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HOGAN v. HOGAN

Supreme Court of Georgia1943-11-10No. No. 14675
196 Ga. 822

Summary

Holding. The judgment was affirmed, as the trial court properly admitted evidence regarding Arline's character after it was placed in issue by Ernest's testimony, correctly excluded Ernest's conclusory answer regarding reconciliation efforts, properly refused a requested instruction from prior case law involving different facts, and provided a legally sound charge regarding alimony that was not speculative or misleading when read in context.

Arline Hogan sought permanent alimony from her husband Ernest, a practicing lawyer, after he abandoned their marriage of approximately 25 years. Ernest claimed he left due to his wife's nagging, while Arline testified he departed to pursue another woman after consulting astrological charts. At trial, a jury awarded Arline $25 monthly alimony until remarriage and the full equity in their home. Ernest appealed, raising six grounds for a new trial, challenging the admission of certain testimony and the judge's instructions to the jury.

The appellate court addressed each objection in turn. It rejected Ernest's initial complaint about evidentiary admissibility because his objection lacked proper legal specificity. The court determined that Arline's character became a legitimate issue once Ernest testified she had threatened immoral conduct, making character evidence supporting her reputation admissible. The court also found that Ernest's exclusion from answering a conclusory question about reconciliation efforts was proper, since he could have testified to specific acts he took toward that end. Additionally, the court declined to adopt Ernest's requested jury instruction from a prior case involving different facts and potentially confusing language.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether plaintiff's character evidence was admissible after defendant testified about alleged threats
  • Proper form of objections to evidence and standards for reversible error
  • Whether defendant's conclusory testimony about reconciliation efforts should have been admitted
  • Appropriateness of instructing jury to award alimony ensuring wife's former social standing and lifestyle

Procedural posture

Arline Hogan appealed from the trial court's overruling of her husband Ernest's motion for new trial following a jury verdict awarding her alimony and home equity.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Atkinson, Justice.

Mrs. Arline Hogan filed against Ernest C. Hogan a petition for permanent alimony, which alleged substantially the following. Plaintiff and defendant were married on April 15, 1926, and lived as husband and wife until about a month before this suit was filed. Plaintiff worked and used her salary to help buy groceries and furnishings for the home. Plaintiff and defendant lived happily until recently when defendant became infatuated with another woman, and consulted astrological charts and learned that the birthdate of plaintiff and his birthdate do not coincide so as to make for a happy marriage. Hnder the above circumstances defendant ceased living with plaintiff as a husband, and is insisting that she vacate their home. Plaintiff barely earns enough to support herself, while defendant is a practicing lawyer and has a growing practice. Plaintiff has no property. Defendant is the owner of described property.

The defendant answered, denying the allegations of the petition, and alleging that he was forced to leave because of continuous nagging of plaintiff; which affected his health.

On the trial the evidence was conflicting as to who was at fault, and whether defendant left on account of the nagging, or in an effort to get rid of plaintiff.

The jury returned a verdict allowing- plaintiff $25 per month until-her remarriage, and awarding her the full equity of defendant in the home. The exception is to the overruling of the defendant’s motion for new trial.

The first ground complains of the admission of evidence as follows: Q. “Have you got anything from Mr. Hogan in the way of alimony?” A. “None whatsoever.” Objection: “If your honor pleases, what is the relevancy of that? The only question is one of alimony, and I don’t see how that would be relevant in this particular case.” This is not such an objection to testimony as presents any question to this court. An objection that evidence is “incompetent” or “inadmissible” is not a good objection. Gordon v. Gilmore, 141 Ga. 347 (2 a) (80 S. E. 1007). Neither is an objection “that it is incompetent and inadmissible” well taken. Richardson v. State, 141 Ga. 782 (2) (82 S. E. 134). It has been held that an objection stating that it is “incompetent, immaterial, and irrelevant” is not a proper objection. Kirkland v. Ferris, 145 Ga. 93 (4 a) (88 S. E. 680). An objection on the sole ground that it is irrelevant is not such an objection as would be reversible error to overrule.

