*1 April 25, 2006. Decided appellant. Greco, R. for John Attorney, Harris, Head, B. Dana J. H. Ann District Patrick Attorney Attorneys, Baker,
Norman, E. Thurbert. Assistant District Attorney appellee. Benjamin, General, General, Assistant VonnettaL. v. BENTON. S06A0605. BENTON (629 SE2d Hines, Justice. Gary granted estranged husband, Benton, interlocu-
This Court tory wife, Benton, Diane in divorce action his judg- partial summary Benton entitled to whether Mr. was consider prop- equitable and Ms. Benton’s counterclaim ment on erty upon the For division based doctrine partial follow, court’s denial of which we affirm trial reasons to Mr. Benton. May days 13,2003. later, Benton Thirteen Mr. filed for divorce alleged counterclaim, in which she Ms. Benton filed an answer and support; totally dependent upon Benton for she Mr. attorney permanent alimony, including temporary prayed for and February property. In fees, division of the marital pending, Ms. filed a divorce action was Benton while Chapter voluntary petition the United States for a Georgia. Bankruptcy the Middle District of In connection Court for action, filed “Statement of Financial with her suits Affairs,” divorce case as one three which listed year. preceding she was or had been a Property,” “[ajlimony, her to which asked list “Schedule property maintenance, may discharge is or [she] settlements which entitled,” Benton she checked “None.” Ms. May 19, court on summary judg- July 11, 2005, moved Mr. Benton On property Ms. Benton’s claims for ment in the divorce action on alimony, including based fees. His motion was division and judicial estoppel; he that Ms. federal bankruptcy court, B, in Schedule failure to disclose to the Benton’s that might support be entitled to precluded claims in the divorce her from such responded her claims for relief in the divorce Ms. action. Benton therefore, made an inchoate, she had not made an honest and choses in were bankruptcy petition, but omission
complete Following hearing disclosure ofher financial condition. partial summary matter, the trial denied Benton Mr. expressly finding genuine on October as to one or more facts.1 28, 2005,
On October Benton moved court to reopen her case in order allow her to amend B. On Schedule *2 parties 6, 2005, December after notice to all and no interest objections having bankruptcy filed, court entered order granting reopen Ms. Benton’s motion to her case and her to allow 16, amend Schedule B. On about December filed an Property,” listing “Amended Schedule B possibility might action and receive support. other filing Court
This has determined that a debtor for Chapter any statutory duty under is not under to amend his or her may voluntarily assets, but, case, schedule as in this amend the consequences schedule avoid such as Period 502) (2002). Homes, Ltd. Wallick, judicial precludes estoppel The federal asserting judicial proceeding from in one having successfully contrary position asserted a in a proceeding. commonly prevent [Cit.] It is most invoked to possible concealing from debtors cause asserting following discharge the claim excluding resources from the might estate have otherwise satisfied creditors. [Cit.] purpose protect The is to judicial process by parties deliberately prohibiting the changing positions exigencies
according to of the mo- [Cit.] invoked ment. This doctrine is a court prevent discretion, its and intended to abuse of the process. appropriate circumstances The under which any general are reduced to formula or rule. [Cit.] Homes, Wallick, Period Ltd. v. at 488 already noted, As the basis for Mr. Benton’s claim of oath, failed, is that Ms. Benton under to reveal assets could be awarded in the divorce action. And motion rebuttal to the partial summary judgment, had Benton asserted that she purposeful completely omission, otherwise, made no review, granted hy trial court The certified its order for immediate which was this Court on November in the divorce relief her finances inasmuch disclosed indeed, undetermined, and inchoate, the of which value were consequently, tried;2 determined until divorce was could not be petition’s response Schedule B fact, both her own affidavit and Ms. Benton submitted accurate. attesting to that effect. that of her judgment prevail summary under In order to on motion moving party 9-11-56, must show that exists no § OCGA genuine undisputed facts, fact, and of material that the viewed nonmoving party, judgment light demand most favorable as a of law. Home Assn. Savannah Chatham matter Builders County, Moreover, appellate from the denial or to conduct a de novo review of the evidence to determine genuine exists and whether the whether there issue of light nonmoving undisputed facts, most favorable to the viewed party, as a matter of law. Home Builders Assn. warrant County, supra Progressive at 245 See also Savannah Chatham Evans, Cas. Co. v. Ins. response evidentiary Mr.
