37899. SEGARS v. BROOKS.
Supreme Court of Georgia
DECIDED NOVEMBER 5, 1981.
427-429
4. The remaining enumerations of error are without merit. Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 5, 1981.
J. L. Jordan, for appellant.
Thomas, Kennedy, Sampson & Edwards, Thomas G. Sampson, Donald P. Edwards, John L. Kennedy, Linwood R. Slayton, Jr., for appellees.
37899. SEGARS v. BROOKS.
JORDAN, Chief Justice.
The first issue presented for decision is whether a claim for equitable division of property pending in divorce proceedings survived the death of thе claimant-spouse during the pendency of the proceedings and prior to entry of a decreе of divorce. We answer this question in the negative.
The second issue is whether an equitable claim to the рroperty based on a resulting trust theory survived the death of the wife. We answer this question in the affirmative.
Amelia Bеll Brooks died during the pendency of the divorce proceedings she had commenced against Eugene Talmadge Brooks. Her death was by gunshot wound allegedly caused by her husband six days after he had answered her сomplaint. Her petition had sought among other relief a decree of fee simple title to the mаrital residence, record title to which was in him. He had answered, inter alia, demanding that the home be sold аnd the proceeds divided equally between them. Although the trial court would have been authorized to enter a decree of divorce on the pleadings, no divorce decree had been entered before her death.
The trial court held that her claim to the marital residence was personal and did not survive in favor of her administratrix, who sought, by motion, to be substituted for the decedent in order to assert the claim to the marital residence. After grant of her application to appeal, the administratrix apрeals.
1. We agree with the appellee that the unadjudicated claim for divorce was purely personal and abated with the death of Amelia Bell
A Stokes claim for equitable division of property cannot be filed or maintained separate from divorce proceedings. Stokes v. Stokes, supra. To the contrary, a Stokes claim only can be filed оr maintained in and ancillary to divorce proceedings. The reason for this rule is that a Stokes claim arises from a marital relation and divorce. Accordingly, a Stokes claim arises either after or contemporaneously with the filing of a claim for divorce and must abate if not pursued to entry of judgment after or contemporaneously with entry of a decree of divorce. In a few words, no divorce means no equitable division of property.
A decree of divorce probably would have been issued in the present case had the wife not died. The state of the pleadings at the time of her death would have authorized entry of а decree of divorce on the pleadings. However, we should not presume that had the wife lived the рroceedings necessarily would have terminated in a decree of divorce because the parties could have reconciled their differences and could have chosen to resume their mаrital relationship. The law favors marriage, not divorce. No matter how serious the apparent marital difficulties, we must presume until entry of the divorce decree that the parties might have reconcilеd and continued their marriage.
Accordingly, we cannot say that a right ever would have arisen in these proceedings which would have been inheritable and subject to the claim of the intestate‘s administratrix. We hold thаt the wife‘s Stokes claim abated upon her death because a decree of divorce had not previously been entered.
We decline to allow our analysis in this appeal to be governed by the “bad facts” that the husband is alleged to have killed his wife pending the divorce proceedings. Had the alleged hоmicide occurred prior to commencement of divorce proceedings, no Stokes claim ever would have arisen. We see no legal distinction between a case where a Stokes claim never would have arisen, because no divorce action ever was filed, and the present case in which the Stokes claim was not pursued to judgment after or contemporaneously with a decree of divorce. Criminal hоmicide is punishable by law, and the sanctions of our criminal laws are adequate to deter the killing of spouses pending divorce proceedings.
2. On the other hand, the equitable claim to the property filed or maintained on a resulting trust theory survived the death of wife.
3. The judgment of the trial court is affirmed insofar as it dismissed the сlaim of the administratrix for equitable division of property and reversed insofar as it dismissed the resulting trust claim.
Judgment аffirmed in part; reversed in part. All the Justices concur, except Marshall, J., who concurs in the judgment only.
DECIDED NOVEMBER 5, 1981.
Robert E. Ridgway, Jr., for appellant.
Eugene W. Harper, Jr., for appellee.
HILL, Presiding Justice, concurring.
I concur in the opinion and judgment of the court. The additional tragedy of this case is that under existing law the decеased‘s children cannot recover for the wrongful death of their mother. Jones v. Swett, 244 Ga. 715 (261 SE2d 610) (1979). The remedy for this unconscionаble situation is to allow recovery for wrongful death. I would overrule Jones v. Swett, supra.
I am authorized to state that Justices Clarke, Smith and Weltner join in this concurrence.