*1 сase, In this that the Association undisputed remains a hier- archy,5 that the Church been a has member of the Association for years,6 over 30 and that the Church is subject the Association’s dis- Such cipline. discipline unquestionably provides Association “shall hold all church property,” thereby implying a trust for the ben- Crumbley 345; efit Association.7 v. at Solomon see OCGA 14- §§ 5-46; And irrespective 14-5-47. this is of the Church’s continuing Thus, membership Association. the trial court erred in dis- missing complaint the Association’s on the basis that Church’s in Association was a membership matter outside its authority, find, in law, and as a matter of failing the Association is in control of the Church property.8 judgment trial court is reversed and the case is remanded for consideration consistent with this opinion.
Judgment reversed and case All the remanded. Justices concur. 17, 2001 September Decided
Reconsideration denied October Chasteen, Mills, Jr., Mills & Ben B. appellant.
Walters, & Pujadas, Pujadas, Davis Thomas E. for appellees.
S01A0630. KREIMER v. KREIMER.
Sears, Presiding Justice. A discretionary appeal granted in order to consider whether the trial court provision erred its construction of a of divorce set- tlement obligating ex-husband to transfer stock” “publicly traded to the ex-wife. The trial court construed this referring provision non- and not refer in the pаrties’ to stocks held whole, reviewed the record as a Having as we must, stock,” we conclude that the phrase “publicly traded as used in The hierarchical nature of the Association is contested Church and the appellate undeveloped regard. record is in this fact, staunchly argues appeal the Church this a member remains Association. property In this Church was deedеd in 1949 to named individuals as “Dea Baptist Crumbley cons of Vickers Holiness Church in office. . . See successors .” Solomon at 346. no Court makes determination as to the Association whether is entitled or requested. all of the relief apply only agreement, to stocks held does settlement Therefore, we affirm.
in non-retirement Kreimer was The divorce action between May call, the trial сourt 2000. At the calendar for trial scheduled through parties attempt requested reach a parties agreed upon a result, As a four- one final time. mediation page *2 (“the Memorandum”). Settlement handwritten Memorandum of equity paragraph in describes the available Memorandum’s first The the marital The Kathryn receive the home, states that would home. and paragraph “All states thаt: other assets Memorandum’s second [will paragraph be] 50/50,” is then down into divided and broken identify equally. subparagraphs to be Sub- which the assets divided specifies subparagraph paragraph specifies home; two one a second subpara- belonging Stanley; to and identified as retirement accounts specifies Kathryn’s Subparagraph graph three specifies “public inсluding paragraph accounts,” of two four para- “Fidelity, [and] conclusion, Dean . . . FUNB.” At its Witter — Hfusband] graph keeps her two states that: “Wife — parties W[ife] publicly traded stock to will neutralize tax transfers impact (unrealized gains) publicly on division of traded based basis).” (taking [account] stock into provides page an of The last of the Memorandum illustration paragraph in the division and distribution оf assets described how example place. take That forth how certain two was intended to sets The in those assets were to be divided. difference the value of divided Kathryn equalized Stanley’s transfer of certain assets was to publicly equalizing [the] stock, traded “after basis and unrealized publicly gains agree- to traded stock. Division be mutual gains W[ife] pay capital of she ment. on shares stocks when sells paragraph requir- illustration, and the in two them.” ing transferred, of to “neutralize” the tax stocks regardless it indicates that was the particular intention which actually by Stanley were shares of stock parties’ holdings after have such transfer the would values.
Kathryn’s lawyer put into the handwritten Memorandum a for- Stanley only that malized form which stated was transfer stocks “public paragraph in held in the accounts” identified two of Mem- — — Kathryn. Stanley i.e., orandum disputed the non-retirement accounts provision, providing and claimed that the terms Kathryn “publicly he would transfer traded stock” to referred to both the non-retirement and the retirement accounts. agreement, a Both filed motions to enforce the settlement and hearing only presented was the was held at which evidence set- tlement itself. trial court held that stock,” intended the term “publicly traded as used the Memoran- Settlement, dum of to refer to those held in “public two, four, listed in accounts” paragraph subparagraph Memo- randum. the trial court ordered to transfer from the non-retirement from Thereafter, the retirement Stanley’s seeking a application from discretionary ruling appeal granted.
