Bateman v. Bateman, 24420

• Citation: 224 Ga. 20,159 S.E.2d 387
• Decision Date: 04 January 1968
• Docket Number: No. 24420,24420
• Parties: Needham B. BATEMAN. v. Jean F. BATEMAN.
• Court: Supreme Court of Georgia

Page 387

159 S.E.2d 387

224 Ga. 20

Needham B. BATEMAN. v. Jean F. BATEMAN.

No. 24420.

Supreme Court of Georgia.

Jan. 4, 1968.

Rehearing Denied Jan. 18, 1968.

Syllabus by the Court

The verdict and decree being supported by the evidence and no harmful error of law appearing the judgment of the trial court must be affirmed.

Mrs. Jean F. Bateman filed an action seeking a divorce from Needham B. Bateman. The plaintiff sought, in addition to the divorce, alimony and custody of the minor children of such marriage. The defendant first filed an snswer denying the material allegations of the plaintiff's petition and later filed an amendment wherein he sought a divorce from the plaintiff. The jury returned a verdict for the plaintiff and thereafter the defendant's amended motion for new trial was overruled. Defendant appeals from the rulings adverse to him.

Grant, Spears & Duckworth, William G. Grant, Atlanta, for appellant.

Westmoreland, Hall & O'Brien, John L. Westmoreland, Sr., John L. Westmoreland, Jr., P. Joseph McGee, Atlanta, for appellee.

NICHOLS, Justice.

1. The first enumeration of error complains of the following excerpt from the court's charge: 'I am not going to take the time to read to you the pleadings in this case. You will have them out with you, and you may read them for yourselves and thoroughly understand the contentions of the parties. I instruct you however, these pleadings are not evidence; they merely frame the issues for your consideration and determination.' The complaint is that such charge, and particularly the part 'merely frame the issues for your consideration and determination' permitted the jury to decide which issues it should decide while in fact the court is required to direct the jury as to which issues are for its determination. The court properly instructed the jury as to the issues before it. The complaint made by the defendant as to harm caused by the above charge is that the jury awarded custody of the children when custody was a matter which addressed itself solely to the trial judge and not to the jury. The jury in its verdict, before setting forth its findings as to alimony found '1. Plaintiff is to retain custody of the four Bateman girls.' The question of custody of children being for the court and not for the jury this part of the jury's verdict was error which may have been caused by the language of the charge complained of. However, such error was harmless for the finding of custody was at most surplusage. The verdict was otherwise valid and the surplusage could be written off. See Central Railroad v. Freeman, 75 Ga. 331, 339; Patterson v. Fountain, 188 Ga. 473, 4 S.E.2d 38, and citations. However, in the case sub judice, where the trial court did award custody of the children to the plaintiff it would be unnecessary to expressly write off that portion of the verdict awarding custody to the plaintiff as such an amendment to the verdict would not benefit the defendant. Harm as well as error must be shown to authorize a reversal by this court. As was held in Brown v. City of Atlanta, 66 Ga. 71, 76: 'When a plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party.' See also Dill v. State, 222 Ga. 793, 152 S.E.2d 741, and citations. No harmful error is shown by this enumeration of error.

2. The enumerations of error numbered 2 through 6 all complain of a part of the verdict concerning the education of the minor children of the marriage, to wit: 'A trust fund of $60,000-is to be set up by September 1, 1967 for the purpose of educating the four Bateman children. Payments to this fund may be made in 5 equal annual installments, beginning September 1, 1967. All of the trust fund must be paid in by Sept. 1, 1971. A suitable trustee for this fund shall be appointed by the court. Any residue in this trust fund after the last child reaches the age of 21, shall revert to the defendant or his estate.'

It is contended in the second enumeration of error that such part of the verdict, in addition to a specific amount per month for the support of each child until age 21, is contrary to law.

