Hortman v. Childress
| Decision Date | 10 June 1982 |
| Docket Number | No. 63380,63380 |
| Citation | 292 S.E.2d 200,162 Ga.App. 536 |
| Parties | HORTMAN v. CHILDRESS. |
| Court | Georgia Court of Appeals |
Charles Liipfert, Fort Valley, for appellant.
Thomas C. Garwood, Fort Valley, for appellee.
Appellee brought this action against appellant (appellee's ex-husband) seeking a declaration of her right to alienate her one-half undivided interest in certain described property. The subject property was farm land owned jointly by the parties during their marriage. Pursuant to Paragraph 1 of a settlement agreement incorporated into and made a part of the divorce decree, appellant had the right to enjoy the use and income from the farm property so long as he maintained the property and paid the taxes. In the event the farm property was sold, the net proceeds were to be equally divided between the parties. The trial court found this part of the agreement "void for ambiguity" and declared that appellee had full right and legal authority to alienate her one-half undivided interest in the subject property "without restrictions or limitations."
Where the parties in a divorce action enter into a settlement agreement which is subsequently incorporated into a divorce decree, the meaning and effect thereof should be determined in accordance with the usual rules for the construction of contracts--the cardinal rule being to ascertain the intention of the parties. Brown v. Farkas, 195 Ga. 653(2), 25 S.E.2d 411 (1943). "The construction of a contract is a question of law for the court." Code Ann. § 20-701. "Contracts, even when ambiguous, are to be construed by the court and no jury question is presented unless after application of applicable rules of construction the ambiguity remains." Chalkley v. Ward, 119 Ga.App. 227, 228, 166 S.E.2d 748 (1969).
Paragraph 1 of the settlement agreement provides: We agree with the trial court that the foregoing language is ambiguous, for it is unclear what effect, if any, appellant's right to use the property has upon appellee's interest in the property. Accordingly, we will apply the rules of construction to determine the intent of the parties.
The fact is not disputed that both appellant and appellee own a one-half undivided interest in the farm property. However, appellant contends that appellee's interest in the property is burdened by his right to use the property as set forth in the settlement agreement. Appellant cites Rathkamp v. Rathkamp, 136 Ga.App. 423, 221 S.E.2d 221 (1975), in support of his contention. In Rathkamp this court found that both parties owned an undivided one-half interest in certain property; that pursuant to an alimony settlement agreement they could have elected to sell the property; "nevertheless, until said election to sell is made by the wife, or until she remarries, or until she voluntarily removes herself from the property, 'whichever event first occurs,' the husband's share of said property is burdened with the provisions above recited in the decree of alimony." Id. at 423-424, 221 S.E.2d 221. We concluded that the husband had contractually surrendered his right to partition the property by burdening his undivided interest therein pursuant to the settlement agreement.
While there are certain similarities between the Rathkamp case and the case at bar, there is an important distinction. In Rathkamp the husband's interest in the property was clearly burdened by the settlement agreement. In the case at bar the settlement agreement is not clear as to whether the parties intended to burden appellee's interest in the farm property. Paragraph 1 begins: "The farm property jointly owned by the parties shall remain as is..." This language is followed by that which vests in appellant the right to the use and income from the property, provided certain conditions are met. This "right" is of unspecified duration. The language of Paragraph 1 is unclear because the farm property could not both "remain as is" and also become burdened by a theretofore nonexistent "right" of use. That is, appellee's interest in the farm property can not be both without...
To continue reading
Request your trial
-
Glover v. Ware
...See generally OCGA § 9-13-60; Paces Partnership v. Grant, 212 Ga.App. 621, 624(1), 442 S.E.2d 826 (1994); Hortman v. Childress, 162 Ga.App. 536, 537-538, 292 S.E.2d 200 (1982); Alderman v. Crenshaw, 84 Ga.App. 344, 346-347(1), 66 S.E.2d 265 (1951). Any new tenant in common would then have s......
-
In re Clark
...the fact that the agreement is the consensual undertaking of the parties and the parol evidence rule applies. Hortman v. Childress, 162 Ga.App. 536, 292 S.E.2d 200 (1982); Brown v. Farkas, 195 Ga. 653, 25 S.E.2d 411 (1943). In dischargeability disputes under § 523(a)(5), where the obligatio......
-
Lothridge v. First Nat. Bank of Gainesville
...into the 1990 consent judgment must be determined in accordance with the usual rules of contract construction. Hortman v. Childress, 162 Ga.App. 536, 292 S.E.2d 200 (1982). Under these rules, if the language is clear and unambiguous, no construction is required or even permissible by the tr......
-
PMF Enters., Inc. v. SouthCrest Bank (In re PMF Enters., Inc.)
...under which it was entered into, particularly the purpose for the particular language to be construed”. Hortman v. Childress, 162 Ga.App. 536, 537, 292 S.E.2d 200, 202 (1982).The “mortgagee clause” referenced in the SouthCrest Settlement is found in Section F.2 of the insurance contract. Th......