(Laws 1806, Cobb's 1851 Digest, pp. 224, 225; Code 1863, § 1676; Code 1868, § 1719; Code 1873, § 1720; Code 1882, § 1720; Civil Code 1895, § 2435; Civil Code 1910, § 2954; Code 1933, § 30-209; Ga. L. 1966, p. 160, § 1; Ga. L. 1979, p. 466, § 14; Ga. L. 1981, p. 615, § 1; Ga. L. 1982, p. 3, § 19.)
Editor's notes.- Ga. L. 1979, p. 466 amended prior law so as to provide that alimony may be assessed against either spouse. Cases decided prior to the 1979 enactment appear to remain valid except insofar as they may imply that a wife only is entitled to receive alimony or a husband only is obligated to pay the same.
Law reviews.- For article surveying developments in Georgia domestic relations law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 109 (1981). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For annual survey of domestic relations law, see 58 Mercer L. Rev. 133 (2006). For article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For survey article on domestic relations law, see 59 Mercer L. Rev. 139 (2007). For survey article on domestic relations law, see 60 Mercer L. Rev. 121 (2008). For annual survey of law on domestic relations, see 62 Mercer L. Rev. 105 (2010). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014). For note, "The Significance of Stokes v. Stokes: An Examination of Property Rights Upon Divorce in Georgia," see 16 Ga. L. Rev. 695 (1982). For comment, "The Georgia Supreme Court's Creation of an Equitable Interest in Marital Property - Yours? Mine? Ours!," see 34 Mercer L. Rev. 449 (1982).
JUDICIAL DECISIONSANALYSIS
General Consideration
Constitutionality.
- Former Code 1933, § 30-209 (see now O.C.G.A. § 19-6-5), insofar as it undertook to affect the obligations of a valid contract in existence at the time of statute's passage so as to provide for the duration of alimony is null and void as violative of Ga. Const. 1945, Art. I, Sec. III, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. X) and U.S. Const., Art. I, Sec. X, Cl. I. Candler v. Wilkerson, 223 Ga. 520, 156 S.E.2d 358 (1967).
Statute was strictly construed, and the effect should not be extended beyond its terms. Landis v. Sanner, 146 Ga. 606, 91 S.E. 688 (1917).
Statute did not declare that alimony must or shall be granted in any case, although it has been held that when the wife has no separate estate or means of support and the husband is able to support her, a verdict granting a divorce but denying alimony is contrary to law as to the latter feature. Simmons v. Simmons, 194 Ga. 649, 22 S.E.2d 399 (1942); Brown v. Brown, 230 Ga. 566, 198 S.E.2d 182 (1973).
Statute was a restraint upon alienation of property, and the statute's effect on title, when the husband has conveyed pending a suit for divorce and alimony, should be strictly construed. Perry v. First Mut. Bldg. & Loan Ass'n, 174 Ga. 914, 164 S.E. 804 (1932).
Statute was applicable to wife's remarriage to anyone, thus the wife may retain the property previously awarded her as permanent alimony regardless of her remarriage to her former husband or to anyone else. Travis v. Travis, 227 Ga. 406, 181 S.E.2d 61 (1971).
"Alimony" in its strict or technical sense contemplates money payments at regular intervals. Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976).
Alimony may be awarded either from husband's earnings or from corpus of his estate as by granting to the wife the title or use of property in the possession of the husband. Jones v. Jones, 220 Ga. 753, 141 S.E.2d 457 (1965).
No duty to determine amount when alimony not awarded.
- In an action dissolving the marriage between the parties, having concluded that alimony would not be awarded, the trial court's consideration of the factors relevant to determining the amount thereof was obviated. Stanley v. Stanley, 281 Ga. 672, 642 S.E.2d 94 (2007).
Award to wife reversed when alimony not sought and wife could support herself.
- Award of alimony to a wife was reversed because she never asserted a claim for alimony in her pleadings, but sought an annulment, the husband had no notice that alimony would be an issue, and he objected to litigating the issue when the issue was raised; O.C.G.A. § 9-11-15(b) did not apply because the husband did not consent to litigating the issue, but clearly objected when the issue was raised. Sedehi v. Chamberlin, 344 Ga. App. 512, 811 S.E.2d 24 (2018), cert. denied, No. S18C0868, 2018 Ga. LEXIS 484 (Ga. 2018).
No requirement that findings be included in decree.
- Alimony award was not improper because, inter alia, with respect to alimony, there was no statutory requirement that findings be included in the decree. Sprouse v. Sprouse, 285 Ga. 468, 678 S.E.2d 328 (2009).
It was not valid objection to award of alimony that husband had no "estate" out of which it can be paid because the award may be "from the corpus of the estate or otherwise." Poppell v. O'Quinn, 131 Ga. App. 223, 205 S.E.2d 509 (1974).
Husband's enhanced and wife's suppressed income potential during marriage properly considered.
