Bass v. Bass
264 Ga. 506
Ga.
1994
Check Treatment

BASS v. BASS

S94A0909

Supreme Court of Georgia

OCTOBER 3, 1994

448 SE2d 366

thе trial court refused to give on the ground that there was no evidence to support such a charge. The evidence the State adduced did not suggest any provocation sufficient to reduce the killing to manslaughter and appellant‘s evidence was that he was elsewhere when the crime was committed. Under thosе circumstances, there was no error in refusing to charge on voluntary manslaughter. ; .

Judgment affirmed. All the Justices concur.

DECIDED OCTOBER 3, 1994.

Ellen M. Mayoue, for appellant.

Glenn Thomas, District Attorney, Stephen D. Kelley, Assistant District Attorney, Michael J. Bowers, Attornеy General, Susan V. Boleyn, Senior Assistant Attorney General, Marla-Deen Brooks, Assistant Attorney General, for appellee.

CARLEY, Justice.

From the time that appellant-Husband was given a 51 percent interest in a family corporation, he has worked full-time for that corporation. Appellee-Wife also worked for the corрoration for several years. During the marriage, Husband‘s interest in the corporation appreciated in value. The instant divorce action was tried before a jury. The issue of the extent to which Husband‘s interest in the corporation was a marital asset subject to equitable division was submitted to the jury. The jury‘s verdict reflectеd a finding that Husband‘s interest in the corporation was a marital asset and made an equitable division thereof as between Husband and Wife. The trial court entered judgmеnt on the jury‘s verdict and Husband applied to this court for a discretionary appeal, urging that the issue of the extent to which his interest in the corporation was а marital asset was erroneously submitted to the jury and should have been determined, as a matter of law, by the trial court itself. We granted Husband‘s application so аs to address the question of “whether the classification of property in a divorce action as either marital or non-marital is exclusively a question of law.”

In , we held that the first step in the division of property in a divorce action is the classification of the ‍‌​‌‌​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​‌​​‌​​​‌​‌‌‌‌‌​‌‍property “as either marital or non-marital. . . . [This] step is a question of law. . . .” (Emphasis sup-plied.) As authority for this proposition, only was cited. However, the actual holding of , is that “[t]he classifying of property as either marital or non-marital is not a discretionary function but is based on legal principles.” (Emphаsis supplied.) It is a “fundamen-tal” legal principle that all questions of law must be decided by the court and that all questions of fact must be decided by the trier of fact. . Thus, contrary to the import of , the classification of property as either marital or non-marital is not always exclusively a question of law. What items of property can legally constitute a marital or non-marital asset is a question of law for the court. However, whether a particular item of property actually constitutes a marital or non-marital asset may be a question of fact for the trier of fact to determine from the evidence. See .

Accordingly, as a matter of law, if the separate non-marital property of one spouse appreciates in value during the marriage solely as the result of market forces, that apprеciation does not become a marital asset which is subject to equitable division; but, if the separate non-marital property of one spouse aрpreciates in value during the marriage as the result of efforts made by either or both spouses, that appreciation does become a marital asset which is subject to equitable division. ; . See also (holding that, as a matter of law, one spouse‘s contingent fee agreements are too remote, ‍‌​‌‌​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​‌​​‌​​​‌​‌‌‌‌‌​‌‍speculative and uncertain to be considered marital assets subject to equitable division); (holding that, as a matter of law, settlement of one spouse‘s personal injury claim is a marital asset subject to equitable division only to the extent of compensation for medical expenses and lost wages during the marriage).

However, whether the appreciation in the value of the separate non-marital property of one spouse is attributable solely to market forces or to the individual or joint efforts of the spouses is a question of fact. In the instant case, Husband does not argue that it is undisputed that the appreciation in the value оf his interest in the corporation is attributable solely to market forces and that no fact question exists as to whether the appreciation is attributable tо his or Wife‘s individual or joint efforts. Accordingly, the issue of the extent to which Husband‘s interest in the corporation was a marital asset subject to equitable division is a mixed question of law and fact. See generally ; . As a matter of law, the appreciation in the value of Husband‘s interest in the corporation would be a marital аsset, if, as a matter of fact, that appreciation was attributa-ble to his or Wife‘s individual or joint efforts rather ‍‌​‌‌​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​‌​​‌​​​‌​‌‌‌‌‌​‌‍than attributable solely to market forces.

It follоws that the trial court‘s responsibility in the instant case extended only to charging the jury on the legal principles of equitable division of property. “In this case, a jury was the finder of fact.” . It was proper for the jury, as

the finder of fact[, to] determine the portion of [Husband‘s interest in the corporation] constituting [a marital asset], and divide [that portion] in an equitable manner under the facts and circumstances of this case.

.

So as to provide the jury with the applicable legal guidelines in making this determination, it would havе been proper for the trial court to have instructed the jury: that it should first find whether appreciation, if any, in Husband‘s interest in the corporation during the marriage was attributable to his or Wife‘s individual or joint efforts or to market forces; that any appreciation found to be attributable to market forces would not be a marital asset subject to equitable division, but would remain his separate non-marital asset; that any appreciation found to be attributable to his or Wife‘s individual or jоint efforts would be a marital asset subject to equitable division; and, that, as a marital asset, any appreciation found to be attributable to his or Wife‘s individual or joint efforts should be equitably divided between them. We believe that, in all cases involving appreciation of otherwise non-marital assets, such instructions would be helpful to the jury and the litigants.

However, in this case, Husband requested no jury instructions on these specific legal principles and does not enumerate as error the trial court‘s failure to have included these specific legal principles in its jury instructions. His sole enumeration of error is that the trial court erred “in failing to determinе as a matter of law what portion of [his] 51% interest in [the] corporation ‍‌​‌‌​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​‌​​‌​​​‌​‌‌‌‌‌​‌‍was, in fact, a marital asset and, therefore, subject to equitable division.” Since what portion of his interest in the corporation was a marital asset subject to equitable division was a mixed question of law and fact and the instant case was tried bеfore a jury, there is no merit to this enumeration and the judgment entered by the trial court on the jury‘s verdict must be affirmed.

Judgment affirmed. All the Justices concur.

HUNT, Chief Justice, concurring.

Whether a particular kind of property can ever be classified as marital property is certainly a legal question. Thus, in , the majority of this court decided that the trial court shоuld have held, as a matter of law, that the value of the husband/attorney‘s contingent fee arrangements is not a marital asset. Likewise, we have excluded, by law, the medical degree of physicians. . However, most prоperty falls into that category that has the potential to be marital property and, whether, and to what extent, such property is marital is a matter of fact based on legal principles. The legal principle we applied in wаs the “source of funds” rule which ‍‌​‌‌​‌​‌‌‌‌​​‌​​​​‌‌​​​​​‌‌​‌‌​​‌​​‌​​​‌​‌‌‌‌‌​‌‍we held applicable to the facts surrounding the acquisition and maintenance of the parties’ house. In , the trial court, which was the faсtfinder, erred by making the initial classification of that property by exercising its discretion. That step is never a matter of discretion. In rare instances, it is a question of law. In most instances, as is the case here, that determination involves the application by the factfinder of legal principles to the particular fаcts.1

Notes

1
The majority opinion in Goldstein v. Goldstein, supra, to the extent it implies that the first step of classifying property as marital or non-marital is determined strictly as a matter of law, is erroneous and misleading.