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Mallard v. Mallard

Supreme Court of Georgia

June 1, 2015

MALLARD
v.
MALLARD

Domestic relations. Rockdale Superior Court. Before Judge Irwin.

Judgment reversed and case remanded.

James K. Luttrell, for appellant.

Kenneth R. Mallard, for appellee.

HINES, Presiding Justice. All the Justices concur.

OPINION

Page 275

Hines, Presiding Justice.

Following the denial of her motion for new trial, as amended, and pursuant to Rule 34 (4) of this Court,[1] Alba Horacio Mallard (" Wife" ) was granted a discretionary appeal from the final judgment and [297 Ga. 275] decree of divorce (" Decree" ) dissolving her marriage to Kenneth Russell Mallard (" Husband" ). The

Page 276

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.

The parties remarried on January 1, 2012. In April 2012, Husband paid off, with his separate funds, the Debt in the amount of $268,314. The parties again separated and Wife filed a complaint for [297 Ga. 276] divorce on January 15, 2013. In the divorce complaint, Wife asked to be awarded the Property on a temporary basis and 50% of its equity if Husband was to keep the Property. Subsequently in the divorce action, Wife did not object to Husband being awarded possession of the Property as she had purchased another home, but she asked that the Property be partitioned or that she be awarded 50% of its value. In fact, a consent order issued in which the parties agreed, inter alia, to add a count to the divorce complaint to petition the superior court to partition the Property pursuant to OCGA § 44-6-160,[5] to the extent that the Property or the equity therein was determined to be premarital property. An appraisal of the fair market value of the Property on September 25, 2013, was $252,000.

Following a hearing, the superior court entered the Decree, which, ...


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