Appellant Daphne Darice Grissom “Wife” and appellee Marquis Dean Grissom “Husband” executed a prenuptial agreement prior to their marriage in July 2000. The agreement incorporated Exhibits A and B, wherein Wife and Husband listed their respective separate property, and various provisions of the agreement addressed the disposition of this property in the event of the termination of the parties’ marriage. At issue here are two items listed as Husband’s separate property on Exhibit B: a home located at 110 Fiddlers Ridge in Fairburn, Georgia, valued at two million dollars the “Fiddlers Ridge property”; and a Merrill Lynch brokerage account valued at four million dollars. Wife filed for divorce in May 2005 and a final judgment and decree was entered in January 2006. The trial court found that, pursuant to the terms of the prenuptial agreement, Wife waived any interest in the Fiddlers Ridge property or in an American Express brokerage account into which the funds from the Merrill Lynch account had been transferred during the marriage. We granted Wife’s application to appeal this ruling pursuant to this Court’s pilot project for divorce cases. See Wright v. Wright , 277 Ga. 133 587 SE2d 600 2003.
1. Relying on Curtis v. Curtis , 255 Ga. 288 336 SE2d 770 1985, Husband argues that Wife has waived the right to appeal by accepting the benefits of the final judgment and decree, i.e., a payment of $150,000 in lieu of alimony or equitable division of property pursuant to paragraph 14 of the parties’ prenuptial agreement; a fifty percent interest in four parcels of real property; fifty percent of an income tax refund; and monthly child support payments. Although Curtis accurately states the general rule that an appellant cannot accept the benefits of a judgment and then seek to have it set aside, “public policy . . . requires that divorce be treated differently because of the unique and important issues involved, including the severing of the marital relationship, custody and support of minor children, support of spouses, and division of property.” Southworth v. Southworth , 265 Ga. 671, 675 461 SE2d 215 1995 Fletcher, P.J., concurring specially. We have long found an exception to the estoppel rule in situations where the acceptance of child support is at issue, reasoning that the benefit belongs to the child rather than the appealing spouse. See Coley v. Coley , 128 Ga. 654, 656 1 58 SE 205 1907. We also find persuasive the approach taken by other states that have carved out exceptions to the estoppel rule in recognition of the realities of divorce and the policy considerations involved. See Liming v. Liming , 723 NW2d 89, 96-97 Neb. 2006 no waiver of right to appeal where spouse’s right to benefits accepted is conceded by other spouse; spouse entitled as matter of right to benefits accepted such that outcome of appeal could have no effect on right to those benefits; or benefits accepted pursuant to severable award not subject to appellate review; 5 AmJur2d, Appellate Review, § 636 rule precluding appeal by party who has accepted benefits of judgment applied less strictly in divorce cases, depending on factors such as whether amount received was small portion of total judgment; party’s right to benefit accepted was undisputed; acceptance of benefits was due to financial distress; paying spouse has suffered prejudice; and only issue on appeal is whether award will be increased; Annot., Spouse’s Acceptance of Payments under Alimony or Property Settlement or Child Support Provisions of Divorce Judgment as Precluding Appeal Therefrom, 29 ALR3d 1184. Thus, to the extent that Curtis and other cases can be read to hold that the acceptance of any benefit under a final judgment and decree of divorce results in an automatic waiver of the right to appeal any aspect of that judgment, they are hereby overruled.