- In determining the amount of child support and alimony a husband was required to pay, the trial court correctly considered the parties' income and other assets, as well as the fact that during the marriage, the husband enhanced his ability for increase in income potential and suppressed the wife's ability for increased income potential. McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (2007).
It was not a valid objection that alimony award payment is to be made at future time; because otherwise there would be no continuing liability for future sums. Poppell v. O'Quinn, 131 Ga. App. 223, 205 S.E.2d 509 (1974).
Purpose of alimony is to provide support for wife (now either party) and minor children, the amount to be determined from consideration of needs and ability to pay. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).
Alimony is never for the purpose of penalizing husband or wife for his or her misconduct. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).
Alimony should never be excessive; and, with proper regard for the husband's ability, it should never be inadequate or insufficient for his wife's support in keeping with the family standard of living established by the husband. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).
No error when some evidence supported decision.
- When some evidence supported the trial court's decision, the trial court did not err in the court's determination of the amount of spousal support to be paid by a husband, including the wife's attorney fees. Bloomfield v. Bloomfield, 282 Ga. 108, 646 S.E.2d 207 (2007).
Consent judgments for alimony have been uniformly recognized in this state, and have been given the same force and effect as judgments rendered in due course of litigation upon findings by a jury. Estes v. Estes, 192 Ga. 94, 14 S.E.2d 681 (1941).
Parties cannot change or alter decree of permanent alimony. Martin v. Martin, 209 Ga. 850, 76 S.E.2d 390 (1953).
Dischargeability in bankruptcy.- Bankruptcy Court erred in ruling that the jury award of $250,000.00 lump sum alimony was in the nature of alimony, maintenance, or support and thus was nondischargeable pursuant to 11 U.S.C. § 523. Ackley v. Ackley, 187 Bankr. 24 (N.D. Ga. 1995).
Agreement to pay insurance premiums.
- Portion of a settlement agreement creating an obligation to pay insurance premiums constitutes periodic alimony rather than equitable property division, which, absent a manifest intention of the parties to the contrary, the obligation to pay periodic alimony terminates on the death of the paying spouse or of the surviving spouse. Gray v. Higgins, 205 Ga. App. 52, 421 S.E.2d 341 (1992).
Court may order that spouse receive insurance policy when order in accord with verdict.
- When the decision that the plaintiff-wife receive the policy of life insurance is in full accord with the undisputed evidence and the verdict of the jury in a divorce case, the trial court did not err in inserting provisions requiring the husband to carry out the purpose and intent of that verdict. Ritchea v. Ritchea, 244 Ga. 476, 260 S.E.2d 871 (1979).
Obligation to maintain life insurance terminated.
- Because the cost to the husband and the value to the wife of the requirement that he maintain $100,000 in life insurance for her benefit for 12 years were indefinite when the decree was entered, as the amount of that award depended on how long the husband would live, the award was periodic alimony as a matter of law; and, as permanent periodic alimony, the husband's life insurance obligation terminated upon the wife's remarriage because the divorce decree did not expressly provide otherwise. White v. Howard, 295 Ga. 210, 758 S.E.2d 824 (2014).
Military retirement pay.
- Trial court's order that a husband designate a wife as the beneficiary of the survivor benefit plan under the husband's military pension was proper, as essentially a life insurance protecting the husband's alimony obligation to the wife, even though the husband's pension was the husband's separate pre-marital property. Hipps v. Hipps, 278 Ga. 49, 597 S.E.2d 359 (2004).
Alimony obligation ambiguous.
- If the alimony obligation is ambiguous, it is the function of the trial court to resolve that ambiguity and determine the intent of the parties following the ordinary rules of construction. Fisher v. Fredrickson, 262 Ga. 229, 416 S.E.2d 512 (1992), overruled on other grounds, Andrews v. Whitaker, 265 Ga. 76, 433 S.E.2d 735 (1995).
Order to pay hospital costs as part of alimony too vague.
- In action for permanent alimony, portion of verdict that defendant "shall pay the total cost of the operation and hospitalization of plaintiff" was too vague and indefinite to authorize a decree as to these items, the pleadings being equally as indefinite in reference to operation and hospitalization, and the court erred in overruling the motion to arrest the judgment, so far as the judgment applied to these subjects. Martin v. Martin, 183 Ga. 787, 189 S.E. 843 (1937).
Jury may grant sum certain as alimony.
- Rendering of a money judgment for a sum certain as alimony is within the power of the jury. Roberson v. Roberson, 199 Ga. 627, 34 S.E.2d 836 (1945).
Lump sum installment award.- Discrete lump sum installment award by a jury can reasonably be interpreted as a recognition of pre-existing property rights based on equitable considerations, the satisfaction of a marital support obligation, which may include rehabilitation, or both. Nix v. Nix, 185 Bankr. 929 (Bankr. N.D. Ga. 1994).
Estate not liable for continued alimony to wife.
