Barnett v. Barnett

• Decision Date: 17 January 1941
• Docket Number: 13453.
• Citation: 13 S.E.2d 19,191 Ga. 501
• Parties: BARNETT v. BARNETT.
• Court: Georgia Supreme Court

13 S.E.2d 19

191 Ga. 501

BARNETT v. BARNETT.

No. 13453.

Supreme Court of Georgia

January 17, 1941

Virlyn B. Moore, Jr., of Atlanta, for plaintiff in error.

Howard Tiller & Howard and J. V. Malcolm, Jr., all of Atlanta for defendant in error.

Syllabus Opinion by the Court.

BELL Justice.

1. Where a woman having a living husband enters into a ceremonial marriage with another man, such purported second marriage is void, and the woman cannot recover alimony from the man whom she claims as her husband in virtue thereof. Collins v. Collins, 165 Ga. 198, 140 S.E. 501.

2. Where a decree of divorce is obtained in another State on service by publication, and there is no appearance or response by the defendant, such decree is not binding on the courts of this State under the full-faith-and-credit clause of the United States constitution. Article 4,§ 1. If such decree is based on false representation as to residence of the plaintiff in such State for the period of time required by the statutes thereof as a condition to the maintenance of the action, the decree or judgment is subject to collateral attack in the courts of this State, on the ground of fraud in its procurement. Joyner v. Joyner, 131 Ga. 217, 62 S.E. 182, 18 L.R.A.,N.S., 647, 127 Am.St.Rep. 220; Matthews v. Matthews, 139 Ga. 123, 76 S.E. 855; Adams v. Adams, 191 Ga. 537, 13 S.E.2d 173.

3. On the hearing of the instant application for temporary alimony and attorney's fees, it appeared conclusively and as a matter of law from the evidence that before the ceremonial marriage between the plaintiff and the defendant, the plaintiff had been lawfully married to another man, from whom she had obtained a purported decree of divorce in the State of Tennessee, but that under the law of that State the applicant for a divorce must have been a resident of the State for two years next preceding the filing of the suit that this provision of the law of Tennessee was not complied with by the plaintiff; that such action for divorce was based on service by publication; and that there was no appearance or response by the defendant in such proceeding. Held, that in the circumstances the Tennessee decree of divorce appeared to be void, and that, because the plaintiff thus had a living husband at the time of her alleged marriage to the defendant, no valid marital relation arose between them, and alimony was not recoverable. See Durden v. Durden, 184 Ga. 421, 191 S.E. 455; Drake v. Drake, 187 Ga. 423, 429-432, 1 S.E.2d 573; Dyal v. Dyal, 187 Ga. 600, 1 S.E.2d 660; Jones v. Jones, 181 Ga. 747, 184 S.E. 271.

4. If Chapman v. Chapman, 162 Ga. 358, 133 S.E. 875 should be construed as holding that, although it might appear on such interlocutory hearing that the...