Courtney v. Courtney, 43093

• Decision Date: 25 June 1986
• Docket Number: No. 43093,43093
• Citation: 256 Ga. 97,344 S.E.2d 421
• Parties: , 55 USLW 2122 . Supreme Court of Georgia
• Court: Georgia Supreme Court

Page 421

344 S.E.2d 421

256 Ga. 97, 55 USLW 2122

COURTNEY v. COURTNEY.

No. 43093.

Supreme Court of Georgia.

June 25, 1986.

Douglas N. Peters, Donald N. Peters, Peters, Peebles, Talley, Townsend, Burns & Millender, P.A., Decatur, for Fred S. Courtney, Jr.

Frank W. Virgin, Atlanta, for Elaine A. Courtney.

HUNT, Justice.

We granted this interlocutory appeal to address for the first time whether unvested retirement funds are subject to claims for alimony or equitable division of property, and, if not, whether evidence concerning them is otherwise relevant. The trial court denied the husband's motion in limine urging exclusion of any evidence of his unvested retirement plan.

The parties were married for eighteen years and have two children still in their minority. The wife filed for divorce seeking their custody, child support, alimony and equitable division of the marital assets. The husband denied her claim for alimony, and contended in his motion in limine that his unvested retirement plan was not subject to the wife's alimony or equitable division claims, and that, therefore, any evidence of it was inadmissible.

The husband is an agent for the Federal Bureau of Investigation and has contributed $38,691.23 toward his retirement plan. This money is his and may be withdrawn by him at any time he chooses to resign or retire. He concedes that this fund is a marital asset subject to the wife's equitable division and alimony claims. See White v. White, 253 Ga. 267, 269, 319 S.E.2d 447 (1984).

Benefits under the husband's retirement plan, however, have not yet vested. Vesting will occur after 20 years of service, and the attainment of age 50. He is 47 and has completed 17 years. Thus, in this case, the conditions for vesting have been very nearly satisfied during the marriage.

1. Alimony is defined in OCGA § 19-6-1 (a) as "an allowance out of one party's estate, made for the support of the other party when living separately." Subsection c goes on to provide that "alimony is authorized, but not required, to be awarded to either party in accordance with the needs of the party and the ability of the other party to pay." In addition, OCGA § 19-6-5 (a) sets out factors to be considered in determining the appropriate amount of alimony to be awarded, including the parties' standard of living, the duration of the marriage, the age and condition of the parties, their financial resources, the time and training necessary for either party to acquire employment skills, and the contributions of each party to the marriage. Under these statutes, it is clear that the fact of potential retirement benefits falls among these considerations and is relevant to the alimony issue. Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975). Compare Stumpf v. Stumpf, 249 Ga. 759, 761, 294 S.E.2d 488 (1982), where we held that evidence of military retirement benefits already being collected by the husband were relevant and admissible on the alimony issue.

With evidence before it concerning the length of the marriage, the contributions made by the wife in furtherance of the husband's career and the conditions which must be satisfied before the retirement benefits become vested, the jury can decide whether or not an alimony award is in order and the amount to be paid. Whether lump sum or periodic, any such award may reflect the jury's consideration of the husband's potential retirement benefits. Baldree v. Baldree, 251 Ga. 481, 482, 306 S.E.2d 654 (1983). Thus, we find the evidence relevant and admissible as to alimony.

2. We next turn to the question of equitable division of property. In Stokes v. Stokes, 246 Ga. 765, 771, 273 S.E.2d 169 (1980), we made clear that "this court has approved the award to a spouse, either husband or wife, of property, both real and personal, held in the name of the other spouse, not as alimony but as equitable division of property." The concurring opinion refers to separate and marital property; the former is not subject to equitable division, OCGA § 19-3-9, while the latter is, Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982), Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982). Marital property is that property "acquired as a direct result of the labor and investments of the [... parties] during the course of the marriage...." White v. White, supra, 253 Ga. at 269, 319 S.E.2d 447. Marital property subject to equitable division in the White, supra, case included insurance...