Stokes v. Stokes

• Decision Date: 03 December 1980
• Docket Number: No. 36233,36233
• Citation: 246 Ga. 765,273 S.E.2d 169
• Parties: STOKES v. STOKES.
• Court: Georgia Supreme Court

Page 169

273 S.E.2d 169

246 Ga. 765

STOKES v. STOKES.

No. 36233.

Supreme Court of Georgia.

Argued May 16, 1980.

Decided Dec. 3, 1980.

G. Hughel Harrison, Lawrenceville, for appellant.

Joseph Cheeley, Buford, for appellee.

PER CURIAM.

The facts of this alimony and property division case are relatively unexceptional. On October 24, 1978, the husband filed suit for divorce from his wife of more than twenty years on grounds that the marriage was irretrievably broken. He alleged that "the parties have accumulated" a house and lot at 450 Pinetree Drive, Lawrenceville, Georgia (valued around $75,000, less $13,000 owed on the property), as well as personal property (four automobiles, savings account, stock, and household goods and furnishings) and prayed that he be granted a divorce plus "such other and further relief as may be equitable and just."

In her answer, the wife admitted the husband's allegations concerning the house and personal property and stated further that the house and lot located at 450 Pinetree Drive, Lawrenceville, Georgia, "is in the name of this defendant..." She also scheduled as their property a bookkeeping service in the name of and operated by her husband. She prayed that the prayers of the plaintiff be denied and requested she be awarded a divorce, alimony, attorney fees and "such other and further relief as the court deems meet and proper."

The husband filed a motion for judgment of divorce on the pleadings and on December 15, 1978, a final judgment and decree of divorce was granted the husband with "all other issues in this case, including without limitation, the issues concerning alimony be, and the same hereby are reserved for future determination..."

On February 2, 1979, a month and a half after the divorce was granted, the husband amended his complaint to allege that the house was held in trust by the wife for the use and benefit of both parties. He further alleged that "the purchase money for the house and all property and all mortgage payments were furnished by the joint efforts of the parties" and prayed that the property be equally divided between the parties. The evidence at trial showed that the wife's father had deeded the property to the husband, that a house was built, and that the husband later deeded the property to his wife.

The trial court charged the jury on alimony and equitable division of property (this charge is set out in division 3 of the opinion). The wife objected to the charge on equitable division of property and contended that the issue was not properly in the case. The trial court found the question properly submitted to the jury and overruled the objection. After deliberation, the jury denied alimony to the wife but awarded a three-fourths interest in the real property to the wife and a one-fourth interest to the husband. We granted the wife's application to appeal. See Bedford v. Bedford, 246 Ga. 780, 273 S.E.2d 167 (1980).

The wife appeals on three grounds, one of which necessitates consideration of the law of property division incident to divorce.

1. The wife contends that the trial court erred in allowing the plaintiff to amend his complaint to allege a trust after the trial court had granted a divorce. The wife argues that the husband's claim to the house was not cognizable under the trial court's order reserving the issue of alimony.

Regardless of the prayers of the petition and answer as to "other and further relief", or the divorce decree reserving the issue of alimony, the wife sought alimony which was not granted by the judgment of divorce on the pleadings. Thus the issue of alimony was still pending. Smith v. Smith, 239 Ga. 38, 235 S.E.2d 526 (1977). So long as the alimony case was pending (no pretrial order under Code Ann. § 81A-116 having been entered), a "party may amend his pleadings as a matter of course" (Code Ann. § 81A-115) to raise any claim, not already adjudicated, as he or she has against the opposing party (Code Ann. § 81A-118). In Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979), after the decree of divorce was entered, the case was still pending and the wife was allowed to amend to assert a claim of resulting trust to real property. That decision is equally applicable to a husband's right to amend.

2. The wife contends that the trial court erred in failing to take corrective action after ascertaining upon a poll of the jury when the verdict was announced that during the trial three jurors had viewed the Lawrenceville property without authorization from the trial judge. After interrogation, the judge concluded that no harmful error had occurred and announced he would accept the verdict. There was no motion for mistrial and no exception to acceptance of the verdict. The error, if not harmless, was waived.

