Eickhoff v. Eickhoff

• Decision Date: 25 October 1993
• Docket Number: Nos. S93A0932,S93X0933,S93A1017 and S93X1018,s. S93A0932
• Citation: 263 Ga. 498,435 S.E.2d 914
• Parties: EICKHOFF v. EICKHOFF (Four cases).
• Court: Georgia Supreme Court

Page 914

435 S.E.2d 914

263 Ga. 498

EICKHOFF v. EICKHOFF (Four cases).

Nos. S93A0932, S93X0933, S93A1017 and S93X1018.

Supreme Court of Georgia.

Oct. 25, 1993.

Reconsideration Denied Nov. 5, 1993.

George M. Rountree, Rountree & Souther, Brunswick, for Nancy Anne Eickhoff.

Carl V. Kirsch, Davis, Kirsch & Wolfe, Atlanta, for Bruce Frey Eickhoff.

CARLEY, Justice.

In 1986, appellant-plaintiff Ms. Nancy Anne Eickhoff and appellee-defendant Mr. Bruce Frey Eickhoff were divorced in Pennsylvania. During the pendency of their divorce action, they had entered into a settlement agreement. This settlement agreement provided that, upon appellee's retirement, appellant was to "receive one-half of [appellee's] pension and social security benefits, to be paid to her within one week of the day or days on which he receives them." This settlement agreement was not incorporated into the final divorce decree. After the divorce, appellee moved to Georgia and, when he retired on December 31, 1989, he became eligible for monthly pension and social security benefits in the gross amount of $2,535. Through February of 1992, appellee paid appellant one-half of this gross amount.

When appellee ceased to pay one-half of his gross pension and social security benefits, appellant brought the instant action to enforce the settlement agreement. In her complaint, appellant alleged several counts setting forth both legal and equitable theories. Among appellant's theories were the following: specific performance by appellee of the settlement agreement; citation of appellee for being in contempt of the settlement agreement; domestication and "correction" of the Pennsylvania divorce decree so as to incorporate the settlement agreement therein; and, damages for appellee's breach of the settlement agreement. Appellee answered, asserting that the settlement agreement was void, and he also counterclaimed for alleged prior overpayments, asserting that, if the settlement agreement was not void, it obligated him to pay appellant only one-half of the net, rather than gross, amount of his pension and social security benefits.

Cross-motions for summary judgments were filed. The trial court, after conducting a hearing, held that the settlement agreement imposed a valid contractual obligation upon appellee to pay appellant one-half of the gross amount of his pension and social security benefits, but that appellant was entitled to summary judgment only under a breach of contract theory. Accordingly, the trial court granted summary judgment in favor of appellant for arrearages to the date of judgment and granted summary judgment in favor of appellee as to most of appellant's other theories.

In Case Number S93A0932, appellant appeals directly from the trial court's grant of summary judgment in favor of appellee as to the theories of recovery other than breach of contract and, in Case Number S93X0933, appellee cross-appeals. In Case Number S93A1017, appellant appeals from the same order of the trial court pursuant to the grant of her application for a discretionary appeal and, in Case Number S93X1018, appellee cross-appeals.

1. Since we are presented with both direct and discretionary appeals from the same order of the trial court, jurisdiction must be the topic of our initial inquiry.

Pursuant to OCGA § 5-6-35(a)(2), appeals from judgments and orders in all "domestic relations" cases are discretionary. However, this court does not have jurisdiction over all "domestic relations" discretionary appeals. Under our Constitution, this court only has jurisdiction over "[a]ll divorce and alimony cases...." Art. VI, Sec. VI, Par. III(6) of the Ga. Const. of 1983. The Court of Appeals has jurisdiction over all other "domestic relations" cases. Art. VI, Sec. V, Par. III of the Ga. Const. of 1983. Accordingly, unless the instant case can be deemed a "domestic relations" case in general, which also involves "divorce and alimony" in specific, we would have no jurisdiction over the discretionary appeals.

OCGA § 5-6-35(a)(2) is applicable to appeals in "domestic relations" cases. If the sole issue to be resolved on appeal concerns "domestic relations," the appeal is clearly from a "domestic relations" case and must be taken to the appropriate appellate court pursuant to OCGA § 5-6-35(a)(2). If, however, additional issues which would otherwise be directly appealable are also to be resolved on appeal, the appeal is not from a "domestic relations" case. Under those circumstances, the case is directly appealable to the appropriate appellate court and the "domestic relations" issue can then be raised pursuant to OCGA § 5-6-34(d). Under that statutory provision, a "domestic relations" issue "may be reviewed on direct appeal, when it is appealed as part of a judgment that is directly appealable. [Cit.]" Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 526(4)(a), 360 S.E.2d 566 (1987).

