Friedman v. Friedman
| Decision Date | 19 October 1989 |
| Docket Number | Nos. S89A0026,S89X0027,s. S89A0026 |
| Citation | 384 S.E.2d 641,259 Ga. 530 |
| Parties | FRIEDMAN v. FRIEDMAN. (Two Cases) |
| Court | Georgia Supreme Court |
Harry L. Cashin, Jr., Raymond C. Mayer, Johann R. Manning, Jr., Neal J. Quirk, Cashin & Morton, Atlanta, Ga., for Kathryn Friedman.
Alex D. McLennan, Harmon W. Caldwell, Jr., Harry W. MacDougald, Johnson & Montgomery, Atlanta, Ga., for Lester Friedman.
The Friedmans were married in December 1974 subsequent to their execution of an agreement. At that time, Lester Friedman's individual assets were worth $1.3 million, and Kathryn Friedman's assets were worth between $10,000 and $20,000. At the time of the trial of Kathryn's action for divorce, the marital assets were worth in excess of $6 million. The jury, in the equitable division portion of its verdict, awarded Kathryn the municipal bond portfolio worth $2.9 million and awarded Lester the remaining $3.1 million of marital assets. Lester filed a motion for new trial based on the argument that the award of marital property to Kathryn included property he had acquired after the parties had separated. The trial court granted the motion, and this case is before the court on Kathryn's application for interlocutory review.
1. Subsequent to the grant of Kathryn's application for interlocutory review, Lester filed a cross-appeal. Kathryn filed a motion to dismiss the cross appeal because the issues raised in that appeal went beyond the issue the trial court had certified for immediate review. She argued that, given the procedural posture of the case, Lester could bring a cross-appeal only if he perfected his appeal as an interlocutory appeal. We denied the motion to dismiss and permitted the cross-appeal to proceed.
OCGA § 5-6-34(b) sets forth the procedure for perfecting an interlocutory appeal. This subsection provides that after appellant has filed a notice of appeal, "the procedure thereafter shall be the same as in an appeal from a final judgment." OCGA § 5-6-34(b). Therefore, because a perfected interlocutory appeal loses its "interlocutory character" with regards to procedural aspects of the appeal, there is no procedural bar to Lester's cross-appeal brought pursuant to OCGA § 5-6-38(a).
2. This Court granted Kathryn's application for interlocutory review and framed the issue as whether assets (except those which are never marital property, such as gifts) acquired by one spouse anytime before the judgment of divorce is granted are included in marital property under Goodman v. Goodman, 257 Ga. 63, 355 S.E.2d 62 (1987) (Goodman III). In granting Lester's motion for new trial, the trial court determined that under Goodman III, assets acquired after the action for divorce was filed were not part of the marital assets. Lester contends that because equitable division finds its basis in the partnership theory of marriage, any asset acquired after the husband and wife effectively cease to function as a partnership is separate property. We disagree.
The parties in this action have proposed four possible cut-off dates for the acquisition of marital property. The first is the date of actual separation. This date is unsatisfactory because it is uncertain and subject to manipulation. The uncertainty of the date of actual separation could give rise to otherwise unnecessary litigation. This date is unsatisfactory for the additional reason that a party could manipulate the date of separation so as to cause his or her acquisition of a substantial asset to follow on the heels of a separation and thus exclude the asset from marital property. After all, either spouse may separate from the other at will.
The second proposed cut-off date is the date a party files the action leading to divorce. While this date is certain, it suffers from the defect of being subject to manipulation. It puts the power to select the cut-off date in the hands of the party filing for divorce. This allows a party to file on the eve of a large acquisition so as to defeat the other spouse's claim.
The third proposed date is the date the order for temporary support is filed. Though this date appears in some sense to correspond to the date established in Goodman Goodman III is distinguishable. Goodman III involved a final decree in a separate maintenance action. We held property acquired after the decree is not marital property. It is the temporary nature of a temporary order which makes it unsatisfactory and tends to distinguish it from a final decree in a separate maintenance action. For example, a temporary order can be dismissed and another entered on a later date. This would create uncertainty as to which date was the actual cut-off date.
Of the four proposed cut-off dates, this only leaves the date of the final decree, and it is this date that we adopt. It does not suffer from the defects of the previous three possibilities. It is a date certain, not likely to move about, and is not a date one of the parties has the power to select at will. Therefore, we hold that the last date on which assets may be acquired so...
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...Federal Rule of Bankruptcy Procedure 7008.16 Of course, the acquisition of marital property can also occur at the very end of a marriage. In Friedman , the Georgia Supreme Court held that property acquired during the marriage, even after the parties separated, up to the date of divorce is s......
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