Rathkamp v. Rathkamp

Evans, Judge.

This is a partitioning case between former husband and wife, now divorced. In the final judgment and decree of divorce, an agreement as to all issues and questions of alimony for the wife was entered into and made a part of this decree; and in particular with respect to the real estate which is the subject matter of the present partitioning proceeding. This agreement provides in pertinent part as follows: "The Wife shall be entitled to the use of the real estate, consisting of a house and lot, located at 1793 Ashentree Court, Chamblee, DeKalb County, Georgia, until the said real estate is sold by the parties, or until the Wife remarries, or until the Wife voluntarily removes herself from the said real estate, whichever event first occurs. In the event a Final Judgment and Decree of Divorce is granted between the parties hereto, they shall be tenants in common with a one-half equal undivided interest each in the said real estate. The Husband shall pay the monthly notes, taxes and fire insurance on the said real estate until such time as it may be sold.”

While the parties each own a one-half undivided interest in the property and by agreement they may elect to sell the property, nevertheless, until said election to sell is made by the wife, or until she remarries, or until *424 she voluntarily removes herself from the property, "whichever event first occurs,” the husband’s share of said property is burdened with the provisions above recited in the decree of alimony.

Argued September 29, 1975 Decided October 15, 1975 Rehearing denied November 4,1975 John C. Tyler, for appellant.

Tyrus Atkinson, for appellee.

While it appears from the stipulation of the parties at a hearing of this matter, that the divorced wife is still in possession and there have been some negotiations between the parties with respect to the sale of the house, no sale has been consummated. The property has now been withdrawn from the market, and the agreement to sell through a real estate broker has expired. It therefore appears that the husband’s undivided interest in the property is still burdened with the alimony settlement agreement shown above. The court did not err in dismissing the case. See Rhodes v. Lane, 202 Ga. 608 (1), (2) ( 44 SE2d 114 );

Trimble v. Fairbanks, 209 Ga. 741 (1, 2), 743 ( 76 SE2d 16 ).

If the proceeding be construed to be a petition for modification of the final alimony decree, it fails to set forth any grounds for same. See in this connection, Eddings v. Eddings, 230 Ga. 743, 744 (2) ( 199 SE2d 255 ).

Judgment affirmed.

Deen, P. J., and Stolz, J., concur.