Opinion
15217.
JULY 3, 1945.
Divorce, etc. Before Judge Atkinson. Chatham superior court. March 22, 1945.
Marvin O'Neal, for plaintiff. Aaron Kravitch, for defendant.
1. Where there have been verdicts for divorce in favor of a wife, this amounts to an adjudication that the fault lay with the husband; and it will generally follow as a matter of course that the wife would be entitled to alimony ( Wilkes v. Wilkes, 157 Ga. 841, 122 S.E. 548; Campbell v. Campbell, 90 Ga. 687, 16 S.E. 960; McGee, v. McGee, 10 Ga. 477, 483); but even this is not necessarily so, since the evidence as to the financial circumstances and material resources of each, the condition of the health of the parties, and the ability of the husband to pay, might, despite such adverse verdicts as to where the fault lay, justify the jury in absolving him from the duty of paying permanent alimony. Simmons v. Simmons, 194 Ga. 649 ( 22 S.E.2d 399); Lanier v. Lanier, 194 Ga. 799 (2) ( 22 S.E.2d 651).
2. Whether or not the rule which obtains in favor of the wife, where such an adjudication has been made in her favor as to where the fault lay, would have application here where the verdicts of the juries merely set forth that a total divorce "between the parties" was authorized and both the plaintiff and the defendant were authorized to remarry (see Alford v. Alford, 189 Ga. 630 (3), 7 S.E.2d 278; Taylor v. Taylor, 195 Ga. 711, 25 S.E.2d 506), the evidence in this case as to the relative financial and material resources of each of the parties, the relative condition of the health of the parties, the necessity of the wife to receive, and the ability of the husband to pay, alimony, while to a large extent vague, indefinite, and uncertain, did not demand a finding that the wife was entitled to alimony. It can not be told from the evidence embodied in the record just what the facts are with respect to these matters, although it does appear in a general way that the health of the husband was, or had been impaired, and that the wife was capable of earning and did in fact earn for herself an adequate support. Accordingly, this court can not say as a matter of law that there was not sufficient evidence to sustain the verdict in favor of the husband on the question of alimony, or that a contrary verdict in favor of the wife was demanded. Especially so, when the record fails to disclose any adjudication in favor of the wife on the question of their relative conduct, such as would have ordinarily entitled her to alimony as a matter of course. The judgment of the trial judge overruling the motion for new trial will not be disturbed. See Grubb v. Kalb, 37 Ga. 459; Richmond Danville Railroad v. Green, 73 Ga. 814; Peters v. Monroe Oil Fertilizer Co., 158 Ga. 523 ( 123 S.E. 618); Quinton v. Peck, 195 Ga. 299 (7) ( 24 S.E.2d 36).
Judgment affirmed. Bell, C. J., Duckworth, Atkinson, and Wyatt, JJ., concur.
No. 15217. JULY 3, 1945.
Mrs. Eunice Aud sued Charles Aud for a total divorce and alimony on the ground of cruel treatment. The defendant filed an answer containing a cross-action for divorce, in which he denied any cruel treatment toward his wife and alleged cruel treatment on her part toward him. Two juries found that "sufficient proofs have been submitted to our consideration to authorize a total divorce . . between the parties to this case;" and the second verdict found that the plaintiff was not entitled to alimony, and provided that both the plaintiff and the defendant might marry again. The only exception taken was to the order overruling the motion for new trial based upon the general grounds and complaining only of the failure of the jury to award alimony. No exception was taken to the form of the verdicts awarding a total divorce "between the parties to this case." The evidence authorized a divorce in favor of the defendant.
The plaintiff's testimony showed that she was operating at least four and possibly five places of business. The first, at 309 President Street, she rented for $25, and paid light and gas bills of $11 a month, a total expense of $36 a month from this place the jury was authorized to find, under her testimony, that she received weekly rentals of $61.50 and board of $10, which aggregated approximately $306.50 a month; although she denied that she was making $26 a week from this place, and had testified in general terms on direct examination that it netted no profit. The second place, at 146 Jefferson Street, she rented for $45 a month. It comprised two stores, one of which (and possibly both, the record not being clear) she subleased to her husband at $12.50 a month, and from rooms over the stores she received $5 weekly from each of two rooms, and from "Mr. Davis, Mr. McCoy, Mr. Barsh, and Mr. Dudley, $10 per week." This authorized a finding that she had a monthly gross income of approximately $229.17 from 146 Jefferson Street. Her direct testimony was confused as to what was referred to as profit and what as expense on this property. This testimony is as follows: "I don't have much left after paying my expenses from the rooms over his shop at 146 Jefferson Street: I can give you an estimate of it; (this place) averages $15 a week, $60 a month; I pay gas, lights, incidentals, repairs and things, and I have $49.61 left. The rent for the property is $45 a month, which includes the space occupied by the printing shop; I have a doctor's bill of $3 a week; medicine around $2 a week, and food and clothing $15 a month." The plaintiff admitted further that she had three places, 133 Jefferson Street." Her testimony does not seem to indicate that the latter place was 146 Jefferson Street, which she had operated apparently for some time, as it appears that the rent had been increased three times, nor does it account for the place at 309 President Street. Her testimony does not show the income from any of the places except the two first mentioned. She further admitted the correctness of a statement, made by her two months previously, that she had an income of $3116 a year from an apartment, but the record does not identify the apartment or show whether the income was gross or net. She testified further that she tried to visit the doctor once a week and was a nervous wreck. She did not testify as to the value of her husband's print shop. In the schedule attached to her petition, she shows her ownership of a Ford Truck, model A — 1931 valued at $80, household and kitchen furniture valued at $250, and an equity in a small tract of land with an unfinished cabin thereon valued at $200. She further testified that her husband was then working in a shipyard at 68 cents an hour, but did not show his monthly earnings.
Charles Aud testified that there was nothing the matter with the plaintiff's condition; that he had been sick for four months and had had an operation; that the printing-shop equipment, which he was not then operating, was worth approximately $1500; that he was earning $35 a week at the shipyard; that the plaintiff had admitted as correct a statement showing $2636 gross profit. The record does not show the property or properties indicated by such statement. He testified further that she had as many as four people in one room at $10 a week; and that he had been in the printing business for eleven years, but it finally came to a question of losing the business or working in the shipyard in temporary employment.