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FULLER v. FULLER.
20878.
MOBLEY, Justice.
Divorce and alimony. DeKalb Superior Court. Before Judge Hubert. January 26, 1960.
The exception is to the judgment of the Superior Court of DeKalb County denying the motion for new trial on the general and three special grounds, where the defendant in error, the wife, in a cross-action seeking divorce and alimony, was granted a divorce and awarded as permanent alimony "the home place consisting of a house and approximately 1 1/2 acres" and monthly payments for support of their minor children. The plaintiff in error abandoned the general grounds and argued only special grounds 2 and 3. Exception is also made to the allowance, over objection, of an amendment to the defendant in error's plea, answer, and cross-bill. Held:
2. The second special ground is that the following charge was erroneous: "Now, gentlemen, the defendant contends that she ought to be awarded the home place which is described in the amendment to the petition as a part of her permanent alimony. I charge you that the jury would have the right, if they saw fit to do so, to award to the defendant all of the interest that the plaintiff has in the home place or any part of it. They would have the right to leave the title to plaintiff and provide that the defendant and the minor children should have the right to the use of the home place if the jury saw fit to do so. Just whatever disposition the jury wishes to make of the title to the real estate would be solely a matter for your determination." There is no substance in the contention that there was no evidence that the property described in the amendment to the defendant in error's cross-bill was the "home place of any of the parties, as used in common parlance." It is true that the property was not referred to in the amended cross-bill as the "home place," but the evidence reveals that the parties did live on the described property, and both parties in their testimony referred to it as the "home place" or "the home, the family home," and identified it as containing eleven and one-half acres. Clearly, there is no merit in the contention that the charge was erroneous as an abstract principle of law; that the use of the terms "home place" and "minor children" constituted an opinion by the court as to what the jury should award; or, in view of the ruling in headnote 1 above, that the division of the property was not properly before the court.
Ben S. Atkins, Robert T. Efurd, contra.
J. B. McCurdy, for plaintiff in error.
SUBMITTED MAY 9, 1960 -- DECIDED JUNE 13, 1960.
Saturday May 23 00:06 EDT


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