22.001 Divorce (Child Support); Preliminary Instructions

22.001 Divorce (Child Support); Preliminary Instructions The following new charge is suggested for use in conjunction with the new child support guidelines, effective January 1, 2007. Please see cautionary note (at 22.000) for further information. (Read before commencement of trial) Members of the jury, the case you are about to try is styled ____________. You will be deciding whether _______________ (is/are) entitled to a divorce and issues incidental to divorce such as equitable division of property (and alimony and/or child support). Under our system, it is my duty as the trial judge to determine the law applicable to this case, and it is your duty, as the jury, to determine the facts of the case. It is also your duty to apply the law to those facts in reaching your verdict. The facts are determined by you from the evidence. The evidence consists of two things: testimony and exhibits. The testimony is that testimony which you will hear under oath from the witness(es). Exhibits are documents or photos or other items that have been admitted into evidence. You will then have those exhibits with you in the jury room for your use during your deliberations. I caution you that what the lawyers say during this trial is not evidence. Nothing they say in their opening statements or their arguments or at any time during this trial is evidence, nor is anything I might do or say evidence in this case. I have no leanings in this case whatsoever. (At the beginning of the trial, you will also be given various forms such as financial affidavits and child support calculation schedules of either or both parties. I further instruct you that these forms are not evidence but are the contentions of the parties in the format required by law. These forms are not to be considered by you as evidence until and unless and to the extent that they are supported by admissible evidence, such as by testimony or by other admitted exhibits (or unless the figures of both parties coincide, which you may regard as a stipulation of fact). (You will later be required to fill out similar blank forms that will be used to calculate child support.) My interest in this case is to see that the case is tried fairly as to both parties and to see that it is tried according to the laws of the State of Georgia and according to the constitutions of this state and of the United States. (Refer to the following charges from General Civil Instructions.) 00.030 Parties (Optional) In a "divorce" case such as this, each party has a claim against the other. Each party, therefore has the burden of proving entitlement to that which he/she seeks. Each party must prove his/her respective case by what is known as a "preponderance of the evidence." The term "preponderance" means "greater weight," and as it is used here, "preponderance of the evidence" means "the greater weight of evidence upon the issues involved." The weight of evidence need not be enough to completely free the mind from a reasonable doubt. But, to be a preponderance, the weight of the evidence must be sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other. If you find that the evidence is evenly balanced on any issue in the case, it would then be your duty to resolve that issue against the party having the burden of proving that issue. 00.050 Credibility of Witnesses 00.060 Conflicts in Evidence 00.070 Rules of Evidence The procedure used in a divorce trial is generally as follows: First, the attorneys for both sides have the opportunity to make what is called the "opening statement" to you. This opening statement is not evidence itself. Remember that what the lawyers say is not evidence, but it is a preview or an outline of what they expect the evidence to show. Following the opening statements, one party presents evidence; that is, one party calls witnesses and introduces any exhibits. The other party has the right to crossexamine these witnesses. When the first party has presented all his/her evidence, that party will rest his/her case. The other party then has the opportunity to present his/her case, which means that the other party then calls witnesses and introduces exhibits. The first party has the right to cross-examine the second party's witnesses. After the presentation of all the evidence, the attorneys have the opportunity to make what is called a "closing argument" or a "summation" to you. At this time, the attorneys will attempt to point out to you certain parts of the evidence that they think are favorable to their position and try to persuade you to decide the case in their favor. Both sides have the opportunity to make this closing argument. Following the closing arguments, I will charge you more specifically on the law directly applicable to this case. I will then ask you to retire to the jury room to deliberate and reach your verdict as to issue(s) of equitable division (and alimony) only. (You will decide child support in a second phase of trial.) Please remember during the course of this trial to listen carefully to all the evidence. Do not jump to conclusions before all the evidence is presented. Also, please remember that during the course of this trial, it would be improper for you to discuss this case with anyone or to allow anyone to discuss the case with you or in your presence or hearing. You cannot discuss the case with each other in the jury room or elsewhere before actual deliberations begin, and then only in the presence of all 12 of you. (After you have returned your verdict for the first issues, I will charge you further on the law pertaining to child support). 00.090 Note Taking by Jurors (Give the following as appropriate.) (Each of you will be given blank schedules on which to take notes as to each category of income, expense, and the like in order to later facilitate calculating and determining child support. During the trial, you are not to compare, consolidate, or compile these figures with your fellow jurors: that would be deliberation. You may not deliberate until the case is finally given to you for decision in the second, child support phase of the trial. Please remember, when you do discuss these figures that your notes and those of your fellow jurors are not evidence and are just a guide in helping you remember the evidence at trial.) (Note: Instructions are to be given at conclusion of trial or conclusion of first phase when child support is in issue.)