Boone v. Boone , 192 Ga. 579 ( 1941 )

1. The verdict in favor of plaintiff for a divorce is supported by evidence. The special grounds complaining of portions of the charge and of failure to charge relating to the evidence are without merit.

2. Where in a suit for divorce by the husband the wife prays for alimony, and a verdict is rendered in favor of the plaintiff for a divorce and in favor of the wife for alimony, and the verdict for divorce is supported by evidence and free from errors of law, it is not error to overrule the wife's motion for a new trial as it relates to the divorce while granting a new trial on the issue of alimony.

3. Where the wife institutes her action for permanent alimony at a time when the marital relation exists, but subsequently the husband is granted a divorce, the court retains jurisdiction of the alimony proceedings, and the divorce of the husband in such circumstances does not bar the wife's right to alimony.

No. 13805. JULY 8, 1941. Lucian R. Boone Jr. sued his wife, Susan Brotherton Boone, for a total divorce, alleging cruel treatment. The wife answered, denying the allegations of cruel treatment, and praying for temporary and permanent alimony and that the husband's prayer for divorce be denied. A first verdict was rendered in favor of the plaintiff. On the trial at the second term the plaintiff testified in his own behalf, in substance, as follows: He married the defendant on October 5, 1936. He was then twenty-four years of age, and she was twenty-six. He was employed as operator of Lakemoore Club, owned by Mr. Wiley Moore, and in the general charge of Mr. Brown. The club furnished entertainment to civic organizations by giving meals and having dances. His duties required him to work every night, except Sundays, until eleven o'clock, and to participate in the dancing. He had a number of fusses with the defendant, caused by her jealousy and selfishness. She could not stand for him to carry on his work. When some one asked a favor of him, she would rave about it and cause a scene. They had several fights. On one occasion, while he in company with about twenty-five other couples was dancing, she began scratching and fighting him. Mr. Brown, the superintendent, finally forbade her to come to the club. Many times after leaving she came back, apologized, and promised not to repeat her bad conduct. The plaintiff and Brown talked to her for hours. Each time she would stay about a week, and then begin her misconduct again. Time and time again she would attack him without cause while he was on the dance floor. The last trouble arose because, without any previous discussion, she prepared to go without him to a party at night at the Henry Grady Hotel. He objected, but she said it was none of his business what she did or where she went. An argument ensued, and a fight resulted, during which she tore four shirts off him. As he would dress she would come back and tear his shirts off as fast as he could put them on. She scratched him in the face, and kept him away from his work for two hours. Finally a cab came, and she got in it and left without telling plaintiff whether she would return home that night. She did not return home that night, and was up until four o'clock in the morning. The plaintiff walked in her room at the Henry Grady Hotel at 12:15 p. m., and found her and a friend of hers eating breakfast, the first meal she had had that day. The plaintiff has not lived with her since the fight and her going to the Henry Grady Hotel, and has never condoned her conduct.

The defendant denied all charges of cruel treatment and misconduct, contradicted generally the material parts of the plaintiff's testimony, and testified to his cruel treatment of her and his own misconduct. The jury rendered a verdict in favor of the plaintiff for a total divorce, removing the disabilities of the defendant, and in her favor for $25 per month as alimony for a period of twelve consecutive months. Decree was entered accordingly. The defendant moved for a new trial. The exception is to the following judgment: "Upon a hearing after argument, it is ordered and adjudged that the motion for new trial, in so far as it refers to a divorce, is overruled, and the second verdict of the jury finding for a total divorce is affirmed. So much of said motion for new trial that refers to alimony, the same is granted and a new trial is ordered on the question of permanent alimony." 1. The evidence supported the verdict in favor of plaintiff for a total divorce. Exceptions relating to the charge to the jury on cruel treatment, and to the charge on the question of granting the right to remarry, and complaining of the failure to charge that when both parties are equally at fault no divorce should be granted, are controlled by the evidence, and are without merit. The judgment overruling the motion for new trial on the divorce issue is affirmed.

