Anderson v. Anderson

230 S.E.2d 272, 237 Ga. 886, 1976 Ga. LEXIS 1435
CourtSupreme Court of Georgia
DecidedOctober 20, 1976
Docket31336, 31481
StatusPublished
Cited by24 cases

This text of 230 S.E.2d 272 (Anderson v. Anderson) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Anderson, 230 S.E.2d 272, 237 Ga. 886, 1976 Ga. LEXIS 1435 (Ga. 1976).

Opinions

Undercofler, Presiding Justice.

This divorce case arises from the consolidated appeals of the wife from a judgment of divorce entered on [887]*887the pleadings and from a pre-trial order limiting the evidence to be presented at the jury trial on alimony and the division of property. We affirm the judgment of divorce and reverse the ruling on the pre-trial order.

The wife, after about twenty-five years of marriage, filed this action seeking a divorce, on the ground the marriage was irretrievably broken (Code Ann. § 30-102 (13)), and alimony. Her husband answered and counterclaimed for divorce on the same grounds, but also alleged adultery (Code Ann. § 30-102 (6)). He later amended his answer adding that the wife was not entitled to any alimony because of her alleged adultery. The wife also amended her petition by eliminating the irretrievably broken ground and demanding a divorce for adultery and cruel treatment (Code Ann. § 30-102 (10)). That same day the husband moved for a judgment on the pleadings. The trial court granted the husband’s motion as to the divorce, and reserved the remaining issues for a jury trial. The wife appealed in our case number 31336.

The husband then moved the trial court to limit the evidence at the jury trial for alimony and property division on the grounds of relevancy. The trial court ruled that the only evidence it would admit at the trial would be the husband’s evidence related to the wife’s misconduct, which would bar her recovery of alimony, and the wife’s evidence of the husband’s conduct, which directly contributed to the wife’s conduct relevant to her right to alimony.1 The wife also appealed this order; her interlocutory appeal was granted by this court in our case number 31481.

[888]*8881. Under our decision in Marshall v. Marshall, 234 Ga. 393 (216 SE2d 117) (1975), the judgment of divorce on the pleadings must be affirmed. See Loftis v. Loftis, 236 Ga. 637 (225 SE2d 685) (1976).

2. The wife urges in addition, however, that the trial court erred in ruling that the evidence at the jury trial solely on the issues of alimony and the division of property will be limited to her adultery, while essentially disallowing any evidence of similar misconduct by him. The husband argues that since adultery bars her right to alimony her adultery is relevant, while any evidence of his adultery is not. The question presented is one of first impression, since this divorce has been granted on the "no fault” ground.

It has long been the rule that the misconduct of the parties is relevant only to whether the wife receives alimony and not to the amount of alimony to be awarded. Rowe v. Rowe, 228 Ga. 302 (185 SE2d 69) (1971); Dupree v. Dupree, 224 Ga. 52 (159 SE2d 708) (1968); McCurry v. McCurry, 223 Ga. 334 (155 SE2d 378) (1963). Where the wife is granted the divorce, she is entitled to alimony and the amount2 is determined by the jury considering only her need and the husband’s ability to support her.3 Fried v. Fried, 211 Ga. 149 (84 SE2d 576) (1954). See Brown v. Brown, 230 Ga. 566 (198 SE2d 182) (1973); Fried v. Fried, 209 Ga. 854 (76 SE2d 395) (1953); Gardner v. Gardner, 206 Ga. 669 (58 SE2d 416) (1950); Aud v. Aud, 199 Ga. 526 (34 SE2d 655) (1945); Simmons v. Simmons, 194 Ga. 649 (22 SE2d 399) (1942).

[889]*889Where the divorce is granted to the husband, the jury must decide in its discretion whether to award alimony to the wife. Thus the conduct of both of the parties may be considered by the jury4 (Phillips v. Phillips, 231 Ga. 596 (203 SE2d 189) (1974); Corr v. Corr, 213 Ga. 699 (100 SE2d 922) (1957); Carawan v. Carawan, 203 Ga. 325 (46 SE2d 588) (1948); Crenshaw v. Crenshaw, 197 Ga. 767 (30 SE2d 480) (1944)), and the wife has no standing to complain about the amount she is awarded (Phillips v. Phillips, supra; Crenshaw v. Crenshaw, supra). If, however, the jury finds the wife has caused the divorce by her adultery, or by wilfully deserting her husband, and grants him the divorce, any alimony award to her is barred. Mack v. Mack, 234 Ga. 692 (217 SE2d 278) (1975); Byers v. Byers, 225 Ga. 263 (167 SE2d 640) (1969); Brown v. Brown, 217 Ga. 671 (124 SE2d 399) (1962); Hyndman v. Hyndman, 208 Ga. 797 (69 SE2d 859) (1952). In such a case, only her conduct is relevant. Hudson v. Hudson, 189 Ga. 410 (5 SE2d 912) (1939). Therefore, it is clear that conduct may be relevant to alimony under the fault concept of divorce, where the husband is awarded a divorce due to the fault of the wife in causing their separation.

The divorce here, however, has been granted by judgment on the pleadings on the "no fault” ground that the marriage is irretrievably broken. "Proof of fault is not required to show a marriage is 'irretrievably broken.’ The parties do not specifically complain of the other’s conduct. They merely state that their marital differences are insoluble and request a change of status. The only question is whether there are prospects for a reconciliation.” Harwell v. Harwell, 233 Ga. 89, 90 (209 SE2d 625) (1974). (Emphasis supplied.) Therefore, even [890]*890when traditional fault allegations are put forth by affidavit, or as evidence at a hearing, on a motion for summary judgment on the irretrievably broken ground (see e.g.: Manning v. Manning, 237 Ga. 746 (1976); McCoy v. McCoy, 236 Ga. 633 (225 SE2d 682) (1976)), the primary finding is merely that the marriage is "one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation . . .” no matter what the reasons are that have caused that result. Harwell v. Harwell, supra at 91. Thus, under this ground, the divorce is granted to both parties without any allocation of fault. Herring v. Herring, 237 Ga. 771 (1976). That judgment is conclusive of any and all allegations of misconduct by the parties. Therefore alimony is authorized and the only question remaining is the amount, if any, which is to be determined by the jury at a trial. We reiterate that the misconduct of the parties is not relevant to the amount of alimony to be awarded.

Code Ann. § 53-508, which bars the wife’s right to separate maintenance if she is living in adultery or deserts her husband without sufficient provocation,5 is not in conflict with this holding. This section, found under the title on husband and wife,6 Code Ann. Title 53, has been applied to divorce cases under Title 30, by judicial adherence to the common law, if not by judicial rule. Hudson v. Hudson, supra; Williams v. Williams, 114 Ga. 772 (40 SE 782) (1901). It is clear, however, that the court requires a specific finding by the jury that the divorce was caused by the wife’s adultery before barring her [891]*891alimony claim. Where other grounds are alleged by the husband, this court has construed the verdict of divorce in his favor as an award of divorce on one of the other grounds, and has allowed alimony for the wife. Compare Hudson v. Hudson, supra; Williams v. Williams, supra, with Phillips v. Phillips, supra; Corr v. Corr, supra; Fried v. Fried, 208 Ga. 861 (69 SE2d 862) (1952); Carawan v.

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Bluebook (online)
230 S.E.2d 272, 237 Ga. 886, 1976 Ga. LEXIS 1435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-anderson-ga-1976.