3. The wife also contends that the trial court erred in charging the jury as to division of property.

The trial court charged the jury as follows:

"Now, the plaintiff by way of an amendment alleged that the house and lot at 450 Pinetree Drive, Lawrenceville, Georgia, was acquired by the parties in this case and placed in the name of Joyce Jones, defendant Joyce Jones Stokes. The plaintiff contends that the purchase money for the house and the property and all mortgage payments were furnished by the joint efforts of the parties. And he contends that this property should be equally divided between the parties in this case.

"Now, Ladies and Gentlemen, that is very simply the only two issues that are before you and that you are concerned with. The first issue is whether or not the defendant, Joyce Jones Stokes, is entitled to alimony from the plaintiff, Guy Edgar Stokes. (The jury denied alimony to the wife.) * * *

"Now, the second question is whether or not you think that there should be a division of the property involved between these parties. Mr. Stokes seeks a division of the property known as 450 Pinetree Drive in Lawrenceville, Georgia, which is the home of the parties. So I have provided a further portion of your verdict, 'We further find that the plaintiff, that would be Guy Edgar Stokes, " is" or "is not" entitled to division of the house and lot located at 450 Pinetree Drive, Lawrenceville, Georgia'. There again you would select the phrase which you think applicable whether he 'is' or whether he 'is not'. If you find that a division of the property is proper then you would complete the following, 'We divide said property as follows'." ¹ The jury awarded the husband a one-fourth interest in the house.

We do not deal here with the authority of a jury to award one spouse property from the corpus of the estate of the other spouse as alimony (Code Ann. § 30-209), under the rules for determining alimony (Code Ann. §§ 30-201, 30-209). Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976); Pickle v. Pickle, 238 Ga. 66(2), 231 S.E.2d 61 (1976). Alimony was not sought here by the husband. We do not deal here with the authority of a jury to partition real property titled jointly in the wife and husband. Hargrett v. Hargrett, 242 Ga. 725, 728, 251 S.E.2d 235 (1978); Acker v. Acker, 240 Ga. 592, 242 S.E.2d 107 (1978); Hollandsworth v. Hollandsworth, 242 Ga. 790, 251 S.E.2d 532 (1979); Gorman v. Gorman, 239 Ga. 312(1), 236 S.E.2d 652 (1977). This is not a resulting trust case nor an inceptive fraud case. Hargrett v. Hargrett, supra. ²

We deal here solely with the authority of the trier hearing an alimony case to award to one spouse real property titled in the name of the other spouse where the basis of such award is neither alimony, partitioning, trust nor fraud, but is "equitable division of property."

At common law, marriage merged the property rights of the parties and placed control of all property in the husband. 41 Am.Jur. 53, Husband and Wife, § 44. At least as early as 1866 (Ga.L.1866, pp. 146, 147; see Code of 1933 § 53-502), the common law rule was modified in Georgia to provide that "All the property of the wife at the time of her marriage, whether real, personal or choses in action, shall be and remain the separate property of the wife, and that all property given to, inherited or acquired by the wife during coverture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband." As a result of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), Code § 53-502 was amended to read: "The separate property of each spouse shall remain the separate property of that spouse except as provided in Code Title 30 and except as otherwise provided by law." (Ga.L.1979, pp. 466, 489.) Although § 53-502 of the Code of 1933 was amended in 1979, the constitutional provision underlying it, Code Ann. § 2-124, was not. In any event, Code § 53-502 as amended, now refers us to Code Title 30, Divorce and Alimony.

Code § 30-105 provides that in actions for divorce, "(6) where alimony or support or division of property is involved (the petition shall show), the property and earnings of the parties if such is known." (Emphasis supplied.) Code § 30-118 provides that "The verdicts of juries disposing of the property in divorce cases shall be carried into effect by the courts, by entering up such judgment or decree, or taking such other steps usual in courts of equity, as will effectually and fully execute the same." (Emphasis supplied.)

The decisions of this court have approved the equitable division of personal property. In Bragg v. Bragg, 224 Ga. 294, 161 S.E.2d 313 (1968), the jury refused alimony to the wife but awarded her a Chevrolet station wagon (a Volkswagen was awarded the husband), gave the husband a house and two lots but gave the wife her equity in the house ($5000), and divided the household furnishings between them. The husband argued that the verdict was inconsistent because alimony had been denied the wife and he moved to strike and set aside the awards of personal property (station wagon, $5000, and household furnishings)....