Lee v. White

• Decision Date: 03 February 1982
• Docket Number: No. 38049,38049
• Parties: Sigurd Edward LEE v. Deborah Lee WHITE f/k/a Deborah White Lee.
• Court: Georgia Supreme Court

Page 723

286 S.E.2d 723

249 Ga. 99

Sigurd Edward LEE v. Deborah Lee WHITE f/k/a Deborah White Lee.

No. 38049.

Supreme Court of Georgia.

Feb. 3, 1982.

Rehearing Denied Feb. 24, 1982.

Bobby Lee Cook, Cook & Palmour, Summerville, E. Alan Armstrong, Tucker, for Sigurd Edward Lee.

William Q. Bird, Philip E. Tribble, Bird, Scherffius, Flexner & Cronkright, Atlanta, for Deborah Lee White f/k/a Deborah White Lee.

GREGORY, Justice.

The parties to this action were divorced on November 21, 1977. An agreement entered into on October 7, 1977 and purporting to settle certain "property rights, alimony, maintenance and division of property," was incorporated into the final judgment of the court. The agreement divided household furnishings between the parties and provided that appellant would convey title to an automobile to appellee once he had satisfied the debt on it. Paragraph 5 of the agreement provides: "Husband shall pay to the wife the sum of $200.00 per month, as alimony, for a period of fifteen (15) months from the date of this Agreement." Paragraph 6 states that appellee will assume responsibility for "all ... remaining debts in his name and those which were incurred in joint names during the marriage." The final paragraph states that the agreement "constitutes the entire understanding of the parties and there are no representations or warranties other than those expressly herein set forth." No reference to any realty owned by the parties was made in the agreement. Appellant's attorney prepared the agreement. Appellee was unrepresented by counsel throughout the divorce proceedings and did not appear at the hearing on the divorce petition.

In August, 1979 appellee filed a complaint in equity praying that a condominium owned by the parties as tenants-in-common be sold and the proceeds therefrom be equally divided. Appellee also prayed that appellant be required to pay her $275 per month for each month he had exclusive possession of the condominium since the time of their separation.

Appellant answered that, while the agreement made October 7, 1977 stated that he was to pay appellee a total of $3,000 in "alimony," the parties had orally agreed that this amount was actually being paid to appellee as consideration for her interest in the condominium. Appellant averred that appellee had, contemporaneously with the execution of the October 7, 1977 agreement, orally promised to execute a quitclaim deed in favor of appellant, but had subsequently refused to do so. Appellant counterclaimed for reformation, or in the alternative, recission of the October 7, 1977 agreement and for actual and punitive damages based on appellee's fraudulent actions.

According to appellant's deposition, his former attorney advised him that the agreement should refer to the $3,000 to be paid appellee as "alimony" rather than as payment for appellee's equity in the condominium in order to afford appellant certain beneficial tax consequences. Appellant concedes that he agreed to have the document drafted in this manner so that he could "fudge on [his] income tax."

In her deposition appellee denies the existence of an oral agreement to convey her interest in the condominium for $3,000. Instead, she claims that this amount was for her maintenance and support.

Appellee filed a motion for summary judgment which was denied on April 9, 1980. Immediately prior to trial appellee made a motion in limine to exclude any parol evidence appellant proposed to offer at trial concerning the alleged oral agreement. After hearing arguments and examining the October 7, 1977 agreement, the trial court granted the motion finding, inter alia, that the written agreement was unambiguous and could not be contradicted by the parol evidence appellant sought to offer. The trial court further found that since the condominium had not been disposed of by the October 7, 1977 agreement, the parties remained tenants-in-common. The trial court certified the case for immediate review and we granted appellant's application for an interlocutory appeal. We affirm.

(1) The motion for summary judgment and the motion in limine were made before two different trial judges. Appellant argues that, under the authority of Tanner v. Tinsley, 152 Ga.App. 330, 262 S.E.2d 602 (1979), the trial court was precluded from issuing an order granting the motion in limine, as this order was "diametrically opposed" to the order denying appellee's motion for summary judgment. In Tanner the trial court denied a motion for summary judgment, then, two years later, granted a motion to dismiss the petition. The Court of Appeals found that since both motions had been based on "exactly the same pleadings" the order denying summary judgment should not have been set aside without a showing of just cause. Tanner, at 331, 262 S.E.2d 602.

In this case the record clearly shows that appellant did not object to the granting of the motion in limine on the ground that it was precluded by the earlier denial of a motion for summary judgment. We, therefore, find it unnecessary to reach the question of whether the denial of the motion for summary judgment foreclosed the granting of the motion in limine. The real issue to be decided is whether the trial court erred in ruling that appellant was prohibited from introducing any evidence of the alleged prior oral agreement between the parties.

(a) "It is elementary that prior and contemporaneous statements or agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on its face to contain all the terms of an agreement between the parties... [However] a distinct, collateral oral agreement that is consistent with and usually forms part of the...