Russell v. Fulton Nat. Bank of Atlanta, 37023

• Decision Date: 10 April 1981
• Docket Number: No. 37023,37023
• Citation: 276 S.E.2d 641,247 Ga. 556
• Court: Georgia Supreme Court
• Parties: RUSSELL et al. v. FULTON NATIONAL BANK OF ATLANTA, Exr.

Page 641

276 S.E.2d 641

247 Ga. 556

RUSSELL et al. v. FULTON NATIONAL BANK OF ATLANTA, Exr.

No. 37023.

Supreme Court of Georgia.

April 10, 1981.

Eugene A. Medori, Jr., Read, Huddleston & Medori, Decatur, for Carol Starr Russell et al.

William R. Harp, Arnall, Golden & Gregory, Atlanta, for The Fulton National Bank of Atlanta, Exr.

SMITH, Justice.

In 1969, appellant Glynette Russell and the decedent were divorced. On February 10, 1969, appellant and the decedent entered into a consent order providing for the maintenance and support of their daughter, then seven years of age. The consent order provided that the decedent would pay $366 per month, plus medical and dental expenses, and maintain a $10,000 life insurance policy for the benefit of the child. All of these provisions would remain in effect until the child "arrives at age 21, marries, dies or becomes self-supporting." The order also provided that the decedent would pay for the child's college education at a state university. Finally, the wife (and child) released the decedent from all other support obligations and waived any rights to seek modification. The consent order did not include a provision specifically addressing the rights of the parties in case of the decedent's death. The decedent died on May 22, 1979.

On April 10, 1980, appellants, the former wife and child of the decedent, brought this action for specific performance of the consent order, alleging that the executor has failed to pay them in accordance with the consent order. See Brooks v. Jones, 227 Ga. 566, 570, 181 S.E.2d 861 (1971). The trial court, citing Schartle v. Trust Company Bank, 239 Ga. 248, 236 S.E.2d 602 (1977), dismissed the complaint. The court stated: "In arriving at this conclusion the Court has also considered the case of ... Ramsay v. Sims, 209 Ga. 228, 71 S.E.2d 639 which appears to hold a contrary position, however, the Court has resolved this conflict in favor of the ruling in the Schartle case, supra." We reverse.

In Clavin v. Clavin, 238 Ga. 421, 423, 233 S.E.2d 151 (1977), this court held: "The law does not require that a father provide for the support of his children after his death. See Code Ann. § 113-106 (Rev.1975). Public policy, of course, favors the support of minor children by the father's estate after his death. See, e. g., Code Ann. § 113-903 (Rev.1975) (Rules of Inheritance); Code Ann. § 113-210 (Rev.1975) (Mistake of Fact in Will); Code Ann. § 113-107 (Rev.1975) (Charitable Devises); Code Ann. § 51-705 (Rev.1974) (Homestead); Code Ann. § 113-1002 (Rev.1975) (Year's Support). However, the fact remains that, despite this strong public policy, a father is not required by law to create an estate for his minor children.

"The same is true with respect to a divorced father and a child support decree. The decree merely replaces the father's statutory duty of support. (Cit.) Absent some express, voluntary provision in the decree, the decree will not be enforced after the death of the father. (Cits.)" It is noteworthy that the authority cited by the court in support of its position regarding a "voluntary provision in the decree" includes the case of Ramsay v. Sims, supra. The Clavin decision implicitly reaffirmed our holding in Ramsay.

In Schartle v. Trust Company Bank, supra, we distinguished the language of the agreement in Ramsay from that contained in the separation agreement of Mr. and Mrs. Schartle. We noted that the separation agreement in that case was concerned solely with support for the wife "for her natural life or until she remarries," whereas "the court (in Ramsay) based its finding on the several provisions for child support which were to continue until the child reached 21 years." Schartle, supra 239 Ga. at 249, 236 S.E.2d 602.

The position that the language of the agreement in Ramsay was sufficient to create an obligation binding upon the father's estate was again reaffirmed in Davenport v. Davenport, 243 Ga. 613, 617, 255 S.E.2d 695 (1979), wherein the court, citing Ramsay, states: "In practice ... this court has forced the husband's estate to make periodic payments of alimony or child support only when the husband assumed this obligation for his estate through agreement." See also Hutchings v. Bates, 406 S.W.2d 419 (Tex.1966); Simpson v. Simpson, 108 So.2d 632 (Fla.App.1959); 24 Am.Jur.2d Divorce and Separation, § 856.

In view of the above authorities, we must reject appellee's contention that "the Ramsay case is no longer the law in Georgia as it relates to the intention of parties to a separation agreement." Clavin v. Clavin, supra, and Laughridge v. Laughridge, 219 Ga. 415, 133 S.E.2d 884 (1963), cited by appellee, are not dispositive of the case at bar as they were appeals from an adverse divorce decree, and did not involve a consent order. The latter is a voluntary undertaking; the former is not. See Wimbush v. Fayette Finance Co., 156 Ga.App. 500, 275 S.E.2d 99 (1980); Collins v. Collins, 148 Ga.App. 103, 105, 250 S.E.2d 870 (1978). Appellants do not challenge our holding in Clavin, supra 238 Ga. at 424, 233 S.E.2d 151, that "absent a voluntary obligation of the father," his duty of support ceases upon his death. Appellants merely contend that the consent order in this case evinces an intention on the part of the father to assume specific support obligations until his minor child "arrives at age 21, marries, dies or becomes self-supporting," notwithstanding his death.

The pertinent language in the consent order is essentially the same as that employed in the Ramsay agreement. Under the consent order, ...