Smith v. Smith

266 S.E.2d 496, 245 Ga. 684, 1980 Ga. LEXIS 892

• Court: Supreme Court of Georgia
• Decided: April 23, 1980
• Docket: 36030
• Status: Published

Opinion

Bowles, Justice.

The Superior Court of Fulton County granted the parties a divorce on the ground the marriage was irretrievably broken. Alimony issues raised by the pleadings were submitted to a jury. Their verdict was incorporated into the court’s final order. Appellant brings this appeal from the denial of her motion for new trial. We affirm the trial court’s order and deny appellee’s motion to dismiss.¹

1. Appellant prayed for a divorce on the grounds of cruel treatment. Appellee answered, and prayed for a divorce on the ground the marriage was irretrievably broken. It was not error to grant a divorce on the pleadings. Savage v. Savage, 241 Ga. 454 (246 SE2d 310) (1978).

2. Appellant complains of the admission, over her objection, of certain allegedly prejudicial evidence. The evidence was relevant to the cause of the separation, and was admissible in a trial for alimony. Code Ann. § 30-201.

3. Appellant complains of the trial court’s failure to accept the jury’s verdict and its returning the jury for further deliberations, resulting in a different verdict detrimental to her. The record shows that the verdict first returned by the jury was unclear as to the disposition of the property in the event appellant predeceased appellee. Under these circumstances, the trial court was authorized to require the jury to return to their room, under proper instructions, and make their verdict certain. Lowery v. Morton, 200 Ga. 227 (36 SE2d 661) (1946).

Submitted March 7, 1980 Decided April 23, 1980. Jerome C. Ware, for appellant. Paul S. Weiner, for appellee.

Judgment affirmed.

All the Justices concur.

1 Due to the unusual sequence of events in this case, we will consider the merits of the appeal regardless of appellant’s failure to file an application for discretionary appeal.