2. It is contended that the judge was without authority to split the verdict and order a new trial on the defendant's application for alimony. While we have not found where this court has heretofore ruled upon a similar question in a case of divorce and alimony, we think the principle involved has been decided. InMcCarthy v. Lazarus, 137 Ga. 282 (3) (73 S.E. 493), an action of ejectment, this court held that the evidence was wholly insufficient to support the defendant's claim of title, and that the trial court did not err in directing a verdict in favor of plaintiff for recovery of the premises. It was said: "The judgment is affirmed as to the direction of a verdict for the recovery of the premises; but a new trial is ordered on the sole question as to mesne profits, with direction that the issue as to mesne profits alone be submitted to a jury on another trial." It is true that the direction in that case was given by the Supreme Court, and not the trial court; but in our opinion the trial judge would have had authority to have given the same direction to the case. It was divisible. The issue of title is independent and apart from the issue of mesne profits, and a retrial of the former would in no wise aid in the trial of the latter. The first issue having been regularly tried, and the verdict being supported by the evidence, and no error of law appearing in connection therewith, the court should not be needlessly burdened to retry that issue in order that errors committed on the trial of the issue of mesne profits be cured by another trial of that issue. In Cowart v. Strickland,149 Ga. 397 (100 S.E. 447, 7 A.L.R. 1110), it was said: "Where in an ejectment case the plaintiff recovers a verdict for the premises with mesne profits, the trial judge may grant a new trial on the issue of mesne profits alone for errors of law, or if he disapproves the verdict on that issue, and, the judgment being divisible, refuse a new trial on the issue of title, if that issue was adjudicated without error of law and if the trial judge approves the verdict." It was contended that the legal effect of the judgment on the motion for a new trial was either (1) to grant a new trial of the entire cause or (2) deny the motion entirely, on condition that the recovery of mesne profits be written off; and on the question of the right of the trial court to enter such judgment this court said: "It is not to be assumed that in an ejectment suit this court would order a new trial ``on the sole question as to mesne profits, with direction that the issue as to mesne profits alone be submitted to a jury on another trial,' unless it were in the first instance permissible, in a proper case, for the trial court itself to so direct." In Chicago Building Manufacturing Co. v. Butler,139 Ga. 816, 819 (78 S.E. 244), it was held that the evidence supported the verdict as to all the defendants except two, and a search of the record failed to disclose any evidence supporting the defense filed by those two defendants; and this court was confronted with the question of whether it could affirm the judgment as to the other defendants and reverse it as to these two. It was said: "We understand the rule to be that where a judgment is entire and indivisible, it can not be affirmed in part and reversed in part, but the whole must be set aside if there be reversible error therein. 3 Cyc. 448 (b); 1 Black on Judgments, § 211. But where a judgment appealed from can be segregated, so that the correct portions can be separated from the erroneous, the court will not set aside the entire judgment, but only that portion which is erroneous." The judgment was affirmed, with the exception that as to the two defendants referred to the judgment was reversed and a new trial ordered. InScottish Union National Ins. Co. v. Peoples Credit ClothingCo., 61 Ga. App. 316, 319 (6 S.E.2d 178), it was said: "This case presents the unusual situation of a party excepting to an order granting its motion for new trial. The issues to be heard at the next trial are to be restricted to those raised by the plea of set-off. While this is unusual, we think it proper in this case. The case as tried upon the main issue was properly tried, and the plaintiff was entitled to the verdict rendered. The plea of set-off was an independent claim of the defendant against this plaintiff. If errors were committed in presenting such claim to the jury, or in omitting entirely to present such issue to the jury, there is no reason why the entire case should be sent back for a new trial. The issues are divisible and not entire. Errors, if any, in respect to the claim for set-off should not require a new trial as to separate and independent issues." While it was held in Walker v. Jones, 139 Ga. 508 (2) (77 S.E. 628), that it was error to grant a new trial on grounds relating to some of the particular items of indebtedness, and to refuse a new trial as to others, that decision was manifestly based upon a construction of a judgment to the effect that it was entire and indivisible. The action there was to recover "a certain sum alleged to be due." This certain sum was made up of several items of indebtedness, and the one issue presented by the pleadings was whether or not the plaintiff was entitled to the sum sued for. That case is distinguished from the present case and others cited above, where the respective judgments dealt with are separable and divisible. In the present case the defendant's petition for alimony was an independent claim against the plaintiff, and the judgment ordering a new trial on that issue is not erroneous because it denies a new trial on the independent issue made by plaintiff's petition for divorce. The grant of a new trial on the issue of alimony renders unnecessary any ruling on the grounds of the motion relating to alimony.

3. The plaintiff in error contends that if the judgment granting a divorce to the husband is allowed to stand, it will constitute a bar to the wife's right to recover a judgment for permanent alimony against him. In support of this contention she cites Joyner v. Joyner, 131 Ga. 217 (3) (62 S.E. 182, 18 L.R.A. (N.S.) 647, 137 Am. St. R. 220); Hall v. Hall, 141 Ga. 361 (80 S.E. 992); Meadows v. Meadows, 161 Ga. 90 (129 S.E. 659);Hansberger v. Hansberger, 182 Ga. 495 (185 S.E. 810);Rozetta v. Banks, 183 Ga. 701 (189 S.E. 513); Allen v.Baker, 188 Ga. 696 (3) (4 S.E.2d 642). All of those decisions dealt with cases where a divorce had been granted before the institution by the wife of proceedings for alimony. They do not apply in the present case, where the wife's application for alimony was filed before the grant of a divorce to the husband. "Jurisdiction of the subject-matter of a suit for permanent alimony depends on existence of the marital relation at the time the action is instituted." Durden v. Durden,191 Ga. 404 (2) (12 S.E.2d 805). From the above quotation it will be observed that to give jurisdiction in a suit for alimony the relationship of husband and wife must exist at the time the action is instituted. Jurisdiction when once obtained will not be taken away by the subsequent divorce of the husband. In theDurden case, supra, the husband had procured a divorce in the State of Alabama after the institution by the wife in the Georgia court of a suit for alimony; and while she had dismissed her action for alimony after the husband had obtained a divorce, by consent of the parties judgment setting aside the dismissal and reinstating her action was entered. This court said: "The order of reinstatement relates to the institution of the first suit for alimony, which was filed before interruption of the marital relation by the divorce obtained in Alabama. Accordingly the grant of alimony, to which there was no exception, was not void for want of jurisdiction as to the subject-matter." The wife's petition for permanent alimony in the present case having been duly filed before the interruption of the marital relation by the husband's divorce, the trial court now has jurisdiction of the subject-matter, and the divorce of the husband is not a bar to the alimony proceeding.

Judgment affirmed. All the Justices concur.