Fitts v. Fitts, 28323
| Decision Date | 03 December 1973 |
| Docket Number | No. 28323,28323 |
| Parties | James Walker FITTS v. Georgene Weber FITTS. |
| Court | Georgia Supreme Court |
Westmoreland, Hall, McGee & Warner, John L. Westmoreland, P. Joseph McGee, Atlanta, for appellant.
Jack P. Turner, Nathaniel E. Gozansky, Atlanta, for appellee.
Syllabus Opinion by the Court
On October 20, 1972, a jury in Fulton Superior Court returned a verdict in favor of Georgene Fitts in a divorce and alimony case, and on January 10, 1973, said verdict was made the judgment of the court. James Fitts appeals from an order overruling his amended motion for a new trial, assigning error as to the amount of alimony and child support and certain other evidentiary matters. Held:
1. The jury awarded appellee alimony in the amount of $700 per calendar month and stipulated that this sum shall be adjusted either up or down based on the changes that may occur as shown on the Consumer Price Index, compiled by the Bureau of Labor Statistics, U.S. Dept. of Labor as of the date of this divorce decree, with an adjustment made every two claender years from the date of said divorce.
The appellant contends that the use of such a method for adjustment makes the judgment illegal and an unlawful delegation of the authority of the court. We agree wtih this contention. The jury verdict stated a fixed sum of $700 per calendar month. Such an award is final and cannot be changed except upon a showing that 'there has been such a substantial change in the income and financial status of the husband as to warrant either a downward or upward revision and modification of the permanent alimony judgment.' Code Ann. § 30-221. This provision in the jury verdict and the decree based thereon is an attempt to provide for an illegal modification of alimony and is not authorized under the laws of our state.
2. A judgment containing provisions calling for the appointment of appraisers to divide land into two equal 17-acre segments is not illegal or beyond the lawful delegation of authority by the court. The appellant relies on the case of Brady v. Brady, 228 Ga. 617, 187 S.E.2d 258 to support the contention that this portion of the judgment is error. Brady v. Brady, supra, does not stand for the proposition that appraisers cannot be utilized in dividing property equally but it does stand for the proposition that the court cannot 'require either party to purchase the interest of the other at an undetermined price.'
3. The jury incorporated into their verdict the following provision: The trial court translated this portion of the verdict into the following: 'Defendant shall place in trust with the National Bank of Georgia as trustee the sum of $13,500 to be spent by the latter for four years of college education for said Jill Tandy Fitts.' Appellant complains that the above award is not a legal and enforceable part of the final judgment had decree. We do not agree. Code § 110-105 provides: 'Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity.' There is evidence in the record to support the award. Appellee testified as to the cost of tuition and related expenses at colleges she would like the child to attend, said testimony showing that tuition and related expenses could easily be in excess of the amount awarded. Based on this evidence the trial court formulated the judgment to conform to the reasonable intent of the jury.
Appellant also claims that this portion of the judgment is illegal in that it is an attempt to require appellant to support a minor child beyond the age of majority, and that it is an attempt to require appellant to educate said minor child when he has no legal obligation to do so. The award of $13,500 for the minor's education is not to be given at the time the child is to attend college but is to be given now, and is therefore not void as support past majority. In Bateman v. Bateman, 224 Ga. 20, 159 S.E.2d 387, and Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394 we held that it was not error to award educational expenses in a divorce decree. In this day and...
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...educational trust approved just four years before. Compare, Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977) with Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973). In holding Coleman to prospective effect only, Walker abandoned the rule in the already dismembered Mutual Life Insuran......
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...funds including expenses for attending a college during minority where the circumstances of the case warrant it. Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414; Bateman v. Bateman, 224 Ga. 20, 159 S.E.2d 387; Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394. However, any such obligation imposed by t......
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