Benefield v. Benefield, 24529

• Decision Date: 04 April 1968
• Docket Number: No. 24529,24529
• Citation: 224 Ga. 208,160 S.E.2d 895
• Parties: Marie Williams BENEFIELD v. John Wesley BENEFIELD.
• Court: Georgia Supreme Court

Page 895

160 S.E.2d 895

224 Ga. 208

Marie Williams BENEFIELD v.John Wesley BENEFIELD.

No. 24529.

Supreme Court of Georgia.

April 4, 1968.

Gilbert & Carter, Fred A. Gilbert, Atlanta, for appellant.

Frank W. Brandon, Atlanta, for appellee.

Syllabus Opinion by the Court

DUCKWORTH, Chief Justice.

This is a case involving divorce, alimony and custody of a minor child, based upon a petition filed by the wife with a separate cross-petition filed by the husband but with consolidation of both cases before trial.After verdict and judgment in favor of the husband, the wife appeals, enumerating sixteen grounds of alleged error.Held:

1.It is reversible error for the trial judge, during the progress of the trial or in his charge, to express or intimate his opinion as to what has or has not been proven.Code§ 81-1104;Sanders v. Nicolson, 101 Ga. 739, 28 S.E. 976;Florida C. & P. Railroad Co. v. Lucas, 110 Ga. 121, 35 S.E. 283;Hubbard v. State, 108 Ga. 786, 33 S.E. 814;Robinson v. State, 207 Ga. 337, 61 S.E.2d 475.On several occasions the trial judge expressed his opinion as to the evidence as follows: (1) one-half of the defendant's take-home pay for child support was 'too much,'(2) the amount of money the defendant made, considering all his deductions, was all he had, and (3) summarizing the evidence on a particular point,-all within the hearing of the jury.These errors require a reversal and a new trial.

The court was also injudicious in instructing the jury that the plaintiff's petition had been dormant for two years and was 'never sued' in pointing out the filing of the cross-petition.This language was inherently prejudicial and calculated to mislead, and can not be said not to have misled the jury.Accordingly, it was reversible error to so charge.SeeAlexander v. State, 114 Ga. 266, 40 S.E. 231;Potter v. State, 117 Ga. 693, 45 S.E. 37;Cook v. State, 40 Ga.App. 125, 149 S.E. 79;Lincoln Life Ins. Co. v. Anderson, 109 Ga.App. 238, 241, 136 S.E.2d 1.

2.Since a divorce can not be granted by default, a mere failure to answer the complaint or a failure to contest some particular evidence would not be an admission that a divorce should be granted.Code Ann. § 30-113(Ga.L.1958, p. 315;1967pp. 226, 246);Cohen v. Cohen, 209 Ga. 459, 74 S.E.2d 95.The enumeration of error that the evidence demanded a verdict for appellant is not meritorious.

3.The opposing party is entitled to a thorough and sifting cross examination of the witnesses against him.Where the court, without the objection of opposing counsel, prevents counsel from pursuing his cross examination by ruling out a question pertaining or bearing upon the husband's income in a divorce and alimony case, it is reversible error.SeeCode§§ 38-1705, 38-1712;Taylor v. State, 121 Ga. 348, 49 S.E. 303;Lightfoot v. Applewhite, 212 Ga. 136, 91 S.E.2d 37.The manner and extent of a cross examination are, to a certain extent, within the control and discretion of the presiding judge, but this substantial right should never be abridged or denied.News Publishing Co. v. Butler, 95 Ga. 559, 22 S.E. 282.Since this is a ruling that the court erred in refusing to allow the cross examination on income, no ruling is required on the alleged error that the court failed to allow evidence as to the income of the defendant.

4.The court did not err in its charge on desertion as complained of here since the contested evidence as to which spouse wilfully and continuously separated from the other was a question for the jury.There is no error shown in this alleged error.

5.Since the brief of counsel fails to comply with Rule 16 of this court in pointing out the location in the record or transcript where the alleged instructions on 'grossly improper conduct' or 'crime involving moral turpitude' may be found, these alleged errors will not be considered.It likewise fails to point out the parts of the record and transcript supporting the claim of insufficient attorney's...