Pierce v. Pierce

• Court: Georgia Supreme Court
• Writing for the Court: BOWLES; All the Justices concur, except JORDAN
• Citation: Pierce v. Pierce, 243 S.E.2d 46, 241 Ga. 96 (Ga. 1978)
• Decision Date: 01 March 1978
• Docket Number: No. 33159,33159
• Parties: Joseph Pratt PIERCE, Jr. v. Janet Lenore PIERCE.

Page 46

243 S.E.2d 46

241 Ga. 96

Joseph Pratt PIERCE, Jr. v. Janet Lenore PIERCE.

No. 33159.

Supreme Court of Georgia.

March 1, 1978.

Rehearing Denied March 28, 1978.

Ogden & Allen, Philip W. Ogden, Tom M. Allen, Decatur, for appellant.

Paul A. Martin, Atlanta, for appellee.

BOWLES, Justice.

This is an appeal by the husband from a divorce and alimony judgment. The wife filed suit for divorce and alimony in the Superior Court of DeKalb County based upon alleged cruel treatment. The husband answered, and by cross-complaint sought a divorce on the same ground. The court's Final Judgment and Decree, which approved a jury's verdict in favor of the wife, granted the parties a divorce a vinculo matrimonii; awarded the wife the family home and its furnishings, a cashier's check in the amount of $872.89, and an automobile. The husband was ordered to pay the wife "the sum of $130.00 per week as child support for the two minor children . . . Provided however, should (the wife) remarry, said sum shall be reduced to $100.00 per month per child." The husband appeals, following the denial of his amended motion for new trial.

1. Appellant assigns as error the denial of his motion for new trial on the grounds that the award of child support is excessive and without evidence to support it.

It is well recognized that questions of alimony and child support cannot be determined by a mathematical formula, as the facts and circumstances in each case are different. McDonald v. McDonald, 229 Ga. 702, 194 S.E.2d 429 (1972); Greene v. Greene, 218 Ga. 744, 130 S.E.2d 722 (1963); Jeffrey v. Jeffrey, 206 Ga. 41, 55 S.E.2d 566 (1949). Generally, the necessities of the children and the husband's ability to pay are the controlling factors. McNally v. McNally, 223 Ga. 246, 154 S.E.2d 209 (1967). In making the award, the jury is afforded a "wide latitude" in their evaluation of the evidence and in their determination of the amount to be awarded for the support of the children. McDonald, supra; Brown v. Brown, 222 Ga. 446, 150 S.E.2d 615 (1966). Once the jury's award of child support is approved by the trial judge, this court will not disturb the award, on grounds of excessiveness, where its reasonableness as to the amount awarded has some support in the evidence. Hubbard v. Hubbard, 214 Ga. 294, 104 S.E.2d 451 (1958).

In the instant case the evidence shows that the husband, age 28, was a student at the Georgia State University with the expectation of receiving a Bachelor of Visual Arts Degree in December of 1977. At trial, the wife testified that in the past, the husband had received V. A. assistance in the amount of $388 per month while attending school full time, and $292 per month while attending part time. She did not testify as to the amount he currently received. The wife further testified that she worked four days a week in the nursery of the First Methodist Church, earning approximately $100 net per month. She estimated that it cost approximately $560 per month for the maintenance and support of herself and her two minor children.

The husband testified that his present income per month was "probably" $340; and, that in addition to receiving V. A. benefits, he supplemented his income by working 8-25 hours per week at the Georgia State University Bookstore. When asked if his salary was roughly 3-4 dollars per hour, the husband evaded the question and left it unanswered. He did not testify as to the amount of his present V. A. assistance, nor whether he was attending school on a full time or part time basis.

The evidence further showed that the husband's total earned income in 1976 was $1,455.22; that he had two and one-half years experience as an assistant manager of an auto service center; and had extensive mechanical and auto repair shop training. With respect to the husband's future potential earning capacity, the evidence disclosed that once the husband obtained his B.V.A. degree he could make anywhere from $3 an hour as a jewelry polisher, to $16,000 a year as a jewelry designer.

After verdict, the evidence is to be construed by this court most favorable to the prevailing party, and all conflicts resolved in favor of the verdict and judgment of the trial court. The testimony of a party in his own behalf, when contradictory, vague or equivocal, will be construed most strongly against him in considering whether or not he is entitled to a verdict in his favor. Partain v. King, 206 Ga. 530, 57 S.E.2d 617 (1950); Davis v. Akridge, 199 Ga. 867(2), 36 S.E.2d 102 (1945); Lewis v. Dan Vaden Chevrolet, Inc., 142 Ga.App. 725, 728, 236 S.E.2d 866 (1977); King v. Rich, 103 Ga.App. 50, 118 S.E.2d 277 (1961).

