NAHMIAS, Justice.
On February 22, 2006, after 13 years of marriage, appellant Carla Graves Christian (Wife) and appellee Ben Christian, Jr. (Husband) signed a Separation Agreement. The agreement was approved by the trial court in December 2008. Wife filed a complaint for divorce in March 2013. In October 2014, she filed a motion for partial summary judgment asking the trial court to rule that Paragraph VII of the Separation Agreement entitled her to one-half of Husband's retirement, 401(k), and other employment benefits as valued on the date of the divorce. Paragraph VII says in full:
On March 20, 2015, the trial court denied Wife's motion, calling it an attempt to replace "or" with "and" in the language of the Separation Agreement. The court found no ambiguity in Paragraph VII and went on to say that, even if it did, it would not consider the parol evidence Wife sought to introduce purporting to be notes indicating that she was entitled to half of all three benefit categories, because the notes appeared to be made by Wife rather than Husband. The court did not address Wife's argument about the appropriate date for valuing the benefits. Wife requested a certificate of immediate review, and the trial court held a hearing on the issue on March 23. The court denied Wife's request at the hearing, but it also announced that it was changing its ruling as to Paragraph VII to hold that Wife was entitled to one-half of Husband's 401(k) and retirement pension plan or one-half of his other employment benefits. However, three months later, on June 25, the court issued an order "clarifying" its March 20 order to hold that Wife "is entitled to choose from the 401(k), or other employment benefits."
After a hearing on June 30, 2015, the trial court entered a final decree of divorce on August 21. The decree incorporated the Separation Agreement and quoted Paragraph VII. The court held "as a matter of law ... that the language of Paragraph VII ... requires that the date for valuing and dividing the retirement, 401 (k) or other employment benefits is the date of the Separation Agreement... and not the date of the divorce." The court further held that Wife was not entitled to any pre-marital value of those accounts and that she was "only entitled to choose one of the three benefits described in Paragraph VII."
Wife filed an application to appeal to this Court. We initially denied the application, but after Wife filed a motion for reconsideration, we granted the application. Wife then filed a timely notice of appeal, and the case was orally argued on July 11, 2016. As explained below, we reverse the trial court's judgment in part, vacate it in part, and affirm it in part, and we remand the case with direction.
1. Wife first argues that the trial court erred in concluding that her portion of the benefits under Paragraph VII of the Separation Agreement should be based on their value as of the date the agreement was signed rather than the date of the divorce decree. Both parties now acknowledge that the language of the Separation Agreement is plainly conditional — "should the parties divorce, [Wife] shall be entitled" to benefits — so that Wife would actually receive the property divided by Paragraph VII only if and when the parties divorced. Wife argues, logically, that the value of those benefits should be determined at the time she gets them.
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2. Wife next argues that the trial court erred in holding that she is entitled to one-half of only one of the three benefits listed in Paragraph VII, which gives Wife one-half of Husband's "retirement, 401K or other employment benefits." In support of the trial court's ruling, Husband contends that this language entitles Wife to pick only one of the three, because the "or" separates all three. Wife offers two competing interpretations. First, focusing on the lack of a serial comma
Although the trial court indicated at the March 23, 2015 hearing that it agreed with Wife's first interpretation, that reading of Paragraph VII is implausible. It attempts to replace the comma between retirement and 401K, two words in a series that is connected with an "or," with the word "and." Neither the Separation Agreement nor the English language lends support for rewriting the sentence in this way. The remaining two interpretations, however, are both plausible.
Husband's interpretation of Paragraph VII may seem more natural at first glance, because the final connecting conjunction in a list is often meant to be the conjunction that separates all items in the list. But Wife's second interpretation may be more natural in the context of this Separation Agreement. Each of the benefits to which Paragraph VII refers is (at least in part) marital property and so is subject to equitable division. The question is if "retirement," "401K," and "other employment benefits" are three distinct categories of benefits, or if there is only one category — "employment benefits" — with the
The trial court's holding that the language of Paragraph VII is unambiguous "as a matter of law" indicates the court's belief that it did not need to consider other parts of the Separation Agreement and could not consider parol evidence in construing that language. However, because this aspect of Paragraph VII has two reasonable interpretations, as we have explained, the trial court's analysis was incomplete. The court should have looked beyond Paragraph VII to determine if the ambiguity was clarified when viewed in the context of the entire Separation Agreement, and if not, should have considered parol evidence to determine the meaning of Paragraph VII. See
3. Finally, Wife argues that the trial court erred in deducting the premarital value from her share of the Paragraph VII benefits. Husband argues that because the premarital value of his employment benefits — which includes 13 years of accrued benefits in his pension — is not marital property, it is not subject to equitable division by the trial court. See
Wife is correct that spouses can bargain away their separate property as part of a contract — a settlement or separation agreement — between them. See, e.g.,
In the absence of any such language, the presumption is that a settlement or separation agreement is dividing only the property subject to equitable division, meaning only the marital property. See OCGA § 19-3-9
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction.
All the Justices concur.