Moseley v. Moseley, 20031

• Decision Date: 07 May 1958
• Docket Number: No. 20031,20031
• Citation: 103 S.E.2d 540,214 Ga. 137
• Parties: Wayne Gibson MOSELEY v. Annie Lou Houseworth MOSELEY.
• Court: Georgia Supreme Court

Page 540

103 S.E.2d 540

214 Ga. 137

Wayne Gibson MOSELEY v. Annie Lou Houseworth MOSELEY.

No. 20031.

Supreme Court of Georgia.

May 7, 1958.

G. Seals Aiken, Atlanta, for plaintiff in error.

Herbert O. Edwards, Thibadeau & Edwards, Decatur, for defendant in error.

Syllabus Opinion by the Court.

HAWKINS, Justice.

Annie Lou Houseworth Moseley filed suit in DeKalb Superior Court on December 31, 1954, for divorce, alimony, and custody of minor children, the suit being based on alleged cruel treatment. The defendant, Wayne Gibson Moseley, filed on January 25, 1955, his answer and cross-bill alleging cruel treatment, in which he denied the allegations of cruel treatment in the plaintiff's petition, praying that the prayers of the plaintiff be denied, that he be awarded a total divorce from her, and that he be given temporary and permanent custody of their three minor children. The case came on for trial before a jury on June 6, 1955. The jury returned a verdict granting a total divorce with the right of each party to remarry, the verdict further providing: 'The jury grants the plaintiff (1) the real estate lying in land lots 113 and 114, 16th District, DeKalb County, Georgia, as shown on plat of survey marked 'Exhibit 1,' including all buildings, furniture, furnishings, equipment, and livestock located thereon, but excluding store property approximately 125 feet square located at the corner of Evans Mill Road and McDonough-Lithonia Road; (2) alimony in the amount of $35.00 per month until such time as the plaintiff remarries, and (3) child support of $30.00 per month for each of the three daughters, namely, Elizabeth Allene, Cynthia Jean, and Claire John, until such time as they become 18 years of age or marry, whichever event first occurs.' On June 6, 1955, the trial judge entered judgment and decree, in which he said: 'The alimony allowed by the jury is made a part of this decree.' On June 27, 1955, a part of the judgment and decree of June 6, 1955, with reference to property rights and custody of children was vacated and set aside by the trial judge, in which order he stated: 'The right of the parties hereto to remarry is not vacated nor set aside.' On the same date he entered the following order: 'After due consideration the judgment of the court dated June 6, 1955, is hereby vacated and set aside. It is the order of the court that the verdict of the jury awarding real property and personal property to the plaintiff and defendant is hereby made a part of this decree. The real property awarded to the plaintiff is described as follows [and then a minute description was given] * * *. The plaintiff shall have custody of the said minor children with the right of the defendant to have custody of said children every other week-end from 12:00 Noon on Saturday until 5:00 PM on Sunday, beginning Saturday, June 25, 1955. The defendant shall have custody of the three minor children during the entire fourth week in the months of June, July, and August of each year beginning in July of 1955. Said week to begin at Noon on the 4th Saturday and end at 5:00 PM on Sunday. The court reserves the right to modify this order of custody of children instanter without proof of a change of conditions. The defendant shall pay to the attorneys of record for the plaintiff the sum of $100.00 as attorneys' fees.'

On July 5, 1955, within 30 days from the date of the verdict of the jury and the judgment of the court based thereon, the defendant filed a petition for the modification or setting aside of the verdict and judgment, which he amended (1) on January 22, 1957, (2) on March 5, 1957, and (3) on March 14, 1957. This petition as amended was overruled by the trial judge. In his brief, counsel for the defendant (now plaintiff in error) argues that he is entitled to a modification or setting aside of the verdict and judgment of the trial court on sixteen grounds, which will be dealt with in the opinion. Held:

1. 'While the act of the General Assembly approved March 6, 1956, Ga.L.1956, p. 405, amends Code Ann. § 30-101 so as to remove the provisions relative to a decree granting a total divorce not becoming final until the expiration of 30 days from the granting of the decree, and eliminates the provision requiring the filing of a proper written petition to modify or set aside the verdict within thirty days from the rendition and entering thereof' (Lott v. Lott, 212 Ga. 672(1), 94 S.E.2d 869, 870), where, as in this case, on June 6, 1955, prior to the approval of the aforementioned act of 1956, a divorce is granted by the jury with an award of permanent alimony, upon which a judgment and decree is entered accordingly the same day, which was later modified or amended by the trial judge, the proper procedure was to file a petition for the modification or setting aside of the verdict and judgment, as was done on July 5, 1955, and, as was held in Powell v. Powell, 207 Ga. 1, 59 S.E.2d 718, a petition to set aside judgment, filed within 30 days, may be amended.

2. The bill of exceptions recites that at the final hearing on the petition as amended for the modification or setting aside of the verdict and judgment in the divorce and alimony case before the superior court, 'the defendant was allowed by Judge Guess to offer evidence in support of that part of his petition seeking to have a guardian appointed for the plaintiff on the ground of insanity, to remove her as custodian of the minor children of the parties, to have her examined' by a named doctor for 'his findings, opinion, and recommendations concerning her condition,' and 'that the defendant be awarded custody of his minor children, and that the monthly alimony awarded to plaintiff for their support in the verdict and judgment be set aside.' Aside from the fact that, under Code, § 49-601, the ordinaries of the several counties appoint guardians for insane persons, and, under Code, § 24-1901, courts of ordinary have authority to exercise original, exclusive, and general jurisdiction of the issuing of commissions of lunacy in conformity to law, this court held in Gordy v. Gordy, 212 Ga. 171, 91 S.E.2d 353, 354: "Good and sufficient grounds' for setting aside a decree of divorce as used in that Code section [Code, Ann., § 30-101, Ga.L.1946, p. 90] means good and sufficient grounds which were in existence at the time the decree was rendered and not something that happened after that time,' and one cannot attempt to try his 'case again upon its merits by a motion to modify and set aside the judgment there obtained.' Accordingly, this court will not deal with the brief of evidence at the illegal hearing of August 20 and 22, 1957, in the record numbered pages 82 through 111, nor with the assignments of alleged error committed at said hearing as set out in numbered paragraphs 9 through 16 (pages 7 to 33) of the bill of exceptions, and argued in the brief of counsel for the plaintiff in error as grounds 3, 4, 13, 14 and 15, all with reference to admission and rejection of evidence and rulings of the court which occurred at this hearing.

3. Ground 16 complains because the trial judge refused to grant the prayer of defendant for a jury trial on the questions of alleged fact presented in his petition to modify. As stated in division 2, the trial judge exceeded his authority in allowing counsel for the defendant to offer evidence in support of that part of his petition seeking to have a guardian appointed for the plaintiff on the ground of insanity, and to have her examined concerning her condition, and to attempt to try his case again upon its merits. With all this erroneous procedure elminated, there was no issue of fact involved in the motion to modify and set aside the verdict and judgment, and the trial judge did not err in refusing to grant a jury trial. Carnegie v. Carnegie, 206 Ga. 77(1), 55 S.E.2d 583.

4. Ground 1 contends that part...