual proof was sent, Defense counsel emailed “Why not send me the same attachment (proof of coverage) as today as opposed to just saying she applied for the cards?” (see February 16, 2024 attached as Exhibit G). Respondent and his attorney both sought what it took a court filing for Petitioner to finally produce. Petitioner is responsible for the filing of the February 15" Contempt for failure to provide proof of health care coverage. Once again, Petitioner refuses to communicate on basic issues and creates unnecessary litigation. Respondent requests all fees incurred as a result of this issue in the amount of $1,140.00. Respondent hereby submits the Affidavit of Attorney Fees submitted at trial as Exhibit R39 (attached hereto as Exhibit H). ARGUMENT AND CITATION OF AUTHORITY 1. O.C.G.A.§19-6-2: Within the sound discretion of the Court It is well settled law that a Court upon considering the financial circumstances of both parties has wide discretion in awarding attorney fees pursuant to OCGA § 19-6-2. Hunter v. Hunter, Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 8 of 12 289 Ga. 9, 709 S.E.2d 263 (2011). In the present case, Petitioner has a successful career and financial resources available to her. Although Respondent does earn more income, it does not rise to the level to find he has an unfair financial standing. Petitioner never filed for attorney fees in the matter, offered to waive any request for attorney fees in her offer to settle (see Exhibit B), and the parties divided a marital estate with a net equity of $1,827,434.31. In considering the financial circumstances of the parties, it is fair for the Court to consider an award of attorney fees. Petitioner took an unreasonable position in regard to the distribution of the equity of the parties’ home. The Court clearly indicated in the pretrial conference that Petitioner’s request would not be granted. Despite this, Petitioner insisted on trying an issue of $452,700.11. Respondent attempted to settle this issue by offering in the settlement letter (Exhibit A) of February 26, 2024 the same position of the Court in the pretrial conference as in the Final Order. Petitioner unnecessarily forced the trial. In the same regard, the Final Order of the Court reflected exactly what the Respondent offered in regard to the bankruptcy claim: upon resolution of the claim, it will be divided equally between the parties (see Exhibit A). Petitioner took the position that the $125,000.00 bankruptcy claim be placed in Respondent’s asset division. The combined value of these two issues necessitated a trial. Given Petitioner’s unreasonable position, she should be responsible for Respondent’s trial fees including preparation for trial. The Court can consider attempts to settle when determining attorney fees. Fenters v. Fenters, 238 Ga 131, 231 S.E.2d 741 (1977): “the effort needed by counsel to reach settlement is a matter which can be considered in determining the amount of attorney fees to be awarded”. Respondent incurred $23,740.50 in fees since the offer letter of February 26, 2024, inclusive of $23,653.00 that was incurred specifically for trial preparation related items and conducting the trial itself. Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 9 of 12 Respondent respectfully requests to be awarded the full $23,740.50, or in the alternative the $23,653.00 related specifically to trial preparation and trial. Invoices substantiating the foregoing fees are attached hereto as Exhibit I, with fees related to trial preparation and conducting the trial highlighted in blue.! Further, Respondent did prevail on the issue of the bathroom renovation, one half of the student loan issue, and dismissed the April 7, 2023 Citation of Contempt based upon misappropriation of marital funds and tried that issue as one of equitable distribution. The Court recognized the theory and argument of Respondent. Additionally, Petitioner’s refusal to provide the necessary proof of medical coverage combined with her stated email intent to cancel Respondent’s insurance, necessitated the filing the February 15" Contempt. It was not until the filing of the February 15‘ Contempt that Petitioner fulfilled her obligation to provide proof of coverage. Respondent expended $1,140.00 in regard to this unnecessary issue and requests an award of these fees. Invoices substantiating said fees can be found on Exhibit H (fees highlighted in green). Finally, the Order of appointment for the Guardian ad Litem provides the fees shall be evenly divided between the parties. Petitioner’s actions in seeking to undermine Respondent’s relationship with his son as outlined in Exhibits D and E created unnecessary work by the Guardian ad Litem. The Guardian ad Litem’s final cost for services was $9,983.00 (see attached Exhibit J). Respondent’s portion was $4,991.50 and he respectfully requests for Petitioner to reimburse him for half of his portion of the fees ($2,495.75). | Defendant notes that some trial prep was conducted in October, 2023, when the case was originally scheduled for trial and the October invoices related to trial are included in Exhibit I and the trial fee calculation. Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 10 of 12 2. O.C.G.A.§9-15-14(b): unnecessarily expanded the proceedings Respondent incorporates the argument contained in section | and respectfully submits that Petitioner unnecessarily expanded the proceedings. The trial occurred because of Petitioner making two unreasonable demands that were rejected by the Court: division of the home equity and the bankruptcy claim. The amount of those two issues alone is more than all other disputed income issues in the case combined. Petitioner chose to take a position that was clearly wrong and by unnecessarily expanding litigation, forced Respondent to expend an unreasonable amount of attorney fees. Respondent respectfully requests the trial fees and trial preparation fees in the amount of $23,653.00. This 17 day of April, 2024. 8, —--- JOHN B. SUMNER Georgia Bar No. 692126 Attomey for Respondent ATLANTA DIVORCE LAW GROUP 3560 Old Milton Parkway Alpharetta, Georgia 30005 Phone: (678) 203-9893 Fax: (770) 854-1008 Email: john@atldivorcegroup.com Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 11 of 12 CERTIFICATE OF SERVICE This is to certify that I have this day served a copy of the foregoing Respondents Motion and Briefin Support of An Award of Attorney Fees upon the Petitioner by and through her counsel of record by statutory electronic service, as follows: Samantha O. Lennon Lennon, Giovinazzo & Steele Family Law, LLC Suite 410-S Atlanta, GA 30309 samanth@lgsfamilylaw.com This 17 day of April, 2024. / L- ff JOHN B. SUMNER Georgia Bar No. 692126 Attomey for Respondent ATLANTA DIVORCE LAW GROUP 3560 Old Milton Parkway Alpharetta, Georgia 30005 Phone: (678) 203-9893 Fax: (770) 854-1008 Email: john@atldivorcegroup.com Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County/CAFN 22FM4095 Page 12 of 12 pIVORCE z EXHIBITA “Pr % 2, %, YY 2 yy February 26, 2024 ER apyE® Via Email Only Samantha O. Lennon Lennon, Giovinazzo & Steele Family Law, LLC 1776 Peachtree St NE Suite 410-S Atlanta, GA 30309 samantha@lgsfamilylaw.com Re: Diane DeSeta v. Klemens Erik Wengert In the Superior Court of DeKalb County CAEN: 22FM4095 FOR SETTLEMENT AND COMPROMISE PURPOSES ONLY. NOT TO BE USED IN. TRIAL EXCEPT AS TO THE ISSUE OF ATTORNEY’S FEES Dear Ms. Lennon, I have been authorized by my client to present the following terms as a final offer of settlement. Please note, this communication is intended for settlement purposes only, and is not admissible except for the purpose of establishing attorney’s fees. If the terms are agreeable to Ms. DeSeta, I will convert the terms to a full settlement agreement that can be presented to Judge Adams to fully resolve this case. The proposed settlement terms are as follows: 1 Marital Residence: a Mr. Wengert; would propose two scenarios regarding the parties’ Marital Residence: 1 The parties agree to an average of the two appraised values of the Marital Residence ($702,500) and each party has the opportunity to buy the other party out of their one-half interest in the Marital Residence. 2. The Marital Residence is sold, and the parties equally divide the net proceeds. 2. Asset Division: a The parties shall each keep the financial accounts in their respective names and all joint accounts shall be equally divided between the parties. b. In the event the division of individual accounts and joint accounts does not result in an equal division of the marital estate, Mr. Wengert’s Fidelity Rollover IRA account ending in *4310 shall be divided to equalize the disparity. F500 0) ©) DM UES KONG 7N.0 O00 MANO do PaN ido Ve CsaU Melt) 125 (O)N) Som oMfcePAOiactes ol oy.U. GMM Oot os LOLs AWA 726 8 AUN W Wa0D) AAO) XO) 5) BAW, 6s \4010) EXHIBIT A Debts: a. Mr. Wengert’s student loans incurred during the marriage as part of obtaining his graduate school degree shall be equally divided between the parties. b. The parties shall each keep any other debts incurred in their respective names and all joint debts shall be equally divided between the parties. Wife’s removal of approximately $8,000.00 from the parties’ HELOC to complete a bathroom renovation in October of 2023 will be added to her side of the division. Business Interest: a. Mr. Wengert shall maintain Thor Ventures, LLC and Relevant Exchange, LLC with Ms. DeSeta waiving any interest in same. Crypto Bankruptcy Claim: a. In the event Mr. Wengert’s crypto bankruptcy claim is resolved at a later date, the parties shall equally divide any net proceeds received. Contempt: a. Ms. DeSeta shall transfer to Mr. Wengert one-half of the total funds ($76,594.82) misappropriated from accounts *8882 and *9173 OR the total amount of ($70,421.43) shall be transferred back to the marital estate subject to equalization between the parties. b. Mr. Wengert shall dismiss the contempt claim against Ms. DeSeta related to the misappropriation of funds from accounts *8882 and *9173. Child Support: a. Child