Kosikowski v. Kosikowski

• Decision Date: 28 November 1977
• Docket Number: Nos. 32860 and 32941,s. 32860 and 32941
• Parties: Mary Joyce Penek KOSIKOWSKI v. Richard Eugene KOSIKOWSKI (two cases).
• Court: Georgia Supreme Court

Page 846

240 S.E.2d 846

240 Ga. 381

Mary Joyce Penek KOSIKOWSKI v. Richard Eugene KOSIKOWSKI (two cases).

Nos. 32860 and 32941.

Supreme Court of Georgia.

Nov. 28, 1977.

Rehearing Denied in No. 32860 Dec. 15, 1977.

Cobb, Blandford & Werbin, John L. Blandford, Samuel N. Werbin, Chamblee, for appellant.

Westmoreland, Hall, McGee & Warner, James M. Crawford, Atlanta, for appellee.

Richard Eugene Kosikowski, pro se.

HILL, Justice.

In this no fault divorce case the wife appeals the jury verdict as to alimony, and the husband cross appeals the award of additional attorney fees to the wife and the issuance of a writ of ne exeat.

The parties were married for over twenty years and have four children, two of whom are minors. The wife, one adult child and the two minor children continued to reside in the marital home following the separation in 1975. After hearing evidence on the issue of alimony, the jury returned a verdict which awarded the wife the furnishings in the marital home, provided that the net proceeds from the sale of this home held jointly be divided equally between them, and awarded $200 per month for each of the two minor children. It was further determined that the wife held $7,734 in trust for the husband and that the wife was responsible to the husband for charges she had made on his accounts.

1. The wife enumerates as error the refusal by the trial court to permit her counsel to elicit testimony from the husband concerning their adult son residing in the home with the wife. In the pleadings, both parents acknowledge that this son is mentally retarded and dependent to some degree. ¹

The wife did not seek child support for this son. A father's statutory duty to support his children ceases at their majority. Code Ann. § 74-105 (Rev.1973); Clavin v. Clavin, 238 Ga. 421, 422, 233 S.E.2d 151 (1977). However, this rule should not be interpreted to imply that where a wife has assumed the responsibility of providing necessary care for a needy adult child, that circumstance is not relevant to the issue of alimony for the wife.

" The court should be able to consider every relevant fact which would enable it to come to a just determination of the (alimony) issue. Relevant evidence is that evidence which relates directly or indirectly to the question being tried. Code (Ann.) § 38-201." Gallant v. Gallant, 223 Ga. 397, 399, 156 S.E.2d 61, 63 (1967); Hogan v. Hogan, 196 Ga. 822, 825-826, 28 S.E.2d 74 (1943). A wife's manner of living, her material resources, and her income, if any, are factors the jury may take into consideration in determining what amount may be necessary for the support and maintenance of the wife. Fried v. Fried, 211 Ga. 149, 151, 84 S.E.2d 576 (1954). The wife's fulfilling of her maternal obligation to a dependent adult son is relevant to her manner of living and pertains directly to estimating any income the wife might have available from her separate estate.

This court has recognized that an obligation by one spouse concerning a child for which the other spouse has no legal responsibility may nevertheless be relevant in deciding alimony. Hawes v. Hawes, 66 Ga. 142(2) (1880) (husband had children by former marriage); Melvin v. Melvin, 129 Ga. 42, 58 S.E. 474 (1907) (wife had child by former marriage). In Mullinax v. Mullinax, 234 Ga. 553, 216 S.E.2d 802 (1975), a divorce and alimony suit, the jury considered testimony concerning a disabled adult son residing with the wife and on appeal this court considered that fact in determining...