McCurry v. McCurry

• Decision Date: 20 April 1967
• Docket Number: No. 24043,24043
• Parties: William H. McCURRY v. Patsy Ann McCURRY.
• Court: Georgia Supreme Court

Page 378

155 S.E.2d 378

223 Ga. 334

William H. McCURRY v. Patsy Ann McCURRY.

No. 24043.

Supreme Court of Georgia.

April 20, 1967.

Rehearing Denied May 4, 1967.

Syllabus by the Court

1. The charge, to which no objection was made during the trial, authorizing the jury to consider the conduct or misconduct of the husband in fixing alimony was error and harmful as a matter of law and reviewable by this court under Code Ann. § 70-207(c) (Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498) as there was evidence of gross misconduct by the husband, appellant, and the jury awarded alimony to the wife.

2. The verdict awarding a divorce, alimony and custody of the minor children was authorized by the evidence, but as to the amount of alimony, the verdict is contrary to law, having been rendered pursuant to an erroneous charge.

3. As there had been an oral application for a hearing on the question of attorney's fees, and a hearing thereon prior to the verdict granting a divorce, and the court had reserved judgment on the matter, the award of attorney's fees, although made after the final verdict, is valid.

Lee & Hitchcock, Sara L. Hitchcock, Albany, for appellant.

Smith, Gardner, Wiggins & Geer, M. M. Wiggins, Jr., Albany, for appellee.

MOBLEY, Justice.

From a verdict and judgment awarding the wife, appellee, a divorce, custody of the minor children, alimony for the wife and children and attorney's fees, the appellant appealed enumerating as error, first, the charge of the court that 'in connection with awarding alimony, if you award any, the conduct or misconduct of the husband is a proper subject of inquiry in reaching a determination as to the amount to be allowed,' secondly, that the verdict was without evidence to support it and contrary to the evidence and the law, and thirdly, the award of attorney's fees.

1. It is well established by decisions of this court that the jury is not authorized to consider the conduct or misconduct of either party in a suit for alimony as to the question of the amount of alimony. Harper v. Harper, 220 Ga. 770, 141 S.E.2d 403; Hall v. Hall, 220 Ga. 677(2), 141 S.E.2d 400; Fried v. Fried, 211 Ga. 149, 152, 84 S.E.2d 576; Robertson v. Robertson, 207 Ga. 686(1, a), 63 S.E.2d 876. See Code §§ 30-201; 30-203; Code Ann. § 30-209 (Ga.L.1966, p. 160). The ruling in Smith v. Smith, 167 Ga. 98(3), 145 S.E. 63 to the contrary is by a divided court and is not binding on this point. The purpose of alimony is to provide support for the wife and minor children, the amount to be determined from consideration of her needs and the husband's ability to pay. Robertson v. Robertson, supra. It is never for the purpose of penalizing the husband or wife for his or her misconduct.

There was considerable evidence of gross misconduct by the husband of appellee to the effect that he had beaten her, threatened to kill her and the children, poured hot coffee on her and perpetrated other physical and mental abuses upon her. In view of such evidence, the charge was clearly harmful and constitutes 'a substantial error in the charge which was harmful as a matter of law.' Code Ann. § 70-207(c) (Ga.L.1965, pp. 18, 31; 1966, pp. 493, 498). Although no exception was made to the charge during the trial, the error is reviewable by this court under the foregoing section of the statute which states: 'Notwithstanding any other provision of this section, the appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.'

We find nothing in other portions of the charge on this question to cure the erroneous charge. In fact, the judge charged in several paragraphs preceding the above quoted charge that the jury could consider 'the conduct of the husband' in determining the amount of alimony. After the charge complained of the judge charged that 'the amount of alimony to be allowed the wife, if any, should not be determined solely on the basis of the wrongs inflicted by the husband' and '(a)limony is not punishment against the husband * * * (t)here is no such rule that the greater the wrong inflicted on the wife by the husband, the more liberal the award of alimony should be. Determination of an award of alimony should be limited to the evidence regarding the needs of the wife and the minor children and the husband's ability to pay.' At best, the charge is utterly confusing as to whether conduct of the husband can be considered. The use of the word 'solely' would indicate consideration of the husband's conduct is permissible but that other matters should be considered. The last quoted sentence in...