Opinion
17190.
SEPTEMBER 11, 1950.
REHEARING DENIED OCTOBER 13, 1950.
Divorce. Before Judge Hendrix. Fulton Superior Court. April 14, 1950.
Harold Sheats, for plaintiff in error.
James R. Venable, H. C. Morgan, and John L. Respess, contra.
The burden being upon the plaintiff in error to show not only error but injury, a judgment overruling a motion to modify or set aside a verdict or judgment in a divorce case will not be reversed when the motion to modify or set aside is neither specified as part of the record, nor incorporated in the bill of exceptions, nor substantially set forth in the record.
No. 17190. SEPTEMBER 11, 1950. REHEARING DENIED OCTOBER 13, 1950.
Grace D. Thompson sued Bruce F. Thompson for divorce, alimony, and custody of the children, upon grounds of cruel treatment. The husband filed an answer and cross-petition. Upon the trial the jury granted a divorce, removed the disability of both parties, allowed alimony of $80 per month for the support of the two minor children, and certain described property to the wife. The trial judge awarded the custody of the children to the wife. The verdict and decree were dated June 11, 1948.
In the bill of exceptions it is stated: "That within thirty (30) days after the date of said verdict and decree, the defendant filed a petition to modify and set aside the verdict and decree of divorce, and the award of alimony and support therein, which said motion was amended, and after continuance from time to time for the convenience of the court and the parties, was on the 27th day of February, 1950, overruled and refused by the court." The bill of exceptions does not specify or contain this motion to modify or set aside the verdict and decree, or the judgment denying the same, as being material to a clear understanding of the errors complained of, and nowhere in the record does a copy of this motion, or a copy of the judgment overruling this motion, appear. There is nothing in the record to indicate what the contents or grounds of this motion were, or whether evidence in support thereof was produced, and if so whether it was passed on by the judge or a jury.
A motion for new trial was filed March 4, 1950. In the motion, after stating the case and the court, and after reciting that verdict and judgment were rendered June 11, 1949, it is then stated: "Motion to modify as amended overruled on February 27, 1950." Then follows the usual form of a motion for new trial on the general grounds, which was amended by the addition of special grounds. A brief of evidence adduced upon the trial of the divorce case was made a part of the record. In the bill of exceptions error is assigned on the order overruling the motion for new trial.
In construing the procedure for setting aside verdicts and judgment where a divorce has been granted under the divorce law of 1946 (Ga. L. 1946, p. 90), the majority members of this court (though the writer has consistently dissented therefrom) have held that it must be done by a motion to modify or set aside the verdict or judgment filed within 30 days. Dugas v. Dugas, 201 Ga. 190 ( 39 S.E.2d 658); Gilbert v. Gilbert, 202 Ga. 752 ( 44 S.E.2d 485); Williams v. Williams, 203 Ga. 231 ( 46 S.E.2d 65); Allison v. Allison, 204 Ga. 202 ( 48 S.E.2d 723); Gault v. Gault, 204 Ga. 205 ( 48 S.E.2d 819); Huguley v. Huguley, 204 Ga. 692 ( 51 S.E.2d 445); Allison v. Allison, 205 Ga. 233 ( 53 S.E.2d 114); Winn v. Winn 205 Ga. 314 ( 53 S.E.2d 477); Stebbins v. Stebbins, 206 Ga. 529 ( 57 S.E.2d 564). If the motion is based on grounds which require a consideration of the evidence, then a brief of the evidence must accompany the motion. In such cases this court will only review judgments rendered on the petition to modify or set aside, presented either by direct exceptions, or exceptions to the order overruling a motion for new trial on the petition to modify or set aside.
From an examination of the record, in the light of the foregoing rules, it appears that there is an absence of any motion to modify or set aside the verdict or judgment, or of any judgment based on such a motion. While the motion for new trial, which was filed March 4, 1950, more than a year and a half after the verdict and judgment, recites "motion to modify as amended overruled on February 27, 1950," yet there is nothing in the record to show what, if any, grounds were specified in the motion. Whether the motion was good or bad, we do not know. The reference is made to a motion to "modify," but how and in what manner it was sought to be modified, we can not tell. The motion for new trial seeks to "set aside" the verdict, and therefore we cannot construe the record as meaning that the grounds set forth in the motion to "modify" the judgment were the same as the grounds contained in the motion for new trial which sought to set aside the verdict. Where a divorce has been granted and a motion to modify has been filed and denied, the judgment subject to review here is the judgment on the motion to modify, whether attacked by direct bill of exceptions or by motion for new trial; and where, as here, the motion to modify on which a new trial is sought is not brought up as part of the record, this court has no basis upon which it could determine that the trial judge erred. The burden is on the party alleging that a judgment is erroneous to show it affirmatively by the record. Richter v. Cann, 191 Ga. 103 ( 11 S.E.2d 774), and citations.
Judgment affirmed. All the Justices concur, except Atkinson, P.J., who concurs specially.
I think that the writ of error should be dismissed, not by reason of the rules of procedure for the review of divorce verdicts as stated in the opinion, but because, there having been a defense filed and a trial had on the issues in the divorce and alimony suit, the losing party should have filed a motion for new trial during the term, and not a motion to set aside.