Rooks v. Rooks

• Decision Date: 18 January 1984
• Docket Number: No. 40304,40304
• Citation: 311 S.E.2d 169,252 Ga. 11
• Parties: ROOKS v. ROOKS.
• Court: Georgia Supreme Court

Page 169

311 S.E.2d 169

252 Ga. 11

ROOKS v. ROOKS.

No. 40304.

Supreme Court of Georgia.

Jan. 18, 1984.

Paul S. Weiner, Jonesboro, for Kenneth Andrew Rooks.

Jeffrey L. Sakas, Atlanta, for Judy Lee Lyon Rooks.

PER CURIAM.

As a part of the jury verdict in a divorce proceeding, the marital home was ordered sold, and the wife was awarded one-half of the proceeds as equitable division. She also was awarded any relocation fee which the condemning authority might pay in connection with its prospective acquisition of the property by eminent domain. We granted the husband's application for discretionary appeal in order to determine whether the home was subject to equitable division.

Testimony at trial established that the home was once owned by the husband's mother. The husband and wife rented it until 1977, when the mother conveyed fee simple title to the husband in order that he might offer it as security for a loan. He borrowed approximately $25,000, and gave $4,000 of the loan proceeds to his mother. The jury awarded one-half of the home to the wife, one-fourth to the husband, and one-fourth to the mother. The trial court modified the verdict so as to award a one-half interest in the property to each spouse.

The court charged concerning the principles of equitable division as follows:

"In this case both parties contend that there was certain property acquired during the marriage. The Plaintiff and the Defendant in this case have requested that this Jury make an equitable property division of the property acquired during the marriage, and this is a proper matter for your consideration.

"In determining the question of property division, you are not to concern yourself with the question of alimony or the entitlement of alimony, but rather in determining the issue of property division you are to consider the following.

"In a property division, the Jury should give the wife that property which you find from the evidence is hers and you should give to the husband that which you find from the evidence is his.

"The Court charges you that under the law of the State of Georgia the separate property of each spouse shall remain the separate property of that spouse, except as provided in cases of divorce and alimony on a property division.

"The Court instructs you that you should first assign to each spouse the personal property or assets owned by that party at the time of the marriage, and you should assign to each spouse any property or funds inherited by that spouse during the marriage.

"You should then equitably apportion between the parties the real and personal property and assets acquired during the marriage whether the title thereto is in the name of one spouse or both.

"In making this apportionment, you, the Jury, should consider any evidence of the practice and custom of the parties with reference to their individual incomes or salaries and whether the parties considered their income as joint income without division as one lump sum salary or whether they considered their income as individual incomes, and the purpose and intent of the parties regarding the ownership of the property in question.

"You should also consider which party furnished all or a portion of the purchase money for any items in question and the source from which the property in question was acquired, the duration of the marriage and any prior marriage, if any, of either party, the age, health, occupation, vocational skills and employability of each party, as well as the contribution or services of each spouse to the family unit, the amount and source of income, the estate of each party, if any, the debts, liabilities and needs of each of the parties, as well as the debts against the property and the opportunity of each spouse for future acquisition of assets and income by employment or otherwise.

"You should also consider the intent of the parties as it relates to the ownership of any particular item of property, and any other fact or circumstance disclosed by the evidence which will enable you to reach the truth of the case and arrive at a correct verdict in this case."

The court did not instruct the jury as to the principles set out in our recent case of Bailey v. Bailey, 250 Ga. 15, 295 S.E.2d 304 (1982), amplifying Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980), which established the following proposition: "[P]roperty acquired during the marriage by either party by gift, inheritance, bequest or devise remains the separate property of the party that acquired it, and is not subject to equitable division." Notwithstanding, we believe that the jury was instructed correctly, and the question of equitable division relative to the dwelling house properly submitted to the jury.

As to the trial court's modification of the verdict in such manner as to vacate the jury's award of a one-fourth interest to the husband's mother and to allocate that portion to the husband, we observe that the only person adversely affected thereby is the mother of the husband, who is not party to this appeal.