1. Settlement in divorce agreements cases must be construed the same manner and under the same rules as all other contractual It is axiomatic agreements.1 that contracts must be construed a entirety their and in manner permits all terms con- tained therein to consistent one course, be with another.2 Of contained in phrases given a contract must ordi- nary meaning.3 phrase The construction of that will in its uphold entirety contract entire preferred, and the contract must be looked at in the construction of A any of its construc- parts.4 tion of contract that renders any portion meaningless ought possible.5 be avoided whenever
Applying these hornbook law to principles contract the Memo- randum Settlement at issue in this aрpeal, we conclude that *3 trial correctly held that the the term parties “publicly intended traded stocks” to only refer to those stocks held in the non-retirement two, four, accounts listed in paragraph of the subparagraph Memo- above, randum. As as of explained part the to parties’ most of their equally, divide assets the Memorandum unambiguously to transfer requires Stanley traded stock” to “publicly In order ensure Kathryn. post-transfer the value of each par- ties’ assets the equal, Memorandum the requires parties gains the] basis and unrealized “equaliz[e publicly of the traded Stated differently, stock.” the Memorandum mandates the “par- (unrealized ties will neutralize impact [a] tax based capital gains) on basis).” of traded publicly (taking [account] division stoсk into The Kathryn also shall requires capital on “pay gains of when [her] shares she sells them.” language capital the concerning gains consequences tax of the transfer would have no in the place stock Memorandum of Settle- if the term ment traded stocks” referred to “publicly “basis,” because “capital gains,” and “unrealized are are gains” to stocks held in inappliсable such 1 420) (1984). Cousins, Ga. Cousins 253 31 2 (4). 13-2-2 § OCGA (2). § OCGA 13-2-2 (4). § OCGA 13-2-2 Id.; E., Inc., Regents App. 671, Board v. A.B. & Ga. of capital applicable being rates at the taxed Rather than accounts. those identified gains, such as accounts from retirement withdrawals applicable at the rates are taxed of Settlement in the Memorandum Consequently, in a ordinary stock held of the basis income.6 paid on the with- to be affect the tax dоes not account Memoran- that account.7 of funds from drawal dum capital clearly take into account intended to shows that ensuring consequences gains when stock transfer tax respective parties’ were post-transfer assets values of that the capital gains susceptible only tax equal. Insofar as accounts identified held in the non-retirement are those trеatment the that stocks parties must have intended Memorandum, conclude that we non-retirement from those be transferred monetary penalties for the are Furthermore, there substantial withdrawal if such a retirement account funds from withdrawal of years.8 age fifty The Memoran- one-half nine and of occurs before dum penalties impact provision would have these for the makes no separate required amounts upon assets division held intended that assets Had the value. “publicly traded stocks” included in the accounts be retirement transferred to necessarily would have the Memorandum we believe pen- early provisions withdrawal made payment clearly provisions just for the alties, gains made held in non-retirement the sale of stocks taxes not intend that stocks be that the did Therefore, we conclude Mem- in the accounts identified from the non-retirement orandum. principles of contract con- with the in accordance correctly that the trial court above, we conclude discussed
struction
“publicly
in Memoran-
stock,” as used
the term
traded
ruled that
“public
in the
Settlement,
to those stocks held
refers
dum
to those
Memorandum, and does not refer
accounts” listed
stocks
non-retirement accounts.9
held in the Memorandum’s
*4
6
(d) (1).
§
26 USCA 408
7 See id.
8
-
(Federal
IRAs)
§§
33A AmJur2d
Taxation
Caldwell,
contention, Byers
Contrary
Stanley’s
The italicized language quoted above, providing that the parties are to agree to which stocks will be transferred and which will be retained, does not have the effect of transforming Memorandum into an “agreement unenforceable to agree.” It is well established that “no contract exists until all essential terms have agreed to, been and the failure to аgree to even one essential term means that there is no agreement to be enforced.” If a contract fails to establish an term, essential and leaves the settling that term to agreed upon later by contract, to the the contract is deemed an unen forceable “agreement agree.”12 matter, Stanley claims that because the Settlement
Memorandum prоvided that the parties were to agree to which shares of stock should be transferred to Kathryn and which should be retained by Stanley, Memorandum was We unenforceable. disa- gree. As explained above, Division 1 the actual makeup shares of stock to be transferred is immaterial to the purposes of the Rather, Memorandum. it is the valuation of the stock that is after-tax essential. Stated after differently, the stock is transferred, it does not matter whether Stanley holds the parties’ A, stock in B Companies C, or whether Kathryn holds those stock, shares of long so as the after-tax value of both holdings Hence, are equal. the deci- sion which particular shares of stock will actually be transferred is a non-essential element of the settlement agreement, and the fact that the agreement does not identify those shares does not render agreement void for to set failing forth a material term. It follows that the agreement is not an unenforceable “agreement to agree.” Judgment concur, All J, the Justices except Carley, affirmed. who concurs in part and dissents in part. Justice, concurring part dissenting in part.
Carley, I concur Division 1 of the majority oрinion, holding term “publicly traded stock” refers to those securities held in the “public accounts” enumerated in the parties’ Memorandum of Settle- See Moss v. 11Id.
