Pierce v. State
254 S.E.2d 838
Ga.
1979
Check Treatment

PIERCE v. THE STATE

34521

Supreme Court of Georgia

April 5, 1979

243 Ga. 454

NICHOLS, Chief Justice

party‘s custodial rights are necessarily affected. They are, in fact, diminished. It does not mean that the party with whom the children are visiting has “custody” of them.

Unless a court order provides that child support payments are to abate while minor children are visiting with their father, such child support payments do not abate.

. Furthermore, the father cannot credit himself with any amount he voluntarily spends on the children while they are with him.
. Consequently, the father here still owes $450 in back child support payments to the mother which must now be paid.

The father does not deny that he is and has always been able to fully pay his child support. There being no justifiable reason for refusing to make his payment, it was error to fail to find him in contempt of court and consider the question of attorney fees to the mother.

A hearing must be had below to determine the question of attorney fees. See in this regard, Code Ann. § 30-202.1 and
(Bowles, J., dissenting).

Judgment reversed with direction. All the Justices concur.

SUBMITTED FEBRUARY 2, 1979 — DECIDED APRIL 5, 1979.

N. William Pettys, Jr., for appellant.

Kenneth W. Carpenter, for appellee.

NICHOLS, Chief Justice.

The defendant was convicted of the murder of her husband. She received a life sentence. She appeals. This court affirms.

1. In passing upon the general grounds, this court reviews not the weight but the sufficiency of the evidence to support the verdict. The evidence is viewed in the light most favorable to the verdict. So long as there is “any evidence” to support the jury‘s verdict, it will not be disturbed on appeal.

. The burden of showing by a preponderance of the evidence that she was not mentally responsible at the time of the alleged crime was upon the defendant. This presumption of sanity does not dissipate with the presentation of evidence to the contrary; rather, the jury was free to reject the testimony of both the lay and the expert witnesses as to the sanity of the accused, and to rely instead upon the presumption of sanity with which the accused entered the trial.
. There being evidence to support the jury‘s verdict, the first three enumerations of error are without merit.

2. The fourth enumeration of error complains that a psychiatrist was allowed to testify over an objection based upon the patient-psychiatrist privilege that during evaluation of the defendant at Central State Hospital, the defendant had told him the following: Her husband had come home around noon. He was angry with her because she had not gone with him that morning to cut a lawn. He called her bad names and threatened to choke her or beat her up. He had beaten her up the night before. She got her pistol and started shooting at him. She closed her eyes and kept on shooting until she ran out of bullets. She then went for help.

The trial court ruled that the patient-psychiatrist relationship to which Code Ann. § 38-418 (5) applies did not exist since the defendant was ordered by the court to be transferred to Central State Hospital for evaluation and examination. The applicability of the patient-psychiatrist privilege to the facts of this case being the only issue presented for decision, there is no merit in this enumeration of error.

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3. The final enumeration of error is deemed to be abandoned. Rule 18(c) (2).

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Judgment affirmed. All the Justices concur, except Hall, J., who concurs in the judgment only.

SUBMITTED FEBRUARY 2, 1979 — DECIDED APRIL 5, 1979.

Gaines A. Tyler, Lynda B. Rea, for appellant.

Frank C. Mills, District Attorney, Arthur K. Bolton, Attorney General, W. Davis Hewitt, Staff Assistant Attorney General, for appellee.

HILL, Justice, concurring.

I fear that the precision with which Division 2 of the majority opinion has been written may be overlooked and that henceforth court-appointed psychiatrists will be examined by the state as to confessions given by the person examined (the accused “patient“). The majority opinion holds such testimony admissible only as against the psychiatrist-patient privilege; it does not hold such testimony admissible against the objections that the confession was not shown to be voluntary and that the Miranda warning was not given.

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