Simmons v. Simmons

Full title: SIMMONS v. SIMMONS

Court: Supreme Court of Georgia

Date published: Oct 14, 1942

22 S.E.2d 399 (Ga. 1942)

22 S.E.2d 399

Opinion

14263.

SEPTEMBER 22, 1942. REHEARING DENIED OCTOBER 14, 1942.

Divorce and alimony. Before Judge Pratt. Jackson superior court. May 5, 1942.

Weir S. Gaillard, for plaintiff.

1. While the two verdicts finding for the wife a total divorce on the alleged ground of cruel treatment may have determined that there was no "fault" on her part, yet under all the evidence as to the financial and other circumstances of the parties, including the wife's separate means of income, and the husband's ability to pay, the verdict allowing $10 per month each for the three minor children, payable to the wife for their benefit, until they reach the age of eighteen years respectively, but allowing nothing as alimony for the wife, can not be held contrary to the evidence or without evidence to support it, either because a larger amount was not specified for the children, or because no amount was awarded to the wife for her own support.

2. The court did not err in failing to submit the plaintiff's claim of an equitable interest in certain real estate, the evidence being insufficient to show any definite amount of interest which she may have had in this property.

3. The constitution declares that when a divorce is granted, the jury rendering the final verdict shall determine the rights and disabilities of the parties. In view of this law, there is no merit in the contention that under the evidence the court erred in permitting the verdict and decree removing the defendant's disabilities.

4. The court charged the jury as follows: "If you find in favor of the husband, that he is not at fault, but that his wife is at fault, you may allow her alimony or you may refuse it, or you may award her a lesser sum than you would have awarded if she had not been at fault, according to the circumstances." It can not be said as a matter of law that this charge was erroneous as contrary to the evidence or without evidence to warrant it, as insisted.

5. The evidence authorized the verdict, and the court did not err in refusing a new trial.

No. 14263. SEPTEMBER 22, 1942. REHEARING DENIED OCTOBER 14, 1942.

In March, 1941, Mrs. Homer Simmons filed a suit against her husband for a divorce on the ground of cruel treatment, and for custody of their three minor children, alimony, support for the children, and a decree of title as to certain realty. Concurrent verdicts of two juries at separate terms of the court were rendered in the wife's favor for a total divorce. The second verdict allowed both the parties to marry again, and awarded $10 per month "as alimony" for each of the minor children until he or she arrives at the age of 18 years, their respective ages at the time the petition was filed being seven, twelve, and fourteen years. The verdict directed payment of these sums to the mother for their benefit. It allowed nothing as alimony for the wife, and granted no other relief. On final decree the custody of the minor children was awarded to Mrs. Simmons. Her motion for new trial, on the general grounds and several special grounds, was overruled, and she excepted. Her petition alleged that the defendant "is strong and able-bodied, being a man of forty-eight (48) years of age, now being employed by a construction company; and while your petitioner does not know the exact amount of his salary, avers that he is capable of earning $150 to $200 per month." Other allegations referred to a house and two lots in Talmo, Georgia, "now worth approximately $2000," as to which the plaintiff asserted equitable title, because they had been purchased with money which she and her husband accumulated by their joint labor and efforts in conducting "farming operations" which they began soon after their marriage, with a nucleus of $300 inherited by the plaintiff from an aunt. It was alleged that the defendant owned a one-seventh interest in the estate of his father, which was worth an additional sum of $2000. As to her own estate and means the plaintiff alleged, that she had no property of a substantial nature, but had been "maintaining herself and minor children by the operation of a rooming-house for college girls and boys in Dahlonega, adjacent to North Georgia College," although this business had been practically ruined and destroyed by the defendant's misconduct in coming to the place in an intoxicated condition and creating disturbances, as result of which "the majority of the college girls left petitioner's home, and the college authorities have notified petitioner that they can not permit students to live there unless defendant is kept away, as his conduct does not create livable conditions for their students." It was alleged further, that the plaintiff had formerly sued for a divorce and had obtained a first verdict, but that she and the defendant had resumed cohabitation on his solemn promise to do better. This promise was broken, however, and the present suit filed.

The defendant in his answer denied the plaintiff's averments as to cruelty, and was such as to put in issue the other material allegations of the petition.

