Opinion
22871, 22882.
ARGUED MARCH 9, 1965.
DECIDED APRIL 8, 1965. REHEARING DENIED APRIL 20, 1965.
Divorce and alimony. Fulton Superior Court. Before Judge McKenzie.
Wilson Brooks, Philip T. Keen, for plaintiff in error (Case No. 22871).
Southerland, Asbill Brennan, James P. Groton, Madison Richardson, George Hess, Adam Hess, contra.
Southerland, Asbill Brennan, James P. Groton, Madison Richardson, Adam Hess, for plaintiff in error (Case No. 22882).
Wilson Brooks, Philip T. Keen, George Haas, contra.
In an action seeking divorce and alimony, the interest of the defendant nonresident husband as a third party beneficiary under a group retirement contract between his employer, a nonresident, and the resident insurer is not a sufficient res to support an in rem judgment because it is vague, indefinite, and unascertainable and not capable of seizure.
ARGUED MARCH 9, 1965 — DECIDED APRIL 8, 1965 — REHEARING DENIED APRIL 20, 1965.
In an action for divorce, alimony, and custody of a minor child, and attorney's fees brought by the wife in Fulton Superior Court against her husband, a nonresident of the State, who was served by publication, and against Aetna Life Insurance Company, a nonresident corporation, with a place of business in this state, and against other parties, the court entered judgment in rem against all the property owned by the husband in Fulton County as alimony and attorneys fees. This included the husband's property rights in an annuity contract between the defendant Aetna and the Arabian-American Oil Company to which Camp is a third party beneficiary as well as a contributor. The pertinent portion of the judgment reads as follows: "It is further ordered and decreed that petitioner, Mrs. Helen Ann Camp, is awarded as permanent alimony, the following property right in connection with the contract referred to in paragraph (6) above. This interest is hereby constructively seized from the defendant, Aetna Life Insurance Company and said defendant is hereby ordered to hold same for the benefit of Mrs. Helen Ann Camp until same can be utilized by said plaintiff. The present property hereby is limited to contributions individually made to this date pursuant to said contract by the defendant, Orville Charles Pratt Camp, plus interest that has accrued pursuant to said contract to date, which sum was, as of December 31, 1963, $13,202.40. This present property interest, hereby defined, constitutes a res sufficient to support this judgment, notwithstanding the fact that the defendant, Aetna Life Insurance Company, may or may not be compelled under the contract in question to actually pay the same to plaintiff until some future date. This award, however, is hereby declared a valid lien on said annuity contract in the amount of this judgment as set forth herein, which lien shall follow the proceeds from any payments which might, except for this order, be hereinafter payable to defendant or his beneficiary or assigns."
The wife, in the main bill, excepts to the judgment as being contrary to law and the evidence, in that the court should have seized the husband's property right in the annuity contract and ordered Aetna to turn over the property immediately to the wife.
Aetna filed a cross bill excepting to the judgment as it relates to the annuity contract on the ground that the Superior Court of Fulton County did not have jurisdiction, personal or in rem, or otherwise in this proceeding to seize an intangible benefit which might enure in the future to the nonresident defendant (husband) under the contract between Arabian-American Oil Company and Aetna entered into in New York, neither the nonresident defendant husband nor the Arabian Oil Company being personally present before the court, and the contract bearing no relation to or situs in Georgia.
Under the view we entertain of this case, it will only be necessary to consider the cross bill, as the ruling thereon will decide the case.
We are of the opinion that the court was without jurisdiction to render an in rem judgment against the husband's property rights in the annuity contract between Aetna and the Arabian-American Oil Company. Courts of this State have the authority to seize property of nonresident defendants located within the State. Jurisdiction in such cases is solely in rem jurisdiction which depends upon the existence within the State of the property, which must be capable of seizure in the proceeding, so that the court can obtain jurisdiction by having the property within its grasp. Hood v. Hood, 130 Ga. 610, 616 ( 61 S.E. 471, 19 LRA (NS) 193, 14 AC 359); Forrester v. Forrester, 155 Ga. 722 ( 118 S.E. 373, 29 ALR 1363). Jurisdiction here depends upon an in rem seizure of property, some definite property, or thing or res which can be seized and appropriated. A mere expectancy cannot be seized, Yancey v. Grafton, 197 Ga. 117 ( 27 S.E.2d 857), nor can a contingent remainder, Watson v. Adams, 103 Ga. 733, 736 ( 30 S.E. 577). In attachment and garnishment cases, there must be either physical property, or some debt owed by the garnishee to the defendant, which is definite or capable of being made definite without contingencies. American Ins. Co. v. Black, 46 Ga. App. 471 ( 168 S.E. 85).
There is no definite property, thing or res of the defendant Camp in the annuity contract in this State subject to in rem seizure. The annuity contract between Aetna and the Arabian-American Oil Company provided group coverage of employees of the oil company, which included Camp. The oil company made contributions to Aetna, as did the employee, and at some future date (1987 in Camp's case) he could retire and receive from Aetna monthly retirement payments, or he could retire at an earlier date with reduced payments. In case he left the employ of the oil company he could recover payments made by him into the fund plus interest. Or if he died before the retirement date such would be paid to his beneficiary. He is still within the employ of the oil company. The court purports to award to the wife as alimony the amount plus interest paid into the fund by her husband up to the date of the judgment which amounts to approximately $13,000 to be paid at some future date upon the happening of such events as would make the sum due and payable.
Camp's interest under the contract is a mere contingency or expectancy which has no present or ascertainable value. There is nothing presently due and owing the employee under the contract. There may never be, for he may not leave the employ of the oil company and he may die before the annuity is payable, in which event his beneficiary receives the amount paid in by the employee plus interest. There are other options available, all of which depend upon the exercise thereof by Camp. Under the contract Camp is prohibited from assigning, pledging, encumbering, or disposing of his rights under the contract.
It must be remembered that the court has no jurisdiction of the person of the defendant, Camp, and no in personam judgment can be rendered against him, thus he cannot be ordered by the court to do anything. And the court can only proceed against property of his of which the court has in rem jurisdiction.
This court in Farmers Merchants Bank v. National Life Ins. Co., 161 Ga. 793 ( 131 S.E. 902, 44 ALR 1184), one judge concurring specially, a case in which all parties were before the court, held that a court of equity could not reach the cash surrender value or of a life insurance policy, as the cash surrender value or loan value of the policy was a mere contingency, even though each had a definite market or loan value which could be converted into cash by the defendant. It could not be seized by a court of equity "or in any other proceedings at law or in equity." This states the majority view in this country according to an annotation at 44 ALR 1184. See U.S. v. Penn. Mut. Life Ins. Co., 130 F.2d 495 (2).
The interest of the husband in this contract is indefinite, uncertain, and incapable of ascertainment, as it depends upon some future event, which may or may not occur. It is not a res, or thing such as will serve as the basis for in rem jurisdiction of the Superior Court of Fulton County.
The trial court was without jurisdiction of the contract No. Ga. — 0444 between the defendant Aetna Life Insurance Company and the Arabian-American Oil Company of which Orville Charles Pratt Camp was a beneficiary, or of any property right of Camp therein; thus the judgment of the trial court awarding to the wife as permanent alimony the contribution made by Camp to the fund with interest to the date of the judgment and purporting to constructively seize that fund until some future date when Aetna might be required to pay it to Camp was error. Judgment on the cross bill reversed. Since the ruling on the cross bill disposes of the case, the main bill is dismissed. All the Justices concur.