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DAY v. DAY

Supreme Court of Georgia1954-03-09No. 18497
210 Ga. 454

Summary

Holding. The trial court properly denied the husband's motion to set aside the divorce verdict and decree because he failed to prove the wife's perjury conviction, did not establish condonation, presented no timely jury instruction request, and could not justify a new trial based on evidence that should have been presented at trial. The $75 monthly alimony award was not excessive as a matter of law.

A husband sought to overturn a divorce decree and alimony award on several grounds. He argued that the verdict should be set aside because his wife committed perjury, but this argument failed because he did not allege or prove that she had been formally convicted of perjury, which the law requires. He also claimed he had condoned her alleged misconduct through continued cohabitation, but the court found that evidence of progressively worsening cruel treatment leading to an unbearable situation did not constitute condonation as a matter of law.

The husband further contended that the trial court erred by not instructing the jury on the condonation defense, but because neither the pleadings nor evidence supported such an instruction and he failed to timely request it in writing, this omission was not error. He also moved for a new trial based on witnesses he claimed he could produce with another opportunity, but the court rejected this argument because evidence discoverable through reasonable diligence before trial cannot support a new trial motion.

Regarding the alimony award of $75 per month, the court found it reasonable given the husband's demonstrated financial capacity and the wife's limited earning ability due to physical limitations. The trial court's judgment was affirmed in all respects.

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

Key issues

  • Requirements for overturning a verdict based on perjured testimony
  • Whether progressive cruel treatment constitutes condonation through continued cohabitation
  • Trial court's duty to charge jury on affirmative defenses without written request
  • Discovery of evidence after trial as grounds for new trial
  • Reasonableness of permanent alimony award given parties' financial circumstances

Procedural posture

The husband appealed the trial court's denial of his motion to set aside a divorce decree and permanent alimony award.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Sutton, Justice.

1. “A petition asking that a verdict and decree be set aside because rendered on the perjured testimony of a named witness does not set forth a cause of action for that reason, where the petition also fails to allege that the witness has been duly convicted of . . . perjury with ■ respect to such testimony, and that the verdict and decree were based on that testimony alone.” Hubbard v. Whatley, 200 Ga. 751, 757 (38 S. E. 2d 738); Armstrong v. Armstrong, 206 Ga. 540 (2) (57 S. E. 2d 668); Code § 110-706. The ground of the husband’s motion to set aside the verdict and decree, because the wife perjured herself, is without merit for the reason that it fails to allege or show that the wife had been convicted of perjury.

2. “Condonation is forgiveness, either express or implied, by the husband of his wife, or by the wife of her husband, for some breach of marital duty, with an implied condition that the offense will not be repeated. A petition for divorce by the husband which alleges in effect that his wife’s conduct during the entire time he lived with her was persistently quarrelsome and nagging, and that this grew worse from day to day and year to year until they separated when it became unbearable, does not show condonation. The continuity of such conduct is what makes it cruel treatment within the meaning of our law.” Morris v. Morris, 202 Ga. 431 (2) (43 S. E. 2d 639). And “Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant.” Brewer v. Brewer, 205 Ga. 759 (1) (55 S. E. 2d 147). Applying the above-stated principles to the facts of the present case, evidence that the alleged cruel treatment on the part of the husband grew steadily worse until it became unbearable, and that the separation took place because of such continuing treatment, did not show condonation as a matter of law.

3. “The failure to give instructions to the jury not demanded by the evidence will, in the absence of a written request to so charge, in no event be cause for a new trial.” Cooper v. Nisbet, 119 Ga. 752 (3) (47 S. E. 173); Jenkins v. Philips, 182 Ga. 477 (3) (185 S. E. 812). Where, as here, there were neither pleadings nor evidence to demand a charge on condonation, it was not error in the absence of a timely written request to fail to charge on that question.

4. “Evidence discovered after the trial which, by using due diligence, might have been discovered before, will not authorize the granting of a new trial.” Taylor v. Perdue, 206 Ga. 763 (2) (58 S. E. 2d 902). Accordingly, in the absence of any reason why the witnesses were not produced at the former trial, the husband’s motion to set aside the verdict and decree, on the ground that, if given another opportunity to try the case before another jury, he could produce witnesses to disprove all of the alleged acts of cruel treatment, is without merit.

5. The jury is allowed a wide latitude in determining the amount of permanent alimony to be awarded. Jeffrey v. Jeffrey, 206 Ga. 41 (1) (55 S. E. 2d 566). And where, as here, the husband testifies that his take-home pay was $229 a month, that he frequently earned $5 a week in addition to his salary, that he drew $2,169 out of the bank the morning the divorce suit was filed, and where there was evidence that the wife, who was physically unable to work every week-end, earned $15.56 a week when she was able to work as a food demonstrator, this court will not hold that the verdict of $75 per month is, as a matter of law, excessive.

6. The evidence, though conflicting on the question of whether the husband committed the alleged acts of cruel treatment, was sufficient to support the verdict and decree granting a total divorce between the parties and awarding permanent alimony to the wife; and the trial court did not err in denying the husbands motion to set aside the verdict and decree.

Judgment affirmed.

All the Justices concur.