Coleman v. Coleman

• Citation: 240 S.E.2d 870,240 Ga. 417
• Decision Date: 05 December 1977
• Docket Number: No. 32782,32782
• Parties: Charles Hamilton COLEMAN, Jr. v. Jan Awtrey COLEMAN, now Pettys.
• Court: Supreme Court of Georgia

Page 870

240 S.E.2d 870

240 Ga. 417

Charles Hamilton COLEMAN, Jr. v. Jan Awtrey COLEMAN, now Pettys.

No. 32782.

Supreme Court of Georgia.

Dec. 5, 1977.

Rehearing Denied Dec. 19, 1977.

Randall Evans, Jr., Thomaston, Samuel F. Maguire, W. M. Fulcher, Max Rubenstein, Augusta, for appellant.

Awtrey, Parker, Risse, Mangerie & Brantley, A. Sidney Parker, Marietta, McGahee, Plunkett, Benning & Fletcher, Paul K. Plunkett, Augusta, for appellee.

UNDERCOFLER, Presiding Justice.

Charles Hamilton Coleman, Jr., appeals from the judgment entered in the divorce proceedings brought by him against his wife, Jan Awtrey Coleman, now Pettys. His main complaint is that Jan Coleman should not have received alimony and attorney fees because her right was barred by adultery and because she remarried prior to entry of the final judgment.

Charles Coleman filed his petition in January, 1976, alleging adultery and the no fault grounds for divorce. Jan Coleman also asked for a no fault divorce, alimony, child custody and support, and attorney fees. The divorce was granted on the pleadings on June 24, 1976, with the other issues reserved for trial, and Jan Coleman remarried on July 18, 1976. The final decree on the other issues was entered on December 7, 1976, nunc pro tunc as of June 24, 1976.

1. The first issue is whether the court erred in entering the final judgment nunc pro tunc as of June 24, 1976, the date the divorce on the pleadings was granted on the no fault ground. We agree with Charles Coleman that this was erroneous. "A nunc pro tunc entry is for the purpose of recording some action that was taken or judgment rendered previously to the making of the entry, which is to take effect as of the former date. Such an entry can not be made to serve the office . . . of supplying non-action on the part of the court." Pendergrass v. Duke, 147 Ga. 10(2), 92 S.E. 649 (1917). Accord, Beatty v. Underground Atlanta, 237 Ga. 844, 229 S.E.2d 615 (1976); Adams v. Payne, 219 Ga. 638, 135 S.E.2d 423 (1964); Stubbs v. Mendel, 148 Ga. 802, 98 S.E. 476 (1918). Since the trial court did not decide the reserved issues until December, he may not enter them as of the previous June. The trial court erred in providing that the judgment should be entered nunc pro tunc and this provision is stricken. The order is deemed effective as of its entry on December 7, 1976.

Enumeration of error 3 insofar as the trial court's order is entered nunc pro tunc is meritorious.

2. Charles Coleman argues that since Jan Coleman had already remarried she can not receive alimony under Code Ann. § 30-209, ¹ which provides that all alimony obligations cease upon remarriage. It is clear from the trial court's order that no lump sum or periodic payments were awarded as alimony to Jan Coleman. ² She did, however, receive the house and most of the furnishings and one of the family cars as well as attorney fees. ³

Whether these property awards were intended as alimony or property division is not entirely clear. But Jan Coleman requested only alimony, and not a property division, in her pleadings, while Charles Coleman petitioned for "equitable property division." The house has since been sold and the debts liquidated leaving $761.38 in escrow pending decision by this court. Since we have ruled that the trial court erred in making the permanent alimony award nunc pro tunc and because Jan Coleman was already remarried when the decree was entered, the award of the house, furnishings, and car as permanent alimony would not be authorized. ⁴ Code Ann. § 30-209, supra. Additionally, these items are not properly construed as child support. Collins v. Collins, 231 Ga. 683, 203 S.E.2d 524 (1974); Clark v. Clark, 228 Ga. 838, 188 S.E.2d 487 (1972). However, since the trial court specifically declined to grant Jan Coleman either periodic or lump sum alimony we conclude that the house, furnishings and car were granted to Jan Coleman as property division prayed for by Charles Coleman.

Although there is little evidence ⁵ in the record or transcript tending to show specifically whether Jan Coleman owned some or all of these items, jointly or personally, she alleged in her complaint "that during the marriage between herself and the Plaintiff, that she worked at the Medical College of Georgia and used the proceeds of her employment for the purpose of maintaining a home for herself and her husband and to defray a portion of his expense as a medical student." In addition, testimony was elicited, which proved that her father gave them substantial amounts of money and other items. In the decree, Charles Coleman was awarded certain personal property, including some wedding gifts from his family. Therefore, we construe the grant of the house, car, ⁶ and furnishings as property division. Since Charles Coleman requested an "equitable property division", he may not now complain that his prayer was granted. See Printup v. Smith, 212 Ga. 501, 93 S.E.2d 679 (1956). The judgment of the trial court awarding the house, car and furnishings to Jan Coleman is affirmed.

