In all cases where the husband is granted a divorce on the ground of cruel treatment it is for the jury to say whether or not they will grant alimony to the wife. Lowry v. Lowry, 170 Ga. 349, 351 ( 153 S.E. 11, 70 ALR 488); Crenshaw v. Crenshaw, 197 Ga. 767 (2) ( 30 S.E.2d 480); Corr v. Corr, 213 Ga. 699, 701 ( 100 S.E.2d 922); Shivers v. Shivers, 215 Ga. 536, 539 ( 111 S.E.2d 376). The extracts from the charge herein assigned as error were not in accord with the decisions of this court, and were erroneous.
Where the divorce is granted to the husband, the jury must decide in its discretion whether to award alimony to the wife. Thus the conduct of both of the parties may be considered by the jury ( Phillips v. Phillips, 231 Ga. 596 ( 203 S.E.2d 189) (1974); Corr v. Corr, 213 Ga. 699 ( 100 S.E.2d 922) (1957); Carawan v. Carawan, 203 Ga. 325 ( 46 S.E.2d 588) (1948); Crenshaw v. Crenshaw, 197 Ga. 767 ( 30 S.E.2d 480) (1944)), and the wife has no standing to complain about the amount she is awarded ( Phillips v. Phillips, supra; Crenshaw v. Crenshaw, supra). If, however, the jury finds the wife has caused the divorce by her adultery, or by wilfully deserting her husband, and grants him the divorce, any alimony award to her is barred.
When the verdict in a divorce case alleging these grounds is in favor of the husband, the wife has no standing to complain that the alimony awarded her is not proportionate to her needs and the husband's ability to pay since she is not entitled to alimony as a matter of course in that situation. Wells v. Wells, 226 Ga. 282 ( 174 S.E.2d 407); Singleton v. Singleton, 202 Ga. 269 ( 42 S.E.2d 737); Alford v. Alford, 189 Ga. 630 ( 7 S.E.2d 278); Crenshaw v. Crenshaw, 197 Ga. 767 ( 30 S.E.2d 480). 2.
"Under the statutes of this State, when a husband obtains a divorce from his wife upon the ground of cruel treatment, it is for the jury to say whether they will allow the divorced wife permanent alimony." Lowry v. Lowry, 170 Ga. 349, 351 ( 153 S.E. 11, 70 A.L.R. 488); Crenshaw v. Crenshaw, 197 Ga. 767 (2) ( 30 S.E.2d 480); Corr v. Corr, 213 Ga. 699, 701 ( 100 S.E.2d 922). The charge given restricted the right of the wife to alimony to a verdict solely in her favor, and was error. 5.
"`Under the statutes of this State, when a husband obtains a divorce from his wife upon the ground of cruel treatment, it is for the jury to say whether they will allow the divorced wife permanent alimony.' Lowry v. Lowry, 170 Ga. 349, 351 ( 153 S.E. 11, 70 A.L.R. 488); Alford v. Alford, 189 Ga. 630 (3) ( 7 S.E.2d 278); Brock v. Brock, 183 Ga. 860 ( 190 S.E. 30)." Crenshaw v. Crenshaw, 197 Ga. 767, 768 ( 30 S.E.2d 480). The trial court did not err in denying the motion to vacate and set aside the award of permanent alimony to the wife.
Since the divorce granted in the Carawan case was on the husband's charge of cruel treatment by the wife (under the ruling of this court), the jury was not required to grant the wife any amount as alimony, but might do so under their discretionary powers. Crenshaw v. Crenshaw, 197 Ga. 767, 768 (2) ( 30 S.E.2d 480). While the verdict in the Carawan case, as construed, was for the husband, and in effect meant that the wife had been guilty of cruel treatment, it was still within the discretion of the jury whether or not they would allow the wife any amount as alimony, and the conduct of the parties was germane on the issue as to whether or not any alimony would be allowed. The quotation in Smith v. Smith, 167 Ga. 98 ( 145 S.E. 63), appearing at page 108, from 19 C. J. 256, ยง 594, which is to the effect that the greater the wrongs inflicted on the wife by the husband, the more liberal the award of alimony should be, does not state the rule applicable in this State. The quotation referred to in the Smith case (which decision was by a divided bench) has not been followed in Georgia, and is not authority for a ruling by this court in the present case that the amount of alimony to be allowed the wife should have been determined on the basis of the wrongs inflicted by the husband.
Mr. Charles E. Hedgepath, of Columbia, and GraceWilkey Thomas, of Atlanta, Georgia, for Appellant, cite: As to the South Carolina Court's erring by not holding theKansas decree void: Title 50 appendix, Sec. 520 U.S. Code, Soldiers Sailors Relief Act; 132 S.C. 288, 128 S.E. 705; 125 S.C. 89, 118 S.E. 178; K.S.A. 60-1604 (d) states Service of Process (in Divorce); Article 3 in K.S.A. 60-307(a) (1); K.S.A. 60-307(b); K.S.A. 60-308; U.S. Constitution Art. IV, Sec. 1; 227 F.2d 624, aff'd. 352 U.S. 202; 319 U.S. 561; 197 Ga. 227, 28 S.E.2d 752; 207 Ga. 588, 63 S.E.2d 366; 197 Ga. 767, 30 S.E.2d 480; 179 Ga. 34, 35, 175 S.E. 9. As to theTrial Judge's erring in making an award of attorney's feesand support payments: 216 S.C. 451, 58 S.E.2d 731; 254 S.C. 498, 176 S.E.2d 156; 257 S.C. 354, 185 S.E.2d 895; 24 Am. Jur.2d Divorce and Separation, Sections 587, 588; 253 S.C. 486, 171 S.E.2d 705. As to error to require the Appellant to post a bond a conditionof permitting visitation with his minor children andin imposing travel restrictions on them: Section 20-115, Code of Laws of South Carolina, 1962; 182 S.E.2d 755 at 758. As to error to refuse to hear the issue of custody: Section 20-115, Code of Laws of South Carolina, 1962; 246 S.C. 332, 143 S.E.2d 619; 243 S.C. 377, 134 S.E.2d 216; 247 S.C. 378, 147 S.E.2d 638.
Apparently, therefore, it was not an independent suit in equity, as suggested, but was a motion to set aside a judgment based on matters not appearing on the face of the record, and was thus in substance and effect a motion for a new trial. In this view, the proceeding was fatally defective for the additional reasons: (a) It was not accompanied by a brief of evidence ( Fireman's Insurance Co. v. Oliver, 176 Ga. 80, 167 S.E. 99; Lucas v. Lucas, 179 Ga. 821, 177 S.E. 684; Lovelace v. Lovelace, 179 Ga. 822 (1 c), 177 S.E. 685); (b) it was not filed during the term at which the final verdict was rendered, as an ordinary motion for new trial, and did not show grounds for filing at a subsequent term as an extraordinary motion (Code, ยงยง 70-301, 70-303); and (c) it appeared from an inspection of the record in the same cause, that is, the divorce case ( Crenshaw v. Crenshaw, 197 Ga. 767, 30 S.E.2d 480), that a previous motion for new trial based on the same grounds had been made and overruled, thus barring the present or second motion upon such grounds. Wimpy v. Gaskill, 76 Ga. 41 (5); Leathers v. Leathers, supra; Sumner v. Sumner, supra; Ellis v. First National Bank of Atlanta, 182 Ga. 641 (2) ( 186 S.E. 813); Manry v. Stephens, 190 Ga. 305 ( 9 S.E.2d 58).