Davis v. Davis

• Decision Date: 14 July 1910
• Citation: 68 S.E. 594,134 Ga. 804
• Parties: DAVIS v. DAVIS.
• Court: Georgia Supreme Court

68 S.E. 594

134 Ga. 804

DAVIS

v.DAVIS.

Supreme Court of Georgia.

July 14, 1910.

(Syllabus by the Court.)

1. Divorce (§§ 50, 51^*) — Condonation—Effect.

If a husband is guilty of cruel treatment toward his wife, or of adultery, and with full knowledge thereof she condones the offense and cohabits with him, and he is not guilty of any further misconduct, she cannot thereafter, at her mere will, desert him, and, if suit is brought against her for a divorce on the ground of willful and continued desertion for three years before the filing of the suit, set up the condoned acts, and thereby prevent the granting of a divorce.

(a) If after the condonation the conduct of the husband is such as to revive the condoned acts and give her a right to assert them, she is not debarred from so doing; nor is she prevented from setting up misconduct on his part after the condonation, for the consideration of the jury in determining whether a divorce should be granted.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 180-187; Dec. Dig. §§ 50, 51.*]

2. Divorce (§§ 238, 239**)—Alimony to Wife —Allowance—Question for Jury.

Under the statutes of this state (Civ. Code 1895, § 2435), although a husband may obtain a divorce from his wife on the" ground of willful and continued desertion for more than three years before the filing of the suit, it is not an inflexible rule of law that the wife shall not be allowed alimony. On the other hand, it does not follow that the divorced wife would be entitled to alimony as of course, when her conduct has been grossly improper and caused her husband to obtain a total divorce from her.

(a) Under the facts of the present case, the judge should have submitted to the jury the question of whether alimony should be allowed to the wife, if a divorce should be granted to the husband.

[Ed. Note.—For other cases, see Divorce, Cent Dig. §§ 670-683; Dec. Dig. §§ 238, 239.*]

Fish, C. J., and Atkinson, J., dissenting.

(Additional Syllabus by Editorial Staff.)

3. Divorce (§ 48*)—"Condonation."

"Condonation" has been defined to be the forgiveness, either expressed or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated.

[Ed. Note.—For other cases, see Divorce, Cent. Dig. §§ 169, 170, 184; Dec. Dig. § 48.*

For other definitions, see Words and Phrases, vol. 2, pp. 1411-1415; vol. 8, p. 7610.]

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by Hugh F. Davis against Marie A. Davis. Judgment for plaintiff, and defendant brings error. Reversed.

Oliver & Oliver, for plaintiff in error.

Robt L. Colding, for defendant in error.

LUMPKIN, J. Hugh F. Davis brought suit against his wife, Marie A. Davis, for divorce on the ground of willful and continued desertion for more than three years. She denied the allegation of the plaintiff, and, byway of cross-libel, alleged that the plaintiff had deserted her, had cruelly treated her, and had been guilty of adultery. She prayed that a divorce be granted to her, and that she have a judgment for alimony. The jury found for the plaintiff a total divorce. In the second verdict they declared: "We fix the rights and disabilities of the parties as follows: That neither of the parties be at liberty to marry again." The defendant moved for a new trial, which was denied, and she excepted.

1. "Condonation" has been defined to be the forgiveness, either express or implied, by a husband of his wife, or by a wife of her husband, for a breach of marital duty, with an implied condition that the offense shall not be repeated. Webster's Dictionary; Odom v. Odom, 36 Ga. 286. Voluntary condonation and cohabitation subsequently to the acts complained of, and with notice thereof, prevents the grant of a divorce on account of them. Civ". Code 1895, § 2429. But if the implied condition be broken, the rightto set up such wrongful acts is revived, and the innocent party is not prevented from obtaining a divorce. What character of misconduct will serve to revive the right to rely upon acts previously condoned, and whether it is necessary that such reviving acts shall be sufficient to furnish a ground for divorce, is not here involved. Ozmore v. Ozmore, 41 Ga. 46; 14 Cyc. 642. If, however, there is no breach of the condition after condonation and cohabitation, the forgiveness stands as complete and absolute. The condoning party cannot forgive the acts, and cohabit voluntarily with the forgiven one, and at the same time reserve the right to assert them as a means of obtaining a divorce, if there be no further misconduct, or as a screen to prevent a divorce being obtained on account of subsequent breaches of marital duty by such condoning party. To permit this would be to attach a different condition to condonation from that which the law attaches, and to make forgiveness such only in name. Condonation is not revocable at will.

