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HIRSCH v. HIRSCH.
25812.
Divorce; alimony. Fulton Superior Court. Before Judge McKenzie.
NICHOLS, Justice.
Enumerations of error requiring a consideration of the evidence adduced upon the trial of a case cannot be ruled upon where the appellant excludes from the record to be transmitted to this court depositions filed in the trial court and received as evidence upon the trial.
Anne Newport Hirsch filed a petition seeking a divorce from Marshall H. Hirsch in which she alleged that she was without property or income and not capable of working to support herself or her children. The case was heard by the trial court without the intervention of a jury and a decree granting a divorce rendered giving the husband custody of the two minor children and awarding alimony to plaintiff. A motion for new trial was filed by the plaintiff in which she sought to set aside so much of the decree as dealt with alimony upon the ground that it was insufficient. The sole questions raised by the plaintiff's enumerations of error in this court deal with the sufficiency of the alimony granted the plaintiff.
During the trial of the case numerous depositions were offered in evidence. These depositions had been presented to the trial judge for consideration before the trial and those that he had not already agreed to read before rendering a decree. While not included in the transcript they were introduced and apparently filed as paint of the record. When the wife filed her notice of appeal she expressly excluded from the record to be transmitted to this court "all depositions filed." While a review of the transcript and documentary evidence transmitted to this court may authorize a judgment affirming the judgment of the trial court, yet without such depositions it would he impossible to rule as a matter of law, as contended by the wife, that the evidence demanded a larger award of alimony. Accordingly, the transcript of evidence before this court is incomplete. Under the decisions of this court exemplified by Steadham v. State of Ga., 224 Ga. 78, 80 (159 SE2d 397), the failure to specify the transcript of evidence for transmittal to this court will result in those enumerations of error requiring a consideration of the evidence not being considered. The exclusion of a material part of the evidence necessary to determine if the judgment complained of was supported by the evidence will result in such question not being decided. Since all enumerations of error relate to the sole question of whether the evidence authorized the amount of alimony awarded, the judgment of the trial court must be affirmed.
Lipshutz, Macey, Zusmann & Sikes, John M. Sikes, Jr., for appellee.
Westmoreland, Hall & Bryan, John L. Westmoreland, P. Joseph McGee, for appellant.
ARGUED MAY 21, 1970 -- DECIDED JUNE 9, 1970.
Friday May 22 16:49 EDT


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