Moore v. Moore , 249 Ga. 27 ( 1982 )

Per curiam.

Appellant-former wife and appellee-former husband were married in 1944, and they divorced in April of 1973. Under the 1973 divorce decree, the appellant was awarded the parties’ mobile home, as well as other property. Appellant and appellee remarried in July of 1973, but the appellant filed the present complaint for divorce against the appellee in 1979. In this suit, the appellee sought $12,500 as 1/2 of the value of the mobile home, as well as $600 per month for services rendered to the appellant subsequent to their 1973 remarriage. The appellee asserted his claim to these monies under the theory of equitable property division. Stokes v. Stokes, 246 Ga. 765 (273 SE2d 169) (1980).

The trial judge ruled that under Code § 30-217 the property award in the parties’ 1973 divorce decree was annulled and set aside by their subsequent remarriage. On this basis, the trial judge further ruled that property awarded to the appellant in the 1973 divorce decree is subject to equitable division in this divorce proceeding. Accordingly, the trial judge denied the appellant’s motion for directed verdict. The jury returned a verdict in favor of the appellee for the lump sum of $28,000. We granted the appellant’s application to appeal.

1. Code § 30-217 provides, in part: “The subsequent voluntary cohabitation of the husband and wife shall annul and set aside all provisions made, either by deed or decree, for permanent alimony...” However, it has been held that this Code section operates so as to annul provisions for permanent alimony only where there has been subsequent voluntary cohabitation of husband and wife during their first marriage; § 30-217 does not annul permanent alimony provisions where, as here, the parties obtain a divorce and subsequently remarry and cohabit with each other. Elder v. Hogg, 237 Ga. 465 (228 SE2d 851) (1976); Travis v. Travis, 227 Ga. 406 (181 SE2d 61) (1971). As noted in Travis v. Travis, supra, under Code § 30-209: “All obligations for permanent alimony to a party, whether created by contract, verdict, judgment, or decree, the time for performance of which has not arrived, shall cease upon remarriage of the party to whom such obligations are owed unless otherwise provided.” Code § 30-209 basically applies to unperformed obligations to make installment payments of alimony, but does not apply to unperformed obligations to effectuate property settlements. Travis v. Travis, supra; Shepherd v. Shepherd, 223 Ga. 609 (1) (157 SE2d 268) (1967). Thus, “ ‘property which, on the granting of a divorce, was set aside to (the wife) and became her sole and separate property remains her separate estate, notwithstanding the divorced parties are subsequently remarried to each other.’ ” Travis v. Travis, 227 Ga. 406, supra, p. 409.

Therefore, the trial judge erred in ruling that the parties’ subsequent remarriage annulled and set aside the award of property to the appellant under the parties’ 1973 divorce decree.

2. Under Stokes v. Stokes, supra, only the real and personal property and assets acquired by the parties during marriage is subject to equitable property division. Stokes v. Stokes, 246 Ga. 765, supra, p. 772 (Hill, J., concurring).

Therefore, the trial judge erred in refusing to direct a verdict in favor of the appellant on the appellee’s claim for 1/2 interest in the mobile home, since the mobile home was property the appellant brought into the parties’ remarriage.

3. However, the trial judge did not err in submitting to the jury the appellee’s claim for $600 per month for services rendered by the appellee to the appellant subsequent to their remarriage. Nor did the trial judge err in admitting other complained-of evidence.

In determining how assets and property acquired during the marriage should be equitably apportioned, the jury is authorized to consider, among other things: the estate of each of the parties; any prior marriage of either party; and the contribution or service of each spouse to the family unit. Stokes v. Stokes, supra (Hill, J., concurring).

The judgment must be reversed and the case remanded for a new trial.

Judgment reversed.

All the Justices concur, except Marshall and Smith, JJ., who concur in the judgment only. Decided February 16, 1982. Merrill & Reynolds, Charles B. Merrill, Jr., for appellant. Millard B. Shepherd, Jr., for appellee.