Findley v. Findley

• Decision Date: 25 April 2006
• Docket Number: No. S06A0424.,S06A0424.
• Citation: 629 S.E.2d 222,280 Ga. 454
• Parties: FINDLEY v. FINDLEY, et al.
• Court: Georgia Supreme Court

280 Ga. 454

629 S.E.2d 222

FINDLEY v. FINDLEY, et al.

No. S06A0424.

Supreme Court of Georgia.

April 25, 2006.

Tommy J. Smith, Tommy J. Smith & Associates, P.C., Vidalia, for Appellant.

B. Daniel Dubberly, III, Dubberly & McGovern, Glennville, David H. Womack, Claxton, for Appellee.

BENHAM, Justice.

This Court granted the application for discretionary review filed by Norma Findley ("Wife") after the trial court denied Wife's petition for contempt, ruling that the estate of her late ex-husband was not obligated to make monthly alimony payments to Wife because the obligation to pay alimony did not survive the May 2004 death of the obligor Husband. The trial court also directed Wife to pay $500 attorney fees to the estate.

1. Where, as here, the parties to a divorce enter into a separation agreement that provides for the payment of alimony and the agreement is incorporated into the judgment and decree of divorce, the obligation to pay alimony terminates upon the death of the obligor spouse unless the incorporated settlement agreement contains a clear expression of intent to extend payments beyond the obligor's death. Schartle v. Trust Company Bank, 239 Ga. 248, 249, 236 S.E.2d 602 (1977). Thus, in order for Wife to successfully impress upon her former husband's estate the obligation to pay alimony until Wife dies or remarries, the settlement agreement must contain a clear expression of the parties' intent that the obligation to pay alimony was not to terminate upon the death of the obligor Husband.

The Findleys' settlement agreement incorporated into their 1975 final judgment and decree of divorce provided that Husband was to pay Wife alimony of $500 per month until she died or remarried; Husband was to pay for the automobile Wife had in her possession and to transfer title to her when payments were completed; and Husband was to pay the note owed by Wife for furniture she had purchased. The agreement stated the alimony payment was to terminate upon Wife's death or remarriage, but neither death nor remarriage eliminated the obligation to pay for the car and furniture. The furniture was to remain the property of Wife or her estate without regard to the death of either Husband or Wife; however, if Wife pre-deceased Husband, Husband would retain title to the car. Elsewhere in the settlement agreement Wife was given the right to live in the marital home which was owned by Husband so long as she did not remarry and she occupied the house during the months of the usual school year. The agreement expressly provided that Wife's right to occupy the home survived the death of Husband.

A clear expression of intent to have the alimony obligation survive the death of the obligor was found in Franklin v. Franklin, 256 Ga. 61, 344 S.E.2d 230 (1986), where an incorporated settlement agreement provided that the obligor's monthly alimony payments were to continue until the former spouse died or remarried and were "a charge against the estate of [the obligor]." The settlement agreement also stated that "each and every item and condition of the agreement are made charges against the estate of both parties if the same has not been completed upon the death of either party." See also Brooks v. Jones, 227 Ga. 566(2), 181 S.E.2d 861 (1971) (an incorporated settlement agreement required Husband to keep in force life insurance policies on his life with his daughters as beneficiaries and stated "in the event of husband's death the said agreement becomes equally binding on his executor ... and to the same extent and for the same purposes. The said executor ... is to fulfill all the obligations of this contract . . ."). The incorporated agreement in the case at bar expressly provides that Husband's obligation to pay the car and furniture debts survives death, and Wife's right to live in the marital home owned by Husband expressly survives the death of Husband, but no such express provision was made with regard to the payment of periodic alimony.

In her effort to establish a clear expression of intent to have the alimony obligation survive the obligor's death, Wife relies on the portion of the incorporated settlement agreement which states the payment of alimony "shall continue until she dies or remarries." In Dolvin v. Dolvin, 248 Ga. 439, 441, 284 S.E.2d 254 (1981), this Court held that such language in an agreement which is silent as to the effect of the obligor's death on the alimony obligation does not evidence the necessary "manifest intention of the parties to reverse the normal rule that the death of the [obligor] terminates [the] obligation to pay alimony." See also Schartle v. Trust Co. Bank, supra, 239 Ga. 248, 236 S.E.2d 602. In so doing, the Dolvin court expressly overruled the plurality decision in Ramsay v Sims, 209 Ga. 228, 71 S.E.2d 639 (1952), which held that the alimony obligation in an incorporated settlement agreement survived the death of the obligor if the incorporated settlement agreement stated a definite time for performance, i.e., the majority of the minor child or the death or remarriage of the supported spouse. Wife acknowledges Ramsay has been overruled, but argues it is applicable to the case at bar because it was in effect at the time the judgment of divorce incorporating the settlement agreement was entered.

