In the Supreme Court of Georgia
Decided: February 22, 2016
S15F1331. FLORY v. FLORY.
HUNSTEIN, Justice.
Pursuant to Supreme Court Rule 34 (4), we granted the application for
discretionary appeal filed by Appellant Peter John Flory (“Husband”) seeking
leave to challenge the final judgment and decree effectuating his divorce from
Appellee Lucie Wheeler Flory (“Wife”). Husband contends that the trial court
erroneously awarded Wife certain assets as separate, non-marital property. We
agree that the trial court erred in its division of property, and we therefore
reverse and remand.
The parties were married in November 1993, and Wife filed her complaint
for divorce in November 2013. During a subsequent bench trial, Husband and
Wife each claimed that certain assets should be classified as separate, non-
marital property. Among other things, Wife sought to recoup the value of
certain stocks, which she owned prior to the marriage, that were liquidated for
the purpose of purchasing a marital residence, while Husband sought credit for
funds advanced by his mother that were used to make improvements on that
residence. The trial court acquiesced to the respective parties’ classification of
the property on the basis that equity dictated such an outcome. Relying on the
maxim that “[h]e who would have equity must do equity and must give effect
to all equitable rights of the other party respecting the subject matter of the
action,” the trial court reasoned that Husband and Wife’s respective claims to
separate property were “on equal footing” and, thus, could all be similarly
granted. The parties agree on appeal that the trial court’s reliance on the above-
quoted maxim was misplaced.
In order to equitably divide marital property, the trial court must first
classify the disputed property as either marital or non-marital. See Thomas v.
Thomas, 259 Ga. 73, 75 (377 SE2d 666) (1989). “Whether an item of property
can legally constitute a marital asset is a question of law for the court, and
whether a particular item of property actually constitutes a marital asset may be
a question of fact for the trier of fact to determine from the evidence.” Jones-
Shaw v. Shaw, 291 Ga. 252, 252-253 (1) (728 SE2d 646) (2012). “[O]nly the
real and personal property and assets acquired by the parties during marriage is
subject to equitable property division.” Moore v. Moore, 249 Ga. 27, 28 (2)
2
(287 SE2d 185) (1982). Property that once may have been separate – such as
gifts, inheritances, or pre-marital property – may be converted into a marital
asset if a spouse takes action manifesting an intent to transform that separate
asset into marital property. See Shaw v. Shaw, 290 Ga. 354 (1) (720 SE2d 614)
(2012) (investment accounts established with inherited funds transformed into
marital property when husband gave wife ownership interest in the accounts);
Coe v. Coe, 285 Ga. 863 (1) (684 SE2d 598) (2009) (residence purchased with
money awarded to husband from personal injury action could be deemed marital
property where it was purchased during the course of the marriage and deeded
in the names of both spouses). A spousal gift of non-marital property to the
marital unit transforms the separate property into marital property and makes it
subject to equitable division. Lerch v. Lerch, 278 Ga. 885 (1) (608 SE2d 223)
(2005).
On the other hand, assets deemed separate property are not subject to
equitable division, nor is the appreciation of those assets marital property where
that appreciation is solely attributable to market forces; however, any
appreciation of separate property resulting from the efforts of either or both
spouses becomes a marital asset subject to equitable division. See Avera v.
3
Avera, 268 Ga. 4 (1) (485 SE2d 731) (1997). Likewise, under the “source of
funds rule,” a spouse contributing non-marital assets towards the acquisition of
property is entitled to an interest in the property in the ratio of the non-marital
investment to the total non-marital and marital investment in the property.
Maddox v. Maddox, 278 Ga. 606 (1) (604 SE2d 784) (2004). The remaining
portion of the property is marital property, subject to equitable division,
allowing the contributing spouse and the marital unit each to receive a
proportionate and fair return on the respective investments. Id.
The trial court failed to apply any of these well-established legal principles
in apportioning the property between the parties. While the trial court purported
to make legal and factual conclusions regarding the assets in question, it actually
did no such thing, but rather simply concluded, as a matter of “equity,” that each
party was entitled to the property respectively claimed as separate property. The
trial court’s failure here to apply the relevant legal principles is reversible error.
See Horsley v. Horlsey, 268 Ga. 460 (490 SE2d 392) (1997). Accordingly, we
reverse and remand for the application of the appropriate legal principles in the
trial court’s division of property.
Judgment reversed and case remanded. All the Justices concur.
4