*1 22, 1992 Decided October and December Reconsiderations Turner, A. Hoffman, William Turner, Thagard & Young, Clyatt, Jr., Smith, Jr., Hannan, R. James Kitchens, Smith Wolfson, appellees. BIRD v. BISHOP. 301)

(427 SE2d Chief Sognier, 1990, she and Rich- August Mary Bird’s death the time of

At been had not the final divorce decree separated but ard Bird were Bird, spouse, see surviving as entered. 120) (1989), year’s support (3) (383 applied for a (b); upon estate, Ms. Bird’s see

out of Supe- appealed he application, his court’s denial of probate ruling. See County novo review of that for a de rior Court of Cherokee (d); application, denied his The trial court 5-3-29. State, Phillips v. appeals. See and he

(1991). in April in court appeared the Birds

The record reveals that transcription A proceedings. their divorce hearing regarding at a appellant general outlined the reflects that counsel for hearing required, Those terms of the settlement between terms County alia, parties’ Cherokee home to inter deed the $2,500 a month to Ms. Bird until pay mortgage Ms. Bird and 1, 1990; that Ms. Bird would transfer stock, property; and that the would receive she has a Maine vehicles, already registered transportation and similar items personalty, names, premarital own own as well as all of each subsequent determina- personalty of other but left the division the word transcript A review of the reveals that tion. although counsel and among used once

not $2,500 counsel, monthly payment by in referring to the currently Bird, [appellant paying noted that that sum “is what Ms. is] transcript indicates that support,” nothing fu- ture monthly terms of the oral payments sum under the response questioning support or ment constituted acknowledged that these terms the trial court the Birds concerning pending settlement of all matters between “a final [them] stated, correctly nothing left the terms were divorce” and that [their] out, nothing accepted. had not at and included the Birds later, approximately death the time of Ms. Bird’s months had not memorialized the settlement and were still process negotiating among terms not included those terms outlined in his uncontroverted obligations affidavit listed a substantial number of assumed *2 parties agreement, in the oral which he averred remained unfulfilled at the time Ms. death.

In denying appellant’s application year’s support, its order for the trial court April found that the few terms set forth at the disposition hearing contained the final of all issues between the Birds agreement. valid The trial court then determined alimony in chapter 19-6-7; that two statutes the of Title 19-6-8, applicable were to this case. provides OCGA 19-6-8 that voluntary separation party by cases of ... voluntarily, con- “[i]n agreement tract or other written spouse, may made with his make an adequate provision support maintenance of such .... agreement Such an shall be a bar to the the right permanent alimony.” provides pertinent OCGA 19-6-7 in part that granted, upon the death of party “[a]fter the the alimony liable for the other shall not be any entitled to further the party by the deceased virtue of the parties.” contract between the

Although between the Birds was oral and did not specifically alimony address support, or the trial court determined the agreement could substitute for the “contract or other written ment . . . [containing] adequate provision and main- spouse” tenance of recognized by OCGA 19-6-8. The [a] trial court then reasoned that this agreement, despite its regarding silence alimony support, or “permanent constituted the alimony” so as to invoke the of OCGA applying that stat- ute accordingly barred from making his claim for support, apparently theory under the any provi- that absence of sion the oral of “support and maintenance” was because any.” “did not need

Pretermitting appellant’s assertion that the trial court failed to conduct dea novo hearing and assuming, arguendo, the correctness of the trial court’s determination that valid, Birds entered into a binding oral contract the terms of which are set forth transcript,1 we agree with misap- trial court by Because trial court determined the terms set forth hearing encompass agreed upon Birds, by all the issues reference cannot made either subsequently by transcript, statements indicating made Ms. Bird in the that she consid ered the support, to have concluded the or to of the his claim was barred. 19-6-8 to hold plied OCGA §§ executed there is no written judice, In the case sub listing alimony or expressly the court made an order of there is no “written” among the issues settled to fulfill the “adequate provision” agreement containing Fur- plain language of OCGA 19-6-8. requirement thermore, any provision or the absence inapplicable terms is its the oral alimony-receiving spouse on the es- because it addresses claims per- issues have been alimony-paying spouse once tate manently settled. Simpson, supra, and Gore

