Shepherd v. Shepherd
| Decision Date | 18 November 1974 |
| Docket Number | Nos. 29225 and 29376,s. 29225 and 29376 |
| Citation | 233 Ga. 228,210 S.E.2d 731 |
| Parties | Charles R. SHEPHERD v. Gail Adams SHEPHERD. Gail Adams SHEPHERD v. Charles R. SHEPHERD. |
| Court | Georgia Supreme Court |
John C. Taylor, Atlanta, for appellant.
Glenville Haldi, Peek, Arnold, Whaley & Cate, William H. Whaley, Atlanta, for appellee.
Syllabus Opinion by the Court
These cases represent the third appearance in this court of some aspect of this alimony and separate maintenance action in the Superior Court of DeKalb County.
In Case No. 29225, the husband complains of the jury verdict and final judgment granting alimony to the wife on the grounds that there was no valid marriage between the parties; that there was a substantial error in the trial court's charge; that the Georgia alimony statutes are unconstitutional; and that a new trial should have been granted because of newly discovered evidence.
In Case No. 29376, the wife appeals an interlocutory order of the trial court abating an earlier award of temporary alimony on the ground that the trial court had no jurisdiction to enter the abatement order since the appeal in Case No. 29225 had been docketed in this court prior to entry of the abatement order in the trial court.
We deal first with the issues raised in the husband's appeal in Case No. 29225. The wife alleged in her complaint that she and the husband were married on the 5th day of August, 1972. The husband denied this paragraph of the wife's complaint as alleged, but admitted in his answer 'that the parties . . . entered into a purported marriage on the date alleged.' On the trial of the case, the husband proceeded with his defense that no valid marriage existed between the parties because the wife had previously entered into a common-law marriage relationship with her former husband, Frank W. Epps, subsequent to the granting of a final divorce to them.
The evidence offered by the husband to show a common-law marriage between the wife and her former spouse, when construed most favorably to the husband, was substantially as follows: that there was use of a joint checking account in the Fulton National Bank of Atlanta by the wife and Frank W. Epps subsequent to their divorce decree; that Frank W. Epps arranged bank loans for the wife; that the joint banking account's monthly statements sent out by Fulton National Bank showed a change of address to the home domicile of the wife at 4680 High Point Road, N.E., Atlanta, Georgia, in a period of a few months after the divorce from Epps; that the wife continued to use the gasoline credit cards of Frank W. Epps, as well as his Master Charge credit card and other charge accounts in his name such as Sears and that Frank W. Epps helped secure other loans and automobiles for the wife subsequent to their former decree of divorce. There was also testimony from two babysitters and from Helen Epps, the former sister-in-law of the wife, that Frank W. Epps and the wife had lived together after their divorce.
The wife and Frank W. Epps both denied under oath that they had ever lived together as husband and wife after their divorce or that they had ever intended to consummate a common-law marriage. The jury resolved the conflict in the evidence by its verdict granting permanent alimony to the wife. The jury necessarily concluded by its verdict that no common-law marriage existed between the wife and her former husband, Frank W. Epps, and that the ceremonial marriage between the present parties is a valid and subsisting marriage.
The jury's verdict is authorized under the evidence considered during the trial of the case. To constitute a valid marriage in this state there must be: (a) parties able to contract; (b) an actual contract; and (c) consummation according to law. Code § 53-101. The evidence did not require the jury to find that all of these necessary elements had been proven with respect to the contended common-law marriage. Cf. Roberts, v. Roberts, 231 Ga. 196, 198, 200 S.E.2d 731. Therefore, a new trial is not required by the jury's verdict which necessarily determined the present marriage to be valid.
Appellant-husband also contends that a new trial should be ordered because subsequent to the final judgment in this case, appellant discovered new and material evidence which establishes that the wife and her former husband, Frank W. Epps, publicly represented themselves to be husband and wife after their divorce. This evidence consists of a document, signed under oath by the present wife and Epps approximately seven months after their divorce, that was used as a renewal application to sell spiritous liquors at retail filed with the City of Atlanta and maintained on record in the Atlanta Police Department. We find this contention to be without merit for two reasons: (1) this document is primarily cumulative or impeaching in its character and it would not likely produce a different verdict by the jury; and (2) the affidavit of the husband concerning the discovery of this evidence shows it could have been discovered by ordinary diligence prior to the trial of the case through available discovery procedures. Thus, the requirements of Code § 70-204, authorizing a new trial on the basis of newly discovered evidence, have not been satisfied and the trial court did not err in refusing a new trial on this ground.
The husband's next contention is that the trial court committed substantial error by giving the following instructions to the jury on the trial of the case: ...
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Robinson v. Robinson
...principle that a temporary award prevails until a permanent award becomes final has oft been repeated. See, e.g., Shepherd v. Shepherd, 233 Ga. 228, 232, 210 S.E.2d 731 (1974) (“Until the permanent award of alimony becomes final, the parties are bound by the interlocutory order of the trial......
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...in her separate maintenance suit. Again we overruled the husband's claim based on our "wives only alimony" law. Shepherd v. Shepherd, 233 Ga. 228, 210 S.E.2d 731 (1974). The U.S. Supreme Court denied certiorari on April 21, 1975. Shepherd v. Shepherd, 421 U.S. 932, 95 S.Ct. 1662, 44 L.Ed.2d......