- Since a provision in the parties' separation agreement entitling the wife to alimony until she remarried or died did not evidence a manifest intention to reverse the normal rule that the death of the obligor terminated the obligation to pay alimony, and the settlement agreement lacked a clear expression of intent to extend alimony payments beyond the death of the ex-husband, the trial court properly denied the wife's motion to hold the estate responsible for the alimony obligation. Findley v. Findley, 280 Ga. 454, 629 S.E.2d 222 (2006).
Jury instructions.
- When, in a divorce suit resulting in the divorce of both parties, the wife prays for permanent alimony and the jury awards her none, a ground of her motion for new trial which complains that the court nowhere in the court's charge instructed the jury as to what is permanent alimony, or under what circumstances the jury would in the jury's discretion be authorized to grant the alimony, is meritorious and affords cause for the grant of a new trial, since the evidence is such as to justify the jury in granting permanent alimony. Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940).
Motion to set aside judgment sustained when alimony award grossly inadequate.
- When verdict for permanent alimony was grossly inadequate and insufficient the motion to vacate it and set the judgment aside for that reason should have been sustained. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).
Unacceptable stipulation as to alimony.
- Trial court's failure to inform the parties during the trial that their stipulation as to alimony was unacceptable, or to afford the parties an opportunity in a later hearing to address the issue with evidence, was reversible error. Hodges v. Hodges, 261 Ga. 843, 413 S.E.2d 191 (1992).
Following obligations in a divorce agreement were deemed dischargeable in bankruptcy proceedings: (1) the obligation to pay additional "alimony" of $432.69 per month for 12 years, regardless of remarriage or death, to cover the monthly first mortgage payments on the former marital home; (2) the assumption of a second mortgage on the home; (3) the assumption of a bank note secured by the ex-spouse's car; and (4) payment of the ex-spouse's law school expenses. Bedingfield v. Bedingfield, 42 Bankr. 641 (S.D. Ga. 1983).
Evidence of unvested retirement funds was relevant and admissible on the issue of alimony. Courtney v. Courtney, 256 Ga. 97, 344 S.E.2d 421 (1986).
Discovery of information regarding trust.
- When the husband was a beneficiary and cotrustee of a trust, the sole asset of which was stock in a company owned by members of his family, the wife was entitled to production at a deposition of certain evidence, including testimony and documents regarding the formation of the trust, the value and financial records of the company, and the compensation and benefits that the husband received from the company, although the company was entitled to an order which would provide reasonable protection for the company's legitimate proprietary concerns regarding the company's financial information. McGinn v. McGinn, 273 Ga. 292, 540 S.E.2d 604 (2001).
Trust to fund future payments authorized.
- Discretion accorded trial courts under the child support guidelines included authorizing the use of a trust to secure unaccrued child support obligations. Henry v. Beacham, 301 Ga. App. 160, 686 S.E.2d 892 (2009), cert. denied, No. S10C0537, 2010 Ga. LEXIS 350 (Ga. 2010).
Child support order properly created a trust to secure unaccrued child support obligations because it was in the child's best interests since the father had numerous other child support obligations, he had been in arrears of a temporary support order, and he spent large amounts of money while having large debts. Henry v. Beacham, 301 Ga. App. 160, 686 S.E.2d 892 (2009), cert. denied, No. S10C0537, 2010 Ga. LEXIS 350 (Ga. 2010).
Cited in Meadows v. Meadows, 161 Ga. 90, 129 S.E. 659 (1925); Smith v. Smith, 167 Ga. 98, 145 S.E. 63 (1928); Chero-Cola Co. v. May, 169 Ga. 273, 149 S.E. 895 (1929); Lowry v. Lowry, 170 Ga. 349, 153 S.E. 11 (1930); Grimmett v. Barnwell, 184 Ga. 461, 192 S.E. 191 (1937); Alford v. Alford, 189 Ga. 630, 7 S.E.2d 278 (1940); Norvell v. Norvell, 192 Ga. 1, 14 S.E.2d 440 (1941); Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954); Tolbert v. Tolbert, 221 Ga. 159, 143 S.E.2d 743 (1965); DuPree v. DuPree, 224 Ga. 52, 159 S.E.2d 708 (1968); Standridge v. Standridge, 224 Ga. 102, 160 S.E.2d 377 (1968); Bryant v. Bryant, 224 Ga. 360, 162 S.E.2d 391 (1968); Crawford v. Schelver, 226 Ga. 105, 172 S.E.2d 686 (1970); Butterworth v. Butterworth, 227 Ga. 301, 180 S.E.2d 549 (1971); Rowe v. Rowe, 228 Ga. 302, 185 S.E.2d 69 (1971); Sessler v. Sessler, 230 Ga. 527, 198 S.E.2d 178 (1973); Weaver v. Dutton, 232 Ga. 832, 209 S.E.2d 175 (1974); Morris v. Padgett, 233 Ga. 750, 213 S.E.2d 647 (1975); Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975); Anthony v. Anthony, 237 Ga. 753, 229 S.E.2d 609 (1976); Anderson v. Anderson, 237 Ga. 886, 230 S.E.2d 272 (1976); Bisno v. Bisno, 239 Ga. 388, 236 S.E.2d 755 (1977); Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977); Stock v. Commissioner, 551 F.2d 614 (5th Cir. 1977); In re Smith, 436 F. Supp. 469 (N.D. Ga. 1977); Taylor v. Taylor, 243 Ga. 506, 255 S.E.2d 32 (1979); Burns v. Rivers, 244 Ga. 631, 261 S.E.2d 581 (1979); Sims v. Sims, 245 Ga. 680, 266 S.E.2d 493 (1980); Stokes v. Stokes, 246 Ga. 765, 273 S.E.2d 169 (1980); Head v. Hook, 248 Ga. 818, 285 S.E.2d 718 (1982); Biggers v. Biggers, 250 Ga. 248, 297 S.E.2d 257 (1982).