Judgment affirmed.

All the Justices concur, except HILL, C.J., concurs in the judgment only, and GREGORY, J., disqualified.

WELTNER, Justice, concurring.

The thesis set forth in Stokes appears to be a simple, straight-forward rule, which even the casual reader will comprehend. The problem--as evidenced by this case--is not in the formulation of the rule, but in a correct discernment of those transactions which fall within it. Was the transfer of the house to the husband a gift? If so, what, then, was the $4,000.00 payment by the husband to the mother? Was the transfer part gift and part sale? Or, was it but a sale at a below-market value?

Spouses frequently receive properties from one another and from others, and accomplish transfers back and forth for a myriad of practical and honest purposes. Transfers between husband and wife are not, and should not have to be, executed with the punctilio of advanced accountancy, and there can never be a certain means of tracing economic initiative on a mathematically accurate basis between spouses over the span of a marriage. Hence, I foresee that our rule in Stokes, standing alone, is likely to become the wellspring of a newly-emergent stream of litigation.

Of that prospect this very case is harbinger.

Accordingly, there may be profit in considering Stokes in its relation to the entirety of potential economic consequences of separation and divorce--which I now undertake to do.

* * *

It is a major problem for all who strive for clarity, in any endeavor, that words are inexact indicators of concepts sought to be communicated. Principal among the difficulties flowing from this condition is the fact that a single word may have more than one meaning (which is called polysemy), and that a single concept may be identified by more than one word (which is called synonymy).

The law, of course, is no stranger to this plight. Indeed, a large part of its labor is spent in defining terms and interpreting words--which is but to address, respectively, the confusions engendered by polysemy and synonymy.

And in no field of law is there more confusion arising from words and their meaning than that of domestic relations. That may be understandable because it cuts across so broad a spectrum of the populace, it involves so wide a variety of concerns, it addresses so many agreements couched in lay terms, and it is peopled by warring spouses who are beset with perhaps the poorest memories found in any class of litigants!

As example only, "alimony" is generally understood as something one spouse receives from another spouse. Yet our new Code, at OCGA § 19-6-19, (Code Ann. § 30-220), speaks in terms of "alimony for the support of a child". In the case before us, had the jury awarded to the wife the residence as "alimony" rather than as "equitable division," the basic issue of the case would never have arisen. The parties are the same; the circumstances of the separation are the same; the house is the same. It is the label put upon its award by the jury that generates the difficulty.

There should be a way to steer around this shoal. Perhaps it may be found in laying aside, for the moment, all labels which lawyers and laymen have become accustomed to apply, and to consider instead the substance of the permissible re-arrangement of economic resources cognizable under our law.

I analyze such substance as follows:

One spouse may be required to transfer to the other spouse, or for the benefit of the other spouse, total or partial ownership or beneficial use of:

(a) specifically enumerated real or personal property;

(b) a stated or a variable amount of money, either designated or undesignated as to its source, either at once or by specified installments or intervals;

(c) a stated or a variable amount of money to be paid at stated intervals for an indefinite period of time, or to be paid until the death or remarriage of the receiving spouse; or

(d) any combination of the above.

Additionally, one spouse may, in a proper case, acquire from the other spouse exclusive dominion over specific property upon a determination that such property, all along, has been that of the acquiring spouse.

Additionally, one spouse may acquire property or an entitlement to receive payments of money from the other spouse to be used by the acquiring spouse for the benefit of dependent children of the paying spouse.

* * *

It will be seen, of course, that:

(a) includes what we have come to label as "lump sum alimony," OCGA § 19-6-5(a), (Code Ann. § 30-209), "equitable division," Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980), and "implied trust." Harrell v. Harrell, 249 Ga. 170, 290 S.E.2d 906 (1982).

(b) includes what we call "lump sum alimony," which may be payable at once, or payable in periodic installments, or which may be a requirement that one spouse fulfill stated obligations to third parties for the benefit of the...