The second and third special grounds complain because one witness for the plaintiff was allowed to testify that her character was beyond reproach, and because the court permitted another witness to testify that her reputation was excellent, over the objection that the evidence was irrelevant and immaterial, and that the character of plaintiff was not in issue. The plaintiff while under cross-examination by the defendant’s counsel testified: “As to whether I ever threatened to go out and act as a streetwalker — I certainly did not. I never made the statement to [defendant] . . that T am going out and act as a streetwalker; and if I have a child, I will name it after you.’ ” Furthermore, when the defendant took the stand he testified that the plaintiff did make the above and other similar threats to him. We hold that the plaintiff’s character had been put in issue by the defendant’s testimony. In so ruling we have merely assumed that the objections to the testimony and the assignments of error were complete.

In ground 4 the movant complains that the court erred in sustaining an objection by the plaintiff’s counsel, and in refusing to allow the defendant to answer a question as follows: Q. “Have you done all within your power to reconcile the differences?” A. “I suppose I have.” It is insisted that the exclusion of the above evidence was harmful, for the reason that whether the defendant had done all in his power was a fact and not a conclusion. The attorney for the defendant, by appropriate questions could have asked the defendant to state to the jury just what he did to bring about a reconciliation between himself and his wife, and in response to such questions a statement by the defendant of the particular things he did to bring about a reconciliation would have been admissible. However, for the defendant to say that he had done all he could to bring about a reconciliation was purely a conclusion of the witness. He did not state, as a fact, any particular thing that he had done; and had he done so, the question whether this was all that he could have done to bring about a reconciliation would have been for determination by the jury.

In ground 5 the movant assigns error on the refusal of the court to charge, upon timely written request, an excerpt from an opinion of this court in Ross v. Ross, 169 Ga. 524, 526 (150 S. E. 822), where the court was discussing acts sufficient to constitute cruel treatment.

It is not always proper for the court to charge the jury in language used in one of the decisions of this court. Macon Railway & Light Co. v. Vining, 123 Ga. 770 (2), 771 (51 S. E. 719); Southern Cotton-Oil Co. v. Skipper, 125 Ga. 368 (9) (54 S. E. 110); Alabama Great Southern Railroad Co. v. Allison, 136 Ga. 586, 588 (71 S. E. 800); Chedel v. Mooney, 158 Ga. 297 (11) (123 S. E. 300). The language that the court was requested to give in charge employed illustrations involving facts different from those in the present case, some of which denoted extremely flagrant and highly reprehensible conduct. It also included the statement, “we hold that the acts specified in the libel as having been committed by the husband towards the wife constitute cruel treatment,” which language might have confused the jury as to the issue in the present case. Where as in the instant case, the facts were different from those referred to in the excerpt from the Boss case, the court did not err in refusing to instruct the jury as requested.

The judge instructed the jury: “In finding the amount of alimony, if any, to be awarded to the wife, you will consider the financial status of the husband, the value of his estate, if any; his income, his resources, the extent of his earning capacity. And then you will determine from the evidence submitted to you — and you may take into account both the direct and circumstantial evidence bearing on these particular questions. You will consider his health, his age, the number of dependents whom he may legally be obliged to support, if any; and you may consider the defendant’s position in society, his manner and style of living. The policy of the law is that if the wife is blameless in respect to the separation, such alimony should be awarded as to secure to her the same social standing, the same comforts and luxuries of life, which she probably would have enjoyed but for the enforced separation.” Ground 6 complains of the language, “such alimony should be awarded as to secure to her the same social standing, the same comforts and luxuries of life, which she probably would have enjoyed but for the enforced separation.” The criticism is that the charge (a) is speculative, and a jury has no basis to determine the wife’s future social status; (b) is misleading in that a jury could decide that the movant would be rich in short order or make more money than the record discloses, and predicate a verdict thereon; and (c) is not a sound principle of law. Immediately following the quoted instruction, the judge charged the jury: “You will consider the husband’s personal living expenses and his business expenses. You will likewise consider the position and station of the wife in society, and take into account the circumstances of the wife, whether she has any separate estate of her own, any property of her own, any income of her own; her ability to earn money, whether or not she is employed, if she has capacity to earn money; her age, and the condition of her health.”

Considered in connection with its context the charge was not erroneous for any reason assigned.

The evidence, though conflicting, was sufficient to support the verdict, and the court did not err in overruling the motion for new trial. Judgment affirmed.

All the Justices concur.