Clark v. Clark
| Decision Date | 09 March 1972 |
| Docket Number | No. 27048,27048 |
| Citation | 188 S.E.2d 487,228 Ga. 838 |
| Parties | Joseph Eugene CLARK v. Lorease CLARK. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The verdict and decree are void because they attempt to award the husband's property to his children as support.
2. The general grounds of the motion for new trial insofar as divorce is concerned were properly overruled.
3. Five specified grounds for a motion for new trial regarding divorce are not meritorious.
4. The enumeration of error complaining that the court's charge was grossly verbose and confusing is not meritorious.
Morris & Smith, Charley G. Morris, B. J. Smith, East Point, for appellant.
Johnson & Johnson, S. D. Johnson, Jonesboro, for appellee.
The rulings and decree complained of here arose from an action for divorce, alimony and custody of minor children filed in the Superior Court of Clayton County by Lorease Clark against Joseph Eugene Clark. The jury returned a verdict in favor of the wife and a judgment was entered thereon. The husband's motion for new trial as amended was denied. The appeal embraces five enumerations of error, one of which is the denial of the motion for new trial, which contains 21 grounds.
Many of the issues relate to the subject matter of the verdict and decree.
The verdict, upon its face, recited as follows: On its reverse side the verdict made the following awards: for the husband certain Atlanta and Florida properties and also 'One Half interest in property in Fayette Co.'; for the two named children described property at 'Mountain View, Ga. with privilege of (the wife) to live at same until she remarries'; and for the wife 'One Half interest in property in Fayette Co.'
The decree provided in substance as follows. It awarded the wife a divorce, both parties having the right to remarry; it granted the wife custody of the children; it ordered the husband to pay the wife $100 each month per child for support of the children until the happening of stated events; and it awarded the wife a one-half undivided interest in the Fayette County property.
The decree also awarded the Mountain View property to the wife 'in trust for the two minor children as tenants in common'.
It further recited as follows: 'The (wife) herein shall have the right to live herein and use said property for the home of her and the two minor children until (she) remarries.
'Upon the two minor children, both reaching the age 21, the title to said property vested in said children as tenants in common.'
The decree further stated that the property of the husband in Florida shall remain free and clear of any claims of the wife.
The husband in his enumeration of errors and in his amended motion for new trial makes many attacks upon the verdict and decree. We deem it necessary to deal with only one of these attacks.
It is that the verdict and decree sought to take a part of the husband's property and to award it to his children. As to this, the verdict attempted to award to the children his Mountain View property with the privilege of the wife to live there until she remarries. The decree purported to follow the verdict. In addition to the monthly installments in the verdict for the support of the children, the decree, in this respect, provided for his Mountain View property to be held in trust by the wife until the majority of the children, at which time title would vest in them, with the wife having the right of occupancy until remarriage.
In our view, this attempt to award the property of the father to his children is contrary to law.
Our law requires that until majority the father must provide for the maintenance, protection and education of his children. Code § 74-105. It also provides that until provision is made for them, voluntarily or by court decree, the father is liable to third persons for necessaries furnished for their benefit while in the wife's custody. Code § 30-215.
When alimony is sought, whether or not the jury finds in favor of the wife, they shall also specify 'what amount' the children shall be entitled to for permanent support. Code § 30-207. (Emphasis supplied.)
In Thomas v. Holt, 209 Ga. 133(2), 70 S.E.2d 595 this court held that the purpose of Code §§ 30-207 and 30-215, supra, is to relieve the father from his common-law liability to support the children and by court decree require him to contribute a 'specified amount' for their support and maintenance.
From the foregoing it is clear that the husband's responsibility for the support of his children does not extend to awarding them title to his property. He is not required to settle an estate upon them. See generally in this connection 24 Am.Jur.2d 949, Divorce and Separation § 837.
It follows that for the reasons above, the verdict and decree are invalid.
This feature renders void all provisions of the verdict and the decree insofar as alimony and child support are concerned. It is inconceivable that with this feature stricken the jury would have intended the other provisions for alimony for the wife and support of the children to remain.
Therefore the case must be reversed and remanded for new trial, insofar as alimony and child support are concerned.
The other questions with reference to the verdict and decree need not be dealt with here since they are not likely to recur upon another trial.
2. The general grounds for motion for new trial, insofar as divorce is concerned, were properly overruled. The conduct of the husband and wife was such as to authorize the grant of divorce to her.
3. Several other grounds of the motion for new trial relating to divorce remain for disposition here. We shall treat them briefly since they do not require elaboration.
(a) There is no merit in two grounds complaining that the trial court permitted testimony as to matters which took place prior to the present marriage of the parties. These grounds do not set forth nor specify any place in the record where the rulings or testimony complained of occurred.
(b) One ground asserts that it was prejudicial and harmful for the court to allow certain testimony and colloquy to be given before the jury. This was properly overruled. No objection or motion to take any action was made.
(c) The ground...
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Esser v. Esser, S03F1111.
...regard, we have held that a trier of fact may not award a parent's real property to a child, even as child support, Clark v. Clark, 228 Ga. 838, 840, 188 S.E.2d 487 (1972), but we have approved of an order directing a parent to place real property in a trust for the benefit and support of h......
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