Williams v. Williams

¶1dissenting.

¶2Mr. Williams, in the course of his employment as an executive in companies controlled by John Portman, Jr., obtained interests in over a dozen limited partnerships (hereinafter the “Portman interests”). In the equitable division of the Williamses’ marital property, Mr. Williams received all the Portman interests allegedly based on the understanding of the parties that these interests were essentially valueless. Less than a year after the divorce, Mr. Williams filed a lawsuit regarding the Portman interests, which led to a settlement and the apparent liquidation of his Portman interests. Thereafter, Ms. Williams petitioned the trial court for an upward modification of her former spouse’s alimony obligation, claiming that Mr. Williams sustained a significant increase in his financial status as a result of the settlement. The evidentiary basis for Ms. Williams’ claim was never litigated, however, because the trial court found as a matter of law that Ms. Williams was “not entitled to any interest in the Portman [companies] nor to the proceeds derived from its liquidation” and thus granted Mr. Williams’ motion for summary judgment. *130I dissent to the majority’s affirmance of the trial court’s ruling.

¶3Nothing in Georgia statutory or case law bars a party as a matter of law from seeking the modification of a former spouse’s obligations for alimony and/or child support based upon a claim that there has been a change in the former spouse’s income or financial status due to post-divorce appreciation in the value of property awarded the former spouse as a marital asset in the equitable division of the couple’s property. Modification actions are governed by OCGA § 19-6-19 (a). This Court has interpreted OCGA § 19-6-19 (a) to provide that alimony or child support obligations may be subject to modification upon a showing of a change in the income or financial status of either former spouse.3 See Perry v. Perry, 213 Ga. 847, 852 (102 SE2d 534) (1958). The plain and unambiguous language of OCGA § 19-6-19 (a) focuses upon a change in income or financial status, not upon the source of that change. Nothing in the statute either expressly or implicitly exempts from a modification action those changes in income or financial status resulting from post-divorce appreciation in marital assets awarded one spouse in the equitable division of property. Nor does anything in the statute support the distinction drawn by the majority between modification actions based on changes in income derived from marital assets, as opposed to those based on changes in financial status as a result of appreciation or depreciation of a marital asset. It thus appears that the majority’s opinion imposes an unwarranted marital-asset exemption upon a modification proceeding under OCGA § 19-6-19 (a). Under the majority’s rationale, one spouse may be awarded a marital asset which, post-divorce, skyrockets in value, making that spouse extremely wealthy, yet that change in financial status cannot be considered in any modification action, including child support actions. Because it makes no difference under the majority’s rationale which spouse, payor or payee of alimony, owned the asset, it follows that no modification action can be based on an increase in the financial status of the alimony recipient or the child’s custodian. Finally, the majority’s opinion is not limited to situations where a marital asset has increased in value: its rationale will likewise bar modification actions by parties whose financial status has been adversely affected by a depreciation in the value of an equitably distributed marital asset.

¶4The majority’s position also is not supported by the two Georgia cases it references. Those cases either involve actions to change the terms and conditions under which a spouse was awarded a share of the marital property4 or else recognize that marital property that has *131been awarded is subject to disposal by the parties in any manner they so choose.5 Those cases are not applicable here since Ms. Williams does not question Mr. Williams’ ownership of 100 percent of the Portman interests6 and is not seeking to alter the manner in which the parties disposed of the Portman interests, i.e., she does not claim she is now entitled to a proprietary interest therein. Nor is this an instance in which a spouse has merely exchanged an asset awarded as property in the divorce decree for another asset or the liquid form of the asset, i.e., cash. The majority states that the Portman interests were essentially valueless at the time of the divorce; hence, had this marital asset’s value remained unaltered, a mere liquidation of this asset could not have changed Mr. Williams’ income or financial status. The foreign cases cited by the majority, rather than supporting its holding, instead support the conclusion that Ms. Williams should be entitled to seek a modification of her former spouse’s alimony obligation based on the significant increase in Mr. Williams’ financial status because that increase allegedly is due to the post-divorce appreciation of the liquidated Portman interests. See Beltz v. Beltz, 466 NW2d 765 (Minn. App. 1991) (promissory note for $50,000 split 60/40 between husband and wife; husband’s portion of principal of note could not be considered in determining change for modification action but interest on note could be considered as increase in husband’s earnings); Flach v. Flach, 606 A2d 1153 (N.J. Super. 1992) (all previously equitably distributed assets and all assets acquired with, by or through equitably distributed assets, when repaid, are not considered income for purpose of determining alimony, but all income generated by that principal is to be considered); Innes v. Innes, 569 A2d 770 (N.J. 1990) (items purchased with proceeds of equitable distribution award are not income for modification action “to the extent that [the assets] reflect return of the principal as opposed to income *132generated by the principal”).7 See also Hommel v. Hommel, 471 NW2d 1, 5 (Wis. 1991) (investment income from assets awarded to spouse as part of equal division of property pursuant to divorce settlement generally can be included in calculating that spouse’s income for purposes of revising a maintenance award to payee spouse).

¶5The majority’s holding is not mandated by OCGA § 19-6-19 (a) and is not supported by the cases cited as authority. Although the majority claims its holding promotes finality, it does so by working an injustice to all parties affected by a post-divorce increase or a decrease in income or financial status where the source for the change is a marital asset. Because I would hold that Ms. Williams is not barred as a matter of law from filing a modification action, where the burden will be on her to show that the liquidation of the Portman interests resulted in a change in Mr. Williams’ income or financial status, I respectfully dissent.

¶6I am authorized to state that Justice Sears and Justice Carley join in this dissent.