support will be calculated in accordance with the guidelines of O.C.G.A. $19- 6-15. Any final child support amount paid for the support of the minor child shall be adjusted proportionately to the amount paid by Mr. Wengert for the minor child’s school tuition. Attorney Fees: a. Both parties will be responsible for payment of their attorney fees. Itis our hope that the parties can settle this matter without incurring additional attorneys’ fees and pursuing costly litigation. To that end, this offer shall remain open until Monday, March 43,4" 2024. In the event that Ms. DeSeta is not agreeable to the terms herein, please advise if you are in agreement to stipulate any of the terms discussed above prior to the final hearing in this matter. I look forward to working with you towards an amicable resolution in this matter. Please contact me if you wish to discuss the terms further. Sincerely, John B. Sumner Attorney for Defendant Hes EXHIBIT B LENNON GInvINAZZO STEELE A February 27, 2024 Via E-Mail Only John B. Sumner, Esq. 3560 Old Milton Parkway Alpharetta, GA 30005 john@atldivorcegroup.com Re: Diane DeSeta v. Klemens Erik Wengert Superior Court of DeKalb County Civil Action File No. 22FM4095 Dear John, We are in receipt of your offer dated February 26, 2024. Ms. DeSeta (hereinafter Wife) has authorized me to make the following counteroffer as a full and final settlement. It is our hope that Mr. Wengert (hereinafter Husband) will find the terms agreeable so we can bring this case to a final resolution. This is an offer in compromise of disputed claims; no part of this letter shall be admissible into evidence except on the issue of attorney’s fees. )) Marital Residence: We used the $702,500 value for the marital home when calculating our counteroffer. Wife shall have sole and exclusive use of the Marital Residence. Wife shall retain 100% of the equity in the Marital Residence. Wife shall have ninety (90) days to refinance the Wells Fargo mortgage and Third Federal HELOC into her individual name. Husband shall quitclaim title to Wife upon proof of refinancing the Wells Fargo mortgage or sooner if the quitclaim deed is needed by the closing attorney. 2) Asset Division: a. Bank Accounts: Accepted. Specifically, the parties shall equally divide and close the joint accounts (Bank of America *8882 and 9907). In addition, Wife shall retain the Alliant Credit Union Savings Account ending in 8553, Alliant Credit Union Checking account ending in 8552 and the accounts for her niece, Olivia DeSeta (UTMA and account ending in 1916). The parties shall equally divide and close the Bank of America checking account ending in 8882 and Bank of America savings account ending in 9907. b Thor’s Accounts: The parties shall continue to maintain Thot’s 529 account ending in 1095, Bank of America checking account ending in 4710 and Bank of America savings account ending in 9977. Funds from these accounts shall only be used by consent of both parties. Retirement: Each party shall retain the retirement accounts in their respective names. Investments: Wife shall retain 100% of the joint Vanguard Brokerage. Husband shall retain 100% of the Fidelity HSA and Coinbase currency. SNan SEOs By t (e Scrinan eax oa Nemes v3 8 7 aaomiieooia pale, Seer tare By 1 we, EXHIBIT B e. Vehicles: Husband shall retain his 2018 Mazda 3 and Wife shall retain her premarital motorcycle. 3) Debts: Rejected. Each party shall be responsible for all student loans and credit card debts in their individual names. 4) Business Interest: Accepted. Husband shall indemnify Wife for any and all liabilities associated with the businesses. Husband shall remove Wife’s name from the businesses and he shall change the business addresses to reflect his legal home on any Secretary of State filings and SEO. Husband shall pay all back employment taxes for 2022, 2023 and 2024 and he shall be responsible for all taxes for these years. Husband shall indemnify Wife for any taxes for the business. 5) Crypto Bankruptcy Claim: Rejected. This will be added to Husband’s side of the division. 6) Contempt: Rejected. Child Support: Rejected. Husband shall pay Wife child support in the amount of $1,562.00 per month pursuant to the Georgia Child Support Guidelines. Child support shall be paid on the first day of each month and shall begin on March 1, 2024. Wife shall continue to maintain health insurance for the minor child. All uncovered medical expenses, including mental health, shall be divided with Husband paying 65% and Wife paying 35%. The paying party shall be reimbursed within thirty (30) days of receiving an invoice. 8) Attorney’s Fees: Accepted. 9) Furniture, Furnishings and Personal Items: Each party shall retain the furniture, furnishings and personal items in their current possession. 