Searcy v. Searcy, S05A1816.
| Decision Date | 13 March 2006 |
| Docket Number | No. S05A1819.,No. S05A1816.,S05A1816.,S05A1819. |
| Citation | 280 Ga. 311,627 S.E.2d 572 |
| Parties | SEARCY v. SEARCY. Searcy et al. v. Searcy et al. |
| Court | Georgia Supreme Court |
John T. Holt, Alexander & Vann LLP, Thomasville, for Appellant.
V. Gail Lane, Altman & Lane, Thomasville, Joshua Clark Bell, Kirbo, Kendrick & Bell, LLC, Bainbridge, James L. Elliott, Elliott, Blackburn, Barnes & Gooding, Valdosta, for Appellee.
We granted two petitions for interlocutory review of an order issued in a divorce action addressing questions of venue, joinder, and the type of assets which may be awarded as alimony. In the divorce action Gloria Searcy (hereinafter, "Wife") filed against Floyd Searcy (hereinafter, "Husband"), Wife sought to join as defendants the estates of Husband's late parents. Her rationale for seeking joinder was her assertion that his one-third undivided interest in the undistributed estates constitutes a majority of Husband's assets. The trial court noted in its order the estates were not real parties in interest and sua sponte added the co-executors of the estates, Husband's two brothers (hereinafter "Co-executors"), as defendants. The trial court cited Baldree v. Baldree, 251 Ga. 481, 306 S.E.2d 654 (1983), for the proposition that evidence of a pending inheritance is properly considered for purposes of awarding alimony, then went farther to hold that a portion of Husband's undivided interest in the estates of his parents could be awarded to Wife as alimony. Toward that end, the trial court ruled that joinder of the Co-executors for the limited purpose of awarding alimony and affording Wife complete relief was proper under Gardner v. Gardner, 276 Ga. 189, 576 S.E.2d 857 (2003). Although the Co-executors are residents of counties other than that in which the divorce action pends, the trial court found venue proper pursuant to Natpar Corp. v. E.T. Kassinger, Inc., 258 Ga. 102, 365 S.E.2d 442 (1988). In the two appeals arising from the granted petitions for interlocutory appeal, Husband and the Co-executors enumerate as error the same three rulings concerning alimony, joinder, and venue.
1. As the trial court correctly noted and Husband concedes on appeal, evidence of a pending inheritance may be considered for purposes of awarding alimony. Baldree, supra, 251 Ga. at 482, 306 S.E.2d 654. The trial court in the present case, however, went beyond the holding in Baldree and held that a share of the inheritance itself could be awarded as alimony. In Meeks v. Kirkland, 228 Ga. 607(1), 187 S.E.2d 296 (1972), this Court reversed an award of alimony which gave the wife a one-half interest in land the husband stood to inherit from his then-living father. The award was reversed because while the husband's father was alive, the husband's interest in his father's property was a mere expectation and not a part of his estate out of which an allowance of alimony could be made. In the present case, however, Husband's parents are deceased and their wills award him one-third of the estate, a more definite interest than the expectation the husband in Meeks had. Moore v. Moore 255 Ga. 308(1), 336 S.E.2d 804 (1985). "The right of an heir or a legatee to an interest in an estate is a chose in action, and is assignable." Sanders v. Hepp, 190 Ga. 18, 20, 8 S.E.2d 87 (1940). As far back as 1880, this Court ruled in Halleman v. Halleman, 65 Ga. 476(3) (1880), that choses in action were such property as could be awarded as alimony. See also Spain v. Spain, 203 Ga. 411(1) 47 S.E.2d 279 (1948), approving a jury charge permitting the jury to award choses in action as alimony. That being so, we perceive no impediment to the award to Wife of some portion of Husband's property interest in his parents' estates. We find, therefore, no error in the trial court's ruling that a portion of Husband's undivided interest in the estates of his late parents may be awarded as alimony.
2. As noted above, the trial court's authority for joining the Co-executors was this Court's decision in Gardner v. Gardner, supra. We held there that joinder of two corporations wholly owned by the husband was proper because the "marital assets or individual assets of husband are entirely subsumed in the corporate stock. . . ." Id., at 190, 576 S.E.2d 857. By contrast, in the present case the trial court found specifically there was no evidence that any marital property was in either...
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