Robertson v. Robertson
207 Ga. 686
Ga.
1951
Check Treatment

*1 cited, equity deed and set aside a to authorize a court of to cancel proper when and should be executed him. nonsuit allegations prove plaintiff completely the essential ever the fails to petition. Everett, Tarvin Culberson Cooperage Co., Yawn, Tison v. Rome rulings made, above of the court 15 Ga. 491. Under the granting nonsuit was not error. below concur. All Justices No. 17327. March 1951. Smith, T. plaintiffs. D. Ware and Willis Boykin Boykin, for defendants. v. ROBERTSON.

ROBERTSON Howard, Howard, Carter and Tiller & Dean in error. Tyler Jr., O’Neal contra. and Marvin

Swift Miriam N. Justice. Mrs. suit Candler, against her husband, for divorce Dr. James G. ground of Robertson, cruel treatment. She prayed on the custody and control of their two minor children. Con- alleges that cerning alimony, neither of estate; that the defendant any real owns a 1949 Ford au- approximately $2000; and that tomobile, highly valued at he is a surgeon, with an and successful unlimited earning ca- educated denying filed an answer all The defendant al- pacity. petition charging cruelty. him with legations of the He he an automobile. admitted that he is denied that owns but said presently ac- afflicted with work of his he contracted pulmonary tuberculosis, tive *2 in He further military the recent World War. said that service veteran; only War and totally disabled World that his he is per $195 any month which receives source is compensation for in- Administration as from the Veterans by agency government jury, which of total. that to a that Mrs. Robertson was entitled divorce. It jury found was entitled to an award personally that of found she remarries, until she and like per month as they children monthly of her two until for each reach after for birthday and, that month their thirteenth respective marriage, or majority their which- until each of them removed the defendant’s disabili- ever shall first occur. It accordingly. Custody of the entered two ties. A decree was parties was awarded court to Mrs. minor children of defendant filed motion to set In due Robertson. in far as it related to and made the verdict and decree aside alimony, plaintiff both as to the an- for award grounds therefor, substance, As their children. alimony was, the evidence, grossly verdict illegal; and that the court erred on the and therefore excessive proper objections, admitting, timely and certain over reference to items of defend- testimony with from his mother since 1947. And ant had obtained alleged testimony it was connection was of- purpose showing fered the amounts so received him from income; temporary only purpose loans him for the were mother expenses, him meet such enabling testimony ability pay alimony, was therefore did not immaterial, irrelevant, prejudicial, inadmissible challenged defense. The motion was hurtful to his as to requirements the Code. or as to It was contested form hearing, After solely the merits. the motion was overruled excepted. defendant and the 30-201, “Alimony

As defined our Code, is an allow estate, support out the husband’s separate wife living when from him. temporary It either permanent.” wife, necessities of when entitled to ali mony, pay it, controlling husband’s making factors to be and followed in considered allowance permanent. v. Methvin, Methvin 97; Besore, 379; 15 Ga. Besore Hawes, 49 Ga. Hawes 142; Melvin v. Melvin, 474); 129 Ga. King S. King, 574); Taylor 170 Ga. 291 v. Taylor, 189 Ga. (2) Braswell, Braswell v. 2d, 773). And frequently this court has and con put sistently stamp approval refused its there awards were, evidence, for which under the substantially disproportion Pinchard, ate to either. Pinchard v. 286; Ayers v. Ayers, 674); Johnson v. Johnson, Davis, 830); Davis v. Arnold v. Ar nold, *3 S. E. Potter v. Potter, 145 Ga. 60 546); Lightfoot S. E. v. Lightfoot, 149 Ga. 213 S. E. 611); Porter Porter, S. E. Weatherford v. Weatherford, 323). 2d, act Assembly General p. 90), verdict or divorce ali mony does final thirty not become days; and, period, application writing an interested person, it may good be modified or set aside for and sufficient cause. Code (Ann. Supp.), Dugas 30-101; v. Dugas, 201 Ga. 190 2d, v. Jackson, Jackson S. E. 2d, 483); Dixon Dixon, 818); Gault v. Gault, In the instant case, alleges verdict, motion in so far per as it relates to illegal grossly manent is and, after excessive;; looking at carefully up the evidence in the record, we have reached conclusion that it is and that the motion should ground. have been on this And that because of following disputed: facts which The defendant has present property. He is at afflicted with active pulmonary tuberculosis. He contracted tuberculosis while in military serv continuously ice, existed discharge has since his in Though hospitalized frequently, and long periods for rather time, his disease not been arrested. has Two physicians, whose training professional standing are not questioned, testified physically actively the work of his as one of them said: my pro- “It is opinion that, if Dr. fessional private assumes full-time practice, progress will and, his disease certain period fully grown; by it will be that I mean . . disease his progress will a terminal end.” Both physicians testi- vitally fied necessary that “bed rest” was for him. He is rated presently having Veterans Administration as dis- total ability resulting from tuberculosis. He practice tried to pro- in 1949, fession but soon found that he unable do He receives so. from the Administration, Veterans as compensation injury, for his total, $195 as per month, shortly will $181.13 be reduced monthly. disability has no other than compensation. Without any obligation part so, on her to do mother, furnished him meet some of his expensees, but there is no assurance that she can or will continue to such contributions to him. make Under facts, these we hold that the verdict the instant case awarding, it did, month for alimony, which increases after lapse years monthly, of a few grossly excessive; being so, motion to set it aside for that judge. should have been sustained reason ground We will not deal with other the motion further say money by than to loans of a mother her son, case, the circumstances of this do not pay alimony, latter’s and on the next trial of case, *4 objected if such evidence is then offered and to, it be should (2). excluded. Carlton Carlton, See v. above, good

For the reason stated and sufficient cause was setting shown for verdict and decree aside in so far as permanent alimony, an award for and the court’s refusal requiring do so was error a reversal judgment to of the com- plained of.

Judgment reversed. All the Justices concur. Atkinson, P.J., specially. concurs I judg- concur in concurring specially. J., P.

Atkinson, re- rulings on the evidence on account of reversal ment of opinion. of the division in the second ferred to Douglas City Co. Line Railroad et al. v. Atlantic Coast petition to the demurrer 1. The defendants’ Duckworth, Chief Justice. Douglas extension of street City a to condemn land erecting on land enjoin structure to the defendants excepted judgment The sustained, here. to and this involved was 870), conferring 1921,p. amended charter of widen, extend, open city power domain of eminent being streets, lanes, alleys, etc., provides that “same done accord- Mayor passed Aider- said or ordinances with resolutions adop- allege fatally failing petition defective men.” The v. ordinance. Suburban Investment Co. tion of such resolution City Atlanta, Cairo, City Thomas v. 192). Since, just ruled, legal right no enjoin right obviously, erection of a struc- condemn was dismissing no error in land There was ture on the was shown. petition demurrer. particularly the defendants and Atlantic aforesaid 2. To the cross-petition, perma- seeking Company Railroad filed Coast Line Douglas attempt- City prohibiting injunction against it from nent agreement, the ing tried condemn the land involved. judge jury, stipulated facts before the without cross-action prayed. judgment granting exception to the relief he rendered excepted “The then and there as follows: being excepts contrary such order as erroneous and now law exception repeated rulings assigns This error on same.” Duncan, presents nothing v. Cates decision. 2d, 776); Harvey, Carpenter Ga. Greenfield State, Gay, Lanier E.S. All the Justices concur. George Maddox, plaintiff. Whelchel and Ward Oberry, Alston, Foster, Sibley A. Moore, B. B. Miller, & Hendrix defendants. and Matthews