Opinion
17761.
ARGUED FEBRUARY 11, 1952.
DECIDED MARCH 11, 1952.
Divorce, etc. Before Judge Brooke. Cherokee Superior Court. December 1, 1951.
G. Seals Aiken and Sam P. Burtz, for plaintiff.
Wood Tallant, for defendant.
1. Where the wife sues for divorce and alimony on grounds of cruel treatment, and the husband's answer alleges wilful desertion and prays that, if the wife is granted a divorce, it would be to the best interest of himself and society that his disabilities be removed, it was reversible error to instruct the jury that, if they found in favor of the wife on her prayer for divorce, they were authorized to grant a divorce to the husband.
2. Where following such a charge a verdict is returned, granting a divorce to the wife and disallowing alimony and granting a divorce to the husband, that verdict sustains the charge of desertion and, if allowed to stand, would bar the wife's right to alimony. But a motion to modify by striking the finding in favor of the husband and disallowing alimony should be sustained because of the erroneous charge that authorized the inconsistent verdict.
3. Where the verdict and judgment are modified in the foregoing manner, the portion of both granting a divorce to the wife will stand unreversed, and another trial is restricted to the question of alimony and the removal of the husband's disabilities.
4. It was error in the foregoing suit, which is a civil action wherein liability for costs is fixed by Code § 24-3401, to tax costs against the plaintiff.
No. 17761. ARGUED FEBRUARY 11, 1952 — DECIDED MARCH 11, 1952.
Mrs. Emily E. Hyndman, the plaintiff in error, sued Dr. Thomas L. Hyndman, the defendant in error, for divorce and alimony on grounds of cruel treatment. The defendant answered, admitting allegations showing jurisdiction of the court, the marriage and separation as alleged, but denied allegations of cruelty, and his further plea alleges: that the plaintiff deserted him "without any cause or reason" and has lived separate and apart from him since the time she deserted him; that the plaintiff was not entitled to a divorce from him, and he prayed (1) that the prayers of the plaintiff be denied, and (2) that, if the plaintiff was granted a divorce, "it would be to his best interest and the best interest of society" if his disabilities were removed. Upon the trial the plaintiff introduced evidence that if believed would support the allegations of her petition, and the defendant introduced evidence that contradicted the plaintiff's evidence, and the jury returned the following verdict: "We the jury find for the plaintiff divorce without alimony and for the defendant divorce." The court entered a decree conforming to the verdict and taxed the costs against the plaintiff. Within the time provided by law the plaintiff filed a motion to modify the verdict and judgment by striking therefrom those portions denying alimony and granting a divorce to the defendant, and to modify the decree by striking therefrom the order that the plaintiff pay the costs.
The motion as finally amended set forth numerous grounds, which it is unnecessary to enumerate here other than the ground assigning error on an excerpt of the charge, wherein the court stated that the defendant said that, if the plaintiff was granted a divorce, then he also asked for a divorce, and the jury was instructed that this was a question resting entirely with the jury; that, if they found that she was entitled to a divorce and was not entitled to alimony, they would also consider whether or not the husband was entitled to a divorce; that, if they found in favor of the wife on her prayer for divorce and against the wife on her prayer for alimony, they would so state in the verdict; and that they should also state therein whether or not they found a divorce for the defendant.
At the hearing on the motion, judgment was entered holding that the motion as amended presented no questions of fact for determination by a jury, and the motion was overruled on each and every ground. To that judgment the movant excepted.
1. The excerpt of the charge complained of instructed the jury that, if they granted a divorce to the plaintiff, they were then authorized to grant a divorce to the defendant. The sole charge made by the defendant against the plaintiff was that of voluntary and wilful desertion. A verdict granting the defendant a divorce would be a finding that the plaintiff was guilty of this charge. Such a verdict for the defendant would be irreconcilable with a verdict for the plaintiff, which would be a finding that her allegations of cruel treatment were sustained. The inconsistency in the verdict would render it invalid. Anthony v. Anthony, 103 Ga. 250 ( 29 S.E. 923); Hyde v. Hyde, 200 Ga. 635 ( 38 S.E.2d 287); Rogers v. Rogers, 202 Ga. 329 ( 43 S.E.2d 152). We can not overlook the fact that the charge complained of stated that, as a condition precedent to a verdict giving the defendant a divorce, the jury must first find that he was guilty of cruel treatment to such an extent that his wife was entitled to a divorce because of that cruel treatment. As a matter of law, as ruled in the cases just cited, when this condition precedent has been met, the law would not allow the verdict granting a divorce to the defendant as the charge here assailed authorized. It is perfectly obvious that, if the wife's separation was caused by the defendant's cruelty, which cruelty was enough to entitle her to a divorce on that ground as found by the jury, then that separation could not possibly have been wilful and voluntary, which would be required in order to justify a verdict granting a divorce to the defendant. The harm in such erroneous charge is demonstrated by the fact that the jury returned a verdict precisely as directed by the charge. In Anthony v. Anthony, 103 Ga. 250 (supra), where this court was dealing with a similar inconsistent verdict it was said: "The meaning of the word `verdict' — `a true saying' — is set at naught and rendered ridiculous, as applied to the two findings with which we are now undertaking to deal. What `true saying' can be gathered from these two contradictory sayings? The situation brought about by these findings is anomalous, and can not be tolerated." What was there said, if heeded, would have prevented what was here done, and we have quoted as above in the hope that by giving that statement such emphasis the mistake will not be repeated. In this case serious injury to the rights of the plaintiff will result if the inconsistent verdict is allowed to stand. The verdict granting a divorce to the defendant is a finding of fact by the jury that the wife was, without cause, guilty of wilfully deserting the husband for a period of one year or more. Wilful desertion by the wife deprives her of any rights to alimony. Hudson v. Hudson, 189 Ga. 410 ( 5 S.E.2d 912); Rogers v. Rogers, 202 Ga. 329, supra. If that portion of the verdict granting a divorce to the husband is allowed to stand, we would be required to apply the above rule of law and hold that, as a matter of law, she was not entitled to any alimony. On the other hand, where, as in this case, the wife is granted a divorce upon a petition alleging cruel treatment as a ground therefore, such a verdict is a finding of fact that the separation is due to the fault of the husband, and as a general rule the wife is entitled in such a case to alimony in some amount. McGee v. McGee, 10 Ga. 477; Campbell v. Campbell, 90 Ga. 687 ( 16 S.E. 960); Wilkes v. Wilkes, 157 Ga. 841 ( 122 S.E. 548); Brock v. Brock, 183 Ga. 860 ( 190 S.E. 30); Gardner v. Gardner, 206 Ga. 669 ( 58 S.E.2d 416). There is an exception to this general rule, which is that, when the evidence concerning the wife's condition as well as that of the husband and his ability to earn is uncertain, or makes an issue on these questions, a verdict disallowing alimony will be sustained. Lanier v. Lanier, 194 Ga. 799 ( 22 S.E.2d 651); Aud v. Aud, 199 Ga. 526 ( 34 S.E.2d 655). The undisputed evidence in this case does not bring it within the exception to the general rule. The wife has no estate, is in bad health, unemployed, and has no income. The husband is a dentist practicing his profession, and was shown to have earned considerable money per month. We have not overlooked the decision in Singleton v. Singleton, 202 Ga. 269 ( 42 S.E.2d 737), wherein it was held that a verdict granting a divorce to both parties where each alleged cruel treatment was not necessarily contradictory. It is possible for each, in such a case, to be guilty as alleged; but in the present case, as pointed out above, it would not be possible for both parties here to be guilty as alleged. However, it might be profitable, in connection with the ruling in Singleton v. Singleton, 202 Ga. 269 (supra) to compare Code § 30-109, Cohen v. Cohen, 196 Ga. 562 ( 27 S.E.2d 28) and Teague v. Teague, 198 Ga. 239 ( 31 S.E.2d 409), which are to the effect that, when both parties are guilty of the same misconduct, neither is entitled to a divorce. Is a verdict granting a divorce to each void under the statute?
The charge here complained of was, for the reason above recited, both erroneous and harmful to the plaintiff in error. It was erroneous because of its inconsistency, and also because it incorrectly stated that the defendant sought a divorce in the event a divorce was granted to his wife. His sole prayer, as set forth in the statement of facts preceding this opinion, was that she be denied a divorce, and that, if she was granted a divorce, "it would be to his best interest and the best interest of society for his disabilities to be also removed." This does not constitute a prayer for divorce based upon wilful desertion, but it is merely a prayer that his disabilities be removed, not because he was deserted by his wife, but because his best interest and the best interest of society would be promoted by so removing his disabilities. A removal of his disabilities would not apparently adversely affect the wife, but she would be vitally concerned and injuriously affected by a verdict granting him a divorce, which would constitute an adjudication that she was guilty of wilfully deserting her husband; and it would further constitute an insuperable obstacle to her recovering any alimony against the husband. He did not ask that she be thus injured, and the court committed error in the charge complained of, since it authorized the jury to return a verdict that would thus inflict injury upon the wife.
2. The foregoing ruling requires that the trial court modify the verdict and judgment as prayed in the motion, by striking therefrom that portion which grants a divorce to the defendant and denies alimony to the plaintiff. No attack by the motion or otherwise has been made upon the portion of the verdict and judgment granting a divorce to the wife and, consequently, that portion has become final and conclusive upon both parties. In Boone v. Boone, 192 Ga. 579 ( 15 S.E.2d 868), this court held that a verdict in a suit for divorce and alimony was separable, and that it was lawful to allow the verdict granting the divorce to stand and order another trial on the matter of alimony. See also Camp v. Camp, 199 Ga. 144 ( 33 S.E.2d 445), to the same effect. Accordingly, direction is given that another trial be had upon the question of alimony and whether or not the disabilities of the defendant shall be removed. And it is further directed that the judgment be modified by striking the portion taxing the costs against the plaintiff, and inserting in lieu thereof direction that costs be taxed against the defendant which will conform to Code § 24-3401, which applies to all civil cases, and this is a civil case. The ruling here made makes it unnecessary to rule upon any of the other complaints of the plaintiff in error.
Judgment reversed with direction. All the Justices concur.