Factors to be Considered
Question of alimony cannot be determined by mathematical formula as the facts and circumstances in each case are different. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).
In absence of any mathematical formula, jurors are given wide latitude in fixing the amount of alimony and child support, and to this end jurors are to use their experience as enlightened persons in judging the amount necessary for support under the evidence as disclosed by the record and all the facts and circumstances of the case. McNally v. McNally, 223 Ga. 246, 154 S.E.2d 209 (1967); Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).
Alimony should be adjusted to wife's necessities and consistent with husband's ability to pay. Hilburn v. Hilburn, 210 Ga. 497, 81 S.E.2d 1 (1954).
Necessities of the wife, when entitled to alimony, and the husband's ability to pay alimony, are the controlling factors to be considered and followed in making an allowance for alimony; thus, awards therefor which are substantially disproportionate to either should not be permitted to stand. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954); Childs v. Childs, 224 Ga. 531, 163 S.E.2d 693 (1968); Baldwin v. Baldwin, 226 Ga. 680, 177 S.E.2d 85 (1970); Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).
Controlling factors to be considered by the jury in making an award of permanent alimony and child support are the necessities of the wife and the husband's ability to pay. McCarthy v. McCarthy, 225 Ga. 326, 168 S.E.2d 164 (1969).
Two controlling factors in determining whether or not an alimony or child support award is excessive are the wife's and children's need for the award and the husband's ability to pay the award. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).
Ability to earn income is one factor which may be considered by the jury in awarding alimony to the wife, and it may award alimony on this basis although the husband may be temporarily impoverished. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).
Expert may testify regarding a husband's future earning capacity to the extent the wife contends that differs from his present income. Lowery v. Lowery, 262 Ga. 20, 413 S.E.2d 731 (1992).
Property as well as income of husband is considered in determining ability to pay alimony. Weiner v. Weiner, 219 Ga. 44, 131 S.E.2d 561 (1963).
Portion of proceeds from future sale of nonmarital property as alimony was not error.
- Award of alimony to the wife in the form of a portion of the proceeds of a future sale was proper as the award was clearly made for the wife's maintenance and support; the trial court determined that the wife's earning capacity was diminished due to an unspecified disability, pursuant to O.C.G.A. § 19-6-5, and it appeared that in practicality, the marital home was the only non-liquid asset from which an award of alimony could be made. Smelser v. Smelser, 280 Ga. 92, 623 S.E.2d 480 (2005).
Evidence of husband's debts is relevant in determining his financial status; evidence of a wife's debts is also relevant to a proper determination of alimony. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).
Reasonable allowance under all circumstances is proper even though husband has no property or employment. Mulcay v. Mulcay, 223 Ga. 309, 154 S.E.2d 607 (1967).
Jury is authorized to consider wife's separate estate. This has reference to the estate's size and amount at the time of the dissolution of the marriage. Howard v. Howard, 228 Ga. 760, 187 S.E.2d 868 (1972).
Separate estate and earning capacity of the wife should be considered by the jury in determining alimony. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).
Source of wife's estate is not relevant to any issue which the jury must decide. Howard v. Howard, 228 Ga. 760, 187 S.E.2d 868 (1972).
Jury may also take account of spouse's sacrifice of earning potential.
- If, to please the husband, the wife devotes her energy and time to the home and family, thereby sacrificing her public earning potential, the jury should be able to take these factors into consideration in awarding alimony to her. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).
Wife's manner of living, her material resources, and her income, if any, are factors jury may consider in determining what amount may be necessary for the support and maintenance of the wife. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).
Given that the financial statements of both parties and the transcript of the final hearing established that the trial court considered the length of the marriage, the wife's absence from the labor market while giving birth to and raising six children, and the disadvantages associated with the wife's late arrival into employment outside the home, the trial court did not abuse the court's discretion in awarding the wife 12 years of alimony. Rieffel v. Rieffel, 281 Ga. 891, 644 S.E.2d 140 (2007).
Jury may take into account wife's former position in community as the wife of the defendant husband, her manner of living, her material resources and her income, if any. Moon v. Moon, 237 Ga. 635, 229 S.E.2d 440 (1976).
