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Husband appealed a trial court's issuance of a final divorce judgment and decree that divided some unimproved real property in Florida and two Morgan Stanley funds equally between the parties and made no disposition of the interests in an apartment complex, thereby leaving each party with his or her own interest. The court held that the two Morgan Stanley accounts were transformed into marital property when Husband gave Wife an ownership interest in the property; the Florida property was transformed into a marital asset where it was deeded to him and his Wife as tenants in common; and in regards to the apartment complex, Wife acquired an ownership interest separate and distinct from Husband's. Finally, the court held that Husband's claims that the trial court abused its discretion by announcing a prejudgment of the case prior to his presentation of evidence was without merit. Accordingly, the judgment was affirmed.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: January 9, 2012
S11F1586. SHAW v. SHAW.
CARLEY, Presiding Justice.
Janette E. Shaw (Wife) and William D. Shaw (Husband) were married on
June 28, 1968, and lived together until their separation on or about August 25,
2007. A divorce action was filed on March 3, 2009, and, pursuant to the terms
of a pretrial order, the only issue for resolution was the equitable distribution of
certain property, including unimproved real property in Marion County, Florida,
that was received from a trust created by Husband’s mother, two Morgan
Stanley accounts established by Husband with inherited funds, and two deeded
interests of 6.67% in an apartment complex that is currently involved in
litigation. After a two-day bench trial, the trial court issued a final divorce
judgment and decree that divided the Florida property and the two Morgan
Stanley funds equally between the parties and made no disposition of the
interests in the apartment complex, thereby leaving each party with his or her
own 6.67% interest. Husband applied for discretionary appeal, and this Court
granted the application pursuant to the Pilot Project then in effect in domestic
relations cases. For current procedure see Supreme Court Rule 34 (4).
1. Husband contends that the trial court erroneously characterized the two
Morgan Stanley accounts as marital property.
“In general, the question of whether ‘a particular item of property
actually is a marital or non-marital asset may be a question of fact
for the trier of fact.’ (Cit.) Furthermore, ‘(t)he standard by which
findings of fact are reviewed is the “any evidence” rule, under
which a finding by the trial court supported by any evidence must
be upheld.’ (Cit.)” [Cit.]
Miller v. Miller, 288 Ga. 274, 280 (2) (705 SE2d 839) (2010). Since the
accounts were established with funds he inherited from his mother, the accounts
are not subject to equitable division, Husband argues, because “‘property
acquired during the marriage by one spouse by gift, inheritance, bequest or
devise (made by a nonspouse) remains the separate property of the recipient
spouse. . . .’ [Cits.]” Coe v. Coe, 285 Ga. 863, 864 (1) (a) (684 SE2d 598)
(2009). However, while property inherited by one spouse during the course of
the marriage begins as separate property, that property may be converted into a
marital asset by the actions of the recipient spouse, such as the recipient spouse
transferring full, partial, or joint ownership in the property to his spouse. See
Miller v. Miller, supra; Coe v. Coe, supra; Lerch v. Lerch, 278 Ga. 885, 886 (1)
(608 SE2d 223) (2005).
Husband opened the two Morgan Stanley accounts for the purpose of
receiving the assets he had just inherited from his mother, and he established
both accounts, from the outset, in the name of him and his wife,
to be held as [joint tenants] with right of survivorship. In so doing,
Husband manifested an intent to transform his own separate
property into marital property. [Cits.] Because both Husband and
Wife then owned an undivided one-half interest in the property, the
[accounts were correctly] treated as marital property.
Lerch v. Lerch, supra. Husband contends that this principle should not apply in
the present case since Wife never contributed to the value of either account and
because the accounts were not commingled. However, whether or not these
allegations are true, they do not vitiate the evidence that the accounts were
transformed into marital property when Husband gave Wife an ownership
interest in the property. Wife’s name on the accounts certainly qualifies as any
evidence supporting the trial court’s finding of the accounts as marital property,
and, thus, this enumeration is without merit.
