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DANIEL v. DANIEL.
S04A0740.
CARLEY, Justice.
When Gerald Daniel (Husband) and Mary Daniel (Wife)
divorced, the final decree provided that he was to pay her $3,750 in "alimony&qu=
ot;
for a 36-month period, and then $1,500 per month until her death or remarri=
age.
He subsequently brought an action to modify the $3,750 downward. Wife oppos=
ed
the modification. She contended that only the $1,500 per month obligation w=
as
terminable upon her death or remarriage and, thus, that amount was the only
modifiable alimony. The trial court granted Wife's motion to dismiss, holdi=
ng
that the monthly $3,=
750
was "lump sum alimony" and nonmodifiable.
See OCGA § 19-6=
-21.
"Only periodic payments of permanent alimony are subject to revision u=
nder
EOCGA § 19-6-19]. . . . [Cit.]" Nash v. Nash, 244 Ga. 749, 750 (1) (262 SE2d 64) (1979), overruled=
on
other grounds, Winokur
v. Winokur,
258 Ga. 88, 90 (1) (365 SE2d 94) (1988). See also Di=
llard
v. Dillard, 265 Ga. 478 (458 SE2d 102) (1995). Husband applied f=
or a
discretionary appeal, but his application was denied.
When Husband did not pay, Wife moved that he be hel=
d in
contempt. The trial court found that he was in contempt, whereupon he filed=
for
bankruptcy. The bankruptcy court lifted the automatic stay in order that the
trial court could determine in the context of the contempt proceeding
the dischargeability of the $3,750 in monthly
"alimony." After
conducting a hearing, the trial court concluded that the obligation "w=
as
for the maintenance and support of [Wife] and is not dischargeable in
bankruptcy . . . ." Husband filed an application for discretion=
ary
appeal, which this Court granted in order to consider the trial court's rul=
ing
in light of the earlier determination that the obligation is not modifiable
periodic alimony.
At the outset, we note the potential for some confu=
sion
resulting from the nomenclature used in our prior cases when referring to t=
he
various financial obligations owed to and by divorcing spouses in this stat=
e.
"Alimony is an allowance out of one
party's estate, made for the support of the other party when living separat=
ely.
It is either temporary or permanent." OCGA § =
19-6-1
(a). On the other hand, "'[p]roperty settlement' and 'property division' are terms used to refer to t=
he
determination of who owns property when its title is disputed and to the
partitioning of jointly owned property. [Cits.]"
Hargrett v. Hargrett, 242 Ga. 725, 728 (2) (251 SE2d 235) (1978),
overruled
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872 |
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on other grounds, Stokes v. Stokes, 246 Ga. 765, 771 (3) (273 SE2d 169) (1980). In this
connection,
"[a]limony in gross, or in a lump sum, is in the nature o=
f a
final property settlement, and hence in some jurisdictions is not included =
in
the term 'alimony,' which in its strict or technical sense contemplates mon=
ey
payments at regular intervals. [Ci=
ts.]"
[Cit.]
Hamilton v. Finch, 238 Ga. 78 (1) (230 SE2d 881) (1976). See als=
o Winok=
ur
v. Winokur,
supra at 88 (1); Bisno v. =
Bisno,
239 Ga. 388 (236 SE2d 755) (1977). "Equitable property division" differs
from both alimony and the settlement of property claims involving disputed
title or joint ownership. Stokes v. Stokes, supra at 76=
7--768
(3).
Under
the laws of this state, the court or jury has the authority to award the
property of one spouse to the other spouse based solely on an equitable
division of property. [Cit.] This right does not=
rely
upon fraud or trust theories, but arises from the marital relationship.
Bedford v.
The purpose behind the doctrine of equitable division = of marital property is "to assure that property accumulated during the marriage be fairly distributed between the parties." [Cit.] Only property acquired as= a direct result of the labor and investments of the parties during the marria= ge is subject to equitable division. [Cit.]<= o:p>
Payson v. Payson, 274 Ga. 231, 232 (1) (552 SE2d 839) (2001). <= o:p>
Under federal law, a debt owed "for alimony to, maintenance for, or
support of a former spouse or child is not subject to discharge in bankrupt=
cy. 11 USC § 523 (a) (5). A division of property, on the other hand, is dischargeab=
le.
Homer v. Homer, 222 BR 918, 921 (III) (S.D.