Jury may consider social standing and luxuries of life which spouse had been enjoying and would have continued to enjoy had there been no separation. Bodrey v. Bodrey, 246 Ga. 122, 269 S.E.2d 14 (1980).
In determining amount of alimony, jury may also consider such factors as age and health of the parties involved. Worrell v. Worrell, 242 Ga. 44, 247 S.E.2d 847 (1978).
Age, health, mental resources, and other factors considered.
- On the husband's ability to pay, the jury may take into consideration his age, the condition of his health, his material resources, his present income, and any previous allowance voluntarily made by the husband for the support of the wife. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954).
In determining what amount may be necessary for the support and maintenance of the wife, the jury may take into consideration the wife's age, the condition of her health, her former position in the community as the wife of the defendant and her manner of living, her material resources, and her income, if any. Fried v. Fried, 211 Ga. 149, 84 S.E.2d 576 (1954).
Obligation by one spouse concerning child may be relevant in deciding alimony. Kosikowski v. Kosikowski, 240 Ga. 381, 240 S.E.2d 846 (1977).
Questions of innocence or guilt are irrelevant in fixing amount of alimony. Such matters are proper considerations in deciding whether to grant or deny alimony, but not in fixing alimony's amount. Hall v. Hall, 220 Ga. 677, 141 S.E.2d 400 (1965).
Jury is not authorized to consider the conduct or misconduct of either party in a suit for alimony as to the question of the amount of alimony. McCurry v. McCurry, 223 Ga. 334, 155 S.E.2d 378 (1967).
Lump sum alimony amount excessive when no evidence of spouse's present or future ability to pay.
- Judgment for alimony in a lump sum for the benefit of the wife, which, from all the evidence, the husband could not presently pay, and under all reasonable inferences authorized by the evidence could not be paid in the future from his anticipated income was without evidence to support it, excessive and contrary to law. Weatherford v. Weatherford, 204 Ga. 553, 50 S.E.2d 323 (1948).
Military retirement pay as subject to alimony.
- Subjecting the appellee's military pension to distribution as alimony did not conflict with the mandate of U.S. Supreme Court decision protecting military retirement benefits from distribution as community property in a divorce action since Georgia law protects the ex-spouse by awarding alimony based on need and does not grant absolute right to one-half of such pension. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).
Jury can hear evidence concerning all of the appellee's assets, including the appellee's military retirement pay, as relevant to an award of alimony, and the trial court erred when the court entered an order keeping evidence of such retirement pay from the jury. Stumpf v. Stumpf, 249 Ga. 759, 294 S.E.2d 488 (1982).
Contingent fee agreements are too remote, speculative, and uncertain to be considered marital assets in making an equitable division of property. Goldstein v. Goldstein, 262 Ga. 136, 414 S.E.2d 474 (1992).
Wife's caring for dependent child is relevant in estimating income available from her separate estate.
- Wife's manner of living, her material resources, and her income, if any, are factors the jury may take into consideration in determining what amount may be necessary for her support and maintenance, thus wife's fulfilling of her maternal obligations to a dependent adult son is relevant to her manner of living and pertains directly to estimating any income she might have available from her separate estate. McDonald v. McDonald, 248 Ga. 702, 285 S.E.2d 711 (1982).
Burden of showing alimony obligation.
- When the settlement agreement in a divorce provided that the husband would pay the wife $200 per month alimony for six years, and would thereafter pay $100 in alimony "permanently," and the wife subsequently remarried, the word "permanently" as used in this agreement was ambiguous and therefore insufficient to meet the exception to O.C.G.A. § 19-6-5 that when "otherwise provided" an alimony obligation does not terminate upon remarriage (obligation created prior to decision in Daopoulos v. Daopoulos, 257 Ga. 71, 354 S.E.2d 828 (1987)). Edwards v. Benefield, 260 Ga. 236, 392 S.E.2d 1 (1990).
Retirement benefits considered.
- Trial court did not err in considering a husband's future retirement benefits under the Railroad Retirement Act of 1974, 45 U.S.C. § 231 et seq., as income to the husband for purposes of determining an adequate alimony award pursuant to O.C.G.A. § 19-6-5; there was no violation of the Supremacy Clause of U.S. Const., Art. VI, C. 2, as there was no conflict with federal law by the state court's consideration of the benefits in a family law context. Lanier v. Lanier, 278 Ga. 881, 608 S.E.2d 213 (2005).
Denial of alimony upheld.
- Wife failed to establish that a trial court manifestly abused the trial court's discretion in denying the wife's claim for alimony based on her allegations that the husband abandoned the family; failed to support the couple's minor child; and caused the marital house to go into foreclosure as there was also evidence before the trial court that the wife initiated the parties' separation; that the wife was gainfully employed and had been so throughout most of the marriage; that the wife failed to cooperate with the husband in taking steps to alleviate the family's financial problems; that the wife had mismanaged marital funds and run up extravagant bills; that the wife failed to take advantage of low-cost health insurance coverage for the couple's minor child provided by the husband's employer; and that the wife unilaterally sold or otherwise disposed of the husband's share of the couple's personal property. Jackson v. Jackson, 282 Ga. 459, 651 S.E.2d 92 (2007).