2. Husband also contends that the trial court erred in finding that the real
property located in Florida was marital property. To support this contention,
Husband again argues that he inherited the property from his mother, that Wife
has not contributed to the property’s value, and that the property has not been
commingled with other marital assets. However, when the property was
inherited, Husband directed that it be deeded to him and Wife as tenants in
common, thereby giving each party an undivided one-half interest in the
property. As discussed above, such action by Husband constitutes some
evidence that the Florida property was transformed into a marital asset.
Therefore, this enumeration also is without merit.
3. Husband claims that the trial court erred by not giving him all of the
couple’s interest in an apartment complex. According to the record, Husband,
Wife and Husband’s brother bought a 20% interest in the property that was
divided into three equal shares amounting to approximately 6.7% each.
Therefore, with the purchase of the property, Wife acquired an ownership
interest separate and distinct from Husband’s. Moreover, “‘property acquired
as a direct result of the labor and investments of the parties during the marriage
is’” marital property. Crowder v. Crowder, 281 Ga. 656, 657 (642 SE2d 97)
(2007). The interests in the apartment complex were bought during the marriage
with marital funds, thereby causing them to be marital assets subject to equitable
Husband, however, contends that he should be granted Wife’s separate
interest in the property since he, with his brother, instigated a legal action to
enforce their interests in the property and has paid $20,000 in legal fees.
Regardless of whether Husband’s allegation would otherwise be sufficient to
strip Wife of her ownership in the property, it is undisputed that Wife has been
added as a third-party defendant and is represented by her own attorney in the
litigation. Moreover, in the present case, the trial court, sitting as the factfinder,
has broad discretion in determining the equitable division of the marital assets.
See Stanley v. Stanley, 281 Ga. 672 (1) (642 SE2d 94) (2007); Jones v. Jones,
264 Ga. 169 (441 SE2d 745) (1994). Husband has not shown why Wife must
pay for half of his legal expenses and in fact has conceded that he should not be
forced to share in Wife’s legal expenses. “Having reviewed the evidence
considered by the trial court, we cannot say that [the] disposition constitutes an
abuse of the broad discretion that it possessed in addressing the matter of the
equitable division of any marital property. [Cit.]” Stanley v. Stanley, supra at
4. Finally, Husband claims that the trial court abused its discretion by
announcing a prejudgment of the case prior to his presentation of evidence.
Husband points to the following language spoken by the court after the
conclusion of Wife’s case-in-chief but before Husband’s presentation of
I don’t see why it shouldn’t be divided 50-50. I mean nothing I’ve
heard yet has convinced me otherwise. . . . I’ve not heard all the
evidence. . . . I know you haven’t had [Husband] on direct
examination. But I’ve got a very good feel from this case. . . .
However, a comprehensive review of the hearing transcript shows that before
the trial court made these statements, Husband testified extensively in Wife’s
case-in-chief as an adverse witness, and Husband’s counsel thoroughly
questioned Wife on cross-examination, and thus the trial court hardly could be
accused of basing his statements on evidence presented only by Wife.
Moreover, after reading the entire conversation between the trial court and
Husband’s counsel during which the statements above were made, it becomes
apparent that the trial judge was only indicating the conclusion which he
believed was supported by the evidence presented thus far. He repeatedly stated
that he remained open to a different conclusion, and thus “it does not follow that
[he] was unwilling to consider other evidence later presented by [Husband].”
In re C.S., 275 Ga. App. 562, 565 (2) (621 SE2d 483) (2005).
Furthermore, the prohibition against judges commenting on witness
testimony is meant to apply to comments made by a judge in front
of a jury, not to comments made by a judge in a bench trial, since
the purpose behind the prohibition “is to prevent the jury from
being influenced.” [Cits.]
In re C.S., supra at 566 (2). Since the trial court sat as the factfinder in the
present case, it was not erroneous or improper for the judge to express aloud his
opinions on the evidence as the trial progressed. The only person that the trial
court could improperly influence with his comments was himself, and it would
be inane to rule that the trial judge acted improperly by expressing aloud these
opinions rather than keeping them secret. Thus, this enumeration also is without
Judgment affirmed. All the Justices concur.