Barber v. Barber
Decision Date | 24 September 1987 |
Docket Number | No. 44377,44377 |
Citation | 360 S.E.2d 574,257 Ga. 488 |
Parties | BARBER v. BARBER. |
Court | Georgia Supreme Court |
Glenville Haldi, Atlanta, for Charlene A. Barber.
Casper Rich, Decatur, for Ronald L. Barber.
Appellant Charlene A. Barber filed a divorce action against appellee Ronald L. Barber. Following a jury trial in which issues of alimony, child support and equitable division of property were litigated, we granted appellant's application to appeal, OCGA § 5-6-35(a)(2).
1. Appellant complains that the trial court erred in sequestering her during the testimony of her witnesses. The record shows that after appellee moved for sequestration of the appellant, the trial court offered the appellant the option of testifying first and remaining in the courtroom during the testimony of her witnesses, or remaining outside the courtroom until such time as she chose to testify. Appellant's attorney stated that he had "other witnesses [he] felt obligated to accommodate" and that it would be "inconvenient" to have appellant testify first. Appellant remained outside the courtroom until such time as she elected to testify.
It has been generally held that the rule of sequestration, OCGA § 24-9-61, does not apply to a party to the case, Georgia Railroad Co. v. Tice, 124 Ga. 459, 52 S.E. 916 (1905); Ross v. Rich's, 129 Ga.App. 716, 201 S.E.2d 159 (1973). However, the cases also recognize that where the plaintiff elects to call his own witnesses before testifying himself, the trial court has a broad discretion to require either that the plaintiff testify prior to presenting the testimony of his witnesses, Tift v. Jones, 52 Ga. 538, 542-3 (1874); Boutelle v. White, 40 Ga.App. 415, 149 S.E. 805 (1929), or that the plaintiff be excluded from the courtroom prior to the time he chooses to testify. Ross v. Rich's, supra; Davis v. Atlanta Coca-Cola Bottling Co., 119 Ga.App. 422, 167 S.E.2d 231 (1969); King v. Faries, 120 Ga.App. 393, 170 S.E.2d 747 (1969); Purvis v. Tatum, 131 Ga.App. 116, 205 S.E.2d 75 (1974).
We hold that under the circumstances of this case the trial court did not abuse its discretion in offering the appellant the option of testifying first or remaining outside the courtroom until she chose to testify. Further, we find that appellant has not demonstrated that she was harmed by not being in the courtroom during the presentation of her witnesses. See Sun v. Bush, 179 Ga.App. 80(5), 345 S.E.2d 85 (1986).
2. The issue of child custody had not been resolved by the trial court by the conclusion of the evidence. Appellant argues the trial court erred in failing to provide the jury with alternate verdict forms as required by Curtis v. Curtis, 255 Ga. 288, 336 S.E.2d 770 (1985). In that case we held that where the issue of child custody is unresolved at the end of the evidence, or where the trial court does not wish to inform the jury of its decision as to child custody, alternate verdict forms, stating the amount of child support to be paid in the event either parent is awarded custody, should be provided to the jury. It is conceded alternate forms were not provided in this case. We find, however, that any error in failing to provide alternate verdict forms is rendered harmless by the jury's verdict that
3. Appellant alleges error in the trial court's failure to charge that
We hold the court correctly charged that the party claiming a right, including property division, has the burden of proof to establish that right. To hold that the burden rests equally on each party as to an issue runs the risk of neither party prevailing on that issue and the ultimate dilemma of an unresolved dispute. In this case one party claimed that property should be equitably divided according to plan A. The other party contended it should be divided according to plan B. Each had the burden to prove entitlement to equitable division according to his or her plan. If both fail to meet their separate burdens, then neither is entitled to equitable division, and their ownership of property remains as it existed before trial.
4. Appellant's final allegation is that the trial court erred in refusing to charge the jury that "in considering the total needs and circumstances of the wife, you may also consider the needs and circumstances of her minor children who live with her in her care and custody even though these minor children are not the children of the Husband in this case." With this we disagree.
There was evidence before the jury that appellant has a son by a former marriage, and that appellant receives no child support from the child's natural father.
The charge requested is an incorrect statement of the law because it is not the needs of the spouse's minor child which the jury may consider. Instead, it is the extent to which the spouse contributes to those needs which the jury may take into account in determining the amount of alimony, if any, to be awarded to the spouse. Kosikowski v. Kosikowski, 240 Ga. 381, 382, 240 S.E.2d 846 (1977). The requested charge would have the effect of telling the jury to look to the needs of a child for whom appellee has no responsibility and add a sum to alimony to be paid by appellee sufficient to supply those needs. But the rule of law is simply that one of the many circumstances a jury may consider in fixing alimony is an expense a spouse has for the support of another.
5. The appellee moved to dismiss this appeal under Curtis v. Curtis, 255 Ga. 288, 336 S.E.2d 770 (1985), claiming that all terms of the final judgment have been complied with, and that by accepting relief under the judgment, appellant has waived her right to complain of it. As there is nothing in the record before us to support this contention, the motion to dismiss is denied.
Judgment affirmed.
All the Justices concur, except MARSHALL, C.J., and SMITH and BELL, JJ., dissent.
In Tift v. Jones, 52 Ga. 538 (1874), the Court, without citation of authority, indicated that when a party intends to be a witness, Three years later, the 1877 Georgia Constitution included: 1 This constitutional provision which provided, for the first time, that each person has the right to "prosecute or defend his own cause" effectively overruled Tift and its "proper rule." It is virtually impossible for one to prosecute or defend his own case without being present in the courtroom. Thus what the court in 1874 considered the "proper rule" was overruled.
The fact that Tift was overruled by the constitutional provision can be seen in a later case in which the Court, with the knowledge of the constitutional provision, reversed the lower court ruling in which the real party at issue with the plaintiff was sent, over objection, from the courtroom. The Court stated that "[a]s she was in fact a party to the issue on trial, it was her right to be present; and it was, therefore, manifestly erroneous to exclude her from the court-room." [Emphasis supplied.] St. Paul Ins. Co. v. Brunswick Co., 113 Ga. 786, 39 S.E. 483 (1901), Id. at p. 789, 39 S.E. 483. Four years later in Georgia Railroad Co. v. Tice, 124 Ga. 459, 465, 52 S.E. 916 (1905), this Court restated its position when it held that "[t]he rule in reference to the sequestration of witnesses does not apply where the witness is a party ..." It is apparent from reading both opinions that the Court did not recognize any discretion on the part of the trial judge to oust a party/witness from the courtroom. Later, this Court explained that trial judges do have discretion with regard to witnesses, but not party/witnesses when it stated, (Emphasis supplied.) Groover v. Simmons, 161 Ga. 93, 198, 129 S.E. 778 (1925). This Court's position and the Court of Appeals' holding in Knox v. Harrell, 26 Ga.App. 772, 108 S.E. 117 (1921), were muddled for the first time in Boutelle v. White, 40 Ga.App. 415, 149 S.E. 805 (1929). The Court of Appeals, in an apparent effort to overrule Knox v. Harrell, supra, Groover v....
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