McGarr v. McGarr

Decision Date08 September 1977
Docket NumberNo. 32494,32494
PartiesDavid W. McGARR v. Martha Walters McGARR.
CourtGeorgia Supreme Court

O'Neal, Stone & Brown, Kice H. Stone, Macon, for appellant.

Walters, Davis, Ellis & Smith, W. Emory Walters, Ocilla, for appellee.

HALL, Justice.

Appellant husband appeals from a judgment granting him a divorce and awarding the appellee substantial alimony and child support. The suit was based upon grounds of cruel treatment; appellee counterclaimed on the same grounds.

1. Appellant failed to object to the charge on alimony. The exception found in Code Ann. § 70-207(c) (harmful as a matter of law) is inapplicable unless it appears that the error contended is blatantly apparent and prejudicial, and that a gross miscarriage of justice attributable to it is about to result. Sullens v. Sullens, 236 Ga. 645, 224 S.E.2d 921 (1976). We find no such error. See Brown v. Brown, 232 Ga. 55, 205 S.E.2d 201 (1974).

Admittedly the last sentence of the instructions on alimony may have caused confusion among the jurors as to the relevancy of a husband's conduct to the amount of alimony. But appellant requested this portion of the charge, and thus cannot complain of any error induced by it. Noxon Rug Mills, Inc. v. Smith, 220 Ga. 291, 138 S.E.2d 569 (1964).

2. Appellee testified over objection that she had heard that appellant was engaging "in friendships of younger women." The court gave a limiting instruction to the jury that they were not to consider the statement for the truth of the assertion, thus eliminating the hearsay grounds for objection. But appellant also objected on the grounds that the statement's probative value was substantially outweighed by its prejudicial impact. Evidence of these friendships was already before the jury without objection. Even if appellant's objection was well taken, there was insufficient prejudice to require reversal. Arrington v. Thompson, 211 Ga. 734, 88 S.E.2d 402 (1955); Rogers v. Manning, 200 Ga. 844, 38 S.E.2d 724 (1946); East Point Ford v. Lingerfelt, 123 Ga.App. 520, 181 S.E.2d 713 (1971).

3. Appellant complains of the exclusion of a part of his testimony dealing with expenditures of money by appellee after their separation. He contends on appeal that the evidence was relevant to the issue of alimony and child support. But counsel specifically stated at trial that this was not the purpose for which the evidence was offered. The appellant cannot assert error on this basis.

4. The jury awarded $60,000 to be held in trust for the "college education" of the three children. Appellant contends that the award is contrary to the evidence, since there was no evidence of the cost of a college education.

Appellee concedes that there was no evidence as to the cost of college, but relies on Bateman v. Bateman, 224 Ga. 20, 159 S.E.2d 387 (1968), and Fitts v. Fitts, 231 Ga. 528, 202 S.E.2d 414 (1973), and on the discretion of the jury in determining the amount of child support. Bateman is not on point, for in that case the award of child support for college expenses was limited to the children's minority, and all we held was that such expenses were a proper...

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  • Dendy v. Metropolitan Atlanta Rapid Transit Authority, 63591
    • United States
    • United States Court of Appeals (Georgia)
    • July 6, 1982
    ...155 Ga.App. 2, 3, 270 S.E.2d 247; Ga. International Life Insurance Co. v. Harden, 158 Ga.App. 450, 455, 280 S.E.2d 863; McGarr v. McGarr, 239 Ga. 640(1), 238 S.E.2d 427; Williams v. Kennedy, 240 Ga. 163, 164(2), 240 S.E.2d 51. In Simmons v. Edge, 155 Ga.App. 6, 9, 270 S.E.2d 457, this Court......
  • Read v. Benedict, s. A91A0181
    • United States
    • United States Court of Appeals (Georgia)
    • May 13, 1991
    ...(OCGA § 9-10-6), and the jury, either individually or as a group, could not base its award of interest upon speculation. McGarr v. McGarr, 239 Ga. 640(4), 238 S.E.2d 427. As we find no competent evidence of record sufficient to enable the jury to calculate the applicable prime rate and, thu......
  • Johnson v. Johnson, 32487
    • United States
    • Supreme Court of Georgia
    • September 8, 1977
  • Coleman v. Coleman
    • United States
    • Supreme Court of Georgia
    • December 5, 1977
    ...and is void and unenforceable. 10 Anything to the contrary in Fitts v. Fitts, supra, is hereby disapproved. As in McGarr v. McGarr, 239 Ga. 640, 238 S.E.2d 427 (1977), we grant leave to Jan Coleman to write off the paragraph establishing the educational trust from the decree which will then......
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