Generally, court rulings that substantially alter law apply retroactively. Banks v. ICI Americas, 266 Ga. 607(2), 469 S.E.2d 171 (1996); General Motors Corp. v. Rasmussen, 255 Ga. 544(2), 340 S.E.2d 586 (1986). See also Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 94, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) ("Nothing in the Constitution alters the fundamental rule of `retrospective operation' that has governed `judicial decisions for near a thousand years.' [Cit.].") However, this Court has recognized that rulings in civil cases may be applied prospectively if to give them retroactive effect "would unjustifiably disrupt existing relationships,. . . especially ... where there was good faith reliance" on the law as it previously existed (Allan v. Allan, 236 Ga. 199, 207-208, 223 S.E.2d 445 (1976)), or, "because of the nature of the [former rule], unjust results would accrue to those who justifiably relied on it." Strickland v. Newton County, 244 Ga. 54(1), 258 S.E.2d 132 (1979). In Flewellen v. Atlanta Cas. Co., 250 Ga. 709(3), 300 S.E.2d 673 (1983), this Court employed the three-pronged test enunciated by the U.S. Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), to determine whether a judicial decision should be applied prospectively.¹ Chevron Oil authorizes modification of the rule of "full retroactivity" (i.e., application of a newly-pronounced rule to the parties before the Court and to all others by and against whom claims may be pressed, consistent with res judicata and procedural bars) and permits a court to apply "modified" or "selective" prospectivity to a new rule by applying the new rule to the facts of the case in which the rule is pronounced, and then returning to the old rule with respect to other litigants in similar situations whose cases arise on facts that pre-date the pronouncement of the new rule. James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535-537, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991), reversing James B. Beam Distilling Co. v. State of Georgia, 259 Ga. 363(2), 382 S.E.2d 95 (1989). See, e.g., GMC v. Rasmussen, supra, 255 Ga. at 546-47, 340 S.E.2d 586; Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 341 S.E.2d 3 (1986); Gainesville Fin. Serv. v. McDougal, 154 Ga.App. 820, 821-823, 270 S.E.2d 40 (1980); FinanceAmerica v. Drake, 154 Ga.App. 811, 817-818, 270 S.E.2d 449 (1980).

In Harper v. Virginia Dept. of Taxation, supra, 509 U.S. at 96, 113 S.Ct. 2510, the U.S. Supreme Court pointed out that a majority of Justices in James B. Beam Distilling Co. v. Georgia, supra, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481, had adopted a rule requiring the retroactive application of a civil decision involving a rule of federal law. The Harper Court went on to hold that in all cases still open on direct review "full retroactive effect" must be given to a rule of federal law announced by the Court in a case and applied to the parties therein. Harper, supra, 509 U.S. at 97, 113 S.Ct. 2510. In so doing, the Court effectively abandoned Chevron Oil v. Huson by banning, when the Court had applied a new rule to a case, the "selective application of new rules" and "prohibit[ing] the erection of selective temporal barriers to the application of federal law in noncriminal cases." Id. The Court believed it could "scarcely permit the substantive law to shift and spring according to the particular equities of individual parties' claims of actual reliance on an old rule and of harm from a retroactive application of the new rule" because the Court did not have constitutional authority "to disregard current law or to treat similarly situated litigants differently." Id.

While the Court required in Harper that state courts adjudicating federal law give full retroactive effect to a rule of federal law announced and applied to parties to a controversy, the Court also recognized that state courts had freedom to limit the retroactive operation of their own interpretations of state law (id., at 100, 113 S.Ct. 2510), citing Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-366, 53 S.Ct. 145, 77 L.Ed. 360 (1932). In Sunburst Oil, the Court stated

the federal constitution has no voice on the subject [of a state court's refusal to make its ruling retroactive]. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions....[N]ever has doubt been expressed that it may so treat them if it pleases,...