Fanning v. Fanning
Fanning v. Fanning
Opinion of the Court
Justice.
The parties were married in November 1988 and appellant husband filed for divorce in August 1992. A jury trial on the issue of equitable division of property resulted in a written verdict that, among other things, awarded appellee wife “$40,000 to be paid as [ap-pellee’s] portion of retirement plans.” When the verdict was published, the jury foreperson stated, in response to the trial court’s request for clarification on the method of payment of the award, “We decided that he would — that he could choose to give her one lump sum in cash or they could roll it over into an IRA. That needs to be decided by them.” In its final judgment incorporating the jury verdict, the trial court awarded appellee $40,000 as her equitable share of the marital pension and retirement assets, “payable in cash within six months after entry of judgment.” Asserting that the trial court’s judgment did not accurately reflect the jury’s verdict, appellant filed a motion to set aside or amend the judgment, which motion was denied. We granted appellant’s application for discretionary review, asking the parties to address whether the trial court’s judgment conformed to the jury verdict.
1. The trial court immediately recognized upon receipt of the jury’s verdict that it was potentially the subject of more litigation because it did not state the method by which the retirement funds were to be transferred to appellee. Faced with such a verdict, it was the
2. In support of his position that the trial court’s judgment did not conform to the jury’s verdict, appellant relies upon the post-trial affidavit executed by the jury foreperson in which the juror states the jury intended the $40,000 award to be in the form of an IRA or similar tax-sheltered or deferred account, the contents of which were to be owned by, but not immediately available to appellee wife, and that appellant husband would suffer no penalty or additional income tax liability in funding the account. After having the mechanics of a “Qualified Domestic Relations Order” explained to her by appellant’s counsel, the juror averred that such an order would achieve what she had attempted to explain to the trial court when the verdict was returned was the intent of the jury’s verdict.
The amendment of the judgment to conform to the verdict must be done by reference to the record without the aid of parol proof. [Cit.] It is improper to amend the judgment on the basis of what one of the jurors says the jury intended. [Cit.]
Turley v. Turley, 244 Ga. 808, 810 (262 SE2d 112) (1979). Accordingly, the affidavit executed by the jury foreperson could not serve as the basis for amending the judgment entered.
Judgment vacated and remanded with direction.
Reference
- Full Case Name
- FANNING v. FANNING
- Status
- Published