The executor of Richard Davenport’s estate brings a constitutional challenge to the statutory provision that a wife’s unresolved alimony claims survive her husband’s death as a lien on his estate.
Richard Davenport filed for divorce from his wife Rosalind Davenport in November 1977 on the ground that the marriage was irretrievably broken. In Mrs. *614 Davenport’s answer, she sought a divorce on the ground of cruel treatment and counterclaimed for temporary and permanent alimony, a property settlement and attorney fees.
In January 1978, the trial court granted a divorce and reserved for later determination the issues of alimony, property rights and attorney fees. A hearing on the issue of temporary alimony was held; before an order had been entered, Richard Davenport died. Mrs. Davenport filed a motion to substitute the executor of Richard Davenport’s estate for the deceased plaintiff under Code Ann. § 30-201, which provides that a wife’s unresolved alimony claims are a lien upon the husband’s estate. The executor objected to the substitution on the ground that Code Ann. § 30-201 violates several provisions of the State and Federal Constitutions. 1 The trial court upheld the constitutionality of the statute, ordered the substitution, and certified its order for immediate review. We affirm.
1. Code Ann. § 30-201 provides, in pertinent part: "Should the husband die prior to the court’s order on the issues of alimony, the rights of wife shall survive and be a lien upon the estate of the deceased.” Ga. L. 1977, pp. 1253, 1256. The executor argues that this provision was enacted in violation of Art. Ill, Sec. VII, Par. IV of the Georgia Constitution, Code Ann. § 2-1304, which requires that the title of an Act indicate its contents and that the Act refer to only one subject matter.
This Act was titled "Divorce and Alimony Procedures Changed.” The caption provided, in part, that the Act was intended "to amend Code section 30-201, relating to permanent and temporary alimony ... to provide for liens upon estates . . .” The constitutional title provision does not require the legislature to set forth the entire substance of an Act in its title.
Lee v. State,
239
*615
Ga. 69(1) (
We also find that the Act deals with a single subject matter. The challenged Act meets this constitutional requirement because its provisions all relate to changes in divorce and alimony procedure necessitated by the advent of "no fault” divorce. Because the lien provision "has a natural connection with the main object of the legislation,” the single subject matter rule is not violated. See
Wall v. Bd. of Elections of Chatham County,
2. Appellant also contends that the lien provision violates the due process clauses of the Fourteenth Amendment to the United States Constitution and of the Georgia Constitution. Code Ann. § 2-101. The Act provides that if the husband dies "prior to the court’s order on the issues of alimony,” the wife’s "rights” survive as a lien on his estate. Appellant contends that because the phrase, "prior to the court’s order on the issues of alimony,” does not specify a time period for the calculation of alimony and because the "rights” of the wife are undefined, the statute is unconstitutionally vague. Although the statute could be more artfully drafted, we believe that the legislative intent is clear and that the statute provides "fair notice” of its meaning.
Bryan v. Ga. Public Service Comm.,
After the Georgia legislature passed the "no fault” divorce Act, this court permitted divorce to be granted on the pleadings and issues of temporary and permanent alimony to be reserved for a later trial. E.g.,
Friedman v. Friedman,
With these two problems in mind, we believe that the legislative solution expressed in Code Ann. § 30-201 is apparent. The phrase "prior to the court’s order on the issues of alimony,” refers to either temporary or permanent alimony. If the husband dies before a determination of either of these issues, the wife’s rights survive. A provision of survivorship of rights means that an inchoate right survives for determination. One of the most familiar examples of the survival of inchoate rights occurs in the area of torts. By statute, the cause of action of a decedent survives his death and exists in his executor or personal representative who may sue the tortfeasor. In our case, the husband’s duty of support is personal and is extinguished by his death. As we read the intent of the legislature, the lien provision does not create new rights in the wife extending beyond the date of the husband’s death. Instead, the lien clause preserves an inchoate right to temporary or permanent alimony existing at the date of death for subsequent determination and satisfaction from the estate.
When the husband dies
before
an order awarding temporary alimony has been entered by the court and
before
a divorce has been granted, the wife’s right to support during the period of separation until the date of death survives as a lien on the estate. This right is defined in Code Ann. § 30-202. Where no divorce has been granted, the wife after her husband’s death is a widow and is entitled to a year’s support. Code Ann. § 113-1002. The
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wife has no "right” to permanent alimony because no divorce has been granted, so no right survives under the lien provision clause. See
Chatsworth Lumber Co. v. White,
When the husband dies after a divorce has been granted but before any determination of temporary or permanent alimony has been made, the wife’s inchoate right to temporary alimony from separation until the date of death survives as a lien on the estate. This determination can be made after the husband’s death, and the executor may attempt to prove any disability under Code Ann. § 30-201 which would deprive a wife of her right to alimony.
When the husband dies after a divorce has been granted but before any determination of permanent alimony has been made, 3 the survival of the wife’s right to permanent alimony is more difficult to determine. This difficulty arises because of some confusion in our decisions on the rights of a former wife to support from her former husband’s estate.
When the issue of permanent alimony is tried by a judge or jury, either is free to award the wife a lump sum, real or personal property, periodic payments or any combination of the above. E.g.,
Leonard v. Leonard,
In practice, however, this court has forced the husband’s estate to make periodic payments of alimony or
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child support only when the husband assumed this obligation for his estate through agreement.
Ramsay v. Sims,
The améndment of Code Ann. § 30-201 is intended to preserve for later determination the wife’s inchoate rights as they existed on the date of divorce, not to enlarge those rights. Because the husband’s death extinguishes the right to periodic payments, the former wife cannot receive periodic payments from her husband’s estate for any time period after his death. But the lien provision preserves for after-death determination the wife’s inchoate right to either a lump sum or property award because if either had been awarded at the time of divorce, the former wife could have collected from the estate. We find that the former wife is entitled to seek permanent alimony from her husband’s estate in the form of property, a lump sum award or periodic payments until the date of death.
Because the legislative intent is clear and the effect of the lien provision is plain when the amended statute is read in conjunction with prior Georgia law, we find that the statutory provision is not unconstitutionally vague.
3. Appellant’s final constitutional challenge is based on the equal protection clause which prevents the legislature from irrationally discriminating against like-situated classes.
Bickford v. Nolen,
We have difficulty in discerning any unequal treatment between the two classes of estates. The only possible difference is that while both estates are subject to the same charges, only one is subject to an after-death determination of the exact nature of the wife’s rights. This difference is necessitated by the fact that the husband died prior to any court determination on the issues of alimony. The difference in treatment is, therefore rationally related to the "legitimate state purpose,” (San Antonio Ind. School Dist. v. Rodriguez,
Because the lien provision of Code Ann. § 30-201 is not unconstitutional for any of the reasons properly raised by appellant, the trial court correctly substituted the executor for the deceased former husband as party plaintiff in the divorce action.
Judgment affirmed.
Notes
Appellant-executor has attempted to raise for the first time on appeal a gender-based constitutional challenge to the statute. Because of his failure to raise this issue below, appellant’s challenge on this ground is not timely and will not be considered.
Kosikowski v. Kosikowski,
If an order for temporary alimony had been entered, the wife could sue her husband’s estate for accrued but unpaid installments.
See Fauver v. Hemperly,
The discussion which follows of permanent alimony is applicable whether temporary alimony has been judicially determined or not. Since the statute provides for survival of the wife’s rights when the "issues of alimony” are undetermined, judicial determination of temporary alimony will not deprive the former wife of the survival of any right to permanent alimony.