10) Medical Insurance: Each party shall maintain their own health insurance once the divorce is finalized. The parties are immediately responsible for their own medical expenses. Husband is responsible for the cost of any denied claims for 2023 and 2024. If the above is agreeable, we will draft the proposed Settlement Agreement, Parenting Plan and Child Support Addendum. Feel free to contact me after you have had a chance to review the above so that we can discuss next steps. I look forward to your response and hopeful acceptance of this offer. I would appreciate it if you would provide a substantive response by Monday, March 4, 2024. Very truly yours, ¢ le PROV Samantha O, Lennon ce: Diane DeSeta (via e-mail) EXHIBIT C BLANCHARD © COLLINS ——---— LAW FIRM, LLC October 27, 2023 ViA EMAIL Samantha O, Lennon, Esq. John B. Sumner, Esq. Ddeseta@gmail.com klemens@relevantexchange.com samantha@hlfamilylaw.com john@atldivorcegroup.com Petitioner and Attorney for Petitioner Respondent and Attorney for Respondent Re: Diane DeSeta v. Klemens Eric Wengert Superior Court of DeKalb County | CAFN: 22FM4095 Dear Counsel: | am writing to follow up to our phone meeting today with my recommendations to ensure clarity. If you have any questions, please do not hesitate to contact me on my cell. 1. Physical Custody: a) The Mother should be named the Primary Physical Custodian and the Father should be named the Secondary Physical Custodian. It also appears that the parents have agreed that the Father will have parenting time the first, third, and fifth Thursday to Monday. During the second and fourth weeks, Father should have parenting time overnight on Thursdays. If understand correctly, Father would like to add a Tuesday dinner to the second and fourth weeks; if the parents agree to that, | am not opposed to it, however, that is not my recommendation. b) Summer: Back in August, | recommended that each parent have three weeks of parenting time in the summer, broken into two parts, two weeks and one week. | am in agreement that the parents could each have three consecutive weeks of time in consideration of Thor travelling to Sweden to visit his paternal grandparents. Blanchard Collins Law Firm, LLC 2302 Parklake Drive NE Sulte 456 Atlanta, Georgla 30345 @ 404.409.1578 8 404,973,0849 a aisha@abc-familyiaw.com www.abc-familylaw.com EXHIBIT C Ms, Lennon and Mr. Sumner October 27, 2023 Page 2 of 3 ©) Christmas 2023: | recommend that the parents follow the agreement they came to back in October of 2022. Accordingly, Father would have the Christmas holiday this year. It is my recommendation that the parents rotate the entire holiday every year thereafter unless they mutually agree otherwise. egal Custody: The parents should have joint legal custody and they should confer with each other prior to making any important decision regarding Thor. a) Inthe event of a disagreement, | recommend that the Mother have final decision- making authority in education and medical decisions. Each parent should be allowed to pick two extracurricular activities per year for Thor (perhaps they alternate who has priority or they pick seasons). Each parent should be allowed to expose Thor to their respective religious practices. b) | recommend the parties utilize Our Family Wizard so that all of Thor's important appointments are in one location, and the parents can cease their email back and forth and keep their correspondence all in one location. Q In the event either parent seeks out a second opinion, that decision shall be treated as an important decision to be discussed with the other parent prior to a decision being made and irrespective of who is paying for the service. Neither parent should be restricted from participating in the second opinion, | also encourage the parents to ensure that their consideration of decisions be made in conjunction with Thor’s pediatrician and Dr. Perez. d) The Mother shal! maintain the U.S. Passport and she shall provide it to the Father for international travel. This provision should not be one that allows approval from the Mother; only facilitation of the document. ° - lam in support of Thor becoming a dual! citizen. | am not in support of Thor travelling to countries with a higher danger rating than 2 though; in many circumstances, a 2 is too high. Given that Sweden is at a level 2 currently, | do not think a blanket ban on level 2 countries should be implemented | believe that anticipated travel to a 2 country should be discussed with the Parent Coordinator prior to it being done if there is a disagreement. tam also not in support of Thor travelling with either parent to a country that is not a signatoryto the Hague Convention. EXHIBIT C Ms, Lennon and Mr. Sumner October 27, 2023 Page 3 of 3 e) | do not like the computer parameters suggested by Mom because Dad should also be able to exercise discretion on what is on Thor's computer. | recommend that the parties purchase their own electronic devices for Thor to remedy this problem; the computers should be connected in meaningful ways that will ease Thor's life. For example, both devices should have access to Thor's Google Drive. Alternatively, the parents can continue to utilize one device and inform each other on any and all software that is being installed on Thor's computer. | recommend that the Mother provide Thor's medications, however, the parents should have a joint meeting with Dr. Perez to understand how the medications should be utilized during the weekend. It’s probably a good idea to continue giving Thor the XR (long lasting) pill on the weekends exclusively for swim meets. However, Father should also have the ability to give Thor one short-lasting pill if he and Thor are working on a project that requires concentration. It is imperative that all short-lasting pills that are provided to Thor are communicated to the other parent so that Thor is guaranteed to have one day off from his medication each week. This notification should include the day and time in which the short-lasting pill is provided. 