Moore v. Moore

• Decision Date: 03 March 1981
• Docket Number: No. 36842,36842
• Citation: 275 S.E.2d 334,247 Ga. 243
• Parties: MOORE v. MOORE et al.
• Court: Georgia Supreme Court

Page 334

275 S.E.2d 334

247 Ga. 243

MOORE v. MOORE et al.

No. 36842.

Supreme Court of Georgia.

March 3, 1981.

Jack M. Carey, Sartain & Carey, Gainesville, for Joann pfaender moore.

Troy R. Millikan, Robert B. Thompson, Gainesville, for William Hammond Moore, et al.

JORDAN, Chief Justice.

We granted leave to appeal in this divorce case in order to review the trial court's grant of a motion to intervene by defendant-husband's mother and the jury's verdict awarding the intervenor substantial relief.

Appellant-wife sued appellee-husband for divorce in July, 1978. She sought custody of their one minor child, child support, title to their marital home and its furnishings in Hall County, title to an automobile, alimony and attorney fees. Additionally, she alleged that she and her husband owned a house and lot jointly in White County. She did not seek sole ownership of the White County property.

The husband answered and counterclaimed alleging that he and his wife did not own all the interest in the house, lot and furnishings in Hall County though the deed was recorded in their names, and asked that since his wife did not seek total ownership of the White County house and lot, that complete title be decreed in him.

Appellant moved for a judgment on the pleadings as to the divorce. The day before the hearing on her motion, the husband's mother filed a motion to intervene. A divorce and temporary relief to appellant were granted. Appellant filed a motion to dismiss the motion to intervene on the basis that the motion to intervene was not timely filed and would delay and prejudice her action. Following a subsequent hearing, the trial court granted the mother's motion, and she filed a three-count complaint.

The mother alleged that she was a resident of Arkansas, a widow, and in poor health; that she had advanced her son some $67,000, to purchase a home in Hall County for the three of them to live in; that she was unaware until recently that the deed to the property was put only in appellant and her son's names. She asked that legal title to the property be placed in her name as a result of an implied trust on the property in her favor and that possession of specific items of personalty which she owned but left in the Hall County home, be returned to her.

Both appellant and husband answered the mother's complaint. The husband admitted that the money used to purchase the Hall County house had come from his mother and admitted that the money was not intended to be a gift, but he denied that he was supposed to have the deed put in his mother's name.

Following a trial, the jury awarded the mother a two-thirds interest in the Hall County house and lot and possession of the items of personalty which she sought. The husband was awarded a one-sixth interest in the Hall County house and lot, and one-half the proceeds of the sale of the White County house and lot. The jury awarded appellant custody of the child, child support, a one-sixth interest in the Hall County property, and one-half of the proceeds of the sale of the White County property. Appellant was denied alimony and attorney fees, and costs were assessed against her by the trial court.

Appellant appeals enumerating as error the trial court's allowing the mother to intervene and likewise awarding her an interest in the Hall County property, and the assessment of costs against her.

1. We agree that the mother should have been allowed to intervene. Code Ann. § 81A-124 allows intervention (a) of right or (b) by permission. The mother alleged in her motion to intervene that she had an interest in the subject property of the action and that her ability to assert that interest would be impaired by a disposition of the property between the existing parties. Additionally, she claimed that this interest could not be adequately protected by any existing party. Alternatively, she asked that she be permitted to intervene as her intervention would not unduly delay or prejudice the adjudication of the rights of the original parties as a jury trial had already been demanded to resolve the remaining questions ...