Gardner v. Gardner, S94A0222

• Citation: 264 Ga. 138,441 S.E.2d 666
• Decision Date: 04 April 1994
• Docket Number: No. S94A0222,S94A0222
• Parties: GARDNER v. GARDNER.
• Court: Supreme Court of Georgia

Page 666

441 S.E.2d 666

264 Ga. 138

GARDNER v. GARDNER.

No. S94A0222.

Supreme Court of Georgia.

April 4, 1994.

Reconsideration Denied April 28, 1994.

Lawrence B. Custer, Douglas A. Hill, Custer & Hill, Marietta, for Alan Martin Gardner.

George S. Stern, Janis Y. Dickman, Stern & Edlin, P.C., Atlanta, for Terri Schatz Gardner.

CARLEY, Justice.

The trial court granted appellant-plaintiff Husband a divorce and awarded appellee-defendant Wife permanent custody of the three minor children and child support. The final decree also imposed a requirement that Husband maintain, for the benefit of the children, a policy insuring his life. Husband's application for a discretionary appeal was granted to determine the validity of that provision of the final decree requiring his maintenance of the life insurance policy.

This court has previously held that, in a divorce action, there is no authority to require that a father maintain a policy insuring his life for the benefit of his minor children and that

such provision is enforceable only when it has been agreed to by the father in the first instance. Generally, the duty of a father to support his children ceases upon his death.... [Cits.] The law does not require that a father provide for the support of his children after his death. [Cit.] Public policy, of course, favors the support of minor children by the father's estate after his death. [Cits.] However, the fact remains that, despite this strong public policy, a father is not required by law to create an estate for his minor children. The same is true with respect to a divorced father and a child support decree. The decree merely replaces the father's statutory duty of support. [Cit.] Absent some express, voluntary provision in the decree, the decree will not be enforced after the death of the father. [Cits.] Similarly, this court has held that a father is not required to settle an estate on his children in a divorce case. [Cits.] The rationale is that the law places no greater duty of support on a divorced father than on one who is not divorced.

Clavin v. Clavin, 238 Ga. 421, 422-423, 233 S.E.2d 151 (1977). See also Lane v. Titus 259 Ga. 264, 379 S.E.2d 521 (1989). Compare Ritchea v. Ritchea, 244 Ga. 476, 477(2), 260 S.E.2d 871 (1979) (spouse made the beneficiary of a life insurance policy).

The rationale of Clavin is not inapplicable in the instant case simply because Husband may have been given the option of having a testamentary executor administer the life insurance proceeds on behalf of the children. Although the life insurance proceeds would not vest directly and permanently in the children, Husband has still been required by the trial court's order to "provide for the support of his children after his death." Clavin v. Clavin, supra, 238 Ga. at 423, 233 S.E.2d 151. Compare Collins v. Collins, 231 Ga. 683(3), 203 S.E.2d 524 (1974) (inter vivos trust). Accordingly, that provision of the final decree requiring Husband's maintenance of the life insurance policy "was beyond the [trial] court's power to impose, [and] we hold it invalid." Clavin v. Clavin, supra, 238 Ga. at 424, 233 S.E.2d 151. To the extent that Tomlinson v. State of Ga., 193 Ga.App. 123, 124(1), 387 S.E.2d 49 (1989) is inconsistent with our instant holding, it is hereby overruled.

Coker v. Coker, 251 Ga. 542, 543, 307 S.E.2d 921 (1983) is not authority to the contrary. Unlike here, Coker involved a requirement that a life insurance policy be maintained for the benefit of the spouse until the obligation of child support ended. Moreover, this court did not directly uphold the validity of that provision, since Coker was not an appeal taken from the final decree itself. Instead, this court merely held in Coker that the inclusion of such a provision in the divorce decree, if a mistake of law, nevertheless did not constitute a ground for setting aside that decree pursuant to OCGA § 9-11-60(d).

The provision of the final decree requiring Husband's maintenance of the life insurance policy

can be excised and a new trial is not required because of [it]. [Cit.].... Thus, the judgment will be affirmed in part and reversed in part with direction that the trial court modify its final decree to conform to this opinion. [Cit.]

Clavin v. Clavin, supra, 238 Ga. at 424-425, 233 S.E.2d 151. We note that Wife, the party who would be harmed by any change in the jury's allocation of resources resulting from our holding, has expressly requested that the life insurance provision be stricken and that a new trial not be granted. Compare Stone v. Stone, 258 Ga. 716, 373 S.E.2d 627 (1988); Marshall v. Marshall, 262 Ga. 443, 421 S.E.2d 71 (1992).

Judgment affirmed in part; reversed in part with direction.

All the Justices concur, except SEARS-COLLINS, HUNSTEIN and THOMPSON, JJ., who dissent.

SEARS-COLLINS, Justice, dissenting.

The majority relies on Clavin v. Clavin, 238 Ga. 421, 233 S.E.2d 151 (1977), for its holding that "in a divorce action, there is no authority to require that a father maintain a policy insuring his life for the benefit of his minor children." Majority opinion, p. 666.

In Clavin, this court restated the old common law principle that "the duty of a father to support his children ceases upon his death," 238 Ga. at 423, 233 S.E.2d 151, and held that "no more could be required of a divorced father," id. I not believe that it is inconsistent with these principles to allow a trial court in a divorce action to require a parent of a minor child (or children) to maintain a life insurance policy for the child's benefit. Furthermore, I believe that the foundation for the common law principle regarding a parent's duty ceasing at death erodes when applied to divorced parents. Therefore, I dissent.

"[T]he use of life insurance as an aspect of child support ... does not cause the support to continue beyond the parent's death since obviously the premiums, which constitute the support, must end with the parent's death." Clark, The Law of Domestic Relations in the United States, § 18.1 at 359 (1987). Furthermore, if an insurance requirement is limited to the period of time during which the child is a minor, and where there is no requirement that a parent build up a corpus for the child to enjoy after his or her minority, there is no violation of the statutory requirement that a parent support a child only until the child's majority, see OCGA § 19-7-2.

Moreover, to the extent that this requirement would place a duty on divorced parents which is not carried by married parents, the distinction is justified by today's alarming divorce rates and the concurrent economic impact that this phenomenon is having on our children. See Stake, Mandatory Planning for Divorce, 45 Van.L.Rev. 397, 408 (1992). Georgia's statutes are silent on the question of whether an obligation may be placed on a divorced parent which cannot be placed on a married parent, ¹ and Clavin and its predecessors appear to rely on the common law for that holding. Under the early common law, however, at least one third of "a man's goods" went automatically to his children at his death, as their "reasonable part." Blackstone's Commentaries, Book II, Ch. 32 at 492. This law was gradually "altered by imperceptible degrees," id., until at...