Wilson v. Wilson

• Decision Date: 27 April 2004
• Docket Number: No. S04F0234.,S04F0234.
• Citation: 596 S.E.2d 392,277 Ga. 801
• Parties: WILSON v. WILSON.
• Court: Georgia Supreme Court

596 S.E.2d 392

277 Ga. 801

WILSON v. WILSON.

No. S04F0234.

Supreme Court of Georgia.

April 27, 2004.

Jan V. Vinson, Alice A. Blanco, Duluth, Robert L. Jones, Marietta, for appellant.

David A. Webster, Atlanta, for appellee.

CARLEY, Justice.

E.D. Wilson, Jr. (Husband) brought this divorce action against Brenda Copeland Wilson (Wife). After a bench trial, the trial court entered a final judgment and divorce decree, resolving several issues including equitable division of property and alimony. We granted a discretionary appeal from this final divorce decree pursuant to this Court's pilot project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).

1. When Wife's counsel requested leave to make her closing argument, the trial court refused, stating, "Y'all have about worn me out. I don't think I want to hear any closing arguments." Wife contends that this denial of the right to closing argument is reversible error.

"Courts around the country are split as to whether there is an absolute right to closing argument in civil cases. . . . [T]here are at least three general approaches." In re Emileigh F., 353 Md. 30, 724 A.2d 639, 643( III) (1999). See also Anno., 38 ALR2d 1396, §§ 4, 5. In some jurisdictions, the right is constitutional and absolute, while in others, the matter is entirely discretionary in civil, non-jury trials. In re Emileigh F., supra. Still other courts take an intermediate approach, holding that, as a matter of non-constitutional common law, the right to closing argument exists even in civil, non-jury trials, but may be precluded when no factual issues exist or when the parties waive the opportunity. In re Emileigh F., supra. Georgia takes this intermediate position, at least where, as here, the issue is raised with respect to the main trial, and not merely an interlocutory proceeding. Madison v. Montgomery, 206 Ga. 199(3), 56 S.E.2d 292 (1949) (bench trial); Early v. Oliver & Norton, 63 Ga. 11, 18(2) (1879). Compare Jolly v. Catoosa County Bd. of Educ., 171 Ga. 193(2), 154 S.E. 788 (1930). Under the intermediate approach, the right to closing argument may be limited with respect to time, as in OCGA § 9-10-180, and content so as to preclude improper argument, but trial courts may not totally deny the right. Fuhrman v. Fuhrman, 254 N.W.2d 97, 101(IV) (N.D.1977).

Ample opportunity for full argument is certainly an important right to the parties, and if denied on the main trial of a case, civil or criminal, the denial would furnish sufficient reason, generally, for a new trial. [Cits.].... Courts are as much bound to abstain from violating rights of practice as rights of principle. The method ordained by law to reach justice is through a trial; and no final trial is full and complete under our system, without the argument of the parties ..., if they choose to exercise the privilege of discussion. So useful is the aid of argument in elucidating the real merits of a controversy and distinguishing the right side from the wrong, that for the sake of its business utility, aside from its bearing on the mental satisfaction of the parties, there is every reason for vindicating the privilege, as a mere privilege, in all final trials.

Early v. Oliver & Norton, supra at 18-19(2) (Bleckley, J.).

Argument, as the United States Supreme Court said in Herring v. New York, [422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) ], may in some cases leave a judge just where it found him. "But just as surely, there will be cases where closing argument may correct a premature misjudgment and avoid an otherwise erroneous verdict. And there is no certain way for a trial judge to identify accurately which cases these will be, until the judge has heard the closing summation of counsel." [ Cit.] And, as the same court points out in a footnote, closing argument in a bench trial may be even more important than in a jury trial, since a judge reaches his decision without the "stimulation of opposing viewpoints inherent in the collegial decision-making process of a jury." [Cit.]

Fuhrman v. Fuhrman, supra at 102(IV).

The dissent completely misreads Early v. Oliver & Norton, supra. Justice Bleckley wrote eloquently regarding much more than the mental satisfaction of the parties. On pages 18-20 of the opinion, he carefully set forth the following three points: (1) Closing argument is an absolute right which, if the parties choose to exercise it, must be vindicated in all final bench trials. (2) Closing argument may or may not be subject to some discretion in interlocutory proceedings. (3) Because the result of an application for interlocutory injunction, unlike the result of a final trial, is largely a matter of discretion, reversal of the interlocutory order is not warranted if the appellant was not harmed. Jolly v. Catoosa County Bd. of Ed., supra, involves a petition for interlocutory injunction and, thus, is distinguishable from this case.

