Born v. Born
| Decision Date | 10 February 1958 |
| Docket Number | No. 19957,19957 |
| Parties | Jacqueline C. BORN v. Anthony Joseph BORN. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where, pending the husband's suit for a divorce, he offers a reconciliation and a resumption of their marital relations and the wife refuses the offer, the questions of good faith on the part of the husband in making the offer and whether the refusal of the wife to resume marital relations was justified or not under the circumstances and the period of time when the desertion began, are all for the determination of the jury and cannot be resolved on demurrer.
2. The allegations in the petition were sufficient to allege a cause of action for divorce on the ground of desertion, and it was not error to overrule the defendant's general demurrer.
Paul Webb, Jr., Bertram S. Boley, Atlanta, for plaintiff in error.
Troutman, Sams, Schroder & Lockerman, Tench C. Coxe, Harold C. McKenzie, Atlanta, for defendant in error.
The judgment under review is one overruling a general demurrer to a petition for divorce on the ground of desertion.
Anthony J. Born alleged in his petition that he was a resident of this State and that, while on duty overseas as a member of the United States Air Force, he married the defendant, Jacqueline C. Born, in Marrakech, French Morocco, in June, 1953. In October, 1955, he filed suit for divorce in the French Tribunal in Marrakech on the gruond of adultery. At a hearing before the French Tribunal on January 6, 1956, in response to his offer of reconciliation, the defendant formally announced that she refused to return with the plaintiff and live with him in the United States. At the end of his overseas duties, the petitioner returned to the United States in February, 1956, and thereafter returned to French Morocco in July, 1956, in search of the defendant and their minor child; and being unable to locate them he withdrew his suit for divorce since the sole purpose of the suit was to gain custody of his child. Petitioner further alleged that, although he has written the defendant several letters beginning in February, 1956, 'telling her he will forgive her if she will return to him, she has remained steadfast in her refusal to join petitioner in the United States; and such conduct on her part constitutes wilful, continous desertion of petitioner for a period of some fourteen months.'
1. It is asserted by counsel for the wife that the petition on its face shows that the alleged desertion on the part of the defendant was not continuous for a period of twelve months, in that the pending suit by the husband for a divorce in the French court constituted consent on the part of the husband for the parties to live separate and apart, and no part of the parties' separation pending the action in the French court may be computed as a part of the twelve-month period required under Code, § 30-102(7) before a suit for divorce on the ground of desertion can be filed in this State. I support of her contention that no part of the period of separation which is the legitimate, actual and direct cause of a pending divorce proceeding can be reckoned as any portion of the period of twelve months which must fully expire before an action for divorce on the ground of desertion can be commenced, the defendant cites many authorities from jurisdictions other than this State, such as Craskin v. Craskin, 288 Mass. 56, 192 N.E. 314, and Jacobs v. Jacobs, 100 N.J.Eq. 482, 135 A. 792.
This precise question has never been passed upon by this court. In Cagle v. Cagle, 193 Ga. 34, 17 S.E.2d 75, desertion, within the meaning of our statute, is defined as 'the voluntary separtion of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other.' (Italics ours.) A separation by mutual consent of the parties does not constitute desertion, and a libel for divorce by the husband on grounds other then desertion is equivalent to a separation by consent. Ford v. Ford, 143 Mass. 577, 10 N.E. 474. If the husband requests a resumption of the marital relation and a reconciliation in good faith, the refusal of the wife to resume cohabitation without justification or reasonable excuse manifests an intent to stay away and may constitute desertion on her part. Tipton v. Tipton, 169 Iowa 182, 151 N.W. 90; Power v. Power, 66 N.J.Eq. 320, 58 A. 192; Ringgold v. Ringgold, 128 Va. 485, 104 S.E. 836, 12 A.L.R. 1383; Vanderburgh v. Vanderburgh, 152 Minn. 189, 188 N.W. 276; and the annotation in 34 A.L.R.2d 964. The offer of reconciliation must be absolute and complete and show clearly that the party making the offer is willing to return and...
To continue reading
Request your trial
-
Von Greiff v. Jones-Von Greiff (In re Von Greiff)
...a divorce at the time of her husband's death. In re Quinn's Estate , 243 Iowa 1271, 55 N.W.2d 175 (1952).3 See also Born v. Born , 213 Ga. 830, 831, 102 S.E.2d 170 (1958) ("A separation by mutual consent of the parties does not constitute desertion, and a libel for divorce by the husband on......
-
Reagan v. Reagan
...to resume marital relations and that appellee had refused to do so, the verdict would be proper under the ruling in Born v. Born, 213 Ga. 830(1), 102 S.E.2d 170 that 'the questions of good faith on the part of the husband in making the offer and whether the refusal of the wife to resume mar......
-
Ivey v. Ivey, 29093
...bona fide effort to get his wife to return to his home and he testified that his hime was continuously open to her. In Born v. Born, 213 Ga. 830, 832, 102 S.E.2d 170, 172 on a divorce petition alleging adultery this court said: '. . . while the husband's suit was pending in the French court......