DuBois v. DuBois
| Decision Date | 05 December 1977 |
| Docket Number | Nos. 32933,32998,s. 32933 |
| Citation | 240 Ga. 314,240 S.E.2d 706 |
| Parties | Richard Eugene DuBOIS v. Karen York DuBOIS (two cases). |
| Court | Georgia Supreme Court |
Davis, Matthews & Quigley, Baxter L. Davis, Atlanta, for appellant.
Cathey & Strain, Dennis T. Cathey, Cornelia, Wills & Ford, James L. Ford, Atlanta, for appellee.
These appeals involve the same case, and have been consolidated for decision. Number 32933 is an appeal from the denial of Dr. DuBois' motion to dismiss the appeal in Number 32998.
1. The motion to dismiss was based on the failure of Mrs. DuBois to file a transcript, or request an extension of time in which to file a transcript, within the (already extended) time, as required by Code Ann. § 6-806. Mrs. DuBois requested a second extension of time two days after the expiration of the extended period, and this was granted, but not before the motion to dismiss was filed. The delay in filing the transcript was caused by the clerk's delay in having one prepared; indeed, the transcript was not ready for several more months.
The failure to timely file a transcript is not a basis for dismissal of the appeal unless the trial court finds that the delay was unreasonable, and that the unreasonable delay was inexcusable. Code Ann. § 6-809(b), see Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976). The trial court's decision on this issue will be reversed only for an abuse of discretion. See Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975), cf. Young v. Climatrol Southeast Dist. Corp., supra. There was no abuse of discretion in this case.
2. In Number 32998 Mrs. DuBois appeals, enumerating two errors. The first enumeration of error relates to the exclusion of portions of the testimony of an economist called as an expert witness for Mrs. DuBois. The testimony would have included two estimates concerning the amount which would be spent for child support by hypothetical families. The first estimate was the percentage of "disposable income" (as defined) which families in the area with disposable incomes of $25,000-$30,000 per year spent on their only child. The figures given were based on statistics gathered by government agencies. The definition of "family" was not given, therefore it is unclear whether this was limited to families with parents living separately. Moreover, the figure given included an extra sum for the payment of college expenses after the child reached the age of majority, yet parents are under no legal duty to provide for this expense. Coleman v. Coleman, 240 Ga. 417, --- S.E.2d --- (1977).
This estimate was irrelevant, and properly excluded. See City of Atlanta v. Sciple, 19 Ga.App. 694, 700, 92 S.E. 28 (1917). Dr. DuBois does not have disposable income in the range of $25,000-$30,000, or anywhere near that amount. The expert testified that there were no figures for families with income of the level of Dr. DuBois, and that the difference in income levels would affect the percentage spent on a child. Moreover, the figures were not shown to be relevant to the family situation of the DuBois family after the...
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...will be reversed only for an abuse of discretion. See Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975)." DuBois v. DuBois, 240 Ga. 314, 240 S.E.2d 706 (1977). As noted above, the trial record in this case consists of more than 14,000 pages of testimony and exhibits. On six occa......
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...defenses in its main case as plaintiff. We agree. Generally, the order of proof is in the trial court's discretion (DuBois v. DuBois, 240 Ga. 314, 240 S.E.2d 706), but the procedure permitted by the trial court allowed the appellee, as plaintiff, to present its defense to appellants before ......
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...on the issue of the unreasonable and inexcusable nature of the delay will be reversed only for abuse of discretion. DuBois v. DuBois, 240 Ga. 314(1), 240 S.E.2d 706 (1977). The record shows the transcript in this case has not yet been prepared due to a backlog in the court reporter's busine......