Ford v. Ford

256 S.E.2d 446, 243 Ga. 763, 1979 Ga. LEXIS 1063

• Court: Supreme Court of Georgia
• Decided: May 30, 1979
• Docket: 34571
• Status: Published

Opinions

Jordan, Justice.

This appeal arises from a final judgment and decree of divorce between John Ford and his former wife, Jansen, on the ground that their marriage was irretrievably broken.

After a jury trial, Jansen Ford was awarded custody of the two children, alimony payments of $850 per month for 48 months reduced to $450 thereafter, $800 per month child support and $8,000 in attorney fees. John Ford appeals alleging thirteen errors of the trial court.

1. In his first enumeration of error, appellant contends that the trial court erred in directing a verdict that the residence of the parties, titled in the wife’s name, was a gift to the wife which she held in fee simple. In an amended answer to appellee’s complaint for divorce, appellant had prayed that equitable title to the parties’ residence be decreed in defendant and that a reasonable division of the equity in the residence be divided between the parties. Relying on the case of Scales v. Scales, 235 Ga. 509 (220 SE2d 267) (1975), the trial court held that the presumption of gift from Code § 108-116 stood unrebutted and sustained a motion for a directed verdict against a resulting trust being placed on the residence.

The opinion in Scales repeats the test that to rebut the presumption of gift under Code § 108-116 the grantor must show that a resulting trust was contemplated by both parties by way of an understanding or agreement. Scales, supra, and cits., p. 510; Adderholt v. Adderholt, 240 Ga. 626 (242 SE2d 11) (1978). The evidence in this case shows that appellee provided the majority of the furnishings for the house, a portion of the down-payment costs, and that she signed along with appellant a joint promissory note for the balance of the purchase price. She testified that nothing was ever "said or understood other than, it was my house and a gift to me.” (T. 191).

Appellant offered no evidence to rebut this testimony. He testified, as had the husband in Scales, that he had placed the house in his wife’s name in order to protect the property from prospective creditors, and that it was his intention to maintain a joint interest in the property. No evidence was introduced that appellant ever conveyed this intention to his wife by way of an understanding or agreement.

Appellant argues that the recent case of Talmadge v. Talmadge, 241 Ga. 609 (247 SE2d 61) (1978), makes the intention of the parties at the time of the transaction a jury question. In Talmadge, the husband in rebuttal of the statutory presumption of a gift offered evidence tq establish a course of conduct regarding business transactions occurring between him and his former wife from which a jury would be entitled to conclude that the intention of both parties at the time of the subject transaction was to establish a resulting trust for him, rather than a gift for her. In this case there was no evidence establishing any course of conduct between the parties in any prior business actions, and the trial court did not err in directing a verdict against appellant on the question of impressing a resulting trust on the property titled in appellee.

Relative to this point, appellant complains in his tenth enumeration of error that the trial court improperly excluded as hearsay evidence of appellant’s reasons for borrowing certain funds. This evidence was not relevant to any agreement or understanding which the parties had between themselves at the time the property was conveyed to the wife, and its exclusion was not error.

2. Appellant’s second enumeration of error contends the trial court erred in not declaring Code § 30-102 (13) unconstitutional. This issue was decided adversely to appellant in Dickson v. Dickson, 238 Ga. 672 (235 SE2d 479) (1977).

3. Appellant next argues that the trial court erred in not declaring the Georgia alimony and child support statutes, Code §§ 30-201, 30-206, 30-207, 30-220, 30-301, 74-105, unconstitutional on the ground that these statutes violated the due process and equal protection requirements of the Georgia and United States Constitutions. Appellant timely and properly raised these constitutional issues in the trial court. Compare Kosikowski v. Kosikowski, 243 Ga. 413 (254 SE2d 363) (1979).

Subsequent to the trial court’s ruling that these statutes were constitutional, the United States Supreme Court in the case of Orr v. Orr — U. S. — (99 SC 1102, 59 LE2d 306) (1979), ruled that a similár Alabama statutory scheme which imposed alimony obligations on husbands, but not wives, violated the Equal Protection Clause of the Fourteenth Amendment. Applying the Orr decision, we held Code Ann. §§ 30-201, 30-202, 30-202.1, and 30-203 unconstitutional in Stitt v. Stitt, 243 Ga. 301 (253 SE2d 764) (1979).

The statutes under which appellee was awarded alimony and child support are unconstitutional in light of the Orr decision, and appellant is entitled to a new trial on the issues of alimony and child support only.

Appellant’s remaining enumerations of error alleging the excessiveness of these awards are mooted by this holding. His contention that the award of attorney fees is excessive is without merit.

4. Appellant’s contentions that the evidence submitted at trial demands a finding that appellee forfeited any right to alimony because she abandoned her husband and was guilty of adultery are without merit. Any conflict in the evidence on these issues was resolved against appellant’s position by the jury, and there was ample evidence to support the verdict.

5. Also without merit is appellant’s sixth enumeration of error which alleges that the trial court’s award of custody of the parties’ two minor children to his former wife is contrary to the evidence.

"In deciding issues of custody, the court is granted the power to exercise its sound discretion in making an award to either party. Code Ann. § 30-127. Where the trial judge exercises a sound legal discretion looking to the best interests of the child, this court will not interfere with his judgment unless it is shown that his discretion was abused.” Sullivan v. Sullivan, 241 Ga. 7 (243 SE2d 35) (1978).

After presiding for four days over the trial of this case, the trial judge awarded custody of the minor children of the parties to the wife while granting generous visitation privileges to the husband. No evidence was presented which would support a finding that the mother was an unfit parent or that the best interests of the children would not be served by the mother having custody. The trial judge did not abuse his discretion on the issue of custody.

6. Appellant’s objection to the trial court’s charge was waived by his failure to timely object before verdict. Code § 70-207 (a).

7. Appellant fails to support his objection that the trial court erred in admitting irrelevant evidence with a specific reference to the alleged irrelevant testimony in the transcript. This enumeration is incomplete and shall not be considered. Rule 18 (c) (3); Morehead v. Morehead, 227 Ga. 428 (4) (181 SE2d 59) (1971).

Argued February 21, 1979 Decided May 30, 1979 Rehearing denied June 22, 1979. Margie Pitts Hames, for appellant. M. David Merritt, for appellee.

That portion of the trial court’s order setting alimony and child support is reversed, and the case is remanded solely for a redetermination of these issues.

Judgment affirmed in part; reversed in part.

All the Justices concur, except Undercofler, P. J., who concurs in the judgment only, and Nichols, C. J., and Hall, J., who dissent as to Division 1.