Similarly, the award of attorney fees does not fail as unauthorized alimony, because attorney fees are a part of temporary, rather than permanent, alimony. Code Ann. § 30-202. "A provision for temporary alimony is somewhat different in character and purpose from an award of permanent alimony, inasmuch as it is designed to meet the exigencies arising out of the domestic crisis of a pending proceeding for divorce. Therefore it takes into account the peculiar necessities of the wife, and provides her the means with which to contest all of the issues between herself and her husband. Twilley v. Twilley, 195 Ga. 297, 298, 24 S.E.2d 46 (1946)." Childs v. Childs, 203 Ga. 9, 45 S.E.2d 418 (1947). Attorney fees and temporary alimony were specifically requested by Jan Coleman, and thus were appropriately awarded to her. Bradley v. Bradley, 233 Ga. 83, 210 S.E.2d 1 (1974).

Charles Coleman also contends that the amount granted, $9000, is excessive. This is a question addressed to the sound discretion of the trial court. Its judgment will not be disturbed unless this discretion has been abused. Bradley v. Bradley, supra; Childs v. Childs,supra. The trial court heard evidence on this point and awarded half of the amount prayed for. In light of the number of depositions and long trial transcript, it is evident that the issues were hotly contested and that the trial court has not abused its discretion. Enumerations of error 2 and 4 thus have no merit.

3. The husband, Charles Coleman, Jr., also claims that Jan Coleman's alimony and attorney fees are barred by adultery, and in enumeration 7, he faults the trial court, as the trier of fact, in failing to find as a fact that she had committed adultery. As to the latter, the trial court considered all the evidence and refused to find any more than an inference of misconduct on Jan Coleman's part. ⁷ Under the any evidence rule, this court must affirm such a finding. Because of our ruling in division 2 that no permanent alimony was awarded, we need not reach the adultery question as to alimony.

Furthermore, Code Ann. § 30-205 ⁸ authorizes, but does not mandate, the trial court in using its discretion to consider the cause of separation in awarding temporary alimony. See generally Wilbanks v. Wilbanks, 238 Ga. 660, 234 S.E.2d 915 (1977). Therefore, the attorney fees were properly awarded in the exercise of that discretion.

Enumerations of error 2, 3, 4, 7, and 8 have been decided by our decisions in divisions 1, 2 and 3 of this opinion, except for the question of who is liable for the mortgage on the house. Since it has been sold and the mortgage satisfied, this issue is moot.

4. In Enumerations 5 and 6, Charles Coleman contends the trial court erred in failing to make findings of fact regarding his ability to pay and Jan Coleman's remarriage. The findings of fact are adequate to support the trial court's conclusions of law. In our opinion, more specific findings would not have affected the result reached. See, Collins v. Collins, supra.

5. Charles Coleman contests in Enumeration 9 the establishment of an education trust fund as beyond the authority of the trial court. The trust will be completely paid by the children's sixteenth birthdays and any unused funds will revert to Dr. Coleman if the child has not entered an institution of higher learning by age 22.

Generally a father is not liable for child support past the age of majority. "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child." Code Ann. § 74-105. See also Code Ann. § 30-207; Newsome v. Newsome, 237 Ga. 221, 227 S.E.2d 347 (1976). "(O) nce a divorce decree is entered awarding custody of the child to the mother, the husband's obligation of support for the child can be made a requirement of the decree. Brown v. Brown, 132 Ga. 712, 715, 64 S.E. 1092 (1909). The trial court therefore has jurisdiction to include in the decree a provision for educational funds including expenses for attending a college during minority where the circumstances of the case warrant it. ⁹ Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973); Bateman v. Bateman,224 Ga. 20, 159 S.E.2d 387 (1968); Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394 (1968). However, any such obligation imposed by the decree terminates when the child reaches majority or marries. E. g., Golden v. Golden, 230 Ga. 867, 868, 199 S.E.2d 796 (1973)." Jenkins v. Jenkins,233 Ga. 902, 214 S.E.2d 368 (1975). (Emphasis supplied.) In Jenkins the age of majority was 21. At that time, it was possible to complete four years of college prior to turning 21. The age of majority is now 18, and this is no longer so. "A requirement to provide child support beyond the age of majority may not, as a matter of law, be imposed." Clavin v. Clavin, 238 Ga. 421, 422, 233 S.E.2d 151, 152 (1977). Accord, Golden v. Golden, supra. Compare Goodrum v. Fuller, 237...