The plaintiff testified as follows, on direct examination: I am Mrs. Homer Simmons, and was married to Homer Simmons on October 17, 1917, and lived together until about February 1, 1941. We have lived separate and apart since that time. There were four children born to said union, one of whom is married, and the other three are minors now in my custody and control. The separation was brought about on account of Homer Simmons' drinking. He has been drinking for several years, but gradually grew worse until he almost stayed drunk, and while in this condition he would curse and abuse me and the children, and on several occasions struck me in anger and threatened my life. His treatment of me became so unbearable that it was wrecking my health, and I was forced to move to Dahlonega, Georgia, and open up a boarding and rooming-house and try to make a living for me and my children, after which Homer Simmons would come to my boarding-house in Dahlonega in a drunken condition and abuse me and the children and raise disturbances with my boarders, until the officials of North Georgia College advised me that I would have to keep him away, or they would be forced to take their students out of my boarding-house. He would not support me and the children, and was trying to ruin my business of running a boarding-house; and this was the only means of support I had for myself and children. He furnished very little money, and what little he did send he would send it to one of the little girls. I first brought divorce suit against him on June 22, 1940, and obtained the first verdict; and on January 26, 1941, on his solemn promise to do better I agreed to go back with him and give him another chance, and just one week later on February 1, 1941, he came in contact with, struck me with his fist, ran the cook off, and was abusive to my boarders. I have no property in my own right, but soon after I was married to Homer Simmons in 1917 I received $300 from my aunt, Lila Blackstock, with which defendant purchased stock, tools, and farming equipment, on which we started farming as a young couple. I worked in the field and helped my husband all possible, and we accumulated several thousand dollars from which a house and lot was bought in Talmo, Georgia, but the title was taken in the name of Homer Simmons. After we separated the first time, Homer Simmons placed a security deed against this property to his brother in Florida, though I know of no debt he owed his brother. Homer Simmons is forty-eight years of age, a good salesman and capable of earning a good salary, and his not being able to hold a position is entirely his fault on account of his drinking. He did earn a good salary for years, but got to the place that he drank it all up or did something with it, as he did not support me and the children.

Cross-examination: I do not know how much Homer Simmons is now making, but I do know that he made two to three hundred dollars per month as a salesman until he got to where he just stayed drunk. It is not true that I left him because he was not making as much money as he formerly did. I left him on account of his drinking and cruel treatment to me and the children, and his failure to provide a living for us. It is not true that I am a dope addict. Several years ago I had a major operation, and like to have died, and the doctors gave me some stimulants then; but I have never taken a dose except at that time, and then it was recommended and administered by physicians. Homer Simmons not only failed to support me and my children but comes to my boarding-house drunk, and abuses me and the children, and on more than one occasion I have had to get our daughter, Mrs. Virginia Ash, to come and get him and take him to her house while drunk, as the authorities of North Georgia College had warned me against allowing him to come there in a drunken condition among the students. Homer Simmons not only failed and refused to support me and the children, but tries to ruin my boarding-house business so that I can not support them.

Homer Simmons testified, on direct examination: We moved to Dahlonega, Georgia, and opened up a boarding-house before the separation. In fact I did not know we were separated until I received notice of the suit. I was traveling at the time. The reason my wife quit me was because I could not furnish a lot of money like I once did, but I always spent all I could make on my family. My wife is a dope addict and her health has been bad, and it has taken all I could make for doctor bills and house help and medical bills and things of this kind. If I had continued to make lots of money she would have been all right.

Cross-examination: I don't make as much money as I used to. Well, I don't remember when she took the last dope. Her health is better now than it used to be. I drank some. The reason I haven't furnished her any more money is that I am not making it now, as I am working at a cotton warehouse, and this is a dull season.

The record contains substantially the following statement as to the documentary evidence introduced: (1) "A security deed" dated April 13, 1941, conveying lots 1 and 2 in the town of Talmo, Georgia, containing about one acre, platted by C. L. Newton, given to divest the equity of redemption for a debt of $1150, "described" in a designated deed book, "upon a consideration of $300," by Homer Simmons to H. F. Simmons, duly witnessed, and recorded on April 28, 1941. (2) A suit filed by Mrs. Homer Simmons in June, 1940, against Homer Simmons, returnable to the August term, 1940, of Jackson superior court, for divorce and alimony, upon practically the same grounds as in the present suit, which former suit was withdrawn in June, 1941.

BELL, Justice. (After stating the foregoing facts.)

1. "The jury rendering the final verdict in a divorce suit may provide permanent alimony for the wife, either from the corpus of the estate or otherwise, according to the condition of the husband." Code, § 30-209. "If the jury, on the second or final verdict, shall find in favor of the wife, they shall also, in providing permanent alimony for her, specify what amount the minor children shall be entitled to for their permanent support; and in what manner, how often, to whom, and until when it shall be paid; and this they may also do, if, from any legal cause, the wife may not be entitled to permanent alimony, and the said children are not in the same category; and when such support shall be thus granted, the husband shall likewise not be liable to third persons for necessaries furnished the children embraced in said verdict who shall be therein specified." § 30-207. While the foregoing statutes on alimony are not quoted here in the order in which they appear in the Code, it is believed that they are quoted in the order in which they were enacted. There is a third section (§ 30-210) on permanent alimony, but it sheds no additional light in this case. None of these statutes declares that alimony must or shall be granted in any case, although it has been held that where the wife has no separate estate or means of support and the husband is able to support her, a verdict granting a divorce but denying alimony is contrary to law as to the latter feature. Campbell v. Campbell, 90 Ga. 687 ( 16 S.E. 960); Wilkes v. Wilkes, 157 Ga. 841 ( 122 S.E. 548). It is not the law, however, that in every case in which the wife is granted a total divorce, permanent alimony must also be awarded to her. Various other facts and circumstances may require consideration.

