Flynn v. Flynn

Hill, J.

1. “While lapse of time between the occurrence of a ground for divorce and the application therefor may be considered by the jury, and, if not satisfactorily explained, may be good ground for refusing the divorce, yet the statute of limitations does not apply to bar such action.” Mosely v. Mosely, 67 Ga. 92.

2. In the motion for new trial it is complained that the verdict is contrary to law and the evidence, in that, instead of granting alimony to the minor child for its support, the -sum of $15 per month was awarded to be paid to the clerk of the .court, not for the support of the. child, but to be used solely for his education; and it is argued that the effect of this would be to relieve the father of his duty to support and 'maintain the child. It is insisted that the jury could only find a sum for the minor to be used for his support, and not solely for his education. Held, that under the Civil Code of 1910, § 2981, the jury on the second or final verdict in the trial of a suit for divorce and alimony may find what amount the minor child or children shall be entitled to for their permanent support. The present verdict and judgment make no provision for the support of the minor child, but the verdict merely finds an amount which is to be used solely for his education. This adjudicates the father’s liability. It would scarcely be possible to educate a child without affording a support. The two go together; but the question of support was left undecided. Inasmuch as the verdict makes no provision for the support of the child, we think it is contrary to law and to the evidence in the case, and that a new trial should accordingly be granted.

3. In so far as the other grounds of the motion for new trial raise questions for decision by this court, they do-not require a reversal.

Judgment reversed.

All the Justices concur, except Atkinson, J., dissenting.