While this court has never expressly passed upon the question here raised, yet in Adams v. Adams, 213 Ga. 875, 102 S.E.2d 566, it held that a similar verdict providing for a trust fund for the education of a minor son was authorized where his support was separately provided for in the verdict. Code § 30-207 provides with reference to support for minor children that the jury shall provide for the amount, 'and in what manner, how often, to whom, and until when it shall be paid;' and while a verdict providing for their education only (no support being provided for) would be contrary to law (Flynn v. Flynn, 149 Ga. 693(2), 101 S.E. 806), the jury in a divorce case is not prohibited from providing for the education of minor children of an unsuccessful marriage. See Moody v. Moody, 224 Ga. 13, 159 S.E.2d 394.

(a) It is contended in enumerations of error numbered 3 and 4 that the above quoted excerpt from the jury's verdict authorized the expenditure of the trust fund for the education of the defendant's children, except the youngest, after their twenty-first birthday. Code § 110-105 provides: 'Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity.' While the verdict did not expressly provide 'that the trustee shall furnish funds for the education of each child only during her minority,' the part of the verdict dealing with support payments did provide that such monthly payments would cease for each daughter when she reached age 21 or married, whichever event occurred first. The only reasonable intendment as to the part of the verdict dealing with the educational fund is that it could only be used for the education of the children prior to the twenty-first birthday of each daughter, and this is how it was construed by the trial court in rendering the decree based upon such verdict. Accordingly, these enumerations of error are without merit.

(b) The fifth enumeration of error complains that the above quoted provision of the verdict deprives the defendant of his inherent right to determine the nature and extent of the education to be given his children, and the sixth enumeration of error contends that it deprives the person who has custody of such children of the same right.

In support of these enumerations of error the defendant relies on the decision of this court in Board of Education v. Purse, 101 Ga. 422, 28 S.E. 896, 41 L.R.A. 593 where the question of a father's right to determine the education which will be given his children was exhaustively discussed. Such decision was not by a full bench of this court but even assuming without deciding such decision is binding and applicable today it nowise controls the present case. That case dealt with a situation where a father had custody of the children and had no reference to a case where a divorce had taken place and custody of the children given to the wife. Where the custody of the children is placed in the mother or third person by decree of a court of competent jurisdiction the right to custody, and the corresponding privileges such as the right to decide the educational advantages such children shall receive, is no longer in the father. While under such circumstances his right to custody is gone his duty to provide support remains. As was held in Brown v. Brown, 132 Ga. 712, 715, 64 S.E. 1092, 1094: 'The father is primarily entitled to the custody of his children; but, if his conduct has been such as not to entitle him to their custody and to cause their custody to be awarded to some other person in divorce proceedings, this award of the custody to another by reason of misconduct on the part of the father of itself does not relieve him of his legal obligation to support his children.'

The verdict and decree requiring the defendant to set up the trust fund for the education of his minor children deprived the defendant of no right to decide the educational advantages his children would receive. This was done when he lost their custody. Thus, the fifth enumeration of error shows no reversible error.

The sixth enumeration of error which complains that the establishment of the trust fund deprives the person who has custody of the children from deciding such question shows no error harmful to the defendant since, even assuming that such contention is true, it in nowise affects the defendant who no longer has custody of the children.

3. The seventh enumeration of error complains that the verdict as to alimony and child support is excessive. In addition to the trust fund dealt with above the jury awarded alimony and child support as follows: The defendant to furnish the plaintiff $50,000 for the purchase of a home, $700 per month for her support, $125 per month for each child until age 21 or marriage whichever occurs first, and 25% of the defendant's equities in real estate, stock and bonds as well as household furniture except the defendant's personal effects and family heirlooms.

'The question of alimony cannot be determined by a mathematical formula, as the facts and circumstances in each case are different. The jury is allowed a wide latitude in determining the amount to be awarded.' Jeffrey v. Jeffrey, 206 Ga. 41, 42, 55 S.E.2d 566, 567.

In the present case where there was evidence that the defendant had a net worth in excess of five and one-half million dollars, gross income from the practice of his profession of $239,000 during the last calendar year for which tax returns were available as well as income from investments, where the parties had resided in a home valued at $85,000 before the separation, the children attended private schools with tuition costs of...