12 Id. *5 majority wherein the Division However, agree I do not with
ment. final agreement. is a enforceable legally that the document concludes and, as agree” incomplete “agreement an In my opinion, Therefore, I dissent to thе affirmance such, enforced. cannot be as a validity the of the Memorandum upholding order trial court’s contract. final enforceable until both have can exist agreement
No terms, agree “and failure to to even the essential on all of agreed enforced!.]’ agreement is ‘no term means there one essential 241) (2) Reichard, [Cit.]” Reichard (1992). for an provide generаlly the Memorandum does Although value, it does their after-tax division of the stocks based equal by will be retained to indicate which securities specific not purport to Ms. Kreimer. The which will be transferred Mr. Kreimer and that “the by concluding discounts this omission summarily majority actually shares of stock will particular decision which . . .” How- agreement. element of the settlement is a non-essential ever, nоt for an indiscriminate simply provide the Memorandum does expressly of the stocks between the two. It states division equal if the agreement.” Surely, to be mutual “[division [is] the after-tax valuation of the securities was to be contemplated division, further they basis for the would have only essential would be that who would receive which stipulated which of the will agreement. Obviously, a future decided importаnt enough the divorce was an factor to hold what stocks after for their subse- they subject them that made that determination agreement. mutual quent Moss, (1995),
In Moss v.
missing could not be the trial supplied by court a because divorce “decree should . . . accurately reflect a ([cit.]), settlement reachеd parties,” “and a trial court authorized adopt and incorporate into the final decree and judgment of divorce a purported memo- rialization of the contains more substantive terms than the settlement.” [Cit.]
Moss v. supra at 803. See also DeGarmo, DeGarmo v. (1) (499 The parties themselves did not specify they were entering into a final settlement agreement. They merely exeсuted a handwrit- ten “Memorandum of Settlement.” A “memorandum” is generally “[a]n defined as informal note or instrument embodying something fix in memory desire to the aid of written evi- dence, or that is to serve basis of a future formal contract or (5th 1979). deed.” Black’s Law Dictionary, p. 888 ed. In this docu- ment, noted that expressly which stocks would comprise each of their half of respective the after-tax valuе of the portfo- total lio remained for Therefore, their future mutual determination. they clear to me that did not intend for the Memorandum to consti- document, tute the final settlement but to set forth those terms upon present agreement which had been reached and to indicate which terms remained for further resolution. I believe under circumstances, these which stocks will be retained and which will be are, Moss, substantive, as in merely rather than facilita- tive, terms. Because the Memorandum essential contemplates agreed future, the trial court erred in enforcing the and, consequently, majority incorrectly affirms the trial court’s order. September 17, 2001
Decided Reconsideration denied October Kreimer, Jr, E. se. pro Davis, Lindsey, Swertfeger Matthews & Elizabeth G. & Quigley, Wood, Jr, Wood, C. Swertfeger, Hugh appellee. L. Jack
S01A0865. MULLINS v. THOMPSON. Justice.
Thompson, first Can a witness presents question impression: This case evidence that his license to lawyer impeached by showing who is suspended? question nega- law was We answer practice tive. testate, One,
Evelyn leaving Mullins died a number of children. will; another, Kathy Thompson, probate Roy Mul- petitioned lins, caveat, filed a the will was a “traced allеging forgery.” pro- court admitted the will to and Mullins probate appealed bate to the which, a de novo trial superior following jury and a verdict Thompson, upheld validity favor of the will. Threlkeld,
One of the to the will was Larry lawyer. witnesses Mullins wanted to Threlkeld that he had made impeach by showing *7 false to a statements client violation the Rules of Professional Conduct, his license to cоnsequently, practice law had been suspended for six months. The court would not allow Threl- superior manner, keld to be impeached and Mullins enumerates error ruling. We affirm. 1. In Georgia, may a witness that he or impeached proving Fields, she was convicted of a crime of moral turpitude. Pope v. (536 6, (2000); State, Ga. SE2d Strickland v. App. Ga. 434) (1983). In order to discredit a witness in this manner, “a certified of the rеcord of copy conviction must be intro- evidence; duced into rule,’ absent a waiver of the ‘best evidence no showing State, other will suffice.” Sapp v. suspension clearly Threlkeld’s from the of law practice moral however,
reflected it was not the shortcomings; equivalent of a conviction a crime of turpitude. moral
2. During closing argument, Thompson’s counsel referrеd to Threlkeld a lawyer who had been a member of the bar years. At the argument, jury conclusion of the retired. At that mistrial, point, Mullins moved for a positing Thompson should (as not be allowed to in favor of argue credibility Threlkeld’s a mem- bar), ber of the since permitted Mullins was not to show that Threl- keld had been from the suspended practice superior law. The denied the mistrial motion. We find no error.