In this Ms. Benton’s Benton’s partial summary judgment motion for created a issue of *3 any all, fact about existence omission which the material sole the of at is ground sought application judicial estoppel. Therefore, the of summary denying did the the trial court not err in issue judicial estoppel pretermitting However, of on this basis alone. this dispute accepting arguendo that there of judicial bankruptcy filing, application the omission in the estoppel not in is still this case. warranted
Generally, judicial estoppel plaintiff inapplicable is has when successfully bankruptcy petition any amended his or to include against potential the claim cannot be said the defendant asset because then position in the the trial court is inconsistent with position plaintiff bankruptcy proceeding the asserted the in judicial estoppel and, therefore, bar his her claim. Clark does not (509 707) App. (1998); Perino, 235 Ga. 446 Johnson v. App. Bank, Trust Co. 223 651 Ga. Emory Univ., cites, alia, 251
Mr. Benton inter Cochran v. position judicial 96) (2001), support in his estoppel Appeals Cochran, Court of affirmed the is warranted. the summary plaintiff/debtor’s the defendant the malpractice estoppel, holding the suit for medical basis of reached Benton also that no settlement in the divorce had been and that Ms. hope there of such was no a settlement. was not an trial that it abuse of discretion for the court to find that the plaintiff/debtor requisite diligence” “did act not with the after the judicial estoppel assuming raised. even “requisite diligence” factor, be the can determinative in that the case plaintiff/debtor initially potential did not disclose her claim to the sought bankruptcy petition only court and to amend her ruling after she received an adverse from the trial court on judgment. beginning, Benton, case, the the disclosed divorce action to the court and she received ruling judicial estoppel.3 favorable from trial court the on the issue plain Moreover, raised, Cochran makes requisite diligence the whether debtor acted with Emory the sound Univ., within discretion the trial Cochran v. court. supra Under of this circumstances an abuse of apply discretion cannot be found a refusal doctrine offederal judicial estoppel. weigh
Several factors manipulate did Ms. Benton not mislead court action; about existence of the it as one listed of the three suits to was or had preceding year, and her claims for are marital during pendency inconsistent taken Homes, more, action. See Period at 488 What is by any is no there evidence of benefit that accrued to Ms. Benton bankruptcy petition failure initial to elaborate about support property. Indeed, divorce action for obj reopening by any was no ection to the ofthe parties Finally, certainly significantly, in be interest. less no apply should hesitant federal defeat important rights potential support and an property. Southworth, share of marital 671, See Southworth (1995) 215) (Fletcher, concurring specially) J., P. (public policy requires differently of of that divorce be treated because unique important including support involved, issues spouses property); Adkins, and division Dial v. citing (2004), Brookins, Brookins v. *4 (357 77) (1987) (as public policy,
205, 207-208 SE2d a matter of judicata strictly alimony applied in doctrine of res less divorce and 733) cases); Halbert, 822, v. Suarez Ga. SE2d citing (2000), 830, Richardson, Ga. Richardson 831-832 641) (1976) Brady Brady, (1) (187 and 3 Also, reopen sought Ms. Benton her this to ofreview Court. by enabling (public policy 258) (1972) a to is enhanced respect support). protect properly her with his or interests except Carley, Judgment concur, J., who All the Justices affirmed. dissents. CARLEY, Justice, dissenting. (Wife) action, seeks and an Diane Benton
In this divorce Gary property. granted equitable Benson of the marital We permission interlocutory (Husband) to determine to file an he on Wife’s whether was entitled to Today, upon claims, based correctly majority denied the Court holds that trial court concluding fact motion, that a issue ofmaterial remains her her Wife failed to disclose whether “application event, offederal action and 470). (Majority opinion, page I in this case.” is still warranted disagree that, when the conclusions and believe admissible both favorably Wife, most evidence ofrecord is construed partial summary judgment. Therefore, I Husband is entitled dissent. filed divorce. answered and counter-
In Husband Wife alimony. seeking claimed, division of pending, still filed for while the divorce action was Wife bankruptcy. she filed a connection with Affairs,” in of Financial which she listed the “Statement had been case as one of three suits which she year. party Property” preceding “Schedule “[a]limony, maintenance, her to list asked property particulars.” [she] settlements to which entitled. Give filings, checked Based which were
Wife “None.” on perjury, discharge by penalty made Wife bankruptcy court. judicial estoppel precludes
The federal doctrine
a claim that he or
failed to include as an
debtor
bankruptcy petition.
