Forio v. Forio , 217 Ga. 813 ( 1962 )

217 Ga. 813 (1962) 125 S.E.2d 486

FORIO
v.
FORIO.

21576.

Supreme Court of Georgia.

Argued March 13, 1962. Decided April 20, 1962. Rehearing Denied May 7, 1962.

Matthews & McClelland, for plaintiff in error.

Marvin P. Nodvin, contra.

MOBLEY, Justice.

1. The bill of exceptions complains of a judgment finding the husband in contempt of court for failure to make payments to the wife as required under an alimony judgment. The contempt judgment recited that "after presentation of evidence, and after inspection and interpretation of the final judgment and decree . . . the defendant is hereby adjudged in contempt. . ." The trial court interpreted a provision in the alimony judgment, which required defendant to make monthly payments due under a security deed on the wife's house, to require him to continue to make the payments to her after sale of the house, and further found that the defendant had not made other payments required by the judgment. The latter was a finding based upon a consideration of the evidence. None of the evidence was brought to this court.

2. The burden is upon one asserting error to show it affirmatively by the record and where, as here, the judgment complained of was at least based in part upon consideration of the evidence by the trial court, a determination of the error assigned in this court cannot be made without consideration of the evidence, and it will be assumed that the judgment complained of is correct. See Smith v. Smith, 213 Ga. 290 (99 SE2d 141), and Barringer v. Porter, 211 Ga. 20 (83 SE2d 603) and cases cited.

Judgment affirmed. All the Justices concur.