Foskey v. Foskey

• Decision Date: 14 January 1988
• Docket Number: No. 45016,45016
• Citation: 257 Ga. 736,363 S.E.2d 547
• Parties: FOSKEY v. FOSKEY.
• Court: Georgia Supreme Court

Page 547

363 S.E.2d 547

257 Ga. 736

FOSKEY v. FOSKEY.

No. 45016.

Supreme Court of Georgia.

Jan. 14, 1988.

Kice H. Stone, Stone, Christian & Peterman, P.C., Macon, Martha C. Christian, for Havard Foskey, Jr.

Raymond M. Kelley, Jr., Macon, for Ethel A. Foskey.

MARSHALL, Chief Justice.

The parties' divorce decree, incorporating a provision in the jury verdict, specified that "[t]his alimony obligation [$800 per month] will survive the death of the defendant [appellant] and shall be payable by his estate until the plaintiff's remarriage or death, whichever occurs first." We granted the appellant's application for discretionary appeal, and he complains of the erroneous inclusion of this allegedly unlawful provision in the decree, and he contends that the evidence was insufficient to authorize the finding that a common-law marriage existed between the parties. For reasons which follow, we affirm on the condition that the complained-of provision in the decree, which we agree is unauthorized by law, be stricken.

1. The evidence, though conflicting, authorized the jury to find a common-law marriage between the parties.

2. "In cases [such as the instant case] where the decree did not incorporate a settlement agreement, that is, where the parties have a contested divorce and alimony trial, the law is clear that the death of the former husband terminates his obligation to pay periodic alimony and child support." Dolvin v. Dolvin, 248 Ga. 439, 284 S.E.2d 254 (1981) and cits.; Brand v. Bradberry, 256 Ga. 457, 458, 349 S.E.2d 448 (1986) and cits.

The appellant's failure to object to the charge authorizing the verdict and to the form of the verdict, or to reserve the right to make such objection on motion for new trial or on appeal, constituted a waiver unless the error was "substantial" and "harmful as a matter of law." OCGA § 5-5-24(c). See, e.g., Ray v. Stinson, 254 Ga. 375, 329 S.E.2d 502 (1985) and cit.; Henderson v. State, 182 Ga.App. 513, 518(3), 356 S.E.2d 241 (1987) and cits.

Reversals by reason of erroneous jury charges to which no exceptions are taken are generally those in which (1) "there was an erroneous presentation of the sole issue for decision" or (2) " 'it is of a kind which would have been likely to influence the jury either to find against the defendant or to return a larger verdict than it might have otherwise done' ( Yale & Towne, Inc. v. Sharpe, 118 Ga.App 480, 487 (164 SE2d 318) [1968) ] )" or (3) it is " 'blatantly apparent and prejudicial to the extent that it raises the question of whether the losing party has, to some extent at least, been deprived of a fair trial because of it' " or (4) " 'a gross injustice is about to result or has resulted directly attributable to the alleged errors.' " Central of Ga. R. Co. v. Luther, 128 Ga.App. 178, 180-181, 196 S.E.2d 149 (1973) and cits. The charge must have been "necessarily harmful to the complaining party...." Moon v. Kimberly, 116 Ga.App. 74, 75(2), 156 S.E.2d 414 (1967). " '[W]hen an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.' [Cit.]" Jones v. Davis, 183 Ga.App. 401, 401(1), 359 S.E.2d 187 (1987).

The charge in question not only was likely to unduly influence the jury, it directly misled the jury to "return a larger verdict than it might otherwise have done." Luther, 128 Ga.App., supra at 180, 196 S.E.2d 149. Thus, it cannot be said that the error was rendered harmless by the jury's verdict, as it was in Garmon v. Henriksen, 176 Ga.App. 118, 119(1), 335 S.E.2d 699 (1985), nor that "the challenged charge was a correct statement of the law [Cits.], was adjusted to the circumstances in this case ..., and was not likely to confuse the jury," as it was in John H. Smith, Inc. v. Teveit, 175 Ga.App. 565, 569(3), 333 S.E.2d 856 (1985). Similarly to a charge which "possibly authorized a conviction for a crime not charged" and was held to be "substantial error" and "harmful as a matter of law," Gaines v. State, 177 Ga.App. 795, 800(1), 341...