Vereen v. Vereen

175 S.E.2d 865, 226 Ga. 500, 1970 Ga. LEXIS 574

• Court: Supreme Court of Georgia
• Decided: June 9, 1970
• Docket: 25789
• Status: Published

Opinions

Nichols, Justice.

Thompson Jerome Vereen filed a petition seeking a divorce from Mary Ladson Vereen. She filed an answer and cross action in which she sought custody of the couple’s minor son, permanent alimony, etc. On the trial of the case (October 9, 1969) after the plaintiff testified, a recess was held and the jury excused. No transcript appears as to the events which transpired thereafter, but the additional pleadings of the parties show without dispute that during such recess a settlement was agreed upon orally and without objection the jury was dismissed, that thereafter the attorneys were unable to reduce the settlement to writing because of a disagreement as to the exact terms thereof. On December 3, 1969, the wife filed a written motion in the divorce case in which she alleged in part: “Thereafter, the case proceeded to trial in Colquitt Superior Court and, during the trial of the case, a settlement was agreed upon between the attorneys representing the parties and the trial judge dismissed the jury. Thereafter a dispute arose between the attorneys as to the exact terms of the settlement and it has been impossible to complete the settlement of the same as of this date.” These paragraphs were admitted in the plaintiff’s written answer to such motion with the additional fact being alleged “That the said agreement was actually made in the presence of the court.” A hearing was held on this issue and thereafter a decree was rendered by the trial court in which a divorce was granted and permanent alimony awarded the wife. The present appeal is from the final decree. The enumerations of error are that the trial court erred in entering the final decree and “erred in resolving factual disputes between the parties as to the terms of a proposed settlement of alimony, support of minor child, property rights, and the like.” Held:

1. There is no contention made that any objection was made to the dismissal of the jury during the progress of the trial after it was announced that the parties had reached an agreement as to the property settlement, alimony, etc. Nor in fact is any error asserted as to such action by the trial court. Of necessity the dismissal of the jury and announcement of an agreed property settlement must be construed as a waiver of jury trial as to all issues in the case, and not just the question of divorce.

Argue» May 11, 1970 Decided June 9, 1970 Rehearing denied June 25, 1970. Perry, Walters, Langstaff, Lippitt & 'Campbell, Jesse W. Walters, Whelchel •& Whelchel, for appellant. Altman & Herndon, Sol Altman, Sam J. Gardner, Jr., for appellee.

2. “Where the parties in a divorce proceeding enter into a contract settling between themselves the questions of alimony, custody and support of their minor child, the court may in its discretion approve the agreement in whole or in part, or refuse to approve it as a whole.” Amos v. Amos, 212 Ga. 670, 671 (95 SE2d 5); Booker v. Booker, 219 Ga. 358 (133 SE2d 353). No transcript of this hearing on the issue of the property settlement was transmitted to this court, but even assuming that on the hearing of the issue of the property settlement the evidence was uncontradicted that the items claimed to be in such agreement by the wife were orally agreed to by both parties, still in the present case the action of the trial court in excluding two items from the decree cannot be considered as an abuse of discretion, and the judgment of the trial court must be affirmed.

Judgment affirmed.

All the Justices concur, except Felton, J., who dissents.