Connor v. Connor, 19137

• Decision Date: 15 November 1955
• Docket Number: No. 19137,19137
• Citation: 90 S.E.2d 581,212 Ga. 92
• Parties: Gladys A. CONNOR v. Billy W. CONNOR.
• Court: Georgia Supreme Court

Page 581

90 S.E.2d 581

212 Ga. 92

Gladys A. CONNOR v. Billy W. CONNOR.

No. 19137.

Supreme Court of Georgia.

Nov. 15, 1955.

Syllabus by the Court.

The judgment of the court below denying the motion to modify and set aside the decree of divorce in the instant case was error.

The plaintiff in the court below filed his petition for total divorce from the defendant. It was alleged in the petition that the plaintiff and the defendant were married on April 30, 1951, and lived together as man and wife until May, 1953; that two children were born as a result of the marriage; that the petitioner was a member of the United States Air Force and was so at the time of their marriage; that he informed the defendant prior to their marriage that he intended to make the Air Force his career; that shortly after their marriage, the defendant fussed at him and made disparaging remarks about the Air Force and the members of the Armed Services and about him in particular; that the defendant had a quick temper and would without provocation curse and abuse him irrespective of their whereabouts and in the presence of others; that such cruel treatment and malicious conduct on the part of the defendant was continuous almost from the date of their marriage, growing in intensity until it became unbearable and he was forced to separate from her in order to protect his health and peace of mind.

The prayers of the petition were that he be granted a total divorce, and that custody of the minor children be awarded to the parents of the petitioner.

The defendant answered denying the allegations of the petition with reference to cruel treatment, and setting up a cross petition seeking a divorce from the petitioner, temporary and permanent alimony, and custody of the minor children.

Upon the trial of the case, the evidence was substantially in accordance with the allegations of the pleadings. The jury found that the evidence authorized a divorce, relieved both parties of disabilities, and awarded $43 per month for the support of each of the minor children to whomever the judge should award custody.

The judge entered an order in accordance with the verdict, and awarded custody of the minor children to the parents of the petitioner, the paternal grandparents. Within the time provided by law, the defendant in the court below filed a motion to modify and set aside the judgment in the divorce suit, which was duly denied. The exception here is to this judgment.

W. S. Edwards, Eva L. Sloan, Milledgeville, for plaintiff in error.

Robert H. Green, Milledgeville, for defendant in error.

WYATT, Presiding Justice.

1. The defendant in error has filed a motion to dismiss the bill of exceptions upon the ground that the plaintiff in error did not serve him with notice of her intention to present the brief of evidence to the judge for approval or with notice that she would file a bill of exceptions with the trial judge for approval. There is no merit in this motion to dismiss. The action or nonaction of the judge in requiring notice under Code Anno.Supp. §§ 6-908.1 and 6-909 is not reviewable. Code Anno.Supp. § 6-909, Cohen v. McCandless, 202 Ga. 231, 42 S.E.2d 739.

2. The first ground of the motion to modify and set aside the judgment for divorce is that the evidence failed to authorize a divorce on the ground of cruel treatment. The evidence relied upon to prove the cruel treatment alleged in the petition is the testimony of the plaintiff in the court below. He testified that his wife did not like the Air Force and was constantly nagging and fussing at him and making all kinds of disparaging remarks about members of the Air Force. The plaintiff further testified as follows: 'She fussed at me and called me names * * * She told me about writing letters to a Sergeant and told me she was going to marry him, and that if I did not give her a divorce, she was going to live with him anyhow. All this kept me highly nervous and upset, and I could not sleep at night and this affected my health and the performance of my duties...