Rowe v. Rowe
| Decision Date | 05 November 1971 |
| Docket Number | No. 26777,26777 |
| Citation | 185 S.E.2d 69,228 Ga. 302 |
| Parties | Fay W. ROWE v. Noble R. ROWE. |
| Court | Georgia Supreme Court |
William Lewis Spearman, Atlanta, for appellant.
Nall, Miller & Cadenhead, R. Keegan Federal, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
Noble R. Rowe filed a complaint seeking a divorce on the ground of cruel treatment from Fay W. Rowe in the Fulton Superior Court. The defendant filed an answer and cross complaint which sought a divorce on the ground of cruel treatment, temporary and permanent alimony, and certain injunctive relief. Counsel stipulated that the trial court could decide the question of divorce between the parties and that the jury would only decide the issue of alimony.
On the question of alimony the record shows: The parties jointly own a house valued at $20,000 to $24,000; household furniture and furnishings; a 1955 automobile which the husband had conveyed to the wife previously; a 1961 automobile which he retained; a $2,000 life insurance policy on the life of the husband and on which the wife is the beneficiary; the husband had previously paid $200 as attorney's fees for his wife; the husband's income is $137 per week; the wife's income is $107 per week; the wife inherited 'an interest' in property valued at $75,000 from her mother's estate. The jury returned a verdict finding no alimony for the wife and that verdict was made the judgment of the court. The exception is to this judgment. Held:
1. The appellant contends that the trial court erred in denying her a jury trial on the issue of divorce after a demand therefor had been made. There is no merit to this contention. The record shows that counsel for the appellant stipulated in open court that the issue of divorce would be tried by the judge and the issue of alimony by the jury. In Dodd v. Dodd, 224 Ga. 746, 164 S.E.2d 726 this court held: "One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.' Henley v. Henley, 217 Ga. 612, 124 S.E.2d 86. Compare McLarin v. McLarin, 224 Ga. 675, 163 S.E.2d 914.' See also Holloman v. Holloman, 228 Ga. 246, 184 S.E.2d 653. The contention of the appellant that the written demand for a jury trial cannot be withdrawn orally in open court is therefore without merit.
2. The appellant contends that the trial court erred in refusing to permit her to present to the jury evidence of the appellee's misconduct for their consideration in awarding alimony. There is no merit to this contention. '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.' McCurry v. McCurry, 223 Ga. 334, 335(1), 155 S.E.2d 378; DuPree v. DuPree, 224 Ga. 52(3), 159 S.E.2d 708; Boone v. Boone, 225 Ga. 610(2), 170 S.E.2d 414.
3. The appellant contends that the trial court erred 'in refusing to permit the jury to know that appellant was being awarded a divorce on her counterclaim.'
Under the stipulation of counsel for the parties, this was not error.
4. The appellant contends that the trial court erred in not granting her motion for a directed verdict on the issue of divorce at the close of the appellee's evidence. The parties stipulated that the appellee would not pursue his suit for divorce but that the issue of divorce would be tried on the cross complaint of the appellant after the issue of alimony had been submitted to the jury. The motion for directed verdict was therefore properly overruled.
5. The appellant contends that the trial court erred in sustaining the appellee's objection and in refusing to allow the appellant to explain her conduct which had been brought out on cross examination by the appellee's counsel regarding her refusal to let the appellee back into her home. There is no merit in this contention. The appellant testified that the reason the appellee was not allowed to return to the home was because he had 'called me up and threatened me * * * His drinking and his constantly nagging and calling me up.' This sufficiently explained her conduct.
6. The appellant contends that the trial court, after the jury had retired to consider its verdict, erred in refusing to permit her Exhibit No. 1 to go out with them. The record shows that when this exhibit was admitted into evidence without objection counsel had stated it was a folder containing drug bills. After the jury had retired to consider the verdict, the appellee objected to certain letters between doctors concerning the appellant which were contained in the folder with the drug bills. His objections were that the letters constituted hearsay evidence and that no foundation had been laid for their admission. The appellant's counsel refused to expunge the letters from the folder and insisted that the folder be admitted into evidence in...
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