APPLICATION FOR APPELLATE REVIEW
To The Supreme Court of Georgia
Luis E Rivera, applicant applies to this Court as follows:
1) To issue an Order granting the applicant an appeal from the order of the Superior Court of Marion County Honorable Kenneth B. Followill, presiding, in the case styled LUIS E. RIVERA, Plaintiff, v. MARTHA E. RIVERA, Defendant, Civil Action File No.
07CV049. This Order having held that alimony awarded was non-modifiable. Said order is attached hereto and incorporated herein as exhibit “H”.
2) Applicant shows that the jurisdiction is properly in this Court because the Supreme Court, rather than the Court of Appeals, has jurisdiction of this case on appeal because this case involves the construction of Federal Law and for the reason that this case involves an award of alimony.
3) This application of appeal is filed within 30 days of the entry of Order complained of.
4) Copies of all pertinent documents have been attached to this application as exhibits including a copy of the Order being appealed, as well as a copy of any petition or motion which led directly to the Order being appealed, and a copy of any responses to such petition or motion and the underlying Divorce Complaint and Answer and Verdict and Final Judgment and Decree.
(5) Applicant submits that an appeal should be granted because:
The parties above were involved in a lengthy divorce. The divorce was filed by Ms. Rivera on the 2nd day of December, 2004, and the case was given the Civil Action number 04CV210 said Complaint is attached hereto and incorporated herein as Exhibit “A”. An Answer and Counterclaim were filed on behalf of Mr. Rivera on the 10th day of December, 2004. Said Answer and Counterclaim is attached hereto and incorporated herein as Exhibit “B”.
On May 18th, 2006, after a Trial by Jury, Martha Rivera was awarded alimony as follows: The Jury awarded Periodic Alimony payments as shown on Page 6,¶3 as follows: $500.00 per month for 60 months for a total of $30,000.00.” The Verdict is attached hereto as Exhibit “C”,
Additionally, on page 6 category 1, lump sum was not marked by the jury.
Subsequently on the 4th day of August, 2006, a Final Judgment and Decree of Divorce was entered, which states in pertinent part:
On page 2. d., Wife is entitled to alimony. Periodic alimony payments as follows, month being circled. It read $500.00 per month for 60 months for a total of $30,000.00.
On page 4 “It is the Order of the Court that the Defendant herein shall pay to the Plaintiff the sum of $500.00 per month as alimony. Said payments shall begin on the 1st day of June 2006, with a like payment being due and payable of $500.00 on the 1st day of each month thereafter, for a total of 60 months and a total payment of $30,000.00.”
The Final Judgment and Decree of Divorce is attached hereto and incorporated herein as Exhibit “D”.
Periodic alimony is modifiable under Georgia Law. Under the current law a judgment rendered may be modified based on a showing of a change in the income or financial status of either spouse O.C.G.A. 19-6-19(a) Additionally an award of periodic alimony for a specified number of years may not be modified by extending the term of years. Fender v. Fender 249 Ga.765, 294 S.E.2d 472 (1982); Howard v. Howard 262 Ga. 144 91), 414 S.E. 2d 203 (1992).
Subsequent to the entry of the Final Judgment and Decree of Divorce, Mr. Rivera became very ill. He is currently under the care of VA doctors and is prescribed and is taking the following medications Hydrocodone, Mscontin, Lorazepam, Methocarbamol, Trazadone,Zetia, Docusate, Wellbutrin, Fluvastatin, Ranitidine, Etodolac, Vitamins E & C, B and Fish Liver Oil. His medical problems include Herniated Disks, Fused Vertabras, Disk Scarlosis, Osteoarthritis, Rheumatoid Arthritis, Fybromyalgia, Advanced degenerative bone disease, Spondylosis, Borderline Diabetic and depression.
Currently Mr. Rivera’s only source of income is his Veterans Administration Disability. He is now a 100% disabled veteran. Additionally, his service in the military did not overlap his marriage to Ms. Rivera. She did not support his illustrious military career when he was serving this country to the very best of his ability and with all the strength and integrity that he could muster. Currently, due to Mr. Rivera’s inability to pay this alimony, he is being harassed and threatened regularly with Contempt of Court charges. Mr. Rivera may now be incarcerated for failure to pay alimony; and, the freedom that he fought for all American to enjoy may be taken from him. The fact is that VA disability benefits are not assignable; and, therefore, Mr. Rivera should be entitled to a modification of his alimony obligation. The law is clear that Veterans’ benefits cannot be used to fund Mr. Rivera’s alimony obligation U.S. Code, Title 38, §5301(a), states in pertinent part:
Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. The preceding sentence shall not apply to claims of the United States arising under such laws nor shall the exemption therein contained as to taxation extend to any property purchased in part or wholly out of such payments. The provisions of this section shall not be construed to prohibit the assignment of insurance otherwise authorized …
Additionally, the financial situation of Ms. Rivera changed for the better since the time of the divorce. After the Final Judgment and Decree of divorce was entered, Ms. Rivera returned to work and is now earning a salary. However, at the time of the divorce, she was drawing social security.
