Sanders v. Colwell, 37467

• Decision Date: 27 October 1981
• Docket Number: No. 37467,37467
• Citation: 283 S.E.2d 461,248 Ga. 376
• Parties: SANDERS v. COLWELL.
• Court: Georgia Supreme Court

Page 461

283 S.E.2d 461

248 Ga. 376

SANDERS v. COLWELL.

No. 37467.

Supreme Court of Georgia.

Oct. 27, 1981.

L. Joel Collins, Smith, Smith & Collins, P.C., Phenix City, Ala., for Ruby S. Sanders, formerly Colwell.

James A. Elkins, Jr., Elkins & Flourney, Columbus, for Bobby Colwell.

HILL, Presiding Justice.

Bobby Colwell and Ruby Strickland Colwell, now Sanders, were married in 1955 and divorced in 1974. When the decree was entered, a settlement agreement between the parties was made the order of the court. Although it purported to settle all issues between them, no mention was made of their home. When the husband sold the house in 1980, the purchaser placed one-half of the husband's equity in escrow because of a lis pendens notice put on record by the wife in 1978. The husband brought this quiet title action to have the lis pendens declared a cloud on his title so that he could collect the $4,500 held in escrow. The wife counterclaimed seeking to establish her interest in the escrow fund, to set the divorce decree aside, and to recover damages for fraud and attorney fees. Her motion for partial summary judgment was denied.

At trial, the husband admitted that just prior to their divorce, he and his wife had met at his attorney's office, where she was unrepresented. He testified that she agreed to sign the settlement agreement they had prepared for her and not to contest the divorce or seek any rights in their home if he promised to pay her half of the equity upon its sale. Thereafter, she received by mail a copy of the agreement that did not mention the house but which had been made the temporary order of the court. The mailing included, however, a cover letter from the husband's attorney stating: "The purpose of this letter is to confirm our conversation in my office wherein you and your husband agreed that in the event that the house located at 5929 Bush Avenue, Columbus, Georgia, was sold and that in that event the equity would be split between you and your husband on a 50-50 basis. We are enclosing a copy of the temporary order and agreement which we have attempted to send you on several occasions which has been returned marked address unknown." On the basis of the agreement reflected in this letter, the lis pendens was filed which the husband seeks to remove by this quiet title action.

During the trial and while the wife was testifying, the court asked her: "As I understand it ... the reason you did not contest the divorce was because he agreed to ... [split the equity in the house upon its sale]?" When she answered "[t]hat's right," the court directed a verdict against her on the ground that contracts facilitating a divorce are void. Although the wife's counsel sought an opportunity for her to explain her testimony, the trial court was of the view that her admission could not be withdrawn. The wife appeals the verdict directed against her and the overruling of her motion for partial summary judgment. ¹

1. The wife argues that she did not agree to consent to the divorce in exchange for the agreement as to the equity in the home but that she agreed not to seek the home for herself as alimony.

In Warren v. Warren, 235 Ga. 234, 219 S.E.2d 161 (1975), in a 4-3 decision, the majority noted that there is a "fine line" of distinction between a contract incident to divorce and a contract to facilitate a divorce. Contracts to facilitate a divorce have been held to be void while contracts incident to divorce have been held to be valid. Warren v. Warren, supra; Wagner v. Wagner, 238 Ga. 404(3), 233 S.E.2d 379 (1977). If the agreement in this case was, as the trial court found, a contract to facilitate the divorce and hence invalid, then the wife's counterclaim to set the divorce aside should have been granted rather than letting the husband obtain the benefit of that agreement.

However, we decline to require that this "fine line" continue to be drawn and declare that agreements in contemplation of divorce settling issues of alimony, property division, child custody, child support and visitation are not invalid. In so holding, we overrule Warren v. Warren, supra, and its predecessors. The trial court, therefore, erred in directing a verdict in favor of the husband.

2. The second enumeration of error raises the question whether the wife was entitled to summary judgment on the husband's quiet title action because the husband failed to meet her motion and affidavit with an opposing affidavit. ²

Code Ann. § 81A-156(e) provides in part: "When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be...