While in the present case the two verdicts in the wife's favor for a total divorce may have determined that she was not at fault, and in such case an allowance to the wife in some amount would generally follow as a matter of right, yet under the evidence the jury were authorized to find that with the amount allowed for support of the minor children, and the wife's probable separate income from continuing to operate a boarding-house as she had been doing for some time, she would be able to maintain herself and the children in the same social standing and to secure the same necessities and comforts to which she and they had been accustomed before the husband's cruelty and neglect began; and that in view of the evidence as to his estate and income, the total sum of $30 per month as allowed for the children was as much as he could be reasonably expected to pay. The petition alleged that the defendant owned valuable property, but the evidence did not demand a finding in the plaintiff's favor on that issue, nor was it certain from the evidence what salary he was earning or is able to earn. While the plaintiff testified that he made as much as $200 to $300 per month as a salesman "until he got to where he just stayed drunk," and that if he is not able to hold a good position, it is his own fault "on account of his drinking," the jury were the arbiters of the facts touching the issues as to employment and earning capacity, there being in evidence sufficient data for the exercise of their "own knowledge and ideas," as on questions of value and similar matters. Code, §§ 38-1708, 38-1709; Baker v. Richmond City Mill Works, 105 Ga. 225, 227 ( 31 S.E. 426); Jennings v. Stripling, 127 Ga. 778 (3) ( 56 S.E. 1026).

The verdict will not only require the defendant to pay $30 per month for support of the children, but, in having granted a total divorce, presumably it will also relieve the plaintiff from the interference which she testified had so badly handicapped her in operating the boarding-house. Thus she will have substantial aid in supporting the children, where she had little or none before; and in addition to this, the business which she alleged at one time sustained both herself and the children may be in some degree restored. It can not be said that the verdict was contrary to the evidence or without evidence to support it, either because a larger amount was not awarded for the children, or because no amount whatever was allowed to the wife for her separate use. Coley v. Coley, 128 Ga. 654 (2) ( 58 S.E. 205); Ginsberg v. Ginsberg, 154 Ga. 831 (3) ( 115 S.E. 646); Brock v. Brock, 183 Ga. 860 ( 190 S.E. 30); Poole v. Wright, 188 Ga. 255 (3) ( 3 S.E.2d 731); 27 C. J. S. 949-960, § 233; 17 Am. Jur. 467-480, §§ 597, 602, 612, 623.

The case differs on its facts from Campbell v. Campbell, and Wilkes v. Wilkes, supra, with respect to the relative means and financial condition of the parties, and also as to the existence of children, the wife being the sole dependent in each of the cases cited, whereas in the present case there were children whose custody was sought by the wife, and for whose support a substantial monthly sum was awarded.

2. The court did not err in failing to submit the plaintiff's contention that she was entitled to recover an equitable interest in a certain house and lot, "at least to the extent of $300;" the evidence and the only evidence on this issue being the plaintiff's own testimony to the effect that her money in this amount had been invested in stock, tools, and farm equipment, on which she and her husband started farming as young people, and with which by the further means of their joint labor and efforts they had accumulated several thousand dollars "from which" the house and lot were purchased. This evidence did not show definitely what part, if any, of the original sum went directly or indirectly into the purchase of the property in question; and for this reason, if not for others, it was insufficient to establish the equitable interest claimed. Mock v. Neffler, 148 Ga. 25 (2, 3) ( 95 S.E. 673); Lane v. Lane, 149 Ga. 581 ( 101 S.E. 582); Stokes v. Clark, 131 Ga. 583 ( 62 S.E. 1028).

3. It is declared in the constitution that "When a divorce is granted, the jury rendering the final verdict shall determine the rights and disabilities of the parties." Code, § 2-4202. It has been held that under this provision "the jury rendering the final verdict in a divorce case are invested with power to determine the rights and disabilities of the parties; and where their verdict declares that both parties shall have the right to marry again, the presiding judge has no power of revision so as to deny the right to either party." Montfort v. Montfort, 88 Ga. 641 ( 15 S.E. 688). Accordingly, there is no merit in the contention that under the evidence the court erred "in permitting verdict and decree removing defendant's disabilities." The phrase "subject to the revision of the court" in the Code, § 30-122, was apparently based on the constitution of 1868, and does not accord with the present constitution. See Code of 1873, § 1727.

4. The court charged the jury as follows: "If you find in favor of the husband, that he is not at fault, but that his wife is at fault, you may allow her alimony or you may refuse it, or you may award her a lesser sum than you would have awarded if she had not been at fault, according to the circumstances." In her motion for new trial the plaintiff complained of this charge, on the ground that there was no evidence that she was at fault, or that the defendant was not at fault, but that the evidence showed exactly the reverse as to each of them; and that the charge was thus not adjusted to the evidence, and was calculated to confuse and mislead the jury, and probably did induce the verdict against her on the question of alimony. There is no insistence that the charge did not state a correct principle of law, but the sole contention is that it was inapplicable.

In view of the province of the jury as to credibility of witnesses and issues of fact, we can not say that the charge was unwarranted by the evidence, as insisted. The court did not err in refusing a new trial upon any ground urged.

Judgment affirmed. All the Justices concur.