Award of lump-sum alimony upheld on appeal.
- Trial court did not abuse the court's discretion by failing to consider the factors set forth under O.C.G.A. § 19-6-5 because a review of the bench trial transcript showed that, prior to entering a lump-sum alimony in one spouse's favor, the trial court considered extensive testimony regarding all of the relevant factors set forth in § 19-6-5(a), including both parties' employment, assets, debts, income streams, and potential for future earnings; moreover, despite the other spouse's contrary claim, the award was not entered in order to prevent the other spouse from discharging the award in bankruptcy. Wood v. Wood, 283 Ga. 8, 655 S.E.2d 611 (2008).
Award of alimony appropriate based on consideration of factors.
- Alimony award of $1,000 in a divorce action was appropriate because the trial court properly considered, under O.C.G.A. § 19-6-5(a), each parties' gross income and living conditions, the duration of the marriage, and the age and physical conditions of the parties. Arkwright v. Arkwright, 284 Ga. 545, 668 S.E.2d 709 (2008).
Lump sum alimony award to a wife of monthly payments of $5,000 for the first year, $4,000 for the following two years, and $3,000 for the final year was proper because there was evidence supporting the trial court's finding that the wife was capable of updating skills and reentering the work force, and the trial court's consideration of the parties' respective financial resources. Patel v. Patel, 285 Ga. 391, 677 S.E.2d 114 (2009).
Trial court did not abuse the court's discretion in setting alimony at $1,250 per month, pursuant to O.C.G.A. §§ 19-6-1(c) and19-6-5(a), because the trial court properly considered, inter alia, the value of the husband's pension, the overwhelming marital debt, the husband's contribution of inherited assets to the marriage, and the wife's recent promotion, accompanied by a raise in salary and benefits. Hammond v. Hammond, 290 Ga. 518, 722 S.E.2d 729 (2012).
Award of alimony erroneous because record completely devoid of any evidence of spouse's ability to pay.
- Trial court's award of lump sum alimony in the amount of $36,500 was erroneous because although the spouse's need for resources to meet reasonable housing desires and expected medical bills justified an award of alimony, the record was completely devoid of any evidence of the other spouse's ability to pay the lump sum alimony award; the paying spouse's separate estate consisted solely of an asset that could not be transferred or otherwise converted into cash, and a $500 a week income. Coker v. Coker, 286 Ga. 20, 685 S.E.2d 70 (2009).
Court free to consider parties entire relationship including cohabitation period.
- Alimony award was not improper because, inter alia, under the catchall provision of O.C.G.A. § 19-6-5(a)(8), the trial court was free to consider the parties' entire relationship, including periods of premarital cohabitation, in determining alimony. Sprouse v. Sprouse, 285 Ga. 468, 678 S.E.2d 328 (2009).
Effect of Remarriage
Right to receive alimony ceases upon remarriage. Woodward v. Woodward, 245 Ga. 550, 266 S.E.2d 170 (1980).
Summary judgment was properly granted to a former husband in his declaratory judgment action, seeking a determination that his obligation to make "periodic alimony" payments to his former wife pursuant to the parties' divorce settlement agreement ceased upon the wife's remarriage pursuant to O.C.G.A. § 19-6-5(b) as the settlement agreement was clear and unambiguous in its designation of certain payments as a form of periodic alimony rather than as equitable distribution; contract interpretation principles under O.C.G.A. §§ 13-2-2(4) and13-2-3 supported that interpretation of the agreement. Crosby v. Lebert, 285 Ga. 297, 676 S.E.2d 192 (2009).
Statute dealt with remarriage and did not apply to husband's obligations under contract between the parties, made the judgment of the court in a divorce decree, which constituted a part of the "property settlement" between the parties. Vereen v. Arp, 237 Ga. 241, 227 S.E.2d 331 (1976); Hollandsworth v. Hollandsworth, 242 Ga. 790, 251 S.E.2d 532 (1979).
The 1966 amendment to former Code 1933, § 30-209 refers only to "permanent alimony" and did not apply to "property settlement," and would not, therefore, be applicable to the provisions of a contract making property divisions. Shepherd v. Shepherd, 223 Ga. 609, 157 S.E.2d 268 (1967).
Provision in statute for termination of alimony on remarriage was not applicable to property settlement. Newell v. Newell, 237 Ga. 708, 229 S.E.2d 449 (1976).
Alimony in lump sum is in nature of property settlement, whether designated as such or as alimony. Newell v. Newell, 237 Ga. 708, 229 S.E.2d 449 (1976); Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976); Elliott v. Elliott, 243 Ga. 160, 253 S.E.2d 88 (1979).
Lump sum award for alimony is not divested by remarriage when the jury has not specified otherwise. Davis v. Welch, 220 Ga. 515, 140 S.E.2d 199 (1965).
