McCartney v. McCartney

• Decision Date: 08 September 1961
• Docket Number: No. 21299,21299
• Citation: 217 Ga. 200,121 S.E.2d 785
• Parties: Marie Bart McCARTNEY v. Harold Fred McCARTNEY.
• Court: Georgia Supreme Court

Page 785

121 S.E.2d 785

217 Ga. 200

Marie Bart McCARTNEY v. Harold Fred McCARTNEY.

No. 21299.

Supreme Court of Georgia.

Sept. 8, 1961.

DeGive & Fendler, John L. Westmoreland, John L. Westmoreland, Jr., Harry P. Hall, Jr., M. K. Pentecost, Jr., Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, James K. Rankin, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

DUCKWORTH, Chief Justice.

1. Where the plaintiff's and the defendant's grounds for divorce and evidence were based on cruel treatment arising out of the same facts and circumstances such as the failure of one spouse to love the other, thus making life miserable and unbearable, but denied by the other, and accusations of lying, deceit, and spying, denied by the other, and such alleged false allegations being urged as grounds of cruel treatment, it is reversible error to charge the jury that a divorce may be granted in favor of both parties, since the result would be manifestly based on diametrically conflicting opinions as to the credibility of the same witnesses. Anthony v. Anthony, 103 Ga. 250, 29 S.E. 923; Hyde v. Hyde, 200 Ga. 635, 38 S.E.2d 287; Hyndman v. Hyndman, 208 Ga. 797, 69 S.E.2d 859; Moon v. Moon, 215 Ga. 110, 109 S.E.2d 39. Thus the court erred in charging that 'if both have made out a case of cruel treatment, you would grant a divorce to both of the parties,' since the jury could not in one breath believe both parties. And even though the evidence sustains their contentions it does not authorize a verdict which is inconsistent. For the reason stated above, both the special ground complaining of the above charge and the general grounds are meritorious.

2. Each party having charged and proved cruel treatment by accusations alleged by the other to be false, and denial of love for the other, the court erred in failing to charge, without request, in terms of Code § 30-109 that, if the jury found both parties guilty of like conduct, the jury should refuse a divorce to either of them. Moon v. Moon, 215 Ga. 110, 109 S.E.2d 39, supra; Brackett v. Brackett, 217 Ga. 84, 212 S.E.2d 146. Thus the special ground complaining of the failure to charge on like conduct is meritorious.

3. Special ground 7 complains of an excerpt from the charge, that the law does not contemplate an award of alimony sufficient to enable the wife to retire from active earning capacity where she has been accustomed to supporting herself, as an incorrect statement of law. Both the pleadings, and the evidence contend that the wife had been employed during much of her married life, and she had only obtained a leave of absence from her job shortly before filing for divorce; hence the charge complained of was authorized, and this ground is without merit.

4. Special grounds 8 and 10 complain of expressions of opinion by the court during the trial as to what had or had not been proven in regard to the dependency of the wife for support, the needs of the wife and the ability of the husband to pay. Such expressions as therein complained of, made by the court as to what had or had not been proved, were highly prejudicial and improper, and these grounds are meritorious.

5. The special ground objecting to the judgment as not following and conforming to the verdict has no place in a motion for new trial, and will not be considered, particularly where the court sought to correct it and the judgment will be set aside by the grant of a new trial. Code §§ 110-311, 24-104(6); Foster v. Allen, 201 Ga. 348(2a, b) 40 S.E.2d 57; Darley v. Darley, 204 Ga. 785, 51 S.E.2d 846. Nor will the exceptions to the judgment and the judgment after amendment...