The instant case raises a "domestic relations" issue only insofar as appellant sought domestication and "correction" of the Pennsylvania divorce decree. Lewis v. Robinson, 176 Ga.App. 374, 336 S.E.2d 280 (1985). Appellant's remaining claims are all based upon the unincorporated settlement agreement and no "domestic relations" issue is raised by those claims. Scott v. Mohr, 191 Ga.App. 825, 826(1), 383 S.E.2d 190 (1989). Although the settlement agreement was made in contemplation of divorce, appellant's and appellee's status as former spouses is not material to their rights and obligations thereunder and the law of divorce and alimony is not material to a determination of those rights and obligations. Accordingly, insofar as appellant sought a recovery based upon the settlement agreement, the instant case is simply a contract action in which the parties thereto happen to be former spouses. "Although it had its roots in the parties' divorce action, [appellant's instant] action [based upon the settlement agreement] was a new action and not merely a continuation of the divorce action. For this reason, [OCGA § 5-6-35(a)(2) ] does not apply to this situation, and [appellant's] direct appeal [from the grant of summary judgment on her claims based upon the settlement agreement] is proper." Larimer v. Larimer, 249 Ga. 500, 292 S.E.2d 71 (1982).

The instant case is, therefore, a hybrid, raising one "domestic relations" issue which is subject to OCGA § 5-6-35(a)(2) and several other non-"domestic relations" contract issues which are not subject to OCGA § 5-6-35(a)(2). The sole "domestic relations" issue is one which would normally be within the jurisdiction of the Court of Appeals, as it involves "a suit on a foreign judgment, not a divorce or alimony case within the meaning of our Constitution...." Lewis v. Robinson, 254 Ga. 378, 329 S.E.2d 498 (1985). Accordingly, if this were the sole issue to be resolved on appeal, the instant case could be deemed a "domestic relations" case over which the Court of Appeals, rather than this court, would have jurisdiction.

However, the existence of the other non-"domestic relations" contract issues prevent this case from being considered a "domestic relations" case which is otherwise subject to OCGA § 5-6-35(a)(2). These non-"domestic relations" contract issues are directly appealable and jurisdiction over the direct appeal from the grant of summary judgment in favor of appellee as to appellant's claim for specific performance of the settlement agreement would be in this court. Art. VI, Sec. VI, Par. III(2) of the Ga. Const. of 1983. Pursuant to OCGA § 5-6-34(d), jurisdiction over the trial court's rulings on all of appellant's remaining claims, including her "domestic relations" claim, would likewise be in this court. "[This] court will accept jurisdiction of this [direct] appeal of [the "domestic relations" issue] because jurisdiction of the [directly appealable specific performance] claim is in this court." (Emphasis in original.) Haggard v. Bd. of Regents of the Univ. System of Ga., supra at 527(4)(a), 360 S.E.2d 566.

Based upon the foregoing, we hereby dismiss the discretionary appeals in Case Numbers S93A1017 and S93X1018 and proceed to the merits of the direct appeals in Case Numbers S93A0932 and S93X0933.

CASE NUMBER S93A0932

2. The trial court's grant of summary judgment in favor of appellee as to appellant's claim for specific performance of the unincorporated settlement agreement is enumerated as error.

"Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance." OCGA § 23-2-130. Accordingly, "[w]hen there is a mere breach of a personal contract, for which the defendant is liable in damages, and it is not shown that irreparable injury will result, unless the contract be specifically performed, a Court of Equity will not decree such specific performance." Justices of Inferior Court of Dougherty County v. Croft, 18 Ga. 473(1) (1855). The only performance required of appellee under the settlement agreement is to pay appellant one-half of his pension and social security benefits. Since the legal remedy of a recovery of damages "is generally adequate, a contract or agreement for the payment of money is not ordinarily specifically enforceable." 81 C.J.S., Specific Performance, § 94, p. 926.

Appellant urges, however, that other jurisdictions, including our sister state of North Carolina, have held that the legal remedy is inadequate, because it does not compel the obligor's future performance and requires the obligee "to bring successive lawsuits to recover in a piecemeal fashion the sums due...." Moore v. Moore, 297 N.C. 14, 252 S.E.2d 735, 738 (1979). Thus, "[t]he law is clear in North Carolina that if a husband does not perform his part of a valid separation agreement, which has not been incorporated into a court order, the wife may obtain from the court a decree of specific performance of...