The dissent also misunderstands Madison v. Montgomery, supra at 205(3), 56 S.E.2d 292, involving a bench trial in a child custody case, where this Court, citing another opinion authored by Justice Bleckley, VanDyke v. Martin, 55 Ga. 466 (1875), reaffirmed his understanding of the right to closing argument. "The right to present argument is a valuable and substantial one, which all litigants have in the trial of cases, and one which should never be denied; but it is a right which may be waived expressly or by conduct." Madison v. Montgomery, supra at 199(3), 56 S.E.2d 292. This Court affirmed the judgment in that case only because counsel waived argument by his conduct when the trial judge offered "to correct an error, if one had in fact been committed...." Madison v. Montgomery, supra at 206(3), 56 S.E.2d 292. Although the trial court in Madison may have been unsure of the absolute right to closing argument, this Court did not express any such uncertainty, and its reliance on waiver was essential to affirmance. In the instant case, Wife's "failure to object does not constitute a waiver since counsel's request of the trial court for [closing argument] was refused. [Cits.]" Hendricks v. State, 277 Ga. 61, 63(3), 586 S.E.2d 317, fn. 3 (277 Ga. 61, 586 S.E.2d 317) (2003). Thus, Wife clearly did not waive her right to closing argument. Compare Madison v. Montgomery, supra at 205-206(3), 56 S.E.2d 292.

Furthermore, this case is not one in which closing argument was unnecessary due to an absence of any conflict in the evidence. See Ruskell, Davis and Shulman's Ga. Prac. and Proc. (2001 ed.), § 19-20. Compare Hooks v. Frick & Co., 75 Ga. 715(5) (1885). The trial court was presented with difficult, disputed issues of fact regarding alimony and property division. See Fuhrman v. Fuhrman, supra at 102(IV) (divorce case involving issues of child custody and support and property division); In re Emileigh F., supra at 645(III).

We conclude our analysis by turning once more to the wisdom of Justice Bleckley:

Argument is not only a right, but a material one. It is not a mere ornamental fringe, hung upon the border of a trial. Trial, under our system, is a co-operation of minds—a grave and serious consultation over what should be done and how the end should be accomplished. The attorneys in the cause are not mere carriers to bring in materials for constructing the edifice; they have a right, as representing the parties, to suggest where every important stone should be laid, and to assign reasons, drawn from legitimate sources, in support of their suggestions. Their reasons may be good or bad, but such as they are they should be heard and considered.

VanDyke v. Martin, supra at 469-470. Accordingly, the trial court committed reversible error in refusing to allow Wife's counsel to make a closing argument. We will now discuss and resolve the remaining issues, since they are likely to recur on retrial.

2. The trial court's judgment required Husband or his corporation to hire Wife at a salary of $1,500 per month and provided that her duties as an employee shall be up to her. The trial court also required Husband or his corporation to continue to provide Wife with the medical insurance coverage presently in effect. If Husband or his corporation should terminate Wife's employment, he would then pay her $1,500 per month as alimony and provide her with the same medical coverage now in effect. Wife urges that the trial court erred in disguising alimony as wages.

Such employment provisions are apparently unusual and are not mentioned in any reported case in Georgia. See Stewart v. Stewart, 866 S.W.2d 154, 157-158 (Mo.App. 1993) (pretermitting a similar issue). However, "the superior court judge presiding over a divorce case exercises all of the traditional powers of chancellor in equity, except as otherwise provided by law." Allen v. Allen, 260 Ga. 777, 778(3), 400 S.E.2d 15 (1991). An automatic future modification of alimony is valid when a fixed amount is awarded and the modification is contingent on a specified change in an income source or an obligation. Howard v. Howard, 262 Ga. 144, 145(2), 414 S.E.2d 203 (1992); Wood v. Wood, 257 Ga. 598, 599(1), 361 S.E.2d 819 (1987). We do not know of any reason why a specific change in Wife's employment status cannot constitute such a contingency. See Stein v. Stein, 49 Conn.App. 536, 714 A.2d 1272, 1273 (1998).

However, a court "may not compel a person to continue in any particular employment. [Cit.]" In re Marriage of Jadwin, 671 S.W.2d 9, 11 (Mo.App.1984). This principle applies here even though Wife determines her particular duties, since the law implies " `a duty of loyalty, faithful service and regard for an employer's interest.' [Cit.]" DeKalb Collision Center v. Foster, 254 Ga.App. 477, 481, 562 S.E.2d 740 (2002). Thus, virtually forcing her to accept and continue employment, whatever the form, would raise Thirteenth Amendment concerns. Stewart v. Stewart, supra at 159 (Gaertner, J., concurring in part and dissenting...