Anderson v. Larkin

• Decision Date: 13 February 1989
• Docket Number: No. 77456,77456
• Citation: 378 S.E.2d 707,190 Ga.App. 283
• Parties: ANDERSON v. LARKIN.
• Court: Georgia Court of Appeals

Page 707

378 S.E.2d 707

190 Ga.App. 283

ANDERSON v. LARKIN.

No. 77456.

Court of Appeals of Georgia.

Feb. 13, 1989.

Gregory Z. Schroeder, Atlanta, for appellant.

Frank L. Derrickson, Atlanta, for appellee.

BIRDSONG, Judge.

This is an appeal from the order of the State Court of Fulton County granting plaintiff/appellee's motion for summary judgment and denying defendant/appellant's motion for summary judgment.

Appellant Carole Anderson and appellee Charles Larkin formerly were married. On March 7, 1986, presumably in contemplation of her forthcoming divorce from appellee, appellant executed a legal document which pertinently provides that she does "promise to pay [appellee] $3000.00 in exchange for a Deed from him to [her] transfering [sic] his one-half undivided interest in title to property at 360-4th Street, Atlanta, Georgia. Payment will be made upon completion of refinance of the current mortgage secured by said property." Appellee subsequently executed the required deed, and appellant subsequently refinanced the property.

Appellant and appellee thereafter executed a property settlement agreement, which ultimately was incorporated into and made a part of the parties' final judgment and decree of divorce. The settlement agreement, in part, provides that "[w]hereas the parties have agreed to and completely effected a division of real property prior to the filing of the aforementioned action which is completely satisfactory to each; and ... [w]hereas each party maintains no further claims against the other party insofar as real or personal property is concerned except as mentioned herein. Now therefore each party releases and holds harmless the other party from any and all further claims as to real or personal property which he or she might otherwise have as a result of their marriage." (Emphasis supplied.)

Following refinancing of the property, appellant declined to pay appellee the $3,000 in question, and appellee initiated suit seeking a money judgment based upon the averred promissory note. Held:

Appellant asserts that the trial court erred in denying her motion for summary judgment and in granting appellee's motion therefor.

Appellant consistently has defended her position on the grounds that the entry of the parties' Final Judgment and Decree of Divorce, which incorporated the settlement agreement executed by the parties, indicated an intent to settle all questions of property divisions and other property rights, and therefore, was a discharge and satisfaction of the claims raised by the appellee's complaint on the grounds of res judicata.

The final judgment and decree on its face incorporates therein the terms of the property settlement. Thus, the primary issue to be resolved concerns the meaning of the settlement agreement terms.

The facts of this case are distinguishable from the facts in Scott v. Stroud, 186 Ga.App. 869, 369 S.E.2d 51; Basden v. Basden, 183 Ga.App. 188, 358 S.E.2d 317; and Prince v. Prince, 147 Ga.App. 686, 250 S.E.2d 21. In particular, the settlement agreement in this case expressly refers to a prior division of real property made by the parties, which was "completely satisfactory" to each. Thus, these cases are not dispositive of the issue before us.

" '[T]he true rule of res judicata in divorce and alimony cases seems to be...