Hardy v. Hardy
| Decision Date | 14 July 1965 |
| Docket Number | No. 22977,22977 |
| Citation | 221 Ga. 176,144 S.E.2d 172 |
| Parties | Eddie E. HARDY v. Josephine B. HARDY. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. (a) The allegations of constant nagging and false accusations in plaintiff's petition are sufficient to charge defendant with cruel treatment under Code Ann. § 30-102(10).
(b) There is no requirement under Code Ann. § 30-102(10) that plaintiff's health be injured, but only that there be reasonable apprehension of injury.
(c) The indebtedness of the parties is one of the factors to be considered in determining alimony.
2. The court erred in failing to strike that portion of the verdict and judgment for alimony which provides 'on condition that the $1,800 be used to pay off the note at the C. & S. Bank.' A jury does not have the power to attach this type of condition to its verdict.
3. (a) There was evidence to support the verdict.
(b) A witness may be allowed to testify that he has given certain notes and describe them as to date and amount without the introduction on the notes into evidence, provided that the witness does not go into their contents.
Lester & Lester, James L. Lester, Augusta, for plaintiff in error.
Albert G. Ingram, Augusta, for defendant in error.
Josephine B. Hardy sued Eddie E. Hardy for divorce in the Superior Court of Richmond County. In the amended petition it was alleged: that plaintiff and defendant were married in 1959 and lived together as man and wife until December 17, 1963 when they separated. In paragraph 7 of the amended petition it was alleged: It was further alleged that said acts were done maliciously with the intent to injure plaintiff's health and that plaintiff is capable of earning a take home pay of $80 per week and that 'the plaintiff is entitled to and is asking for permanent alimony in the amount of $1,800, said amount being the amount of a promissory note co-signed by the plaintiff and plaintiff is liable for said amount.' The prayers were that a total divorce be granted to the plaintiff and for permanent alimony to pay off the above mentioned note. Defendant's general and special demurrers to the amended petition were overruled. The case proceeded to trial and the jury returned a verdict granting a total divorce to the plaintiff and further provided in the verdict The defendant filed a motion to set aside a portion of the verdict and judgment awarding alimony and a motion for new trial. Both these motions were overruled. Error is assigned on the orders overruling these motions and on the order overruling the general and special demurrers.
1. (a) The court did not err in overruling the general demurrer to the petition. Code Ann. § 30-102(10) (Ga.L.1963, pp. 288, 290) provides that cruel treatment shall authorize the granting of a total divorce and that cruel treatment shall consist 'of the wilful infliction of pain, bodily or mental, upon the complaining party, such as reasonably justifies apprehension of danger to life, limb or health.' It is well settled by decisions of this court that constant nagging and false accusations can amount to cruel treatment. Hirsch v. Hirsch, 217 Ga. 590(1), 123 S.E.2d 915; Anglin v. Anglin, 209 Ga. 823(1), 76 S.E.2d 498; Wilkinson v. Wilkinson, 159 Ga. 332(2), 125 S.E. 856; Miller v. Miller, 139 Ga. 282(1), 77 S.E. 21. Following the rule stated in the above cited cases, the allegations of nagging and false accusations are sufficient to charge defendant with cruel treatment under Code Ann. § 30-102(10).
(b) In paragraph 8 of the plaintiff's petition it was alleged: 'Said acts were malicious and done with the intent to injure plaintiff's health.' The demurrer to this paragraph on the ground 'that the allegations stated therein amount to a conclusion without sufficient facts to show how plaintiff's health was injured' was overruled. This was not error. It is unnecessary for the plaintiff to allege facts showing how her health was injured. There is no requirement under Code Ann. § 30-102(10) that plaintiff's health be injured, but only that there be reasonable apprehension of injury. The allegations of paragraph 7, quoted above, establish reasonable apprehension of injury to plaintiff's health.
(c) Defendant's last special demurrer is on the ground that "the amount due on a promissory note co-signed by the plaintiff' is an improper basis for the award of alimony and thereby is impertinent, immaterial, and prejudicial.' Code § 30-201 provides 'Alimony is an allowance out of the husband's estate, made for the support of the wife when living separate from him.' In Fried v. Fried, 211 Ga. 149, 151, 84 S.E.2d 576, 578 (one Justice dissenting), it was held that the jury may consider the wife's material resources and her income in determining the amount of alimony. The wife's debts would be equally...
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