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Mallard v. Mallard

The superior court erred in awarding 100 percent interest in the parties' marital home to husband in their divorce proceeding.

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Following the denial of her motion for new trial, as amended, and pursuant to Rule 34 4 of this Court1 , Alba Horacio Mallard “Wife” was granted a discretionary appeal from the final judgment and decree of divorce “Decree” dissolving her marriage to Kenneth Russell Mallard “Husband”. The issue on appeal is whether the superior court erred by awarding Husband a 100 interest in the parties’ marital home the “Property”. For the reasons that follow, we reverse and remand.

This is the second marriage between the parties.2 They were first married in February 2010, and divorced in January 2011. Prior to their first marriage, on October 30, 2009, Wife acquired the Property; she was the only grantee in the limited warranty deed and the sole party listed as a mortgagor on the loan for the Property the “Debt”. The parties’ 2011 final divorce judgment and decree made no mention of an award of the Property or an award of any real estate.3 Shortly after this first divorce, the parties resumed their relationship and largely lived together, and in April 2011, Wife executed a quitclaim deed transferring ownership in the Property to herself and to Husband, expressly as joint tenants with right of survivorship. See OCGA § 44-6-190.4 The Property was not refinanced to include Husband as a borrower.

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