9 S.E.2d 756 | Ga. | 1940
1. Under the Code, § 30-207, the jury is vested with a discretion as to the amount, character, and duration of the permanent support to be awarded to the child or children of the unsuccessful marriage. An instruction that if the jury found in favor of the children, they should fix an allowance that would be sufficient to provide for their maintenance, protection, and education until their majority is erroneous. The principle of § 74-105, which provides that "Until majority, it is the duty of the father to provide for the maintenance, protection, and education of his child," should be given in charge, but with proper explanation to the jury of the discretion vested in them.
2. The evidence supported the verdict awarding alimony in favor of the wife, and the only error in the charge had reference solely to the support to be awarded to the children. Direction is given that a new trial be solely on this issue, and that the verdict as to alimony for the wife be allowed to stand.
1. Exception is taken to an instruction given to the jury, in part as follows: "Until majority it is the duty of the father to provide for the maintenance, protection, and education of his child or children. So that in fixing an allowance for the children, if you find in their favor, you would be governed by that rule of law; that is, to fix an allowance that would be sufficient to provide for the maintenance, protection, and education of the child or children . . up to the time of its majority." The first sentence of this instruction is in the language of the Code, § 74-105. The remaining part of the instruction is but the judge's application of that principle to the case at hand. The plaintiff in error contends in substance that the principle embodied in § 74-105, supra, has no application to a case of the present character, for the reason that under § 30-207 the permanent support to be fixed for the children is in all respects left to the discretion of the jury. Section 30-207 is as follows: "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 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." It seems clear that under this section the jury *510
is vested with a discretion as to the amount, character, and duration of the permanent support to be awarded to the child or children of the unsuccessful marriage, and that the instruction, that if the jury found in favor of the children, they should fix an allowance that would be sufficient to provide for their maintenance, protection, and education until their majority, is erroneous. See Barlow v. Barlow,
This does not, however, lead us to the conclusion that the principle inhering in § 74-105 is wholly irrelevant to the case and should in no event be given in charge to the jury. We venture to say that the remedy afforded by § 30-207 would not have come into being except for a recognition by the General Assembly of the existence of the legal duty of a father to support his minor children as provided in § 74-105, and that that duty should not as a matter of law cease upon a separation or divorce of the parents. See Ross v. Richardson,
It is pointed out by counsel for defendant in error that in immediate connection with the above-quoted instruction the judge charged the jury as follows: "Now the law does not undertake to regulate how the jury shall provide for the support. It is left very largely to the wisdom of the jury as to whether you find a lump sum, or whether you find the amount should be paid at intervals or in instalments. The law of the State provides that if the jury, *512 on the second or final verdict, 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 children are not in the same category." This does not clarify the erroneous instruction. The substantial effect of the charge as a whole was but to inform the jury that if they found in favor of the children they should find an amount calculated to support the child until majority, and that they had the right to provide how it should be paid.
2. "Permanent alimony shall be granted in the following cases:
1. In cases of divorce as considered in Chapter 30-1. 2. In cases of voluntary separation. 3. Where the wife, against her will, shall either be abandoned or driven off by her husband." Code, § 30-210. The plaintiff's claim for alimony is based, not on a voluntary separation, but rather on an involuntary separation brought about by the alleged cruel treatment of the defendant. InDurham v. Durham,
3. The only error appearing is with reference to the charge of the court discussed in the first division of this opinion. That charge related only to the support to be found in favor of the minor children. It could have had no possible effect upon the jury in finding alimony for the plaintiff. Since we have reached the conclusion that the evidence supported the verdict finding alimony for the plaintiff, we see no good reason why the verdict to that extent should not stand. "The Supreme Court is authorized to make a final disposition of a case, and to give it such direction as is consistent with the law and justice applicable to it, and as will prevent the unnecessary protraction of litigation." Robinson v. Wilkins,
Judgment reversed, with direction. All the Justices concur.