Opinion
28189.
SUBMITTED SEPTEMBER 11, 1973.
DECIDED OCTOBER 5, 1973.
Divorce. Jeff Davis Superior Court. Before Judge Flexer.
Coleman, Blackburn, Kitchens Bright, Converse Bright, Howard E. Yancey, Jr., Peyton Miles, for appellant.
Montgomery L. Preston, J. Harold Mimbs, Jackson S. Cooley, for appellee.
1. When a verdict in a divorce proceeding grants fee simple title to real property to the wife and then limits the right of the wife to dispose of such property, the attempted limitation is void and should be stricken and judgment entered as provided by Code § 110-112.
2. A verdict granting alimony to a wife for the support of herself and minor children of the marriage will not be set aside as being inadequate unless it is inadequate as a matter of law.
SUBMITTED SEPTEMBER 11, 1973 — DECIDED OCTOBER 5, 1973.
Ivalene Chitwood Elrod filed an action for divorce and alimony against her husband, Dan R. Elrod. A cross complaint was filed by the husband. The jury granted the prayers of the wife for divorce and awarded alimony to the wife and child support for the minor children of the couple. The appeal is by the wife and the complaint is basically that the amount of alimony granted the wife is insufficient under the evidence and that a provision in the verdict and judgment restricting the right of the wife to sell the marital home, which home was granted to the wife as alimony, until after the youngest child reaches eighteen years of age should be stricken.
After the jury verdict was returned in open court a question arose as to whether the wife was given title or only right of possession of the marital residence and the jury was asked the following question: "... did you intend to give the title to the home to Mrs. Elrod or only the possession of the home to her until the youngest child reaches eighteen years of age?" After returning to the jury room and deliberating such question, the jury returned to open court and in response to the above quoted question the foreman responded for the jury: "It is for title of the home to go to Mrs. Elrod."
1. The award of the marital home to the wife was the grant of a fee simple title to such property to her subject only to the lien of the holder of the deed to secure debt, which debt the husband was required to pay in instalments as the same becomes due. The husband was also required to pay the cost of reasonable maintenance on such home.
The requirements that the husband pay the indebtedness due on the house and the cost of reasonable maintenance did not have any effect upon the estate granted the wife. These items were merely other items granted the wife as alimony.
Pretermitting any question which may arise as to any difficulty that the wife may have in selling the property with the outstanding deed to secure debt thereon, the verdict of the jury granted her fee simple title to the marital home and the restriction upon her right to sell the same for a period of years was void and of no effect. The decree placed title to the property in the wife just as a deed from the husband would have. See § 70 of the Civil Practice Act (Ga. L. 1966, pp. 609, 667; Code Ann. § 81A-170). The verdict and judgment granted a fee simple estate to the wife and the attempt to preclude or limit her right to convey the property for a period of years was void and a nullity. Compare Jackson v. Jackson, 215 Ga. 849 ( 113 S.E.2d 766), and citations. Accordingly, so much of the verdict and judgment as sought to limit the right of the wife to sell the marital home must be stricken. Code § 110-112; Veal v. Veal, 226 Ga. 285, 286 ( 174 S.E.2d 435).
2. The amount of alimony granted for the support of the wife and children was not so inadequate as to show bias and prejudice on the part of the jury. Assuming, but not deciding, that a larger verdict would have been authorized by the evidence, yet in the final analysis it is for the jury to determine the amount of such an award and it will not be disturbed unless it is inadequate or excessive as a matter of law. As to the wide latitude given jurors in such cases, see Holmes v. Holmes, 222 Ga. 115 ( 149 S.E.2d 84), and cits.
Judgment affirmed with direction. All the Justices concur.