Summary
In Knight v. Knight, 209 Ga. 131 (3) (70 S.E.2d 770), it was held: "The contentions of the wife that the court erred in not dismissing the motion to vacate the alimony award, upon the ground that the judgment awarding alimony can not be separately attacked, is likewise not meritorious."
Summary of this case from Burney v. BurneyOpinion
17811, 17812.
ARGUED MARCH 10, 1952.
DECIDED APRIL 16, 1952. REHEARING DENIED MAY 14, 1952.
Divorce, etc. Before Judge Mallory C. Atkinson. Bibb Superior Court. January 2, 1952.
R. L. Smith, for plaintiff.
T. Arnold Jacobs, for defendant.
1. When an action for divorce is filed by the husband, and a cross-action is filed by the wife which "requests" an award of temporary and permanent alimony and attorney's fees, but which cross-action contains no prayer for divorce, and the jury returns a verdict for a divorce with the right granted to both parties to remarry, the divorce is necessarily granted by the jury on the petition of the husband. It does not follow, however, as a matter of law that the award of alimony made by the jury for the benefit of the wife is erroneous. Generally, when it is shown that the husband is able to provide for her, a wife is entitled to support by her husband until this right is forfeited by her own misconduct, or unless it shall be made to appear that she has sufficient means for her own support. Campbell v. Campbell, 90 Ga. 687 ( 16 S.E. 960).
2. Misconduct which will defeat the wife's claim for alimony, such as adultery by the wife ( Sikes v. Sikes, 143 Ga. 314, 319, 85 S.E. 193), or abandonment of the husband by the wife without just cause ( Acree v. Acree, 201 Ga. 359, 40 S.E.2d 54), is not involved under the evidence in the present case. It is shown by the evidence that the husband is amply able to support the wife, and that she is unemployed and has no means for her own support. The motion to vacate and set aside the decree is without merit.
3. The contentions of the wife that the court erred in not dismissing the motion to vacate the alimony award, upon the ground that the judgment awarding alimony can not be separately attacked, is likewise not meritorious. Hyndman v. Hyndman, 208 Ga. 797 ( 69 S.E.2d 859); Fried v. Fried, 208 Ga. 861 ( 69 S.E.2d 862).
Nos. 17811, 17812. ARGUED MARCH 10. 1952 — DECIDED APRIL 16, 1952 — REHEARING DENIED MAY 14, 1952.
The evidence was amply sufficient to support the award of alimony. The contentions that the court erred in certain failures to charge are so incomplete that no ruling can be made thereon. The court did not err, as contended, in permitting the jury to return an oral verdict, which verdict was reduced to writing, and signed by the foreman, in the presence of the jury and the court. The verdict and decree are not void for uncertainty. It was wholly within the province of the jury, in arriving at their verdict, to consider the questions of divorce and alimony in the order determined by the jury.
The ground of the motion complaining that the "adroitness of counsel" prevented certain evidence from being presented to the jury is incomplete, in that it fails to show that any evidence of the movant was excluded from the jury by the "adroitness of counsel." The alimony award has the force and effect of a general judgment, and there was no attempt by the jury to bind any particular property of the movant.
Whether or not the cross-action of the wife was as specific as the law requires is a question that can not be raised in a motion to vacate and set aside.
None of the grounds of the motion are meritorious, and the court properly refused to vacate and set aside the alimony judgment.
Judgment affirmed on both the main bill and cross-bill of exceptions. All the Justices concur.