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873 |
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decisive in this case. Lump sum alimony is me=
rely
in the "nature" of a property settlement, and thus is not necessa=
rily
the equivalent of an equitable division of marital property. See Stokes v.
Stokes, supra at 768 (3). Moreover,
"the label of a particular obligation is not determinative of its dischargeability, but rather its substance and
function." Homer v. Homer, supra at 924 (III).
Thus,
a classification under stat=
e law
of. . . claims . . . as either alimony or a property settlement is not dispositive of the question of whether the claims are
dischargeable in bankruptcy. . . . [D]ebts for alimony or maintenance or
support of [a spouse] or child are not dischargeable in bankruptcy. =
It
is entirely conceivable that the purpose of a property settlement might be =
to
provide the former [W] Manuel v. Manuel, 239 Ga. 685, 687--688 (238 SE2d 328) (1977). =
Accordingly, the controlli=
ng
issue is whether this particular award of lump sum alimony is for Wife's
maintenance or support, even though it is in the "nature" of a
property settlement rather than periodic alimony. Manuel
v. Manuel, supra at 688. See also Lewis v. Lewis, 258 Ga. 617 (373 SE2d 18) (1988). In
making this determination, a trial court is permitted "to look behind =
the
judgment to the record to ascertain from the facts and circumstances of the
marital situation whether the obligation imposed on the [ex-spouse]. . . is dischargeable in bankruptcy. [Cit.]" Manuel v. Manuel, supra at 689. To ascertain=
the
intent of the parties and the substance and function of the obligation, a .=
. .
judge may consider any or all of the following factors: (1) The amou=
nt of
alimony, if any, . . . and the adequacy of any s=
uch
award; (2) the need for support and the relative income of the pa=
rties
at the time the divorce decree was entered; (3) the number and age of children; (4) the length of the marriage; (5) whether the obligation terminates on death or remarria=
ge of
the former spouse; (6) whether the obligation is payable over a long period of
time; (7) the age, health, education, and work experience of bot=
h Page 874 parties; (8) whether the payments are intended as economic security=
or
retirement benefits; (9) the standard of living established during the marriage=
. [Cit.] Homer v. Homer, supra at 922 (III). In additi=
on, it
has been recognized that the trial court is authorized to consider "the
tax treatment of the payments, the character of the payments as a sum certa=
in
over a specified period, and the state court's characterization of the
obligation as lump sum alimony." Homer v. Homer, s=
upra
at 922 (III). The order entered in this case reflects that the tr=
ial
court did find that the $3,750 monthly obligation was for Wife's maintenance
and support, focusing primarily upon her need and Husband's relatively grea=
ter
income. Husband urges that, in making its determination, the trial court did
not expressly address certain of the other criteria we have enumerated
previously. However, [t]his list. . . is a non-exhaustive compilation of factors t=
hat
need not be proven or even considered in every case. [<=
span
class=3DSpellE>Cits.] [S]uch fact=
ors
"are not legal criteria, . . . but relevant
evidentiary factors that assist the . . . court as tri=
er
of fact in determining the true nature of the debt created by the
agreement[.]" Homer v. Homer, supra at 922 (III). Husband d=
oes
not contend that the trial court overstated either Wife's need for support =
or
the great disparity in their relative incomes. Compare Homer v. Homer, supr=
a at
924 (III). Moreover, the trial court did acknowledge the previous determina=
tion
that the obligation was for lump sum alimony, but correctly recognized that
that label was not determinative of the issue of disch=
argeability.
Manuel v. Manuel, supra; Homer v. Homer, supra. Husband also contends that =
the
order is erroneous because lump sum alimony is not subject to modification.=
See
OCGA § 19-6-21. However, the fact that his obligation is non-modifiable
merely establishes that it does not represent periodic alimony. See OCGA &s=
ect;
19-6-19. It does not definitively negate the possibility that the $3,750 per
month is for Wife's maintenance and support. Because the evidence supports =
the
trial court's finding that the obligation is for that purpose, rather than a
dischargeable division of property, the order must be affirmed. Judgment affirmed. All the Justices concur. DECIDED MAY 24, 2004. Domestic relations. Spald=
ing
Superior Court. Before Judge Edwards. Page
875 Shepherd & Johnston, Lance N. Owen, for appellan=
t.
Alan W. Connell, for appellee.