It was argued that section 2429 of the Civil Code 1895, above cited, closes with the words: "And in all cases, the party sued may plead in defense the conduct of the party suing, and the jury may, on examination of the whole case, refuse a divorce." This statement follows certain provisions to the effect that "if the adultery, desertion, cruel treatment, or intoxication complained of shall have been occasioned by the collusion of the parties and with the intention of causing a divorce, or if the party complaining was consenting thereto, or if both parties have been guilty of like conduct, or if there has been a voluntary condonation and cohabitation subsequent to the acts complained of, and with notice thereof, then no divorce shall be granted." The last clause of the section (quoted first above) was not intended to destroy entirely the effects of the condonation, so that a person, after condoning a ground for divorce and cohabiting with the offender, could at some later period, and with no further reason, desert the person so forgiven, persist in such desertion for the statutory period, and yet prevent a divorce by reason of the condoned acts. If there were a breach of the implied condition on the part of the person whose offense had been condoned, or if there were other acts or grounds authorizing the refusal of the divorce, this could be pleaded and proved for the consideration of the jury. The charge of the court on this subject was not erroneous.

2. The court charged the jury that, if they found a total divorce for the plaintiff, they would put their verdict in a certain form, "and, in that event, you would not allow the defendant alimony." This in effect instructed the jury, as a rule of law, that, if they should find a total divorce in favor of the husband against the wife, they would allow the latter no alimony. At common law (including in that term the canon or ecclesi astical law) the ecclesiastical courts did not grant total divorces except for such cause as rendered the marriage void ab initio. This was rather an adjudication that there had never been a binding marriage than a dissolution of one originally valid. Partial divorces were granted on account of adultery and cruel treatment Prior to 1858 in England no judicial divorces dissolving the bonds of matrimony, if originally valid, were allowed. Parliament exercised that authority. In its origin alimony was the method by which the spiritual courts enforced the duty of support owed by a husband to his wife during such time as they were legally separated. It was not an incident to declaring the marriage void ab initio, since, if there were no marriage, the duty of maintenance had not been undertaken. The question of awarding alimony upon the dissolution of a valid marriage for a postnuptial cause could not therefore have been decided in England prior to the time when the common law was adopted in this state. In regard to partial divorces it has been declared that where the wife, by her fault, forfeited all claim upon her husband for necessaries or other support, and he obtained a divorce from her on that ground, she could not, after this fact had been adjudged against her, have alimony from him. Thus where a divorce was granted to a husband on account of the adultery of the wife, she was held to be entitled to no alimony. 3 Bl. Com. 94. As late as 1859, in White v. White, 24 Jurist, 28, upon the granting of a petition for a judicial separation presented by a man against his wife, on account of her violent and cruel conduct towards him, Cresswell, Judge Ordinary, held that the wife was entitled to no permanent alimony, saying that he found no precedent for granting it in such case. But in 1864, in Prichard v. Prichard, Law Times Reports, 789, Wilde, Judge Ordinary, overruled the decision in the White Case and another similar case, saying: "I am aware of the cases to which you allude, but I think if there is no precedent I ought to make one."

It has been decided by a number of courts that, in the absence of any statute, if a divorce be granted to a husband against the wife, she is not entitled to alimony. This at times worked a great hardship on the wife, especially under the common law, where the marital right of the husband attached to her property; and, while it was said to be strict justice, it was also said that it sometimes drove the wife to starvation or a life of shame. The English Parliament adopted a practice, when granting to a husband a total divorce, of requiring him to make some provision for his wife. In England, and In a number of the United States, statutes have been enacted which authorize the courts to grant alimony to wives against whom judgments of divorce are rendered, or to require some other provision to be made by the husbands, when the courts deem it best. Insome of these statutes the provision is express, in others the terms are general; but the courts have construed them to have the effect above indicated. Where, under the statute, discretion is vested in the court, it...