Opinion
18497.
SUBMITTED FEBRUARY 9, 1954.
DECIDED MARCH 9, 1954.
Divorce, etc. Before Judge Vaughn. DeKalb Superior Court. November 27, 1953.
W. Harvey Armistead, for plaintiff in error.
James R. Venable, contra.
1. A motion to set aside a verdict and decree on the ground that they were entered in consequence of perjury will not be granted unless it appears that the person charged therewith has been duly convicted of the offense of perjury, and that the verdict and decree were based on such testimony alone.
2. Where a wife filed a petition for divorce upon grounds of continual cruel treatment, evidence that her husband's conduct grew worse until they separated, when it became unbearable, did not show condonation, for the reason that the continuity of such conduct is what constitutes cruel treatment.
3. Neither the pleadings nor the evidence showing condonation as a matter of law, the trial court, in the absence of a timely written request therefor, did not err in failing to charge the jury on that question.
4. Evidence discovered after the trial which, by using due diligence, might have been discovered before, will not authorize the modification or setting aside of a verdict and decree granting a divorce and awarding permanent alimony.
5. The verdict awarding the wife permanent alimony of $75 a month was not excessive.
6. The evidence, though conflicting, was sufficient to support the verdict, and the trial court did not err in denying the husband's motion to set aside the verdict and decree.
SUBMITTED FEBRUARY 9, 1954 — DECIDED MARCH 9, 1954.
Lillie Jardine Day filed her action for divorce on grounds of cruel treatment, against James Hubert Day, in DeKalb Superior Court, and prayed for a divorce, permanent alimony, and attorney's fees.
Upon the trial both sides introduced evidence, and the jury returned a verdict granting a total divorce between the parties, and awarding the wife permanent alimony of $75 per month, together with a described house and lot in Decatur, Georgia, household furnishings, and a 1940 Ford automobile. The real property and the automobile were awarded to the wife subject to payments to be made by her of the balance due on said property.
Within thirty days of the divorce decree, the husband made a motion to modify or set aside the verdict and decree on the following grounds, as amended: (1) the wife perjured herself in testifying in reference to certain alleged acts of cruel treatment on the part of her husband; (2) the acts of cruel treatment relied on for a divorce were alleged to have occurred several years prior to the separation between the husband and wife and, even if true, the incidents had been condoned by the wife; (3) the court, having charged the jury to the effect that they would be authorized to find for the wife if the acts of cruel treatment as alleged were committed by the husband upon the wife, erred in failing to charge on the question of condonation; (4) if the husband should be given another opportunity to try the case before another jury, he could produce witnesses to disprove all of the alleged acts of cruel treatment relied on by the wife; (5) the jury having awarded to the wife the house and lot, and the take-home pay of the husband being less than $200 per month, the monthly award of $75 as permanent alimony was excessive; (6) the verdict was contrary to the evidence, and contrary to law and the principles of justice and equity.
General and special grounds of demurrer, interposed by the wife to the motion to set aside, were overruled.
The trial court overruled the husband's motion to modify or set aside the verdict and decree, and the exception is to that judgment. Other facts will appear in the opinion.
1. "A petition asking that a verdict and decree be set aside because rendered on the perjured testimony of a named witness does not set forth a cause of action for that reason, where the petition also fails to allege that the witness has been duly convicted of . . . perjury with respect to such testimony, and that the verdict and decree were based on that testimony alone." Hubbard v. Whatley, 200 Ga. 751, 757 ( 38 S.E.2d 738); Armstrong v. Armstrong, 206 Ga. 540 (2) ( 57 S.E.2d 668); Code § 110-706. The ground of the husband's motion to set aside the verdict and decree, because the wife perjured herself, is without merit for the reason that it fails to allege or show that the wife had been convicted of perjury.
2. "Condonation is forgiveness, either express or implied, by the husband of his wife, or by the wife of her husband, for some breach of marital duty, with an implied condition that the offense will not be repeated. A petition for divorce by the husband which alleges in effect that his wife's conduct during the entire time he lived with her was persistently quarrelsome and nagging, and that this grew worse from day to day and year to year until they separated when it became unbearable, does not show condonation. The continuity of such conduct is what makes it cruel treatment within the meaning of our law." Morris v. Morris, 202 Ga. 431 (2) ( 43 S.E.2d 639). And "Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant." Brewer v. Brewer, 205 Ga. 759 (1) ( 55 S.E.2d 147). Applying the above-stated principles to the facts of the present case, evidence that the alleged cruel treatment on the part of the husband grew steadily worse until it became unbearable, and that the separation took place because of such continuing treatment, did not show condonation as a matter of law.
3. "The failure to give instructions to the jury not demanded by the evidence will, in the absence of a written request to so charge, in no event be cause for a new trial." Cooper v. Nisbet, 119 Ga. 752 (3) ( 47 S.E. 173); Jenkins v. Philips, 182 Ga. 477 (3) ( 185 S.E. 812). Where, as here, there were neither pleadings nor evidence to demand a charge on condonation, it was not error in the absence of a timely written request to fail to charge on that question.
4. "Evidence discovered after the trial which, by using due diligence, might have been discovered before, will not authorize the granting of a new trial." Taylor v. Perdue, 206 Ga. 763 (2) ( 58 S.E.2d 902). Accordingly, in the absence of any reason why the witnesses were not produced at the former trial, the husband's motion to set aside the verdict and decree, on the ground that, if given another opportunity to try the case before another jury, he could produce witnesses to disprove all of the alleged acts of cruel treatment, is without merit.
5. The jury is allowed a wide latitude in determining the amount of permanent alimony to be awarded. Jeffrey v. Jeffrey, 206 Ga. 41 (1) ( 55 S.E.2d 566). And where, as here, the husband testifies that his take-home pay was $229 a month, that he frequently earned $5 a week in addition to his salary, that he drew $2,169 out of the bank the morning the divorce suit was filed, and where there was evidence that the wife, who was physically unable to work every week-end, earned $15.56 a week when she was able to work as a food demonstrator, this court will not hold that the verdict of $75 per month is, as a matter of law, excessive.
6. The evidence, though conflicting on the question of whether the husband committed the alleged acts of cruel treatment, was sufficient to support the verdict and decree granting a total divorce between the parties and awarding permanent alimony to the wife; and the trial court did not err in denying the husband's motion to set aside the verdict and decree.
Judgment affirmed. All the Justices concur.