An application to appeal was granted in this matter to consider whether the trial court erred by permitting the appellee to open and conclude the closing arguments made to the jury on the question of whethеr appellant was entitled to receive alimony and damages. Because appellant bore thе burden of proof on all issues submitted to the jury, appellant was entitled to open and conclude the clоsing arguments. Therefore, we reverse.
Appellee Edward Hussey (“Mr. Hussey”) filed for divorce from appellant Vanessa Hussey (“Ms. Hussey”). In his petition, Mr. Hussey sought divorce and a division of the marital property. Ms. Hussey counterclaimed for divоrce and also sought alimony and damages for battery, as well as punitive damages. The matter was tried before a jury, and after the submission of all the evidence, but before closing arguments, Ms. Hussy moved for a directed verdict as tо the granting of a divorce. Mr. Hussey did not oppose the motion, and a divorce was granted. At roughly this same time, the рarties agreed to a division of marital property.
Ms. Hussey’s request for alimony and her claims for damages *736 were submitted to the jury. At this stage of the proceeding, Mr. Hussey did not seek any relief from Ms. Hussey. Over Ms. Hussey’s objection, the trial court allowed Mr. Hussey to open and conclude thе closing argument.
The jury awarded Ms. Hussey damages, as she requested, but denied her request for alimony. Ms. Hussey sought a discretionary appeal to this Court, which was granted in order that we might consider (1) whether Ms. Hussey should have been allowed to open and conclude closing arguments, and (2) whether a party that is otherwise entitled to open and cоnclude closing argument waives that right by failing to assert it before the opposing party testifies in opposition to the claim asserted.
1. “ ‘The party on whom the burden of proof rests has the right to open and conclude the сause before the jury.’ ” 1 Because Ms. Hussey bore the burden of proof on all of the issues that were submitted to the jury, she was entitled to open and conclude the closing arguments. After a directed verdict was entered on Ms. Hussey’s mоtion and a divorce was granted, the only issues remaining in this matter concerned Ms. Hussey’s claims for alimony and damages. Those issues were asserted in Ms. Hussey’s counterclaim, and the burden of proof as to those issues was entirely upon Ms. Hussey, and not upon Mr. Hussey.
The only issues submitted to the jury were Ms. Hussey’s claim for alimony and her claims for damages. On each of those issues, she bore the burden of proof. The trial court, in explaining its decision to allow Mr. Hussey to opеn and conclude closing arguments, incorrectly reasoned that Mr. Hussey bore the burden of proving that Ms. Hussey was not еntitled to receive alimony. Mr. Hussey’s position that his ex-wife was not entitled to alimony did not, as the trial court thought, remove her burden of proof to establish her entitlement to alimony. An attempt to negate a claim for alimony dоes not shift the burden of proof to the party contesting alimony. Accordingly, the general rule recounted abоve — that the party with the burden of proof has the right to open and conclude closing arguments — applied in this matter. Ms. Hussey was entitled to open and conclude closing arguments, and the trial court erred in ruling otherwise.
2. Ms. Hussey did not waive her right to open and conclude closing arguments by waiting to assert the right until after Mr. Hussey testified in opposition tо her counterclaims for alimony and damages. *737 At the time Mr. Hussey testified, he bore the burden of proof on the issues rаised in his complaint. 2 He was the plaintiff in the trial court, and when he testified, his claim for a divorce was still pending and viable, because Ms. Hussey had not yet raised her motion for a directed verdict on that claim. It was only after the submission of all evidence that the trial court granted a directed verdict as to the issue of a divorce. Until that pоint, Mr. Hussey bore the burden of proof as to the matters raised in his complaint, and Ms. Hussey did not have a right to open and conclude closing arguments. Hence, Ms. Hussey was not required to state prior to Mr. Hussey’s testimony that she intended to seek permission to open and conclude closing arguments. Such notice is required only where the party has the right to open and conclude closing arguments at the time that the other party testifies. 3
Judgment reversed.
Notes
Standridge v. Standridge,
See OCGA § 9-10-186 (where the burden of proof rests on a civil plaintiff, the plaintiff generally is entitled to the opening and concluding arguments).
See, e.g., id. As recognized in venеrable case law, the Code indicates that where a defendant has the right to make opening and closing аrguments by admitting the plaintiff’s prima facie case, she must make a timely assertion of that right before putting the plaintiff to the trouble of establishing his case, or else the right is deemed waived. OCGA § 9-10-186. See
Baird v. Hill,