McGinn v. McGinn

Wife is entitled to discover the value and reasonable earnings potential of her husband's family-owned stock which is held in a company trust because the husband's interest in the trust is relevant to the determination of his alimony and child support obligations.

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Richard McGinn Husband filed suit for divorce from Marilee McGinn Wife, seeking joint child custody and an equitable division of property. Wife counterclaimed and sought sole child custody, child support, alimony and the equitable division of marital property. Husband is the beneficiary and co-trustee of a trust, the sole asset of which is stock in a Company owned by members of his family. Wife served a subpoena on the Company, seeking the production at a deposition of certain evidence, including testimony and documents regarding the formation of the trust, the value and financial records of the Company, and the compensation and benefits that Husband receives from the Company. The Company moved for a protective order, and Husband filed a motion in limine. In response, Wife moved to compel discovery. The trial court found that the trust principal is not subject to Wife’s claims, granted the motions filed by the Company and Husband, and denied Wife’s motion, but certified its order for immediate review. We granted this application for an interlocutory appeal.

Wife contends that, because Husband controls the trust in his capacities both as co-trustee and the holder of a general power of appointment, she is entitled to discover and present to a jury all information regarding the stock and income derived therefrom. As in Avera v. Avera, 253 Ga. 16 315 SE2d 883 1984, Husband is not the sole beneficiary of the trust and, thus, there is no merger of the legal and beneficial interests. Moreover, Husband is not the sole trustee of the trust. Therefore, the corpus of the trust is not subject to Wife’s claims for alimony, child support, and distribution of property. Compare Speed v. Speed, 263 Ga. 166 430 SE2d 348 1993 husband was settlor and sole beneficiary.

McGinn v. McGinn

Wife is entitled to discover the value and reasonable earnings potential of her husband's family-owned stock which is held in a company trust because the husband's interest in the trust is relevant to the determination of his alimony and child support obligations.

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