Domestic Relations - Barry B. Mcgough

• Publication year: 1994

Domestic Relationsby Barry B. McGough^*

Of the forty-six cases decided during the survey year, fifteen are digested in this Article. Two custody cases are of special importance, one dealing with application of federal law and the other with joint custody. The remaining cases address smaller points across a familiar judicial landscape. This Article also highlights amendments to the child support guidelines.

I. Divorce

A. Settlement Agreements

Van Dyck v. Van Dyck¹ again occupied the appellate stage. The Georgia Supreme Court held the trial court erred by admitting parol evidence to contradict the language of Item 3(b) of the parties' divorce decree.² The former husband filed a modification petition which alleged that Item 3(b) was ambiguous on classification of payments as alimony or child support.³ The husband argued the parties intended all payments to be child support, and he should be allowed to present parol evidence concerning the parties' intent. The husband further contended his payments should terminate because one child had reached the age of majority and the other child had elected to reside with him.⁴ Item 3(b) required the husband to make payments to the wife as "'alimony for her support and the support ... of the children'."⁵ The court held that parol evidence was inadmissible to prove the payments were all child support because the evidence would directly contradict the language of Item 3(b).⁶ The court concluded that the agreement was for the support of the wife and the children and that it was not subject to proration based upon contingent events concerning the children.⁷ The court stated that parties to a contract are presumed to act with knowledge of relevant laws and their effect on the subject matter of the contract.⁸ "Here, the agreement did not provide for automatic proration based upon the contingent events urged by the appellee, and may not now be construed to contain such provisions."⁹ The court further observed that "evaluating the agreement as a whole ... we conclude that the parties did not contemplate proration upon the happening of the contingent events urged by the appellee."¹⁰ The opinion is further proof that the appellate courts are committed to application of the rules of construction to divorce agreements.

In Eickhoff v. Eickhoff,¹¹ the parties entered into a settlement agreement requiring the husband to pay retirement benefits to the wife within one week after he received them.¹² The settlement agreement was not incorporated into the divorce decree. The husband ceased paying one-half of his gross pension and social security benefits to the wife, and she brought an action to enforce the settlement agreement. The husband answered and asserted the settlement agreement was void. After the parties filed cross motions for summary judgment, the trial court held the settlement agreement imposed a valid contractual obligation upon Mr. Eickhoff to pay Mrs. Eickhoff one-half of the gross amount of his pension and social security benefits.¹³ The supreme court affirmed but held that Mrs. Eickhoff was entitled to summary judgment only under a breach of contract theory.¹⁴

B. Alimony

In Guntin v. Guntin,¹⁵ the supreme court reversed the trial court and held that a husband's alimony obligation, which was based upon his salary, did not cease at his retirement.¹⁶ The court further held that retirement benefits are "salary" within the meaning of his alimony obligation.¹⁷ The court stated "though the retirement benefits are paid to him after termination of employment, such benefits are part of the consideration supporting the employment contract and are deferred compensation for services rendered during the term of his employment."¹⁸ Salary, however, did not include interest on savings, social security benefits, and dividends from investments.¹⁹

C. Enforcement

In Baer v. Baer,²⁰ the husband counterclaimed for setoff in response to the wife's application for contempt based on alimony and child support arrearages.²¹ The supreme court initially restated the rule that a counterclaim cannot be filed in response to an application for contempt.²² The supreme court then held that a setoff of the husband's expenses that was not addressed in the divorce decree was not allowable against alimony and child support because of the "unique nature of the support obligation" in Georgia.²³ The court found no equitable exceptions present that justified setoff.²⁴

D. Modification

In Honey v. Honey,²⁵ the supreme court held that a divorce decree entered before July 1, 1992 could not be modified under the provisions of the Official Code of Georgia Annotated ("O.C.G.A.") sections 19-6-15(e) and (f).²⁶ The supreme court considered whether a decree which provided that child support continue until the child turned eighteen could be modified to require the parent to support the child until age twenty.²⁷ Since the divorce decree in question was entered in 1987, O.C.G.A. sections 19-6-15(e) and (f) as revised did not apply.²⁸

The divorce decree in Bunnell v. Rogers²⁹ provided that the husband's child support obligation would increase yearly in direct proportion to the increase in his gross wages from all employment sources during the preceding twelve month period.³⁰ The trial court found the automatic increase provision too vague and refused to enforce it.³¹ The supreme court disagreed and remanded the case to the trial court for the former wife to "establish by evidence the amounts of income to which the increase provision applies, whereupon she shall be entitled to judgment for the arrearages established by calculations pursuant to the increase provisions ...."³²

In Thomas v. Whaley,³³ the Georgia Court of Appeals held that the statutory rule prohibiting the filing of petitions to modify child support more frequently than once every two years applies only to actions filed in Georgia.³⁴

The former wife in Keeler v. Keeler³⁵ sought to modify the child support award in a divorce decree.³⁶ The jury increased child support from zero to $575 per month. The jury awarded less than the husband offered in settlement negotiations.³⁷ The trial court awarded attorney fees to the ex-husband based on the argument that he was the prevailing party pursuant to O.C.G.A. section 19-6-19(d).³⁸ Mr. Keeler contended that since the jury award for child support was an amount less than the amount he had offered in settlement negotiations, that he was actually the prevailing party. The supreme court held that the trier of fact determines who is the prevailing party.³⁹ In this case, the former wife prevailed because the jury increased child support, and the award of attorney fees to the former husband was erroneous.⁴⁰

E. Equitable Division

The equitable division portion of the jury award in Wagan v. Wagan⁴¹ consisted of a $25,000 sum ostensibly held in escrow by Mr. Wagan's attorney.⁴² The trial court directed Mr. Wagan '"to cause his attorney

... to pay to [Mrs. Wagan] the sum of $25,000 held in escrow____"'⁴³

Mr. Wagan subsequently retained another attorney who demanded that the original attorney deliver the $25,000 to Mrs. Wagan. However, Mr. Wagan's original attorney apparently had converted the $25,000 before committing suicide. Mrs. Wagan moved to hold Mr. Wagan in contempt and asked for clarification of the final divorce decree. The trial court ordered Mr. Wagan to pay $25,000 to Mrs. Wagan within ten days of the date of the court's order.⁴⁴ Mr. Wagan appealed and the supreme court held that the $25,000 was not alimony, but was a particular $25,000 fund.⁴⁵ Since the fund no longer existed, there was nothing to turn over to Mrs. Wagan.⁴⁶ The court's rationale was that "[a]ppellee's failure to [receive] the $25,000 was not the result of appellant's willful disobedience, but of the fiduciary's apparent misappropriation of the fund."⁴⁷ The court further stated that the jury's award was an in rem judgment, which the trial...