Rooks v. Rooks , 252 Ga. 11 ( 1984 )

Per curiam.

As a part of the jury verdict in a divorce proceeding, the marital home was ordered sold, and the wife was awarded one-half of the proceeds as equitable division. She also was awarded any relocation fee which the condemning authority might pay in connection with its prospective acquisition of the property by eminent domain. We granted the husband’s application for discretionary appeal in order to determine whether the home was subject to equitable division.

Testimony at trial established that the home was once owned by the husband’s mother. The husband and wife rented it until 1977, when the mother conveyed fee simple title to the husband in order that he might offer it as security for a loan. He borrowed approximately $25,000, and gave $4,000 of the loan proceeds to his mother. The jury awarded one-half of the home to the wife, one-fourth to the husband, and one-fourth to the mother. The trial court modified the verdict so as to award a one-half interest in the property to each spouse.

The court charged concerning the principles of equitable division as follows:

“In this case both parties contend that there was certain property acquired during the marriage. The Plaintiff and the Defendant in this case have requested that this Jury make an equitable property division of the property acquired during the marriage, and this is a proper matter for your consideration.

“In determining the question of property division, you are not to concern yourself with the question of alimony or the entitlement of alimony, but rather in determining the issue of property division you are to consider the following.

“In a property division, the Jury should give the wife that property which you find from the evidence is hers and you should give to the husband that which you find from the evidence is his.

“The Court charges you that under the law of the State of Georgia the separate property of each spouse shall remain the separate property of that spouse, except as provided in cases of divorce and alimony on a property division.

“The Court instructs you that you should first assign to each spouse the personal property or assets owned by that party at the time of the marriage, and you should assign to each spouse any property or funds inherited by that spouse during the marriage.

“You should then equitably apportion between the parties the real and personal property and assets acquired during the marriage whether the title thereto is in the name of one spouse or both.

“In making this apportionment, you, the Jury, should consider any evidence of the practice and custom of the parties with reference to their individual incomes or salaries and whether the parties considered their income as joint income without division as one lump sum salary or whether they considered their income as individual incomes, and the purpose and intent of the parties regarding the ownership of the property in question.

“You should also consider which party furnished all or a portion of the purchase money for any items in question and the source from which the property in question was acquired, the duration of the marriage and any prior marriage, if any, of either party, the age, health, occupation, vocational skills and employability of each party, as well as the contribution or services of each spouse to the family unit, the amount and source of income, the estate of each party, if any, the debts, liabilities and needs of each of the parties, as well as the debts against the property and the opportunity of each spouse for future acquisition of assets and income by employment or otherwise.

“You should also consider the intent of the parties as it relates to the ownership of any particular item of property, and any other fact or circumstance disclosed by the evidence which will enable you to reach the truth of the case and arrive at a correct verdict in this case.”

Decided January 18, 1984. Paul S. Weiner, for appellant. Jeffrey L. Sakas, for appellee.

The court did not instruct the jury as to the principles set out in our recent case of Bailey v. Bailey, 250 Ga. 15 (295 SE2d 304) (1982), amplifying Stokes v. Stokes, 246 Ga. 765 (273 SE2d 169) (1980), which established the following proposition: “[Property acquired during the marriage by either party by gift, inheritance, bequest or devise remains the separate property of the party that acquired it, and is not subject to equitable division.” Notwithstanding, we believe that the jury was instructed correctly, and the question of equitable division relative to the dwelling house properly submitted to the jury.

As to the trial court’s modification of the verdict in such manner as to vacate the jury’s award of a one-fourth interest to the husband’s mother and to allocate that portion to the husband, we observe that the only person adversely affected thereby is the mother of the husband, who is not party to this appeal.

Judgment affirmed.

All the Justices concur, except Hill, C. J., who concurs in the judgment only, and Gregory, J., disqualified.