McMillian v. McMillian

240 S.E.2d 65, 240 Ga. 278, 1977 Ga. LEXIS 1473

• Court: Supreme Court of Georgia
• Decided: November 8, 1977
• Docket: 32792, 32932
• Status: Published

Opinion

Jordan, Justice.

In this divorce case the husband is the appellant in the main appeal. The wife filed a cross appeal.

1. The husband enumerates as error the denial of his motion for judgment on the pleadings on the issue of divorce.

The husband sued for divorce on the ground that the marriage was irretrievably broken. The wife in her answer denied this allegation, and by counterclaim alleged misconduct of the husband which would entitle her to a divorce on the ground of cruel treatment, but prayed only for alimony. During argument on the motion for judgment on the pleadings, counsel for the wife "dismissed” the wife’s prayer for divorce.

Argued October 11, 1977 Decided November 8, 1977 Rehearing denied November 29, 1977.

There was an issue of fact in the pleadings and the trial judge did not err in refusing to grant a divorce on the motion for judgment on the pleadings. Dickson v. Dickson, 238 Ga. 672, 673 (4) (235 SE2d 479) (1977); Kitchens v. Kitchens, 239 Ga. 643 (1977).

2. The husband asserts that the court erred in refusing to dismiss the wife’s counterclaim alleging misconduct on his part, and in refusing to strike language in the counterclaim prejudicial to him. He also asserts that it was error to allow testimony concerning his misconduct.

There is no merit in these contentions. The issue of divorce was properly before the jury and allegations and evidence of misconduct of the husband were relevant to the issues involved.

3. The husband contends that the verdict for alimony and child support was excessive as measured against his earnings. The jury awarded the wife $100 per month as alimony and $300 for the support of the two minor children.

The husband alleged that he is a staff sergeant in the United States Marine Corps, and that his total income after taxes is $836.57 per month. He testified that he has been working at an extra job and making approximately $300 per month.

Under the evidence we cannot say that the award of alimony and child support was excessive.

The affirmance of the judgment on the main appeal makes the cross appeal moot.

Judgment affirmed on the main appeal. Cross appeal dismissed.

All the Justices concur, except Hall, J., who concurs in the judgment only on the main appeal. Black & Black, Eugene C. Black, Jr., for appellant. Frank F. Faulk, Jr., for appellee.