Statute releasing a husband from his obligation to pay permanent alimony has reference only to installment payments in the future and not to a lump sum obligation. Eastland v. Candler, 226 Ga. 588, 176 S.E.2d 89 (1970).
Remarriage prior to awarding of alimony bars payment of lump sum and periodic payments of alimony. Coleman v. Coleman, 240 Ga. 417, 240 S.E.2d 870 (1977).
Any lump sum or periodic alimony is barred by remarriage if the former wife remarries prior to the entry of the final judgment. Kristensen v. Kristensen, 240 Ga. 670, 242 S.E.2d 132 (1978).
Settlement agreement of parties, incorporated into divorce decree, is property settlement agreement. Elliott v. Elliott, 243 Ga. 160, 253 S.E.2d 88 (1979).
It was not necessary for agreement incorporated into decree to provide expressly that alimony shall cease upon remarriage because the statute expressly provided that such obligations cease upon remarriage unless otherwise provided. Burns v. Rivers, 244 Ga. 631, 261 S.E.2d 581 (1979).
O.C.G.A. § 19-6-5 basically applies to unperformed obligations to make installment payments of alimony. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).
O.C.G.A. § 19-6-5 does not apply to unperformed obligations to effectuate property settlements. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).
Installment payments under lump sum agreement incorporated in decree are due even after remarriage. Hamilton v. Finch, 238 Ga. 78, 230 S.E.2d 881 (1976).
Periodic payments to be made until sum certain has been paid is property settlement, and remarriage will not terminate the husband's responsibility to continue making the payments. Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).
When installments relate to real property, the installments are items of property settlement, not terminable upon wife's remarriage. Solomon v. Solomon, 241 Ga. 188, 244 S.E.2d 2 (1978).
Payment of mortgage.
- When the agreement between the parties does not provide for any alimony payments for the support of the wife, but is more in the nature of a property settlement, and the agreement sub judice provides for a sum certain by providing that the monthly payments "shall continue until the mortgage is full paid," the obligation to make the mortgage payments is a lump sum settlement to be paid in installments and is not permanent alimony. Bennett v. Bennett, 236 Ga. 764, 225 S.E.2d 264 (1976).
Section not applicable when evidence shows intent that payments continue despite remarriage.
- When it appeared from the agreement itself that the parties contemplated payments made would coincide with the period of time when the children were to be supported and would survive the wife's remarriage, even though the payments were in the nature of alimony to the wife, under the facts the parties themselves provided otherwise to allow the payments to continue, and the provisions of the statute which would automatically terminate the payments upon the wife's remarriage did not apply. Wiley v. Wiley, 243 Ga. 271, 253 S.E.2d 750 (1979).
Express inclusion of gross amount is indicative of intent that recipient receive it without termination in the event of remarriage, whereas the contrary intent is indicated when no gross amount is given. Nash v. Nash, 244 Ga. 749, 262 S.E.2d 64 (1979).
Provision that alimony not cease upon remarriage authorized.
- Trial court was authorized to provide in a final divorce decree that alimony obligations would not cease upon wife's remarriage. Allen v. Allen, 265 Ga. 53, 452 S.E.2d 767 (1995).
Jury verdict different from decree.
- Even though the jury's verdict did not specify that the husband's alimony obligations terminated upon the wife's remarriage, inclusion of such provision in the final decree was not erroneous under O.C.G.A. § 19-6-5. Metzler v. Metzler, 267 Ga. 892, 485 S.E.2d 459 (1997).
Court construes alimony obligation.
- In deciding whether the alimony obligation terminated upon the former spouse's remarriage, the trial court must construe the alimony obligation to determine whether the parties have "provided otherwise" to avoid termination of alimony on remarriage. Fisher v. Fredrickson, 262 Ga. 229, 416 S.E.2d 512 (1992), overruled on other grounds, Andrews v. Whitaker, 265 Ga. 76, 433 S.E.2d 735 (1995).
Alimony obligation did not survive the wife's remarriage when the settlement agreement did not contain language from which it could be concluded that the alimony obligation would continue following the wife's remarriage, nor language creating an ambiguity regarding the issue. Crosby v. Tomlinson, 263 Ga. 522, 436 S.E.2d 8 (1993).
Resulting trust is not alimony, and right to claim the trust is not barred by remarriage of one of the parties. Price v. Price, 243 Ga. 4, 252 S.E.2d 402 (1979).
Father's duty to provide support and maintenance for minor children does not cease with wife's remarriage. Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).
Defendant's payments on mobile home which are in nature of support for children are not "periodic alimony." Wimpey v. Pope, 246 Ga. 545, 272 S.E.2d 278 (1980).
Attorney's fees are part of temporary alimony, and remarriage does not preclude such award. Kristensen v. Kristensen, 240 Ga. 670, 242 S.E.2d 132 (1978).
