Carmichael v. Carmichael

282 S.E.2d 71, 248 Ga. 216, 1981 Ga. LEXIS 937
CourtSupreme Court of Georgia
DecidedSeptember 9, 1981
Docket37522
StatusPublished
Cited by4 cases

This text of 282 S.E.2d 71 (Carmichael v. Carmichael) 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
Carmichael v. Carmichael, 282 S.E.2d 71, 248 Ga. 216, 1981 Ga. LEXIS 937 (Ga. 1981).

Opinion

Marshall, Justice.

This is the first appeal to this court in which collateral issues of alimony, child support, and property division were submitted to an auditor in a divorce proceeding. See Code Title 10, Auditors.

After the appellee-wife obtained a divorce decree, the remaining issues of alimony and child support were referred to an auditor under the provisions of Code Title 10 with agreement of both parties. When the auditor’s report was filed, counsel for the appellant-husband, having been informed that exceptions of fact thereto would be filed [217]*217by the. wife, had the trial court place the case on an expedited jury trial calendar.

On the day of and prior to the trial, the wife filed timely “exceptions of fact” to the auditor’s report. The husband filed no exceptions to the report, but objected to the form and substance of the wife’s exceptions, contending that they presented no exception to a factual finding, hence no jury issue under Code § 10-402. He argued that they were actually exceptions of law, which the judge should consider under Code § 10-401, and that the case should be recommitted to the auditor pursuant to the provisions of Code § 10-305 for consideration of certain items of evidence which the wife’s exceptions alleged the auditor had failed to consider.

Counsel for the wife informed the judge that a literal interpretation of the statutes involved might require the issues to be resubmitted to the auditor before trial, and that, if such is required, he requested opportunity to perfect his exceptions, the statutory time not having expired. The judge ruled that the husband had requested and stipulated the case for jury trial on whatever issues were raised by the wife’s exceptions, and the case was submitted to the jury on the limited issue of whether the wife should have title to the marital home and 20.53 acres of surrounding land in addition to the other provisions found by the auditor. The jury found for the wife on this single issue. The trial judge entered an order making the findings of the auditor the judgment of the court, and adding thereto the home and 20.53 surrounding acres. The husband’s application to appeal was granted. Code Ann. § 6-701.1.

1. The appellant-husband enumerates as error on several grounds the submitting to the jury of the issues raised by the wife’s exceptions.

(a) The appellant fails to show in what manner “policy considerations and the necessity for swift, inexpensive and final adjudication of disputes” would be better served by limiting exceptions solely to the auditor’s findings of fact, rather than of fact and law, as provided by the Auditors Statute. The trial judge in this case expressly recognized the efficiency of the scheme as set forth in Code Title 10, as having minimized the time and expense of courtroom proceedings.

(b) The wife was not accorded the “full right of separate jury trial,” as the husband contends, but rather the limited determination of issues which the trial judge, in his discretion under Code § 10-402, deemed to have been raised by her exceptions.

(c) The husband argues that the wife’s exceptions were not directed to findings of fact made by the auditor, but rather to his failure to “consider” certain evidence, and that, assuming that action [218]*218by the wife was necessary, her proper course of action was either argument to the trial judge concerning the auditor’s conclusions of law or a motion for recommittal to the auditor for additional or modified findings of fact and conclusions of law.

Code § 10-305 provides: “For indefiniteness, omissions, errors of calculation, failure to report evidence, errors of law, or other proper cause, the judge may recommit the report for such further action as may be proper. In such cases the evidence shall be confined to such issues as the judge, in the order of recommitment, may indicate; or if ordered to be taken de novo, the parties may agree as to what portion of the original report shall be retained in lieu of reintroduction.” (Emphasis supplied.) The question of recommitting an auditor’s report for corrective action is a matter of discretion for the judge. He may do so on his own motion in appropriate situations, or he may recommit on the motion of either party, or the parties may — by their actions or inactions — waive the remedy of recommittal. See generally the discussion on the recommittal process in 2 EGL 420, Auditors, § 16 (1976 Rev.) and cits.

In our view, recommittal would have been appropriate in this case under the wife’s exceptions pointing out the auditor’s omissions, i.e., failure to consider certain evidence and make findings thereon. Under the liberalized standards as to the sufficiency of pleadings provided in our Civil Practice Act, there is precedent for treating the wife’s exceptions as a motion for recommittal. Code Ann. § 81A-181 (Ga. L. 1968, pp. 1104,_1109); Roberts v. Farmer, 127 Ga. App. 237, 241 (5) (193 SE2d 216) (1972). Furthermore, the husband moved for recommittal, or at least pointed out to the trial judge the need therefor. Finally, the judge could have recommitted the case on his own motion.

In spite of the advisability of and authority for recommittal in this case, however, we are not prepared to hold that it was reversible error not to recommit under the circumstances. The statute makes it discretionary with the judge whether to recommit and, if so, to what extent. Although the Auditors Statute contemplates that the auditor’s report shall be a complete disposition of all legal and factual issues which is final (subject to specified review), nevertheless, the superior court judge has inherent power to control the course of the trial, especially in equity cases. See Shaw v. Miller, 215 Ga. 413 (1c) (110 SE2d 759) (1959). Under this power, the judge was authorized to utilize the jury (trial by which is a right by demand under the divorce statute, Code § 30-101). (This is true whether or not the husband be deemed to have waived objections to the exceptions by his premature jury request prior to the filing of the exceptions.) Although, in the process of submitting these issues to the jury, the trial judge may have [219]*219given them certain legal issues which were technically within his jurisdiction, he nevertheless retained the ultimate adjudication of these upon the molding of the judgment based upon the report as modified. “Recommittal for rulings of law, if required at all, are [sic] within the sound discretion of the trial court and that discretion will not be disturbed unless abused.” Walls v. Savage, 243 Ga. 198, 205 (11) (253 SE2d 183) (1979).

By so holding, we do not imply that the “hybrid” practice used in this case was the better practice, but merely hold that it was not harmful error per se under these circumstances.

2. The husband next urges that, recommittal not having been requested by the wife nor ordered on the judge’s own motion, and no proper exceptions to the auditor’s findings of fact having been filed, the wife has waived recommittal and the trial judge should have entered verdict and judgment based upon the auditor’s report as filed. While this position may be technically correct solely under the Auditors Statute, it fails to take into account the other factors involved, such as the interrelationship of the Civil Practice Act, the novelty of the use of the Auditors Statute in a divorce case, and the need to do more complete justice under the circumstances above described.

3.

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Bluebook (online)
282 S.E.2d 71, 248 Ga. 216, 1981 Ga. LEXIS 937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carmichael-v-carmichael-ga-1981.