Davenport v. Davenport

• Decision Date: 08 May 1979
• Docket Number: No. 34551,34551
• Citation: Davenport v. Davenport, 255 S.E.2d 695, 243 Ga. 613 (Ga. 1979)
• Parties: DAVENPORT v. DAVENPORT.
• Court: Georgia Supreme Court

Page 695

255 S.E.2d 695

243 Ga. 613

DAVENPORT v.DAVENPORT.

No. 34551.

Supreme Court of Georgia.

Argued Feb. 20, 1979.

Decided April 24, 1979.

Rehearing Denied May 8, 1979.

Davis & Stringer, Robert H. Stringer, Decatur, for appellant.

Kaler, Lefkoff, Pike & Fox, George M. Fox, Atlanta, for appellee.

HALL, Justice.

The executor of Richard Davenport's estate brings a constitutional challenge to the statutory provision that a wife's unresolved alimony claims survive her husband's death as a lien on his estate.

Richard Davenport filed for divorce from his wife Rosalind Davenport in November 1977 on the ground that the marriage was irretrievably broken.In Mrs. Davenport's answer, she sought a divorce on the ground of cruel treatment and counterclaimed for temporary and permanent alimony, a property settlement and attorney's fees.

In January 1978, the trial court granted a divorce and reserved for later determination the issues of alimony, property rights and attorney's fees.A hearing on the issue of temporary alimony was held; before an order had been entered, Richard Davenport died.Mrs. Davenport filed a motion to substitutethe executor of Richard Davenport's estate for the deceased plaintiff under Code Ann. § 30-201, which provides that a wife's unresolved alimony claims are a lien upon the husband's estate.The executor objected to the substitution on the ground that Code Ann. § 30-201 violates several provisions of the state and federal constitutions.¹The trial court upheld the constitutionality of the statute, ordered the substitution, and certified its order for immediate review.We affirm.

1.Code Ann. § 30-201 provides, in pertinent part: "Should the husband die prior to the court's order on the issues of alimony, the rights of the wife shall survive and be a lien upon the estate of the deceased."Ga.L.1977, pp. 1253, 1256.The executor argues that this provision was enacted in violation of Art. III, Sec. VII, Par. IV of the Georgia Constitution, CodeAnn. § 2-1304, which requires that the Title of an Act indicate its contents and that the Act refer to only one subject matter.

This Act was titled "Divorce and Alimony Procedures Changed."The caption provided, in part, that the Act was intended "to amend Code Section 30-201, relating to permanent and temporary alimony . . . to provide for liens upon estates . . ."The constitutional title provision does not require the legislature to set forth the entire substance of an Act in its title.Lee v. State, 239 Ga. 769(1), 238 S.E.2d 852(1977).Instead, the substance of the Act must be related to the title, and the title must give notice of the Act's contents.The statement in the Act's caption, that it amends the Code section relating to permanent and temporary alimony "to provide for liens upon estates," gives sufficient notice of the provisions of the Act to meet the constitutional requirement.

We also find that the Act deals with a single subject matter.The challenged Act meets this constitutional requirement because its provisions all relate to changes in divorce and alimony procedure necessitated by the advent of "no fault" divorce.Because the lien provision "has a natural connection with the main object of the legislation," the single subject matter rule is not violated.SeeWall v. Bd. of Elections of Chatham County, 242 Ga. 566(3), 250 S.E.2d 408(1978).

2.Appellant also contends that the lien provision violates the due process clauses of the Fourteenth Amendment to the United States Constitution and of the Georgia Constitution.Code Ann. § 2-101.The Act provides that if the husband dies "prior to the court's order on the issues of alimony," the wife's "rights" survive as a lien on his estate.Appellant contends that because the phrase, "prior to the court's order on the issues of alimony," does not specify a time period for the calculation of alimony and because the "rights" of the wife are undefined, the statute is unconstitutionally vague.Although the statute could be more artfully drafted, we believe that the legislative intent is clear and that the statute provides "fair notice" of its meaning.Bryan v. Ga. Public Service Comm., 238 Ga. 572, 234 S.E.2d 784(1977).

After the Georgia legislature passed the "no fault" divorce Act, this court permitted divorce to be granted on the pleadings and issues of temporary and permanent alimony to be reserved for a later trial.E. g., Friedman v. Friedman, 233 Ga. 254, 210 S.E.2d 754(1974);Marshall v. Marshall, 234 Ga. 393, 216 S.E.2d 117(1975).One result of this practice was that if the former husband died After the divorce but Before the alimony determination, the former wife could be left destitute since she would have no right to a year's support as a widow and no right to temporary or permanent alimony.The husband's duty of support was viewed as a personal obligation, extinguished by his death.A secondary problem, which occurred even before the advent of no-fault divorce, was that a wife who was separated but not divorced from her husband lost her claim to temporary alimony when he died before the entry of an alimony award.Although she could claim a year's support from her husband's estate, she could claim nothing after his death for the period of time from separation until death.²

With these two problems in mind, we believe that the legislative solution expressed in Code Ann. § 30-201 is apparent.The phrase "prior to the court's order on the issues of alimony," refers to either temporary or permanent alimony.If the husband dies before a determination of either of these issues, the wife's rights survive.A provision of survivorship of rights means that an inchoate right survives for determination.One of the most familiar examples of the survival of inchoate rights occurs in the area of torts.By statute, the cause of action of a decedent survives his death and exists in his executor or personal representative who may sue the tortfeasor.In our case, the husband's duty of support is personal and is extinguished by his death.As we read the intent of the legislature, the lien provision does not create new rights in the wife extending beyond the date of the husband's death.Instead, the lien clause preserves an inchoate right to temporary or permanent alimony existing at the date of death for subsequent determination and satisfaction from the estate.

When the husband dies Before an order awarding temporary alimony has been entered by the court and Before a divorce has been granted, the wife's right to support during the period of separation until the date of death survives as a lien on the estate.This right is defined in Code Ann. § 30-202.Where no divorce has been granted, the wife after her husband's death is a widow and is entitled to a year's support.Code Ann. § 113-1002.The wife has no "right" to permanent alimony because no divorce has been granted, so no right survives under the lien provision clause.SeeChatsworth Lumber Co. v. White, 214 Ga. 798, 107 S.E.2d 827(1959).

When the husband dies After a divorce has been granted but Before any determination of temporary or permanent alimony has been made, the wife's inchoate right to temporary alimony from separation until the date of death survives as a lien on the estate.This determination can be made After the husband's death, and the executor may attempt to prove any disability under Code Ann. § 30-201 which would deprive a wife of her right to alimony.

When the husband dies after a divorce has been granted but before any determination of permanent alimony has been made, ³ the survival of the wife's right to permanent alimony is more difficult to determine.This difficulty arises because of some confusion in our decisions on the rights of a former wife to support from her former husband's estate.

When the issue of permanent alimony is tried by a judge or jury, either is free to award the wife a lump sum, real or personal property, periodic payments or any combination of the above.E. g., Leonard v. Leonard, 237 Ga. 446(3), 228 S.E.2d 836(1976).When a husband dies after such an award has been made, the wife's right to receive periodic payments ceases.Dicta in some of our cases indicate that the court by decree or the parties by agreement may extend the wife's right to permanent...