Opinion
18685.
ARGUED SEPTEMBER 13, 1954.
DECIDED OCTOBER 11, 1954. REHEARING DENIED NOVEMBER 10, 1954.
Alimony. Before Judge Atkinson. Bibb Superior Court. May 12, 1954.
Edward F. Taylor, David L. Mincey, for plaintiff in error.
T. Arnold Jacobs, Popper Morgan, Joseph W. Popper, contra.
Evidence pertaining to the conduct of the parties prior to the divorce granted (in a retrial of the alimony issue) was not germane to the needs of the wife or the ability of the husband to pay alimony. The court erred in admitting this evidence over objection and in charging the jury that it might be considered in determining the amount of alimony to be allowed.
ARGUED SEPTEMBER 13, 1954 — DECIDED OCTOBER 11, 1954. — REHEARING DENIED NOVEMBER 10, 1954.
The wife filed a petition for divorce on the ground of cruel treatment, and prayed for custody of the minor child and for temporary and permanent alimony. The husband filed a cross-bill, in which he denied the material allegations of the wife's petition as to cruel treatment, and alleged that the wife had voluntarily abandoned him and had been guilty of cruel treatment, and he prayed that he be granted a divorce. Upon the trial of the cause the jury returned a verdict for a total divorce without stating whether the verdict was for the plaintiff or the defendant, and denied alimony to the wife. On review in this court, the verdict was construed to be one for the plaintiff (wife). The verdict and decree awarding the wife a divorce, with the right to both parties to remarry, was affirmed by this court, but the judgment denying the motion to vacate the verdict and decree as to alimony was reversed, with direction that the next trial be restricted to the question of alimony for the plaintiff and her minor child. See Fried v. Fried, 208 Ga. 861 ( 69 S.E.2d 862).
On the retrial of the cause the jury returned a verdict allowing an amount as alimony for the support of the child, but denying any alimony for the wife. The wife's motion for new trial and her motion to modify the judgment and decree were both overruled, and she excepted. On review in this court, it was said that, in the absence of any evidence that the wife was guilty of misconduct other than as contended on the first trial (cruel treatment), the court erred in charging the jury that it was the duty of the husband to support the wife when living separately, according to his ability and his condition in life, "unless the wife has forfeited the claim she has on the husband for support by her misconduct." See Fried v. Fried, 209 Ga. 854 ( 76 S.E.2d 395).
Subsequently, and before the call of the case for retrial on the issue as to alimony, the wife filed a motion to determine the issues to be tried and the evidence, or class of evidence, admissible on the trial. It was the contention of the wife that on retrial of the cause the evidence should be limited as to the needs of the wife and the ability of the husband to pay, and that evidence as to the conduct of the parties prior to the divorce action would not be admissible.
The trial court passed an order in which it was said in part: "It is the contention of the plaintiff that the issue of misconduct and fault having been determined by the adjudication of the jury on the question of divorce, it would be improper to admit or consider any evidence as to the conduct of the parties prior to the grant of the divorce. While the Supreme Court held in this case `in the absence of any evidence that the wife was guilty of misconduct other than as contended on the first trial, the court erred in charging the jury (that the wife may forfeit the claim that she has on the husband for support by her misconduct)', this holding is not presently construed by this court as meaning that the conduct of the parties prior to the separation may not be relevant to the question of the amount of alimony."
The court declined to enter a ruling excluding evidence pertaining to the conduct of the parties prior to the divorce action, citing Smith v. Smith, 167 Ga. 98 ( 145 S.E. 63). On the trial of the case, evidence was admitted as to the conduct of the parties with reference to cruel treatment prior to the divorce decree. To the order denying her motion the wife excepted pendente lite. In her bill of exceptions she assigns error on the order denying her motion for new trial and on her exceptions pendente lite.
The controlling question in the present case is whether or not the court erred in admitting evidence as to the conduct of the parties prior to the divorce granted. The previous rulings of this court in Fried v. Fried, 208 Ga. 861 ( 69 S.E.2d 862), and Fried v. Fried, 209 Ga. 854 ( 76 S.E.2d 395), have become the law of the case and are not subject to review or modification as to the right of the wife to recover alimony from the husband for the support of herself and minor child.
