Aycock v. Aycock, 39329

• Decision Date: 07 June 1983
• Docket Number: No. 39329,39329
• Citation: 303 S.E.2d 456,251 Ga. 104
• Parties: Carswell Garvin AYCOCK, v. Ruthann Schofield AYCOCK.
• Court: Georgia Supreme Court

Page 456

303 S.E.2d 456

251 Ga. 104

Carswell Garvin AYCOCK, v. Ruthann Schofield AYCOCK.

No. 39329.

Supreme Court of Georgia.

June 7, 1983.

Robert G. Wellon, Atlanta, for Carswell Garvin Aycock.

Taylor W. Jones, Steven W. Ludwick, Jones, Timothy R. Brennan, Ludwick & Malone, Atlanta, for Ruthann Schofield Aycock.

CLARKE, Justice.

This is an appeal from an order holding the appellant in contempt of a final judgment and decree in a divorce case for failure to comply with the provisions for child support.

The parties to this case were married in 1963; a jury trial was held in February of 1982 on the issues of alimony, property division and child support and a verdict and judgment were entered thereon. The form of the verdict and the framing of the verdict on child support are at issue in this appeal.

In its verdict the jury's only award of child support was the creation of a trust on two rental properties owned by the appellant, Mr. Aycock. The jury verdict provided that this interest "be held in trust for the purpose of paying child support, payable on a monthly basis, for the minor child, Patrick Aycock, until such time as he reaches majority. The jury recommends the court appoint a trustee other than either of the parties. At the time the child reaches majority, any interest or equity in the property shall revert to the defendant, Mr. Aycock."

The judgment entered by the court on this verdict provides that Mr. Aycock's interest and title in the rental properties be held in trust for the benefit of the minor child. The parties are given 30 days to select a trustee by mutual consent and in the event of no agreement, each party was to present a co-trustee to the court. The judgment further provides that "the trustee shall have all the powers and authorities granted to them under the Code of Georgia and shall be directed and instructed to use and manage said property and shall pay to Plaintiff hereunder a sum monthly from the income and corpus of said estate for the support of said minor child. Trustee shall have the power to encroach upon the corpus of the trust for purposes of support." When the child reaches majority the judgment provides that the remaining corpus, if any, shall revert to the father.

On July 9, 1982, Ms. Aycock brought an action for contempt alleging that Mr. Aycock had refused to name a trustee or co-trustee, and that no child support had been paid under the decree. She also prayed that the court appoint a temporary trustee to manage the property in accordance with the judgment. This petition was amended to ask the court to clarify the terms of the trust and set forth more specific guidelines for the trustee to follow in managing the property.

After a hearing on the issues the court found that appellant had orally advised his brother, David Aycock to act as trustee although this was not agreed upon by Mrs. Aycock or approved by the court. No trust instrument or deed had been drawn or filed. In response to inquiries by Mrs. Aycock regarding child support payments and the trust, David Aycock had written to her advising her that the appellant had initially instructed him to pay $50 per month and then to pay nothing.

The court found that the appellant has an undivided one-half interest in the properties at issue and that at the time of trial the total rental income from the entire properties was $600.00 per month which is now slightly higher due to an increase in the rental rates. It was shown by the appellant's evidence that taking into account the monthly mortgage payments, taxes, insurance, and additional maintenance costs and expenses associated with the properties there is little, if any, actual net income to be realized.

The court found that in setting up the trust the jury had clearly intended a monthly payment of child support. He further found that the amount intended by the jury was at least one-half of the total rental income at the time of trial which was $300.00 per month and that if this minimum were not met the trustee was authorized to sell or encumber or otherwise dispose of the appellant's interest in order to make these payments.

The court appointed a trustee to manage the properties, directed the appellant to execute the necessary deeds, directed the trustee to pay to Ms. Aycock as child support $300 per month and in the event the gross income is insufficient the trustee was directed to seek direction from the court on encroachment upon the corpus. The court also ordered the appellant to keep current all payments for mortgage, taxes, insurance and all other expenses reasonably necessary to maintain the property for rental purposes.

The court ordered the appellant to pay arrearages totalling $1,800 for child support and awarded Ms. Aycock $2,000 in attorney fees. He further ordered that should the appellate court hold the trust unenforceable as he molded it that a new trial as to child support must be held for the benefit of the minor.

Mr. Aycock appeals contending the court erred in appointing a trustee, exceeded its authority in setting the terms of the trust, thereby illegally modifying the decree and in awarding attorney fees and finding him in contempt.

1. The appellant first contends the court erred in appointing a sole trustee in derogation of the judgment requiring co-trustees should the parties be unable to agree on trustee. We find no error. "A trust shall never fail for the want of a trustee." OCGA § 53-12-33 (Code Ann. § 108-302). The trial court is authorized to appoint a trustee when a party or parties fail to carry out the intendment of the verdict. Wallace v. Graves, 229 Ga. 82, 189 S.E.2d 447 (1972).

2. The appellant next contends the trial court exceeded its authority in placing obligations on him not referred to in the original decree and in making substantial modification of the final judgment. A trial court is authorized to mold its decrees "to do full justice to the parties," OCGA 9-12-5 (Code Ann. § 110-106), and "to meet the exisgencies of each case," OCGA § 23-4-31 (Code Ann. § 37-1203), although the law also provides that a verdict "may not be amended in matter of substance," OCGA § 9-12-7 (Code Ann. § 110-111).

In Ramsey v. Ramsey, 231 Ga. 334, 201 S.E.2d 429 (1973), relied upon by appellant, we reversed a contempt judgment ordering the husband to make mortgage payments on a dwelling in possession of the former wife because the decree was silent as to who should make the payments. We held that in a contempt action the dispute between the parties could not be resolved by supplying substantial omissions in the judgment. Ramsey was followed in Thompson v. Thompson, 243 Ga. 719, 256 S.E.2d 454 (1979), wherein the jury awarded the marital home to the wife as well as monthly alimony and child support but neither the verdict nor the judgment mentioned the outstanding mortgage on the property. We stated that the jury could have determined that the former wife was to assume the payments and held that under the decree itself neither party was obligated to pay the indebtedness. There was no showing that the jury intended to impose an obligation on the husband to make any payments in favor of...