A Georgia judge does not have to instruct the jury on condonation unless the pleadings or the evidence demand it.
The Rule
Day v. Day, 210 Ga. 454 (1954), states it: “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.”
Two things in that sentence are worth pulling out. First, either source will do – the pleadings or the evidence. Second, if you want the charge and the case does not demand it, you have to ask, and the request must be timely and in writing.
An Example
In Adams v. Adams, 213 Ga. 875 (1958), a husband was granted a divorce on the ground of cruel treatment. His wife complained on appeal that the trial court failed to charge on voluntary condonation and cohabitation even though nobody had requested it.
The Georgia Supreme Court affirmed. Her answer had denied the cruelty rather than pleading condonation. And the evidence pointed the other way: the husband testified that after five or six earlier separations he had gone back each time on the condition that there be no more violence or temper tantrums, and that the mistreatment continued and grew worse until the final break. “Where, as here, neither the pleadings nor the evidence demands a charge on condonation, it is not error to fail to charge on that question.”
What to Take From It
If condonation is your defense, plead it and put up evidence of it. The judge will not build it for you out of nothing.
Contact Us
This post is a quick overview of the law and is not intended as legal advice. Please feel free to contact our office for a consultation if you have questions about this or any other legal aspects regarding your case!