3. Thor should have open access to both of his parents. | am in support of a texting watch in lieu of a smart phone until Thor graduates from 8" grade. | do have a few caveats, however. The parents should discuss and agree to rules that apply at both homes regarding its duration of use per day and whether it is utilized as a discipline tactic for poor behavior and if so, how. The parents could probably figure this out with the assistance of their Parent Coordinator. | do believe that the parents need to include a provision in their Parenting Plan that says that neither parent wilt show Thor legal documents. He is already too involved in this litigation and that needs to cease. | hope this helps in getting the remaining custody issues resolved. | remain available to assist in any way that I can. Sincerely, {s/f Aisha Blanchard Collins Aisha Blanchard Collins Guardian ad Litem EXHIBIT D iVORCE y < y June 12, 2023 My 4 Oo TER apy Via Email only Aisha Blanchard Collins Blanchard Collins Law Firm, LLC 2302 Parklake Drive NE Suite 456 Atlanta, GA 30345 aisha@abc-familylaw.com Re: DeSeta vy, Wengert In the Superior Court of DeKalb County CAFN: 22FM4095 Hello Ms. Collins, Thope all finds you well. 1 wanted to reach out and provide an overview and supporting documents on behalf of the father of the minor child at issue in the above case. You will find enclosed pertinent pleadings, offers to resolve the parenting issues, and relevant emails. I have enclosed a copy of my October 3, 2022, introductory letter I sent to you. I stand by the letter and seek here to supplement and state our position on parenting time. Unfortunately, parenting time issues have worsened over time. The case began in April 2022 with a pressing issue. Prior to the divorce being filed, Mr. Wengert had a trip planned with Thor to visit Thor's paternal grandparents in Sweden. Ms. DeSeta began to resist the trip and was being difficult in procuring Thor’s passport. After I reached out to opposing counsel, Ms, DeSeta did agree to provide the passport, She made many demands, but they were reasonable, and Mr. Wengert complied without hesitation: itinerary, daily calls, return if the Russian-Ukraine conflict worsened, etc. The trip went very well, and Thor enjoyed it greatly. 2b))U) 6) B BPIVELBE ROIS D:N St OVW Ne DEEN TU ce bt We Of, cle tC) ie @)I koe Cosa) UE SEED BV, nts DUO SIVAN E BEN BIBY @) 1X Gt 5 BPW 7 126) Of Lr @6)1¥ | EXHIBIT D In summer 2022, the parties, on their own, agreed to a jaint week on week off parenting schedule with built in vacations. The Sweden trip was July 1-12. The mother took Thor on vacation July 31-August 7. Since the parents had jointly raised their child throughout his life, the father was allowed to take his son to Europe over the summer, and the parties met and decided on a joint physical parenting time, I assumed this would continue into the school year. Mr. Wengert purposely rented an apartment near the mother and school to continue joint parenting and minimize the impact on Thor. We were still in discovery on the financial issues but did want to put a parenting plan in place to best serve the child. I forwarded an offer letter on August 9, 2022, regarding a request for a temporary consent order. The letter is included. In that letter, I also addressed the issue of scuba certification. To recap, prior to the divorce being filed, Thor and his father took up the activity of becoming scuba certified. The lessons culminate with a certification dive in Florida. That was to occur over Summer 2022, but the mother objected as she had not had the opportunity to take Thor to the beach first. Despite the selfish reasoning of the mother, we emphasized the best interest of the child by having an appropriate temporary order put in place. I was shocked by the letter response of Ms. Lennon. That August 1, 2022, letter is enclosed. The response completely ignored the pattern over the child's life and the immediate past summer after the divorce was filed. She dictated a visitation schedule that my client had not agreed to. Mr. Wengert went from a fully shared parent who is entrusted with his son in Europe and alternating weeks to every other weekend and pick up and drop offs to convenience the mother. The issue of the father-son scuba activity was completely ignor