asset in the
ruptcy pending court her Husband, divorce claims the ma- jority summary judgment concludes that was not authorized because by way asserted, rebuttal, she purposeful omission,
that she otherwise, had made no or completely any disclosed her finances inasmuch as inchoate, relief in divorce were value undetermined, indeed, was could not be deter- consequently, tried; mined until sponse divorce was her re- bankruptcy petition’s question B Schedule was fact, accurate. In [Wife] submitted both her own affidavit bankruptcy attorney attesting and that of her to that effect. Majority opinion, pp. relying 469-470. The error on Wife’s asser- “ they self-serving are, best, is that tions at conclusions. ‘Ultimate or conclusory law, . facts and conclusions of . . cannot be utilized on a Similarly, reargument motion. the mere party’s opponent’s allegations case or the denial of an will be disre- garded.’ (b) (266 [Cits.]” Stewart, Morton ‘conclusory allegations by way “It is axiomatic that summary judgment.’ of an affidavit. . . will not be sufficient avoid Co., Collins v. [Cit.]” WestAmerican Ins. Court’s This determination whether a applicability
issue material fact remains as to the federal upon should be based a de ofthe novo review record, admissible evidence of rather than reliance party’s conclusory inapplicability. assertions of its Construing favorably Wife, most evidence she did disclose pending the existence of the divorce action “Statement Financial Affairs.” Insofar what claims she was expressly concerned, however, divorce case are indicated alimony, B maintenance, Schedule there was no or may property Thus, settlement be to which was or entitled. Wife’s on the reliance mere disclosure of the existence of the then avoiding application action divorce is not a basis for federal pending the disclosure that there was a coupled express representation
divorce with the alimony property may was no there settlement to which she or was misleading simply omitting appears than entitled, be even more bankruptcy filings although face, indicate an asset. On its Wife’s making claim she was not property proceeding. alimony in that majority accepts that her Wife’scontention The without point, response because, correct of “None” Schedule was plainly However, the inchoate. schedule claims were to which asked her to list settlements presumably particulars.” That would in- “or be entitled. Give actually particulars then and all claims which were clude the *6 failing neglect pending. to read the schedule nor [Wife’s] “Neither ground relieving neglect to her is a attribute bankruptcy duty case. [Cit.]” her of the claims in the the disclose App. Byrd Lake, Towne 225 Ga. 508 SE2d v. JRC any conclusory contrary, discounting Therefore, the assertions to although the of record Wife did disclose her evidence shows bankruptcy court, she misled the intention- divorce failing ally “Compliance by against not, her claims Husband. to disclose requirements is essential to
with disclosure maintain- Corp. ing bankruptcy Trotter, [Cits.]” case. Southmark v. Smith & App. 265) (1994). By seeking Jacobs, 212 recovery property, ofthe marital an Wife an inconsistent non-disclosure those took claims court. failure to disclose the divorce Wife’s deprived claims court of all the information potentially deprived petition, and her needed to evaluate her also satisfy supra. Tackett, of resources to her debts. v. creditors Wolfork opposition motion, to Husband’s neither asserted nor showed Wife did meet her the assets disclose were sufficient to debts and, thus, that she no benefit as the result of her derived omission. Compare policy Wallick, Period Homes v. Public protection legal rights, favors the of Wife’s advancement policy depriving should not extend to Husband viable defense offensively defensively, him. Whether rights paramount one in a divorce action are not over those in this other. On evidence of record Husband partial summary judgment on Wife’s claims based was entitled upon judicial estoppel. See v. supra; supra. Emory Univ., Cochran contrary majority puts misplaced reaching conclusion, petition reliance on Wife’ssuccessful amendment of so as If, include the omitted divorce claims. with the ruling approval, filed such court’s on the an amendment partial summary judgment, court would trial motion have been authorized to consider it as a factor in Husband’s invoca- tion of the doctrine of federal Perino, See Clark v. App. (1) (509 707) (1998); 235 Ga. Johnson v. Trust Co. App. 629) (1996). Bank, majority As the concedes, however, she did not do so until some weeks after the trial already court had ruled on Husband’s motion and certified its order granted by for immediate review. Her motion to amend was not bankruptcy court and she did not file her amended schedule until granted some weeks this Court had Husband’s interlocutory review ofthe trial court’s order. Under these circum- certainly stances, the amendment in the court was not a ruling factor in the trial court’s on the motion for judgment, and is not a factor which this Court can consider in its ruling. Burgess review ofthat See Nabers, asking Wife did file a motion this Court to amend the record on appeal so as to include the documents related to her amendment in the ity court. that motion does not cite author- regard,
for this Court to amend the record in that and we have permission never purported to do so. “[I]t is obvious that having by
amendment, never been considered the trial place appeal.” Egerton court, Jolly, has no in the record on 805, 807 Based on the relevant and evidence that was considered the trial court and that is *7 properly appeal, in the record on Husband’s motion for judicial based on federal should have granted. April
Decided Raymond Philip Raymond Shaffer, Dalton, & III, T. Susan D. Raymond, appellant. Chapman,
Stone & Stone, Rice H. Middleton, Susan Y. appellee.