Walker v. Walker

• Decision Date: 21 April 1981
• Docket Number: No. 37030,37030
• Citation: 277 S.E.2d 45,247 Ga. 502
• Court: Georgia Supreme Court
• Parties: WALKER v. WALKER.

Page 45

277 S.E.2d 45

247 Ga. 502

WALKER v. WALKER.

No. 37030.

Supreme Court of Georgia.

April 21, 1981.

Jack P. Turner, John P. Wilson, III, Atlanta, for Lois Ann Walker.

Phillip B. Cordes, MacKay & Elliott, Decatur, for Everett Eugene Walker.

SMITH, Justice.

Appellant is appellee's former wife. They were divorced in 1976. In accordance with a jury verdict, the divorce decree required appellee to establish a trust fund to provide for the college education of his two minor children. The trust was to be established during the children's minority. Appellee did not appeal the divorce decree. The trust fund apparently has not been properly established, and, in 1980, appellee ceased paying for his younger son's college education. Appellant brought this contempt action to enforce the provisions of the trust decree. Appellee answered, asserting that the trust provisions of the decree are void and unenforceable since the contemplated uses of the trust extend beyond minority. See Coleman v. Coleman, 240 Ga. 417, 423, 240 S.E.2d 870 (1977). The trial court agreed and dismissed the contempt action. We reverse.

The trust provisions of the divorce decree are virtually identical to those approved by this court in Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973). In 1977, a year after the entry of the divorce decree, Fitts was overruled insofar as it authorized an educational trust where its contemplated uses "clearly extend beyond the age of 18 ..." Coleman, supra, 240 Ga. at 423, 240 S.E.2d 870. Such a trust, this court held, "is an attempt to circumvent the statutory limitations on the duty of support and is void and unenforceable." Id. at 423, 240 S.E.2d 870.

Appellee contends that the educational trust provisions of the divorce decree are void and unenforceable on two grounds: 1) that Jenkins v. Jenkins, 233 Ga. 902, 214 S.E.2d 368 (1975), decided one year prior to the entry of the divorce decree, impliedly overruled Fitts and 2) that, even assuming Coleman is not merely a restatement of the Jenkins holding, it applies retroactively. If either contention is correct, appellee argues, the trust provisions of the divorce decree are void and subject to attack under Code Ann. § 110-709.

However, contrary to appellee's assertions, Jenkins did not impliedly overrule Fitts. In Jenkins, the court was concerned with periodic payments for education beyond minority. Jenkins did not purport to reach the question of whether the jury may require the establishment of an educational trust during minority when the purpose of that trust is to provide for education beyond minority. While the logic of Jenkins was relied upon in Coleman, Coleman was clearly an extension of Jenkins. At the time of the rendition of the divorce decree, Fitts was controlling.

Furthermore, we cannot agree with appellee's contention that Coleman should be retroactively applied. In support of his position, appellee cites Mutual Life Ins. Co. of New York v. Barron, 70 Ga.App. 454, 463-464, 28 S.E.2d 334 (1943), which states: "The general rule as to the effect of reversal, or the overruling of earlier decisions, is as follows: 'The overruling of a decision generally is retrospective and makes the law at the time of the overruled decisions as it is declared to be in the last decision. The overruled decision as a precedent is thereby destroyed, but it remains the law of the particular case in which it was rendered.' 21 C.J.S., (Courts) 326, § 194. But there is an exception to the general rule, to wit: 'An overruling decision can not operate retrospectively so as to impair the obligations of contracts entered into, or injuriously affect vested rights acquired in reliance on the overruled decision.' 21 C.J.S. (Courts) 328, § 194." However, subsequent decisions of this court make it clear that questions of...