Ricketson v. Metts

Carley, Judge.

Appellant and appellee were formerly husband and wife. Appellee filed her original complaint, seeking statutory partition of property in which she alleged an undivided one-half interest under a warranty deed. Appellant answered, asserting that under the parties’ settlement agreement incorporated into their divorce decree, appellee’s interest in the property was “burdened” by his right to posses*607sion. See Rathkamp v. Rathkamp, 136 Ga. App. 423 (221 SE2d 221) (1975). Appellee then amended her complaint to seek a declaration that certain portions of the settlement agreement were void and that she had an “unburdened” interest in the property. See Hortman v. Childress, 162 Ga. App. 536 (292 SE2d 200) (1982).

The case was set for trial and a jury was empaneled. However, before the trial commenced, the trial court entertained what was, in effect, appellee’s oral motion for judgment on the pleadings. See OCGA §§ 9-11-7 (b) (1); 9-11-12 (c). A hearing was conducted, wherein the trial court considered only the warranty deed and the settlement agreement, which documents were part of the pleadings, and the parties’ respective contentions regarding the effect those documents had on appellee’s right to seek partition of the property. After the hearing, the trial court held that, as a matter of law, appellee’s interest in the property was not “burdened” by the right of use that appellant contended was created by the settlement agreement. Hortman v. Childress, supra. Accordingly, the trial court ordered partition. Appellant appeals.

In relevant part, the settlement agreement in the instant case provides: “The fee simple title to the . . . property now vests in the parties hereto subject only to purchase money deed to secure debt .... As between the parties hereto, [appellant] shall have possession of the property above described and [appellant] acknowledges and agrees that he shall pay and be responsible for any and all future payments accruing on all debts secured by the fee simple title to the . . . property. ... In addition, [appellant] shall be responsible for and pay all ad valorem taxes and special assessments on the property . . . and shall pay for and maintain hazard insurance on the house situate [d] on said property in a sum comparable to the fair market value of said property.” It is clear that this language is analogous to that construed in Hortman v. Childress, supra, which language was distinguished from that appearing in the agreement construed in Rathkamp v. Rathkamp, supra. The instant agreement provides that the parties’ fee simple title is subject only to the deed to secure debt and also that appellant’s possession is of unspecified duration. Fee simple title cannot be subject only to the deed to secure debt and also be subject to appellant’s right to use the property. Thus, “[t]he settlement agreement in the case at bar is clearly an agreement to divide the property of the marriage. The evident purpose of [the agreement] was to reaffirm each party’s undivided interest in the [subject] property. It also provided that appellant, rather than appellee, would enjoy the use . . . [thereof]. However, there is no language manifest in [the agreement] which compels the conclusion that the parties intended to place any kind of burden on appellee’s interest in the [subject] property. If such a burden had been intended by the parties, *608more apt and definitive language would have undoubtedly been utilized. [Cit.]” Hortman v. Childress, supra at 538.

Decided March 1, 1985. J. Laddie Boatright, for appellant. C. Jerome Adams, for appellee.

Appellant attempts to avoid this result by asserting that parol evidence is admissible to explain the “ambiguous” language of the parties’ agreement. “[A] contract is not ambiguous . . ., unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties. [Cit.]” Pisano v. Security Mgt. Co., 148 Ga. App. 567, 568 (251 SE2d 798) (1978). After the rules of construction are applied to the instant agreement, no ambiguity as to the parties’ intent remains. Hortman v. Childress, supra. Accordingly, parol evidence would not be admissible to show a contrary intent. See Early v. Kent, 215 Ga. 49 (1) (108 SE2d 708) (1959).

Appellant also asserts that he should be allowed to prove an oral agreement between the parties, whereby appellant was to have possession of the property until the parties’ minor son reached the age of majority. This alleged oral agreement is inconsistent with the written agreement, under which, as discussed above, appellee’s interest in the property would not be subject to any burden whatsoever. The written evidence of appellee’s interest in the property controls over the inconsistent alleged oral agreement. See Lee v. White, 249 Ga. 99 (286 SE2d 723) (1982). Appellant’s contention that appellee “made suqh a promise orally . . . eannot be eonsidered in the faee of an express, written eontraetual provision dealing with the matter. [Cits.]” Randall v. Cruce, 145 Ga. App. 861, 862 (245 SE2d 28) (1978). The written agreement purports to establish the parties’ respeetive interests in the property, and the interests so established eannot be ehanged by a parol agreement. Ver Nooy v. Pitner, 17 Ga. App. 229 (2) (86 SE 456) (1915).

It follows that the trial eourt did not err in granting appellee judgment on the pleadings as to the issue of her unburdened and undivided one-half interest in the property. Aeeordingly, the trial court correctly ordered partition.

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.