Effect of remarriage on I.R.S. presumption of alimony's deductibility.- In Georgia, the remarriage of a former wife operates to deprive a divorced husband of the I.R.S.'s presumption of tax deductible alimony status for lump-sum payments unless the divorce decree specifically provides for the continuation of alimony. Strealdorf v. Commissioner, 726 F.2d 1521 (11th Cir. 1984).
Property set aside as wife's separate property remains such, notwithstanding parties' remarriage to each other.
- Property which, on granting of divorce, was set aside to wife and became her sole and separate property remains her separate estate, notwithstanding divorced parties are subsequently remarried to each other. Moore v. Moore, 249 Ga. 27, 287 S.E.2d 185 (1982).
Burden of showing alimony obligation after remarriage.
- In order for a court to hold that an instrument "provides otherwise" than the general rule that remarriage terminates permanent alimony obligations within the meaning of subsection (b) of O.C.G.A. § 19-6-5, it must expressly refer to remarriage of the recipient and specify that event shall not terminate the permanent alimony obligations created thereby and be clear and unequivocal. Daopoulos v. Daopoulos, 257 Ga. 71, 354 S.E.2d 828 (1987).
RESEARCH REFERENCES
Am. Jur. 2d.
- 24A Am. Jur. 2d, Divorce and Separation, §§ 683 et seq., 700.
C.J.S.- 27A C.J.S., Divorce, §§ 345, 353 et seq., 372, 378 et seq., 399, 400.
ALR.
- Earning capacity or prospective earnings of husband as basis of alimony, 6 A.L.R. 192; 139 A.L.R. 207.
Alimony as affected by remarriage, 30 A.L.R. 79; 64 A.L.R. 1269; 112 A.L.R. 246; 48 A.L.R.2d 270.
Ability or inability to pay alimony as affected by ownership of exempt property or funds, 131 A.L.R. 224.
Propriety of direction that specific property of husband be transferred to wife as alimony, or in lieu of, or in addition to, alimony, 133 A.L.R. 860.
Propriety and effect of anticipatory provision in decree for alimony in respect of remarriage or other change of circumstances, 155 A.L.R. 609.
Change in financial condition or needs of husband or wife as ground for modification of decree for alimony or maintenance, 18 A.L.R.2d 10.
Remarriage of wife as affecting husband's obligation under separation agreement to support her or to make other money payments to her, 48 A.L.R.2d 318; 45 A.L.R.3d 1033.
Construction and effect of clause in divorce decree providing for payment of former wife's future medical expenses, 71 A.L.R.2d 1236.
Propriety of reference in connection with fixing amount of alimony, 85 A.L.R.2d 801.
Excessiveness of amount of money awarded as permanent alimony where divorce is or has been granted, 1 A.L.R.3d 6.
Adequacy of amount of money awarded as permanent alimony where divorce is or has been granted, 1 A.L.R.3d 123.
Spouse's acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 A.L.R.3d 1184.
Annulment of later marriage as reviving prior husband's obligations under alimony decree or separation agreement, 45 A.L.R.3d 1033.
Divorce or separation: consideration of tax liability or consequences in determining alimony or property settlement provisions, 51 A.L.R.3d 461.
Effect of remarriage of spouses to each other on permanent alimony provisions in final divorce decree, 52 A.L.R.3d 1334.
Divorce: provision in decree that one party obtain or maintain life insurance for benefit of other party or child, 59 A.L.R.3d 9.
Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 A.L.R.3d 621.
Provision in divorce decree requiring husband to pay certain percentage of future salary increases as additional alimony or child support, 75 A.L.R.3d 493.
Propriety in divorce proceedings of awarding rehabilitative alimony, 97 A.L.R.3d 740.
Spouse's professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 A.L.R.4th 1294.
Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 A.L.R.4th 830.
Divorce and separation: appreciation in value of separate property during marriage without contribution by either spouse as separate or communal property, 24 A.L.R.4th 453.
Excessiveness or adequacy of amount of money awarded as permanent alimony following divorce, 28 A.L.R.4th 786.
Spouse's right to discovery of closely held corporation records during divorce proceeding, 38 A.L.R.4th 145.
Divorce: excessiveness or adequacy of combined property division and spousal support awards - modern cases, 55 A.L.R.4th 14.
Divorce: excessiveness or adequacy of trial court's property award - modern cases, 56 A.L.R.4th 12.
Divorce and separation: attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 A.L.R.4th 173.
Consideration of obligated spouse's earnings from overtime or "second job" held in addition to regular full-time employment in fixing alimony or child support awards, 17 A.L.R.5th 143.
Divorce and separation: attorney's contingent fee contracts as marital property subject to distribution, 44 A.L.R.5th 671.
Alimony as affected by recipient spouse's remarriage in absence of controlling specific statute, 47 A.L.R.5th 129.
Excessiveness or inadequacy of lump-sum alimony award, 49 A.L.R.5th 441.
Consideration of obligor's personal-injury recovery or settlement in fixing alimony or child support, 59 A.L.R.5th 489.
Effect of same-sex relationship on right to spousal support, 73 A.L.R.5th 599.