SANDERS v. COLWELL
37467
Supreme Court of Georgia
DECIDED OCTOBER 27, 1981
248 Ga. 376 | 283 S.E.2d 461
HILL, Presiding Justice.
The proper measure of consequential damages to the remainder is the diminution, if any, in the market value of the remainder in its circumstance just prior to the time of the taking compared with its market value in its new circumstance just after the time of the taking. State Hwy. Dept. v. Hood, 118 Ga. App. 720 (165 SE2d 601) (1968); Venable v. State Hwy. Dept., 138 Ga. App. 788 (227 SE2d 509) (1976).
This court in Elliott v. Fulton County, 220 Ga. 377, supra, had before it the question of the propriety of the trial court‘s charge on the measure of the value of the land actually taken. Any approval of that portion of the Bridges charge dealing with consequential damage is obiter dicta. We now overrule State Hwy. Board v. Bridges, 60 Ga. App. 240, supra, insofar as it purports to furnish a correct instruction on consequential damages.3
As we cannot say that the charge of the trial court on consequential damage was harmless, we reverse.
Judgment reversed. All the Justices concur, except Jordan, C. J., who concurs in the judgment only. Smith, J., disqualified and Weltner, J., not participating.
DECIDED OCTOBER 27, 1981.
Harry L. Cashin, Jr., Frank L. Wilson III, for appellants.
Frank Love, Jr., amicus curiae.
Charles M. Pursley, Jr., Jo Lanier Meeks, for appellee.
HILL, Presiding Justice.
Bobby Colwell and Ruby Strickland Colwell, now Sanders, were married in 1955 and divorced in 1974. When the decree was entered, a settlement agreement between the parties was made the order of the court. Although it purported to settle all issues between them, no mention was made of their home. When the husband sold the house in 1980, the purchaser placed one-half of the husband‘s equity in escrow
At trial, the husband admitted that just prior to their divorce, he and his wife had met at his attorney‘s office, where she was unrepresented. He testified that she agreed to sign the settlement agreement they had prepared for her and not to contest the divorce or seek any rights in their home if he promised to pay her half of the equity upon its sale. Thereafter, she received by mail a copy of the agreement that did not mention the house but which had been made the temporary order of the court. The mailing included, however, a cover letter from the husband‘s attorney stating: “The purpose of this letter is to confirm our conversation in my office wherein you and your husband agreed that in the event that the house located at 5929 Bush Avenue, Columbus, Georgia, was sold and that in that event the equity would be split between you and your husband on a 50-50 basis. We are enclosing a copy of the temporary order and agreement which we have attempted to send you on several occasions which has been returned marked address unknown.” On the basis of the agreement reflected in this letter, the lis pendens was filed which the husband seeks to remove by this quiet title action.
During the trial and while the wife was testifying, the court asked her: “As I understand it... the reason you did not contest the divorce was because he agreed to... [split the equity in the house upon its sale]?” when she answered “[t]hat‘s right,” the court directed a verdict against her on the ground that contracts facilitating a divorce are void. Although the wife‘s counsel sought an opportunity for her to explain her testimony, the trial court was of the view that her admission could not be withdrawn. The wife appeals the verdict directed against her and the overruling of her motion for partial summary judgment.1
1. The wife argues that she did not agree to consent to the divorce in exchange for the agreement as to the equity in the home but that she agreed not to seek the home for herself as alimony.
However, we decline to require that this “fine line” continue to be drawn and declare that agreements in contemplation of divorce settling issues of alimony, property division, child custody, child support and visitation are not invalid. In so holding, we overrule Warren v. Warren, supra, and its predecessors. The trial court, therefore, erred in directing a verdict in favor of the husband.
2. The second enumeration of error raises the question whether the wife was entitled to summary judgment on the husband‘s quiet title action because the husband failed to meet her motion and affidavit with an opposing affidavit.2
The wife seeks the money held in escrow on the basis of the agreement to split the equity in their home which was not, in fact, made part of the final divorce decree. Thus the final divorce decree presently stands as a bar to the wife‘s recovery. She alleges that this judgment was procured by fraud. In the present state of the record, these allegations appear to be essential to her entitlement to the money and create issues making summary judgment inappropriate. Therefore, the trial court did not err in refusing to grant her motion.
3. Since we have reversed the directed verdict and determined that there are issues which remain, the case must be remanded for further proceedings.
Judgment reversed and remanded. All the Justices concur, except Gregory, J., who concurs specially and Jordan, C. J., who dissents.
DECIDED OCTOBER 27, 1981.
Smith, Smith & Collins, L. Joel Collins, for appellant.
Elkins & Flournoy, James A. Elkins, Jr., for appellee.
GREGORY, Justice, concurring specially.
As to division one of the majority opinion, I concur in the judgment only. The trial court erred in refusing to permit the wife to explain her testimony. Had she been permitted to do so, it may have appeared that the agreement was on the valid side of the “fine line” drawn in Warren v. Warren, 235 Ga. 234 (219 SE2d 161) (1975). Warren was grounded upon the public policy that the State has an interest in preserving the marriages of its citizens. I do not agree with the majority view expressed in Friedman v. Friedman, 233 Ga. 254 (210 SE2d 754) (1974), that this public policy has been changed by the addition of the irretrievably broken ground to our divorce statute.