Bickford v. Bickford

185 S.E.2d 756, 228 Ga. 353, 1971 Ga. LEXIS 565
CourtSupreme Court of Georgia
DecidedNovember 5, 1971
Docket26711
StatusPublished
Cited by10 cases

This text of 185 S.E.2d 756 (Bickford v. Bickford) 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
Bickford v. Bickford, 185 S.E.2d 756, 228 Ga. 353, 1971 Ga. LEXIS 565 (Ga. 1971).

Opinions

Grice, Justice.

This is a divorce and alimony proceeding in which the appellant wife enumerates as error the following: (1) the trial court’s injunction prohibiting collection of her temporary alimony award; (2) an order with reference to the record upon the appeal; and (3) the denial of her amended motion for new trial.

A divorce suit was filed by Richard Lewis Bickford in the Superior Court of Fulton County against Betty Lewis Bickford upon the ground of cruel treatment. The wife instituted a counterclaim seeking permanent and temporary alimony for herself and their four minor children pursuant to a previous judgment in the State of Florida awarding their custody to her.

The litigation in Florida between these parties had resulted in a separation agreement as to property division and child support being made the judgment and decree of the Florida court. The decree also provided that the matter of alimony for the wife was reserved until a later date and that she might petition the court at such time as she desired for alimony.

In response to the wife’s counterclaim to his divorce suit in Fulton County, the husband moved to strike those portions of her complaint requesting temporary and permanent alimony and attorney’s fees. This motion was subsequently denied on the ground that the Florida decree was entitled to full faith and credit in this state. By another order the wife was awarded custody of the children, child support and other stated provisions in accordance with the Florida decree, and $150 a month as temporary alimony. The child [355]*355support is not in issue on this appeal.

When the instant case was called for trial the wife moved for a continuance upon grounds to be referred to hereinafter. The motion was denied.

Upon the trial the jury returned a verdict granting the husband a divorce. It also awarded alimony to the wife as detailed later.

Judgment was entered accordingly.

Thereafter the wife filed a motion for new trial which asserted the general grounds.

While the motion was pending, the trial court enjoined garnishment proceedings by which the wife was attempting to collect instalments of her temporary alimony which were in arrears.

Subsequently, the motion for new trial was amended to include five grounds to be referred to hereinafter. This motion was denied.

Upon appeal to this court, additional portions of the record relating to the amended motion for new trial were ordered to be transmitted.

As we appraise it, the enumeration complaining of the injunction prohibiting the wife from collecting instalment payments of temporary alimony through garnishment proceedings is valid.

The fact that the final judgment rendered had not awarded to the wife periodic payments of permanent alimony is not ground for not requiring the husband to continue the temporary alimony payments pending final determination of the case.

With respect to this, this court has held that "Where a judge, in the exercise of his discretion, has fixed and allowed temporary alimony pending the cause for divorce and alimony or for permanent alimony, the right to the amount allowed becomes absolute until the final determination of the cause, unless in the meantime the allowance be revoked or modified by the judge. Gibson v. Patterson, 75 Ga. 549 (2).” Aud v. Aud, 199 Ga. 714 (2) (35 SE2d 198). See also Brown v. Brown, 224 Ga. 90 (160 SE2d 343).

[356]*356Also, "a judgment for temporary alimony continues in full force and effect until a final judgment in the case, until the termination of the litigation in all courts, and as long as the case is pending, including litigation in the Supreme Court. [Citations]. The judgment cannot be treated as final so long as either party has the right to have it reviewed by the Supreme Court. [Citation].” Chlupacek v. Chlupacek, 226 Ga. 520 (3) (175 SE2d 834).

In the situation here the award of temporary alimony was not modified or revoked. It continued in force so as to authorize its collection.

The enumeration with reference to the necessity of additional record relating to the amended grounds of the motion for new trial will not be passed upon. That issue is moot since the record desired is now on file in this court.

We now consider the enumerations complaining of the denial of the wife’s amended motion for new trial.

(a) One ground claims that the court erred in refusing to grant the wife’s request for a continuance of the trial for at least two weeks. This request was based upon her counsel’s illness and physical injuries, absence of a material witness and the existence of unanswered interrogatories served upon the husband.

The other two grounds for continuance were not argued in this court and are deemed to have been abandoned.

We find no abuse of discretion as to this feature. The court rescheduled trial of the case for six days later. From the transcript of the trial proceedings, it is apparent that the wife’s attorney provided very effective representation. We therefore conclude that the wife was not harmed by the failure to grant the two weeks postponement.

(b) A consideration of the evidence requires the conclusion that while the testimony is conflicting in several particulars, the verdict is amply supported by the evidence, and therefore the general grounds of the motion for new trial are not meritorious.

Insofar as the award of the divorce to the husband is concerned, there was sufficient evidence that the separation [357]*357was the result of the wife’s cruel treatment. There was testimony as to her nagging, fussing and harassing the husband, particularly as to his business acquaintances and the conduct of his business, and of her accusing him of infidelity and insisting that he was mentally ill.

As to the award of alimony, there was sufficient evidence to sustain the jury’s award, taking into consideration the needs of the wife and the husband’s ability to pay.

(c) Another ground contends in essence that when the husband testified on the issue of the cause of the separation, he stated that his relationship with a named divorcee was business-connected and that he had no intention of marrying her, whereas an attached certificate of marriage of the husband and this woman shortly after the trial shows that the real cause of the separation was their improper relationship, not the wife’s cruel treatment.

This ground cannot be sustained. The newly discovered evidence relied upon here is merely impeaching in character. It seeks to discredit the husband’s testimony as to the relationship existing between him and the other person. See Code § 70-204.

(d) One of the grounds relates to the husband’s contention that the wife’s alleged cruel treatment interfered with his business, resulting in his being asked to leave. Attached to this ground is an affidavit of one of his former business partners. The affidavit recites that the cause of this was disagreement between the husband and the other partners and that the wife’s alleged interference had nothing to do with it.

This evidence is likewise merely impeaching in character in regard to the husband’s testimony on this subject. It is prohibited by Code § 70-204, supra.

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Cite This Page — Counsel Stack

Bluebook (online)
185 S.E.2d 756, 228 Ga. 353, 1971 Ga. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bickford-v-bickford-ga-1971.