Smelser v. Smelser

The trial court did not err in awarding the wife a 1/2-interest in the husband's non-marital property as alimony based on its determination that the wife had a diminished earning capacity.

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After a bench trial, the trial court entered a final judgment and decree of divorce, terminating the eight-year marriage between appellant Joseph Milton Smelser and appellee Elisha Nicole Smelser, dividing the marital assets, and resolving issues of child custody, support, and alimony. Husband sought discretionary review, which was granted under the pilot project in effect in domestic relations cases. The primary issue under consideration is whether the trial court was authorized to award alimony to wife derived from husband’s non-marital asset. We hold that the award was proper and we affirm. Neither party requested transcription of the proceedings, nor was a stipulation of evidence filed in accordance with OCGA § 5-6-41 g. In pertinent part, the final judgment granted wife legal and physical custody of the parties’ two minor children, and ordered husband to pay $844 per month in child support 28percent of his gross monthly income. Husband was awarded title to his unvested retirement account; and an equitable division of the marital property was made with respect to two automobiles and certain household goods. After finding the marital residence to be the non-marital property of husband, the court awarded wife a one-half undivided interest in the residence as alimony for her support, conditioned as follows: wife is to have sole possession and use of the residence until both children attain the age of 20 years, or upon her remarriage; husband is to pay the mortgage, taxes and insurance on the property as alimony; the parties would equally divide all costs of maintenance in excess of $200; and wife was authorized to sell the property at any time with the net proceeds being divided equally between the parties.

1. Husband contends that the trial court erred in awarding an interest in the non-marital residence as alimony to wife and in granting her a portion of the proceeds upon a future sale.

Smelser v. Smelser

The trial court did not err in awarding the wife a 1/2-interest in the husband's non-marital property as alimony based on its determination that the wife had a diminished earning capacity.

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