Jones v. Jones
| Decision Date | 11 April 1994 |
| Docket Number | No. S94A0033,S94A0033 |
| Citation | 441 S.E.2d 745,264 Ga. 169 |
| Parties | JONES v. JONES. |
| Court | Georgia Supreme Court |
Steven S. Harrell, Perry, for Virgil Lawrence Jones.
J. Roxanne Wood, Daryl J. Morton, Westmoreland, Patterson & Moseley, Macon, for Margie Nell Tidwell Jones.
We granted the discretionary appeal in this divorce action to determine the validity of that portion of the jury's verdict mandating the forfeiture of Mr. Jones' 401(k) retirement plan in the event he failed to make certain required payments. As part of its verdict, the jury awarded the marital residence and a 1991 Chevrolet Lumina to Mrs. Jones, requiring Mr. Jones to make the home equity and automobile loan payments on this real and personal property. In addition, the jury awarded Mrs. Jones alimony of $800 per month, to be increased by $200 when the home equity loan on the marital home was satisfied and by an additional $100 when the automobile awarded to Mrs. Jones was paid for in full. The verdict also provided that both parties were to retain their respective pension plans but that "no withdrawal may be made below the current $27,000 [in Mr. Jones' 401(k) plan] and if any mortgage or the car payments are missed, Margie Jones shall acquire ownership of Virgil Jones' 401(k)."
Mr. Jones objected to the verdict on the ground that the provision relating to his 401(k) plan was illegal. The court disagreed, dismissed the jury, and incorporated the special lien on his 401(k) plan into the final judgment. 1 For reasons which follow, we reverse.
In equitable actions for divorce, the jury possesses broad discretion to distribute marital property to assure that property accumulated during the marriage is fairly divided between the parties. Clements v. Clements, 255 Ga. 714, 342 S.E.2d 463 (1986) and Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980) (). As in all equity actions, the jury may decree a special or equitable lien on specific property "whenever under the rules of equity the circumstances require this remedy." Chapple v. Hight, 161 Ga. 629, 632, 131 S.E. 505 (1926); Routon v. Woodbury Banking Co., 209 Ga. 706, 707-08, 75 S.E.2d 561 (1953); see First Nat. Bank v. Blackburn, 254 Ga. 379(7), 329 S.E.2d 897 (1985) ().
Here, the jury awarded the 1991 Lumina and marital home to Mrs. Jones, with Mr. Jones to pay the remaining indebtedness on this property. In addition, the jury directed that upon Mr. Jones' failure to make a home equity or automobile loan payment, the entire $27,000 in his 401(k) plan would automatically transfer to Mrs. Jones without regard to the amount of indebtedness remaining and without regard to the existence of allowable defenses. Although the jury may have been authorized by the evidence to award the entire $27,000 in the 401(k) plan to Mrs. Jones and could have created a special lien on the plan to secure payment of the mortgage and automobile loans to the extent of the remaining indebtedness as such payments became due, Chero-Cola Co. v. May, 169 Ga. 273, 149 S.E. 895 (1929), it was not authorized to provide for the automatic forfeiture of the entire $27,000 in the event he failed to make a single loan payment. By its very nature, a special lien does not provide for the transfer of possession or automatic forfeiture of...
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