Mr. Rivera filed for a modification of the periodic alimony that was awarded by the Jury. Said Complaint for Modification is attached hereto as Exhibit “E”. Ms. Rivera filed an Answer to the Complaint, which is attached hereto as Exhibit “F”. After a hearing, the Court denied the modification, finding that the alimony awarded by the Jury was “lump sum” alimony and not “periodic alimony”; and, therefore, not subject to modification.
In essence the Court modified the Jury’s award of alimony by making it non-modifiable. The Jury was properly charged with the law as to periodic versus lump sum alimony. Copies of the transcript of the jury charges have been requested and this application will be amended to include said transcript once it has been obtained. Obviously, the Jury awarded a monthly installment plan, which indicates periodic alimony. The Jury listed a term over which time the periodic alimony could and should be paid, which further indicates periodic alimony over a term of years. The jury could have found that the alimony was “lump sum” as that option was available to them on the verdict form and was not utilized. The Court concentrated on the fact that under Georgia Law when the exact number and amount of payments is enumerated without conditions or statements of intent the award of alimony is considered to be “lump sum”; and, therefore, not subject to modification. Winokur v. Winokur 258 GA 88, 365 SE.2d 94 (1988); Dillard v. Dillard 265 GA 478, 458 SE2d 102 (1995) We argue that these cases are distinguishable because in the case at Bar the Jury evidenced a clear “intent” in the award. In the Winokur case, the child support and alimony was “unallocated”; and, therefore, it was not similar to the case at Bar. In the Dillard case, a condition was placed on the award which made it, in fact, “periodic”. In this case, the conditions were known to the Jury because of the charge they were given. Their own statement that the award is “periodic” and the fact that they did not use the section entitled “lump sum” to make their award, evidences their “intent”. The law is well settled and clear that “An obligation is considered lump-sum alimony if it states the exact number and amount of payments without other limitations, conditions or statements of intent.” Id Winokur and Dillard.
Additionally, the parties were strongly admonished in the Final Judgment and Decree to “abide by the letter of the verdict as much as possible and in the spirit of this judgment as written pursuant thereto” bottom paragraph page 4 of the Final Judgment and Decree, Exhibit “D”. Mr. Rivera has abided by the letter of the verdict “as much as possible” and he has abided by the spirit of the judgment but he cannot continue to do so as he does not have the financial capacity to do so. Indeed the fact that the parties were ordered to abide by the verdict “as much as possible”, indicates that the Court should be able to re-enter the case in a modification action to determine if Mr. Rivera is or is not doing “as much as possible” to abide by the Order or if it should be modified.
Lastly, the time for this appeal is now ripe. After the trial of the case there were no grounds for appeal because the jury heard testimony and evidence regarding Mr. Rivera’s medical conditions. They also heard evidence that Mr. Rivera was capable of earning monies additional to his VA benefits. Therefore, as the award was clearly labeled “periodic” he had the option to modify should he become unable to work and earn additional monies. Currently, he is unable to earn any other additional money (see his financial affidavit attached hereto as Exhibit “G”) and he should be given a hearing and the option to modify this award as he is being forced to use his protected VA benefits to pay the award.
(6) The Applicant respectfully shows that if this Honorable Court declines the appeal of this matter and the trial court’s ruling is permitted to stand, such would be a miscarriage of justice because:
Mr. Rivera is a 100% disabled veteran. He is incapable of earning a living. His only source of income is his Veterans Administration disability compensation. VA Disability compensation is non assignable and cannot be attached for the payment of alimony. Through his blood, sweat, tears and hard work in the US military in direct service to the United States of America, Mr. Rivera earned this money. To place Mr. Rivera, and others like him, in a position of using their benefits to support former spouses is a travesty and in direct contradiction to U.S. Code, Title 38, §5301(a). Mr. Rivera will not be able to financially survive if this alimony is not modified immediately.
Respectfully submitted,
__________________________________
Stacy C. Bondurant
Counsel for Applicant
Post Office Box 1514
Columbus, Georgia 31902
(706) 320-1820
Georgia State Bar No. 060731