Opinion
S96A0454
DECIDED APRIL 8, 1996 RECONSIDERATION DENIED APRIL 29, 1996.
Domestic Relations. Rockdale Superior Court. Before Judge Vaughn.
Ronald C. Conner, Monica K. Gilroy, for appellant.
Anthony M. Zezima, for appellee.
ORDER OF COURT
It appearing that the application for discretionary appeal was improvidently granted, it is ordered that the appeal be hereby dismissed.
All the Justices concur, except Benham, C.J., Sears and Carley, JJ., dissent.
DECIDED APRIL 8, 1996 — RECONSIDERATION DENIED APRIL 29, 1996.
For the reasons which follow, I must respectfully dissent to the majority's dismissal of this appeal as improvidently granted.
In this divorce case, Mr. Rollins appealed from the final judgment and decree entered on a jury verdict which, in part, awarded Ms. Rollins $42,000 in lump sum alimony payable within one year. The trial court also awarded Ms. Rollins attorney's fees of about $9,000, likewise payable within one year. This court granted Mr. Rollins' application for discretionary appeal, without dissent, to consider "[w]hether the awards of alimony and attorney['s] fees, which require Roger Rollins to pay $51,000 within a year of the date of the verdict, are excessive." Mr. Rollins contends that the awards were indeed excessive because there was insufficient evidence of his ability to pay over the span of just one year.
The parties at one time owned considerable real estate and a hardware business, but the business went bankrupt and all the property was foreclosed upon. Mr. Rollins testified that he now has a large indebtedness and no assets except a business begun by him and his father. According to Mr. Rollins, the business has not done as well as expected and his gross income has been $11,000 in 1993, $16,000 in 1994 and $6,000 in 1995 as of the April trial. Ms. Rollins relies upon Mr. Rollins' lack of credibility, his past earnings and assets and a single monthly bank statement showing total deposits into the business checking account of $4,600.
Awards of alimony and attorney's fees "which are substantially disproportionate to the husband's ability to pay are not permitted to stand. [Cit.]" Smith v. Smith, 237 Ga. 499, 500 ( 228 S.E.2d 883) (1976). See also George v. George, 233 Ga. 637 (1) ( 212 S.E.2d 813) (1975). In certain circumstances, the amounts of alimony and attorney's fees can be based upon earning capacity, but a party's past income is only one of numerous factors which must go into a determination of a party's earning capacity. Duncan v. Duncan, 262 Ga. 872, 873 (1) ( 426 S.E.2d 857) (1993).
The monthly bank statement relied upon by Ms. Rollins, without any showing of expenses in that month or the net business income in other months, was not evidence that Mr. Rollins had any property or resources from which the sum of $51,000 could have been paid within one year of the jury verdict, nor was there any other such evidence. Weatherford v. Weatherford, 204 Ga. 553, 555 ( 50 S.E.2d 323) (1948). See also Baldwin v. Baldwin, 226 Ga. 680 ( 177 S.E.2d 85) (1970). And, in my opinion, the jury was not authorized to find from the evidence that Mr. Rollins' earnings might likely be increased in an amount sufficient to pay the $51,000 within one year. Weatherford v. Weatherford, supra. See also Baldwin v. Baldwin, supra.
Ms. Rollins had the burden of proof to show Mr. Rollins' ability to pay the $51,000. See Bodrey v. Bodrey, 246 Ga. 122, 124 (4) ( 269 S.E.2d 14) (1980); Hollandsworth v. Hollandsworth, 242 Ga. 790, 792 (3) ( 251 S.E.2d 532) (1979). Because, in my opinion, she produced no evidence which could meet that burden, I believe that the judgments of the trial court should be reversed. See Duncan v. Duncan, supra at 874-875 (2); Childs v. Childs, 224 Ga. 531, 534 (2) ( 163 S.E.2d 693) (1968). Therefore, I dissent to the order dismissing the appeal without consideration of the merits thereof.
I am authorized to state that Chief Justice Benham and Justice Sears join in this dissent.