Barber v. Barber , 257 Ga. 488 ( 1987 )

Gregory, Justice.

Appellant Charlene A. Barber filed a divorce action against appellee Ronald L. Barber. Following a jury trial in which issues of alimony, child support and equitable division of property were litigated, we granted appellant’s application to appeal, OCGA § 5-6-35 (a) (2).

1. Appellant complains that the trial court erred in sequestering her during the testimony of her witnesses. The record shows that after appellee moved for sequestration of the appellant, the trial court offered the appellant the option of testifying first and remaining in the courtroom during the testimony of her witnesses, or remaining outside the courtroom until such time as she chose to testify. Appellant’s attorney stated that he had “other witnesses [he] felt obligated to accommodate” and that it would be “inconvenient” to have appellant testify first. Appellant remained outside the courtroom until such time as she elected to testify.

It has been generally held that the rule of sequestration, OCGA § 24-9-61, does not apply to a party to the case. Ga. R. Co. v. Tice, 124 Ga. 459 (52 SE 916) (1905); Ross v. Rich’s, 129 Ga. App. 716 (201 SE2d 159) (1973). However, the cases also recognize that where the plaintiff elects to call his own witnesses before testifying himself, the trial court has a broad discretion to require either that the plaintiff testify prior to presenting the testimony of his witnesses, Tift v. Jones, 52 Ga. 538, 542-3 (1874); Boutelle v. White, 40 Ga. App. 415 (149 SE 805) (1929), or that the plaintiff be excluded from the courtroom prior to the time he chooses to testify. Ross v. Rich’s, supra; Davis v. Atlanta Coca-Cola Bottling Co., 119 Ga. App. 422 (167 SE2d 231) (1969); King v. Faries, 120 Ga. App. 393 (170 SE2d 747) (1969); Purvis v. Tatum, 131 Ga. App. 116 (205 SE2d 75) (1974).

We hold that under the circumstances of this case the trial court did not abuse its discretion in offering the appellant the option of testifying first or remaining outside the courtroom until she chose to testify. Further, we find that appellant has not demonstrated that she was harmed by not being in the courtroom during the presentation of her witnesses. See Sun v. Bush, 179 Ga. App. 80 (5) (345 SE2d 85) (1986).

2. The issue of child custody had not been resolved by the trial court by the conclusion of the evidence. Appellant argues the trial court erred in failing to provide the jury with alternate verdict forms as required by Curtis v. Curtis, 255 Ga. 288 ( 336 SE2d 770) (1985). In that case we held that where the issue of child custody is unresolved at the end of the evidence, or where the trial court does not wish to inform the jury of its decision as to child custody, alternate verdict forms, stating the amount of child support to be paid in the event either parent is awarded custody, should be provided to the jury. It is conceded alternate forms were not provided in this case. We find, however, that any error in failing to provide alternate verdict forms is rendered harmless by the jury’s verdict that “In the event [appellant] is awarded custody of the minor child, the [appellee] shall pay [her] the sum of $600 a month commencing June 1, 1985 . . . until the child is 18. During this period of time the [appellee] shall also pay tuition for the child . . . limited to $5,000 annually.”

3. Appellant alleges error in the trial court’s failure to charge that “Both parties in this case are seeking a division of the property accumulated during the marriage. Neither party has any greater burden of proof than does the other party as to this issue, and you would not require either party to preponderate in the evidence as to this issue.”

We hold the court correctly charged that the party claiming a right, including property division, has the burden of proof to establish that right. To hold that the burden rests equally on each party as to an issue runs the risk of neither party prevailing on that issue and the ultimate dilemma of an unresolved dispute. In this case one party claimed that property should be equitably divided according to plan A. The other party contended it should be divided according to plan B. Each had the burden to prove entitlement to equitable division according to his or her plan. If both fail to meet their separate burdens, then neither is entitled to equitable division, and their ownership of property remains as it existed before trial.

4. Appellant’s final allegation is that the trial court erred in refusing to charge the jury that “in considering the total needs and circumstances of the wife, you may also consider the needs and circumstances of her minor children who live with her in her care and custody even though these minor children are not the children of the Husband in this case.” With this we disagree.

There was evidence before the jury that appellant has a son by a former marriage, and that appellant receives no child support from the child’s natural father.

The charge requested is an incorrect statement of the law because it is not the needs of the spouse’s minor child which the jury may consider. Instead, it is the extent to which the spouse contributes to those needs which the jury may take into account in determining the amount of alimony, if any, to be awarded to the spouse. Kosikowski v. Kosikowski, 240 Ga. 381, 382 (240 SE2d 846) (1977). The requested charge would have the effect of telling the jury to look to the needs of a child for whom appellee has no responsibility and add a sum to alimony to be paid by appellee sufficient to supply those needs. But the rule of law is simply that one of the many circumstances a jury may consider in fixing alimony is an expense a spouse has for the support of another.

5. The appellee moved to dismiss this appeal under Curtis v. Curtis, 255 Ga., supra, claiming that all terms of the final judgment have been complied with, and that by accepting relief under the judgment, appellant has waived her right to complain of it. As there is nothing in the record before us to support this contention, the motion to dismiss is denied.

Judgment affirmed.

All the Justices concur, except Marshall, C. J., Smith and Bell, JJ., who dissent.