Nothing 698) (1931) supports conclusion that these stat the trial court’s spouse’s spouse’s utes to bar a claim on a deceased estate sim ply orally agreed because the had to an division of without, intentionally mistakenly, referring to ali Gore, mony support. estranged both wives were barred from claims deceased husbands’ estates based on couples expressly providing the execution of written contracts support. the settlements resolved all issues of applied predecessor statutes both *3 OCGA 19-6-8 and OCGA 19-6-7 to hold that an set § § tling all claims for and under the earlier version of OCGA alimony-sub 19-6-8 barred the who had received an § stitute under that agreement asserting right against from her dower pursuant the decedent’s estate to the earlier version of OCGA 19-6- § In light opinion, 7. we are not inclined to construe the absence any express of reference to OCGA to constitute § an require indication that Court does not agreements comply with OCGA 19-6-8 before such settlements permanent alimony can substitute of purposes of barring However, claims under if OCGA 19-6-7. even our inclination incorrect, proves in Simpson, particularly the facts the stress the Su preme placed upon language the written re flecting alimony, desire to settle all issues of would distin guish Simpson from the case at bar. record does not the dissent’s assertion that agreements parties, which, 1990, spe- unexecuted written between the the last of dated June cifically provided property contemplated by that the transfers were “not property rights” required monthly payment

nor settlement of marital of by appellant. to Ms. Bird (Ga. 30-218); except gender-neutral Code Ann. § for the use of lan guage, essentially (Ga. Similarly, identical to Civil Code of 2991. OCGA 30-211; (2) (3)) gender-neutral language Code Ann. §§ 30-210 tracks of Civil 2983; Code of 2984. §§ temporary of Birds settled

they agreed outlined we note that even evidence extrinsic to the hearing is to fill out the “outline” considered settlement and parties, the true greater elucidate detail intention that ex- — i.e., trinsic evidence the unexecuted written of June — expressly position appellant’s receipt rebuts the dissent’s equitable portion an any type of ali- Further, mony. provision requiring payment that document — alimony by appellant to Ms. Bird a fact also found the trial — clearly place appellant’s year’s court would claim for plain language outside of OCGA 19-6-7 since would have alimony-paying alimony- been the claim the (i.e., receiving spouse’s opposite estate situation to that contem- statute). plated by the

Therefore, 19-6-8 do not appel- to bar lant’s claim because encompass those statutes do not provide that fail to otherwise address or support issues. neither the language Since of these statutes nor the holdings supra, appellant’s authorize the bar of year’s sup- port merely claim because gave received action, settle the the trial court erred denying claim.

Judgment Birdsong, J., J., reversed. P. Carley, P. Pope, Beas- ley, Cooper, Johnson, JJ., Andrews and J., concur. McMurray, P. dissents. Presiding Judge, dissenting.

McMurray, my view, Mr. Bird cannot share Mrs. way inheritance because he reached a settlement with regard to all issues in the divorce including alimony. Accord- ingly, I dissent.

Mary Bird divorce, sued Richard Bird alleging irretrievably broken, seeking division property, marital in addition to temporary permanent alimony. *4 Thereafter, announced the terms of a open ment court. Pursuant each was to give arid receive to the other. judge The asked the Birds they “agree to this as a final settlement of all matters pending be- yourselves tween concerning this They divorce?” they said that did. Thus, divided their settled issues including temporary permanent

Because he settled the case, the divorce Mr. Bird’s claims to Mrs. Bird’s King, estate cannot v. succeed. (383 420, 120); (159 Ga. Plair, SE2d Gore v. Ga. (81 Atlanta, 853, App. Nat. Bank 89 Ga. v. First Hall 698); fur- receiving anything 522). effect, “is barred from Mr. Bird . . .’ marriage contract. ‘by virtue from the ther Plair, Gore v. King, 420, 422, v. supra; 259 Ga. 19-6-7.” 88, supra. 173 Ga. King, Simpson v. 259 Ga. attempts distinguish to majority Plair, 88, supra, by pointing to

420, 422, supra, and Gore 173 Ga. in the settlement use of the word express I is a in those cases. think this and wives by the husbands reached above, alimony is- pointed As I out a difference. distinction without agreed Mr. Bird divorce case and injected into the Birds’ sues were in the case. “all matters” settle case, including all issues the divorce agreed Bird to settle share in Mrs. Bird’s estate. permitted not be

alimony; he should Gore v. 420, 422, supra; 259 Ga. supra.

Decided December

Reconsideration Benson, Strickland, Wilson, Mary B. M. Strickland & Frank Lewis, Brockington, Anne W. McElyea, Barry Bishop, W.

Bishop appellee. YEAPLE v. GRAND UNION COMPANY.

Cooper, Appellant produce ap- fell in the section of injured was she pellee’s grocery maneuvering shopping store. was cart narrowly display slipped piece around a table and on a of fruit which squashed Appellant’s negligence on floor. action was tried jury, appeals entry judgment before a and she from the on the error, appellee. jury’s verdict favor of her sole enumeration of failing charge contends the trial court erred legal distraction. ‘ theory provides plaintiff may “The distraction “that a ex- required degree cused from the otherwise of care because of circum- creating peril. stances . . is emergency situation of . The doctrine is plaintiff’s further broadened to cover situations where the attention cause, true distracted a natural and usual and this particularly is placed where the distraction or where the there defendant anticipated ordinary defendant the exercise of care should have ’ [Cit.j plaintiff’s the distraction would occur.” where