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Divorce, etc. Gilmer Superior Court. Before Judge Burtz.
DUCKWORTH, Chief Justice.
1. Code 38-1703 requires only that when sequestration is ordered, witnesses of the other party must testify out of the hearing of each other. Where, as here, the defendant's witness who remained in the courtroom was called and testified for the defendant as his first witness out of the hearing of defendant's other witnesses and without hearing those witnesses testify, the statute was not violated.
2. While the charge that the jury should consider whether the wife was blameless, or the husband's misconduct was gross, was expressly confined to fixing the amount of alimony, and since no alimony was awarded, it could not have been hurtful in fixing the amount of alimony, yet, the charge was improper on the question of fixing the amount and might easily have been considered by the jury on whether or not to grant a divorce or award alimony, and consequently it requires a reversal of the judgment overruling the motion for new trial.
3. Since both the pleadings and the evidence show repeated separations and reconciliations with promises not to repeat the conduct which caused the separation, and then breaches of such promises, and the judge charged that the jury should consider the misconduct unless condoned, it was error to fail to define condonation.
4. The variation of language used by the court in charging on removal of disabilities was not harmful to either party, particularly since the jury did not have this issue for consideration.
5. The verdict is authorized by the evidence.
This is a divorce, alimony and custody of minor children case. The plaintiff's grounds for divorce are physical and mental cruelty and habitual intoxication. She alleges in her petition several separations, reconciliations and broken promises thereafter which have resulted in the final separation. She also prays for alimony and custody of their minor children. The defendant filed an answer and cross petition, denying the allegations as to misconduct and alleging several separations, reconciliations and desertions without cause, with promises by the plaintiff to return and cease nagging, quarreling and using offensive language, all of which have been repeatedly broken resulting in such mental cruelty to him that he is entitled to a divorce on this ground. He also seeks custody of their minor children. After a trial, the jury returned a verdict in favor of the defendant awarding him a divorce, and alimony of $60 per month for the support of each child but awarded none for the wife. The final decree granted custody of the 14 year old son to the father who elected to stay with the father and the other minor child to the mother, awarding her $60 per month for the support of this child. A motion for new trial was filed and later amended, heard and overruled. The exception is to that judgment.
1. "In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude the witness. " (Italics ours). Code 38-1703. This is a right conferred by statute, and its denial is presumptively injurious, unless the contrary appears. Poultryland, Inc. v. Anderson, 200 Ga. 549 (37 SE2d 785); Montos v. State, 212 Ga. 764 (95 SE2d 792). But if a witness has not complied with the court's order of sequestration he is not thereby rendered incompetent and it is error to refuse to allow him to testify when offered, notwithstanding such violation of the court's order. McCartney v. McCartney, 217 Ga. 200 (121 SE 785); Shelton v. State, 220 Ga. 610 (140 SE2d 839). In the latter case, Bird v. State, 50 Ga. 585, and all other cases holding to the contrary were expressly overruled. To the extent that such cases ruled that counsel had waived the right to use such witnesses they were not overruled.
But the facts indisputably show in this case that the witness, Frank Hall, remained in the courtroom while plaintiff's witnesses were examined, despite the ruling to sequester; however, he was used as the defendant's first witness and his testimony was not within the hearing of defendant's other witnesses, none of whom heard his testimony. These facts show no violation of the statute which requires only that witnesses of the other party be examined out of the hearing of each other. Talley v. State, 2 Ga. App. 395 (58 SE 667); Tift v. Jones, 52 Ga. 538. Therefore, argument of counsel that this witness had heard the testimony of the plaintiff is entirely irrelevant and shows no violation of the statute. Blitch-Everett Co. v. Jackson, 29 Ga. App. 440 (116 SE 47); Chedel v. Mooney, 158 Ga. 297 (123 SE 300). There is no merit in this amended ground of the motion for new trial.
2. While the excerpt from the charge complained of is expressly an instruction as to the matters the jury should consider in fixing the amount of alimony, and since no alimony was allowed the wife, if it was not prejudicial to the wife on the question of allowing alimony at all, it was harmless even if error. In the first place, once a decision to award alimony is reached, the question of the innocence or extent of guilt or wrong are irrelevant in fixing the amount of alimony. Code 30-209. Shepherd v. Shepherd, 201 Ga. 525 (40 SE2d 382). Such matters are proper considerations in deciding whether to grant or deny alimony, but not in fixing its amount. The amount of temporary alimony is determined by the respective wealth and earning capacity of the parties, and the standard of living which was provided for the wife before the separation. Code 30-203. By the very capable assistance of able counsel we are enabled to determine that the charge was restricted to fixing the amount of alimony, but as stated, it was error for that purpose, and since it fixed a double standard of conduct whereby the wife must be blameless, and the husband's misconduct must be gross, it was confusing and very well might have caused the jury to fix these different standards in deciding whether to grant her a divorce or to award any alimony or not. This court cannot approve the charge, and its probable injury to the wife requires the grant of a new trial.
3. Since the pleadings and the evidence show repeated separations and reconciliations, after promises not to repeat the misconduct, and then a breach of such promises, and the court charged that all such conduct could be considered unless condoned, the special ground complaining of the failure to charge a definition of condonation is meritorious, and since the question of whether or not there was condonation became a material issue in the case it was error to overrule the same. Code 30-109. Odom v. Odom, 36 Ga. 286 (5); Ozmore v. Ozmore, 41 Ga. 46; Harn v. Harn, 155 Ga. 502 (117 SE 383); Stanley v. Stanley, 178 Ga. 814 (174 SE 531); Bruce. v. Bruce, 195 Ga. 868 (25 SE2d 654); Brewer v. Brewer, 205 Ga. 759 (1) (55 SE2d 147); Moon v. Moon, 216 Ga. 627 (3), 630 (118 SE2d 473).
5. There was evidence to support the verdict and the general grounds of the motion for new trial are without merit. But for the reasons stated in Divisions 2 and 3 the judgment is
Reversed. All the Justices concur.
Herman J. Spence, contra.
John W. Stokes, for plaintiff in error.
Friday May 22 20:56 EDT

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