Henderson v. Henderson
| Decision Date | 20 December 1979 |
| Docket Number | No. 58803,58803 |
| Citation | 152 Ga.App. 846,264 S.E.2d 299 |
| Parties | HENDERSON v. HENDERSON. |
| Court | Georgia Court of Appeals |
Thomas R. Campbell, Jr., Roswell, for appellant.
John A. Joh, III, Atlanta, for appellee.
The parties in this action were formerly husband and wife. On March 5, 1976, during the pendency of divorce proceedings they entered into an agreement providing for a division of property, and support and maintenance of the wife which was later incorporated into the final judgment and decree of divorce. This is an action by the former wife for arrearages due under the agreement for the calendar year 1976 under that portion of the agreement providing for her support and maintenance. In her complaint the plaintiff alleged an arrearage of $5,978.43. At the trial before a jury the verdict was directed in favor of the plaintiff, and the court rendered judgment in favor of the plaintiff in the amount of $5,279.50. The defendant appeals and shows by his calculations that the arrearage would be substantially less.
The difference in the results of the calculations of the parties arises from a dispute as to whether all of the $19,675 which the defendant reported as income on his 1976 tax return from a small business corporation, Zachary W. Henderson & Associates, Inc., should be considered in calculating the defendant's liability under the agreement. The small business corporation in question (which has since been liquidated and its business continued as a proprietorship) was not on a calendar year but was on a different fiscal year, and the $19,675 in question was earned in the period from June 1, 1975, through May 31, 1976. Defendant, a cash basis taxpayer, contends that even though all of the $19,675 was received in 1976 for tax purposes and thus presumably actually or constructively received in 1976, only that portion which was earned in 1976 is to be used in calculating the defendant's obligation under the agreement. Defendant, for the purpose of calculating his liability under the agreement with his former wife, allocated a portion of the sum received from the corporation in 1976 to 1975 so that he would have no obligation as to those funds in 1976. Held :
1. The agreement states that for each calendar year the former wife shall receive 50% of the husband's gross income for that year. For the purposes of the agreement gross income is defined to "include any and all income of the husband from whatever source derived, earned or unearned, without any deductions whatsoever."
The parties disagree as to the intended meaning of the phrase "earned or unearned." Defendant's accountant testified as to his construction of this phrase. Under the accountant's construction the gross income of the defendant (a cash method taxpayer) was to be recomputed as though he were an accrual method taxpayer for purposes of determining defendant's liability under the agreement. According to the accountant the accrual method calculations would result in the 1975 earnings of the small business corporation being considered as income to defendant in 1975 and thus not a portion of his income in 1976, the period in question. This testimony did not, however, amount to a statement that the phrase "earned and unearned" are technical words, or words of art, or used in a particular trade or business, so as to be construed in reference to this particular meaning and be explained by parol evidence. The accountant's testimony as to the construction of the phrase in question (construction of the agreement being a matter properly for the trial court) did not create any issue for the jury. Compare Louisville & N. R. Co. v. Southern Flour, etc., Co., 136 Ga. 538(2), 71 S.E. 884.
In construing a contract words generally bear their usual and common signification. Code Ann. § 20-704(2) (Ga.L.1964, pp. 414, 415); Baker Mtg. Corp. v. Hugenberg, 145 Ga.App. 528, 529(1), 244 S.E.2d 56; Wolverine Ins. Co. v. Jack Jordan, Inc., 213 Ga. 299, 302, 99 S.E.2d 95. If the terms...
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