The evidence, construed in favor of the verdict rendered, shows the husband's maximum income to be $688 per month, while attending college on a full time basis. We do not find the child support award of $520 per month to be excessive in light of the husband's present potential earning capacity and future prospects for employment.

" The ability to earn an income is one factor which may be considered by the jury in awarding alimony to the wife, and they may award alimony on this basis although the husband may be temporarily impoverished. Johnson v. Johnson, 131 Ga. 606(2), 62 S.E. 1044 (1908); Jansen v. Jansen, 160 Ga. 618(3), 128 S.E. 902 (1924); Shepherd v. Shepherd, 201 Ga. 525, 40 S.E.2d 382 (1946); Hubbard v. Hubbard, 214 Ga. 294(2), 104 S.E.2d 451 (1958); Wills v. Wills, 215 Ga. 556(3, 8), 111 S.E.2d 355 (1959)." King v. King, 239 Ga. 15, 235 S.E.2d 502 (1977).

In Hall v. Hall, 185 Ga. 502, 506, 195 S.E. 731, 733 (1938), this court recognized that "(A) husband may be decreed to pay . . . alimony although he may not have property, either at the time of the filing of the libel for divorce, or at the time of the trial, if it appears he has an earning capacity. This is true even though he is not equipped to follow any trade or profession if he is of robust health, capable of performing manual labor, . . . and earning the usual wages for such services." See Hamner v. Hamner, 223 Ga. 463, 156 S.E.2d 19 (1967); Hubbard v. Hubbard, supra; Robertson v. Robertson, 207 Ga. 686, 63 S.E.2d 876 (1951).

Though the husband may wish to pursue his scholarly endeavors on a full time basis, he is not relieved of his obligation to support his children. If he has the capacity to labor, he must do so for his children's support, and, if reluctant, may be compelled by the courts to do so. Under the evidence, we cannot say as a matter of law that the jury's allowance for the support of his children was excessive or that the trial judge abused his discretion in approving the verdict.

2. The appellant enumerates as error the admission into evidence, over objection, of testimony which appellant contends was immaterial, highly prejudicial, and presented the jury with the image that he was a "child beater", "wife beater", "thief" and "adulterer."

Appellant does not cite any specific cases in support of his contention, but suggests that this court read the transcript and decide for itself ". . . whether or not the introduction of such evidence would in fact be harmful and would have so swayed the jury to the side of the appellee so as to completely nullify the evidence of the appellant."

We have carefully reviewed the entire transcript and conclude, in each instance complained of, either no objection was made; no proper objection was made; or the testimony was elicited by appellant's counsel. We find no error.

3. Appellant contends that the court erred in refusing to allow the introduction of evidence regarding the dismissal of a criminal prosecution against him for child abuse.

During trial, the wife testified of several instances of the husband's alleged physical abuse of the children, including an incident which occurred on May 8, 1977, which resulted in the issuance of a criminal warrant against the husband for the offense of cruelty to children. This evidence was elicited by questions asked by appellant's counsel. In an attempt to prove he was not a child abuser, the husband sought to introduce evidence of the dismissal of the criminal warrant.

" The rule supported by the great weight of authority is to the effect that a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered." Crawford v. Sumerau, 100 Ga.App. 499, 111 S.E.2d 746 (1959); Smith v. Goodwin, 103 Ga.App. 248, 119 S.E.2d 35 (1961); Clough v. Greyhound Corp., 91 Ga.App. 246, 85 S.E.2d 476 (1954).

The trial judge properly ruled out the introduction of such evidence.

4. Appellant's next enumeration of error contends that the trial court erred in charging the law of alimony, since upon direct examination, in open court, the wife expressly abandoned that portion of her lawsuit.

Initially, we note that upon the conclusion of the trial court's charge to the jury, the court inquired if there were any exceptions to the charge. In response, counsel for appellant stated that he "understood the court to charge as fully and as fairly as required under the law." Appellant's failure to except to the charge constitutes a waiver. Code Ann. § 70-207(a); David Shapiro & Co., Inc. v. Timber Specialties, Inc., 141 Ga.App. 354, 233 S.E.2d 439 (1977).

Notwithstanding, even if appellant had properly objected to the charge, his enumeration of error would still be without merit. On direct examination, the wife testified concerning numerous expenses necessary for the maintenance of herself and the minor children, stating it would take $506.63 per month for her and the two children to exist. Counsel for the wife then asked, "Q. And for yourself dollar-wise, you're not asking for any alimony whatsoever, are you?", to which...