Case Information

CURTIS v. CURTIS

42157

Supreme Court of Georgia

November 27, 1985

Reconsideration Denied December 19, 1985

336 SE2d 770

SMITH, Justice.

Richardson.

1. Appellant raises seven enumerations of error. In her first three she contends that the court erred by allowing the state to cross-examine her concerning an incident, dating about six years before the killing, in which she shot the victim during a domestic quarrel. Appellant contends the prior shooting incident was too remote in time to have been admissible. We disagree. Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985).

Appellant also makes several other contentions on appeal in her attempt to show that the court erred by allowing evidence of the prior shooting to be introduced. None of these grounds was raised in the trial court, and therefore they will not be considered on appeal.2 Williams v. State, 255 Ga. 97 (4) (335 SE2d 553) (1985).

2. Appellant raises the general grounds in her remaining enumerations of error. In essence, she argues that the killing was accidental and that the state failed to meet its burden of proof to show that she had the requisite intent to be guilty of murder.

However, a review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found beyond a reasonable doubt that the killing was not accidental, and that appellant was guilty of the crime of murder. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the state met its burden of proof, and there is no error.

Judgment affirmed. All the Justices concur.

DECIDED NOVEMBER 5, 1985 — RECONSIDERATION DENIED DECEMBER 19, 1985.

F. Robert Raley, for appellant.

Joseph H. Briley, District Attorney, Norman R. Miller, Assistant District Attorney, Michael J. Bowers, Attorney General, Dennis R. Dunn, Staff Assistant Attorney General, for appellee.

SMITH, Justice.

The appellant, Mrs. Denna Y. Curtis, filed an action for divorce against the appellee, Mr. Freddie C. Curtis. The divorce was granted on the pleadings and all other issues were reserved for trial. On July 27, 1984, the jury made an equitable division of their property and an award of child support which was entered as a final judgment and decree on August 10, 1984. Although the jury did not know which parent would have custody of the child at the time the child support award was made, it awarded the same amount the trial judge had ordered the appellee to pay the appellant for child support at the temporary hearing. On August 28, 1984, the appellant filed a contempt citation against the appellee to enforce the final decree, and a hearing was set for September 6, 1984. By September 6, the appellee had complied with all of the terms of the final judgment by paying the appellant the sum of $10,000, paying the State Bank of Cochran the sum of $6,882.92 that represented the outstanding indebtedness on an automobile awarded to the appellant, delivering the title to the automobile to the appellant, and paying the appellant's attorney the sum of $3,000 in attorney fees. On September 10, four days after the appellee had complied with all of the terms of the final decree, the appellant filed a motion for new trial. The trial judge dismissed her motion for new trial, and the appellant filed an application for discretionary appeal which we granted. We affirm.

The appellant asserts, among other things, that the jury should have known which parent would have custody of the child before it made the child support award.

While we find that a jury's decision can only be as good as the information it relies upon in the decision making process, and "children are entitled to be supported . . . during their minority commensurate with their proven customary needs and the [parent's] financial ability to provide for them," Harrison v. Harrison, 233 Ga. 12, 15 (209 SE2d 607) (1974); Clavin v. Clavin, 238 Ga. 421 (233 SE2d 151) (1977), this appellant forfeited her right to complain. "'As a general rule, any voluntary act by a party, with knowledge of the facts, by which he expressly or impliedly recognizes the validity and correctness of a judgment against him, will operate as a waiver of his right to bring error to reverse it, as where he receives affirmative relief under the judgment or takes a position inconsistent with his right of review.'[Cit.]." J & F Car Care Service, Inc. v. Russell Corp., 166 Ga. App. 888 (305 SE2d 504) (1983). This appellant sought to enforce the final judgment by way of a contempt proceeding. Prior to filing the motion for new trial, the judgment was satisfied and the appellant accepted the fruits of the final judgment. The appellant cannot receive the fruits of the final judgment and then seek to have it set aside by way of her motion for new trial. Wilkinson v. Wilkinson, 241 Ga. 303, 304 (245 SE2d 278) (1978).

In view of the fact that the jury's child support award was exactly the same as the trial court's award of child support, we do not find that the jury's lack of knowledge in this case affected the substantial rights of the child, see OCGA § 9-11-61.

However, if child custody is unresolved at the end of the evidence, the trial judge should either resolve the question of child custody and so inform the jury prior to their deliberations or, if for any reason he does not wish to tell the jury which parent will have custody, he must provide the jury with alternative jury forms1 in which the jury may make different awards, if necessary, depending on which parent will have custody.

Judgment affirmed. All the Justices concur, except Weltner and Bell, JJ., who concur specially.

BELL, Justice, concurring specially.

I agree with the majority holding that children are entitled to be supported commensurate with their proven customary needs and the parent's financial ability to provide for them, and therefore that a jury either must know the identity of the custodial parent before making an award of child support, or must be given the opportunity to make alternative awards. However, I cannot entirely concur in the additional holding that because this mother accepted the fruits before filing the motion for new trial, she is estopped from seeking to set aside the verdict.

It would be correct to impose estoppel insofar as it applies to the fruits which were due to the mother as spousal support or equitable division of property. See Wilkinson v. Wilkinson, 241 Ga. 303 (245 SE2d 278) (1978). But, we have held that the right of child support belongs to the child, and cannot be waived by the parent. Worthington v. Worthington, 250 Ga. 730 (301 SE2d 44) (1983). I would therefore hold that the mother could not and did not waive her right to set aside the decree insofar as it awarded child support.

However, as the majority also holds, since the jury's award of permanent child support was the same as the court's award of temporary support, the jury's lack of knowledge in this case did not affect the substantial rights of the child. I therefore concur in the affirmance of the judgment.

I am authorized to state that Justice Weltner joins in this special concurrence.

Footnotes

2 After appellant's counsel had objected on the ground of remoteness and moved for a mistrial, the court asked him whether he had anything else on the motion, to which counsel replied that he did not.

1 Proposed alternative jury forms:
a) In the event the mother is awarded custody of the child(ren), the father shall pay $_____ per _____ to the mother as child support.
b) In the event the father is awarded custody of the child(ren), the mother shall pay $_____ per _____ to the father as child support.