Armour v. Holcombe, S10F0946.

• Decision Date: 18 October 2010
• Docket Number: No. S10F0946.,S10F0946.
• Citation: 701 S.E.2d 169,10 FCDR 3333,288 Ga. 50
• Parties: ARMOUR v. HOLCOMBE et al.
• Court: Georgia Supreme Court

701 S.E.2d 169

288 Ga. 50

10 FCDR 3333

ARMOUR

v.HOLCOMBE et al.

No. S10F0946.

Supreme Court of Georgia.

Oct. 18, 2010.

Raiford & Dixon, Tyler C. Dixon, Atlanta, for appellant.

Nicholas E. Bakatsas, Marietta, Donald R. Donovan, Douglasville, for appellees.

HINES, Justice.

Phyllis E. Armour ("Armour") held title to real property that was deemed subject to equitable division in the divorce of her son, Christopher M. Holcombe ("Husband"), from Stephanie Crowe Holcombe ("Wife"). Armour appeals, ¹ and for the reasons that follow, we reverse.

Wife and Husband were married in 1978. In 1991 Armour acquired a home and allowed the couple to live there. In 1996, Armour deeded the property to Husband individually, as a gift. Husband refinanced the property with a commercial lender and made sporadic payments on that debt; Armour also made some payments.

In March 2005, facing financial difficulty, Husband transferred the real estate back to Armour by warranty deed. Wife filed for divorce on October 13, 2005. The trial court entered an order and rule nisi providing in part that both Husband and Wife were not to dispose of any of their property. On November 17, 2005, Wife amended her divorce complaint, added Armour as an additional defendant, sought to enjoin Armour from selling the property, and sought to have the deed from Husband to Armour set aside; Wife asserted that the deed to Armour was executed to deprive Wife of her marital interest in the property. On January 17, 2006, the trial court ordered the home to be sold and the proceeds therefrom held in escrow, pending the outcome of the litigation. The home sale resulted in $68,873.58 being placed in escrow.

On the first day of trial, Wife stated to the court that "we're not going to push this fraudulent conveyance issue." No request for jury instructions on the issue was made, none was given, and the issue was not placed before the jury. The court instructed the jury that the proceeds of the sale were a marital asset, and the jury awarded Wife $41,500 from the proceeds.

1. Armour contends that there was no evidence that the property was a marital asset, and that the trial court thus erred in denying her motions for directed verdict, judgment notwithstanding the verdict, and new trial, and also erred in instructing the jury regarding the equitable division of the property. This contention is correct. Wife's assertion that the real property titled in Armour was marital property is unavailing.

"Only the real and personal property and assets acquired by the parties during marriageis subject to equitable property division. [Cit.]" [Cit.] However, property acquired during the marriage by one spouse by gift, inheritance, bequest or devise remains the separate property of the recipient spouse, and is not subject to equitable division. [Cit.] ... Should the separate property of one spouse appreciate in value during the marriage solely as a result of market forces, the appreciation is not a marital asset subject to equitable division; however, if the separate property's appreciation in value during the marriage is the result ofefforts of either or both spouses, the appreciation becomes a marital asset subject to equitable division. [Cit.]

Avera v. Avera, 268 Ga. 4, 485 S.E.2d 731 (1997). Although Wife asserts that the real estate appreciated in value due in part to her efforts during the time that it was owned by Husband, at the time of the divorce, the real estate was not "the separate property of one spouse." Id. It is undisputed that Husband had transferred the property to Amour in March 2005, and that deed was recorded on September 27, 2005, before Wife filed for divorce.

This Court has recognized that when one spouse in a divorce action alleges that a property has been fraudulently conveyed to defeat his or her rights, additional parties involved in the alleged fraud may be joined in the action to facilitate a complete resolution of the issues. See Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006); DeGarmo v. DeGarmo, 269 Ga. 480, 481(2), 499 S.E.2d 317 (1998); Horton v. Kitchens, 259 Ga. 446(2), 383 S.E.2d 871 (1989). Such a joinder of a grantee, however, is limited to that purpose. See Shah v. Shah, 270 Ga. 649, 650(1), 513 S.E.2d 730 (1999). Although Wife's amended complaint asserted what may have been a viable fraudulent conveyance claim, she chose not to pursue that claim, and it played no part in the trial. Nor did Wife seek to establish that Husband received proceeds from his transfer of the home ² which might have become marital property. See Thomas v. Thomas, 259 Ga. 73, 75, 377 S.E.2d 666 (1989). At trial, Wife merely asserted that she had made contributions to what was once Husband's separate property, and that she should be awarded some portion of the value of that property, even though title to that property was transferred to the hands of a third party before Wife even filed her complaint for divorce.

Wife cites no case law in which this Court has...