*1 ^[131] This is not our function on certiorari and not reach this issue. 9, 1989

Reconsideration denied March Carr, Tabb & Pope, David H. Pope, for appellant. Eason, Jr.,

Richard Sumner, Reeves, John C. Rex T. & Morse Ontal, Morse, Jack 0. for appellees. Goldstein,

Dennis A. Kay Young, Y. amici curiae.

46103. YATES v. YATES. (377 677) SE2d We a discretionary application in this case to determine court, whether the trial sitting as the of fact without jury, trier a erro- neously awarded separate personal property by husband’s way equitable division, and, so, if whether such an award was re- versible error. We err, find that the court did and that must be reversed because of the error.

1. We start with principle Stokes, that Stokes v. under 246 Ga. (1980), “only personal the real and property acquired and assets parties during marriage is subject equi- to property table Moore, (2) division.” Moore v. 249 185) (1982). More specifically, property interest that is brought into the marriage by is not subject to property Bailey Bailey, division.

Likewise, “property acquired during marriage by party by either gift, inheritance, bequest or devise remains the acquired it, and is not subject to division.” Id. Campbell Accord v. Campbell, 255 Ga. 461 case, the instant apparent purported to equitably divide a personal property substantial amount of was in fact the Thus, husband’s property.1 under Stokes and progeny, the trial court erred in equitably dividing the course of personal property spouses.

2. The remaining question is whether necessitates rever- the error sal. The wife argues equitably dividing error personal property personal property ^[1] The exact extent uncertain, as the court did not enter to which the court encroached on and marital. to the spouses turned on Moreover, preliminary proper questions findings husband’s classification of witness classifying separate personal credibility. many spouses’ items property is court could have harmless because the trial allocated the same her equi- disagree. purpose

However, behind the doctrine of we table during

is to assure that accumulated *2 fairly parties. Although be not accumulated the other distributed between the

during marriage or the and to one party may deciding ques- in be taken into account alimony equities and, indeed, tions of the of the division of assets, the marital this not sub- itself ject [Emphasis supplied.] to division. Campbell Campbell, supra, v. 255 Ga. at 462. may separate disregard To hold that a and marital

property dichotomy equitable awarding property division, in on the separate prop- can, chooses, basis that the court if it award the same erty alimony, would erode the distinctions between and equitable marital and between division and We de- hold, cline to so and we therefore find that the error of the court requires reversing judgment remanding this case and this case for entry judgment opinion.2 of a new consistent with this Cf. Thomas v. Thomas, Rooks, 259 Ga. 73 But cf. Rooks v. 169) (1984) (concurrence J.). Weltner, 13-19 of Judgment except concur, Weltner, J., reversed. All the Justices who dissents. dissenting. Justice, Weltner, agree majority spouse I with the that the of one

was owned before the cannot be awarded to spouse by way equitable disagree, the other however, of I distribution. reversing judgment with under the facts of this case. alimony may law, 1. Under our certain circum- be barred under (b)). (e.g., adultery stances or desertion. OCGA And where 19-6-1 alimony sought, may no case, however, none be awarded. sought alimony, wife and the trial court found that some award of alimony appropriate. was judge, power 2. fact, The trial as the finder of had award —

any alimony independent asset of the husband to the wife as spouses according division of ble award of other allocations for The new personal property. to whether should include division and it is property. findings classifying or marital property, light may, of its revision of the course, prerequisite reconsider for equita any property.”3 Thus, character such asset as “marital award to (whether “premarital property” “equitable wife of called distribu- “alimony,” label) authority tion,” or other within the was judgment, Hence, trial court. affirm rather than remand taxonomy. Shapiro Lipman, case for further exercises See 1989. appellant. Dana, Watson, Watson & D. Dennis for Murphy, appellee. Jones, Jones & Howard W. for KEY CAPITAL v. AVERY. CORPORATION This arises case from a 1984-model car the lease of a Avery, Key Capital Corpo- lessee, lessors, between the ration Linda and the Leasing, entering lease, and Inc. After into the actually discovered that the car the was lessors delivered to her *3 damages 1983model. She sued the on of fraud and lessors theories Key summary granted breach of contract. The Capital Appeals judg- claims, on both but Court of reversed the Avery Key Capital Corp., App. ment, (1988). We then a writ of certiorari. opinion First, we shall consider issues: whether two there genuine concerning Avery’s fraud, was a material issue of fact claim of Avery precluded language and, second, whether certain lease claiming Capital. against Key from breach of For the reasons question negative follow, we answer first and the sec- question positive. ond in the dissenting Concerning Judge Sognier, claim, in a fraud opinion joined by judges, two other wrote that: by Avery support [t]he record this case does not a claim against Key Capital Avery failed to for actual fraud Key Capital’s adduce testi- evidence to affidavit rebut mony to be believed the car from leased representation Knowledge a 1984 Mercedes Benz. being action, false an [cit.], sum- essential element in a fraud 3 “Alimony estate, support party’s is an allowance one of the other out of made for the permanent . . . may grant .” to either OCGA 19-6-1. finder of fact § “The party, corpus either from estate or otherwise.” OCGA 19-6-5.