Temples v. Temples

Hunstein, Justice,

dissenting.

I cannot agree with the majority’s affirmance of an award which, under the guise of “modification,” relieved appellee of his alimony obligations and improperly divested appellant of alimony to which she was entitled. In the trial on appellee’s petition, the merits of appellant’s entitlement to alimony were not in issue for the jury’s consideration. OCGA § 19-6-20. The plain language of the verdict and judgment thereon, however, reveals that the issue of appellant’s entitlement to alimony was the controlling concern of the jury and that their award was rendered with the intent to terminate appellee’s alimony obligations.5

The result of the jury’s award is that appellant is now entitled to receive nothing in alimony. It is pure sophistry to assert under the circumstances that an entitlement to receive nothing is an entitlement. I do not agree with the majority that an award entitling a party to no alimony can be upheld as a “modification” under OCGA § 19-6-19 (a) merely because the award does not preclude the party from the possibility of obtaining future modifications. Nothing in OCGA § 19-6-20 authorizes the jury to suspend, discontinue, or terminate a party’s entitlement to alimony even on a temporary basis. A party’s entitlement to alimony can be statutorily terminated only under OCGA § 19-6-19 (b), the “live-in lover” provision, which is clearly not applicable in the case sub judice.

*782Decided February 5, 1993 Reconsideration denied February 25, 1993. Newton, Smith, Durden, Kaufold & McIntyre, Howard C. Kaufold, Jr., Sherri Paul McDonald, for appellant. Wilson, Strickland & Benson, Frank B. Strickland, for appellee.

Accordingly, because I cannot uphold style over substance and accept as a “modification” what is clearly a de facto termination of alimony in contravention of OCGA § 19-6-20, I respectfully dissent.

A review of the verdict and the judgment reveals language expressly terminating appellee’s obligations under the settlement agreement. E.g., the verdict makes provisions to “discontinue” some payments and to “delete” sentences in the settlement agreement addressing other obligations. The judgment, which conformed to the jury’s award, provides that appellee’s obligations for weekly payments of alimony are “discontinued, stricken and canceled”; that appellee is “relieved of all future obligations in regard to the purchase and maintenance” of appellant’s automobile; that obligations regarding payment of future dental and medical expenses are “deleted and terminated immediately and [appellee] has no future obligation to pay for same in the future”; and that the provision obligating appellee to pay appellant’s utility expenses is “hereby stricken in its entirety [and appellee] has no obligation to pay for said expenses after August 28, 1991.” The only term still in effect from the settlement agreement is appellee’s obligation to maintain appellant’s 1985 automobile.