In Fried v. Fried, 208 Ga. 861, supra, this court construed the divorce to have been granted to the wife, and held that the verdict denying her alimony was contrary to law. The guilt or fault of the parties was fixed by the judgment of this court construing the verdict for divorce, and under the ruling that the wife was entitled to alimony, no discretion was vested in the jury to deny, or limit the amount of, alimony on the ground of cruel treatment.
This court having held that the wife was entitled to alimony, and that the evidence was sufficient to show that the husband was amply able to support the wife, this case would fall within the rule stated in Robertson v. Robertson, 207 Ga. 686 (1a) ( 63 S.E.2d 876), wherein it was said: "The necessities of the wife, when entitled to alimony, and the husband's ability to pay it, are the controlling factors to be considered and followed in making an allowance for alimony; and awards therefor which are substantially disproportionate to either should not be permitted to stand."
In determining what amount may be necessary for the support and maintenance of the wife, the jury may take into consideration the wife's age, the condition of her health, her former position in the community as the wife of the defendant and her manner of living, her material resources, and her income, if any. On the husband's ability to pay, the jury may take into consideration his age, the condition of his health, his material resources, his present income, and any previous allowance voluntarily made by the husband for the support of the wife. Code §§ 30-207, 30-209, 30-211; Odom v. Odom, 36 Ga. 286, 319; Halleman v. Halleman, 65 Ga. 476; Johnson v. Johnson, 131 Ga. 606 ( 62 S.E. 1044); Simons v. Simons, 152 Ga. 469 ( 110 S.E. 281); Simmons v. Simmons, 194 Ga. 649 ( 22 S.E.2d 399); Aud v. Aud, 199 Ga. 526 ( 34 S.E.2d 655); Boozer v. Boozer, 207 Ga. 52 ( 60 S.E.2d 150); Knight v. Knight, 209 Ga. 131 ( 70 S.E.2d 770).
It is insisted by counsel for the defendant in error that the case of Carawan v. Carawan, 203 Ga. 325 (7) ( 46 S.E.2d 588), supports the ruling of the trial court in admitting in evidence testimony as to cruel treatment prior to the divorce action. In the Carawan case the husband filed a petition for divorce on the grounds of cruel treatment and wilful and continued desertion of the husband by the wife for more than three years. The wife by cross-action sought a divorce on the ground of cruel treatment, and prayed for permanent alimony. The jury returned a general verdict finding in favor of a total divorce, without stating whether the verdict was for the plaintiff or the defendant. A new trial was granted by the trial judge at the instance of the wife, but only on the issue as to permanent alimony, and there was no exception to that order. On the retrial of the cause on the issue of alimony, the trial judge instructed the jury that they might consider the conduct of the respective parties, which instruction of the trial judge was approved by this court.
The Carawan case is not in point on its facts with the present case and does not support the action of the trial judge in the present case in admitting on the alimony hearing evidence as to the conduct of the parties prior to the divorce. Since the divorce granted in the Carawan case was on the husband's charge of cruel treatment by the wife (under the ruling of this court), the jury was not required to grant the wife any amount as alimony, but might do so under their discretionary powers. Crenshaw v. Crenshaw, 197 Ga. 767, 768 (2) ( 30 S.E.2d 480). While the verdict in the Carawan case, as construed, was for the husband, and in effect meant that the wife had been guilty of cruel treatment, it was still within the discretion of the jury whether or not they would allow the wife any amount as alimony, and the conduct of the parties was germane on the issue as to whether or not any alimony would be allowed.
The quotation in Smith v. Smith, 167 Ga. 98 ( 145 S.E. 63), appearing at page 108, from 19 C. J. 256, § 594, which is to the effect that the greater the wrongs inflicted on the wife by the husband, the more liberal the award of alimony should be, does not state the rule applicable in this State. The quotation referred to in the Smith case (which decision was by a divided bench) has not been followed in Georgia, and is not authority for a ruling by this court in the present case that the amount of alimony to be allowed the wife should have been determined on the basis of the wrongs inflicted by the husband. On the contrary, under the rulings of this court on the former appearances of the case her (which rulings fixed the law of the case), the jury on the retrial of the cause should have limited its investigation to the needs of the wife and the ability of the husband to pay.
Judgment reversed. All the Justices concur, except Wyatt, P. J., who dissents.