Dickson v. Dickson

• Decision Date: 21 April 1977
• Docket Number: No. 32000,32000
• Citation: 238 Ga. 672,235 S.E.2d 479
• Parties: Gary L. DICKSON v. Annamaria B. DICKSON.
• Court: Georgia Supreme Court

Page 479

235 S.E.2d 479

238 Ga. 672

Gary L. DICKSON v. Annamaria B. DICKSON.

No. 32000.

Supreme Court of Georgia.

April 21, 1977.

Moffett, Henderson & Bishop, F. Glenn Moffett, Jr., David H. Lanner, Atlanta, for appellant.

Peek & Whaley, J. Corbett Peek, Jr., Atlanta, for appellee.

PER CURIAM.

Gary L. Dickson appeals from the grant of a divorce to his wife, Annamaria B. Dickson.

1. The wife has filed a motion to dismiss the appeal on the ground that the grant of divorce on the pleadings, which leaves other issues for decision, is an interlocutory order which cannot be appealed without following the statutory procedure for interlocutory appeals, citing Carr v. Carr, 238 Ga. 197, 232 S.E.2d 69 (1977).

The present case is distinguishable from the Carr case. The wife attached her affidavit to her motion for judgment on the pleadings, and the husband filed an affidavit in opposition to the motion. The trial judge stated in his order that the wife had reaffirmed under oath that her marriage was irretrievably broken. Code Ann. § 81A-112(c) (Ga.L.1966, pp. 609, 622; 1967, pp. 226, 231; 1968, pp. 1104, 1106; 1972, pp. 689, 692, 693) provides that if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. An order granting summary judgment on any issue is subject to review by direct appeal. Code Ann. § 81A-156(h) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759).

2. The wife sought a divorce on the ground that the marriage was irretrievably broken. The husband by counterclaim sought a divorce on the grounds of cruel treatment and adultery. The trial judge granted a divorce on the ground that the marriage was irretrievably broken.

In Loftis v. Loftis, 236 Ga. 637, 639, 225 S.E.2d 685, 686 (1976), it was held: "If one party asserts that the marriage is irretrievably broken, and the other party asserts that he or she is entitled to a total divorce, the trial judge has the power to grant a divorce to both parties without fixing or placing fault on either party. Code § 30-116." See also McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).

The trial judge did not err in granting the wife's motion for judgment on the pleadings, which was converted into a motion for summary judgment. However, under the stated pleadings the trial court was authorized to grant the divorce on the pleadings but such judgment would not have been appealable. Carr v. Carr, supra.

3. The public policy of the State to hinder facility in the procurement of divorces has been amended to the extent that Code Ann. § 30-102(13) (Ga.L.1973, p. 557) facilitates the procurement of divorces.

4. There is no merit in the contention that the grant of the divorce on the ground that the marriage was irretrievably broken violates the due process, equal protection, privileges and immunities, right to the courts, and right to trial by jury clauses of the State and Federal Constitutions.

It is argued that Code Ann. § 30-102(13) violates due process because it is too vague and indefinite, and because it denies an opportunity for a party to be heard before a jury where disputes exist over factual issues.

In Harwell v. Harwell, 233 Ga. 89, 91, 209 S.E.2d 625, 627 (1974), this court defined an "irretrievably broken" marriage as one "where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation." Therefore this court has found the statute capable of definition and application.

We find no merit in the contention that under previous decisions of this court a party may be denied the opportunity to be heard on the question of whether or not the marriage is in fact irretrievably broken. All these decisions involved the application of the CPA to the "irretrievably broken" ground for a divorce as defined by this court in Harwell, supra. In a no fault divorce, the assignment of blame is irrelevant; the issue is a search for the realities of the marital situation, i. e., whether the marriage has ended in fact. If this fact is undisputed by the pleadings, a judgment may issue upon the pleadings. Even if disputed by the pleadings, it can be granted on motion for summary judgment where the movant pierces the pleadings by showing there is no genuine issue on any material fact and there is no valid counter showing by the opposing party. If there is an issue of fact, either party is entitled to a jury trial.

No fault divorce judgments on the pleadings have been granted where one party sought a divorce on the ground that the marriage was irretrievably broken and the other party counterclaims for divorce on the same or any other ground. The basis for these decisions is that the pleadings show that there is no dispute over the fact that the marriage has ended in fact. See Friedman v. Friedman, 233 Ga. 254, 210 S.E.2d 754 (1974); Marshall v. Marshall, 234 Ga. 393, 216 S.E.2d 117 (1975); Whitmire v. Whitmire, 236 Ga. 153, 223 S.E.2d 135 (1976); and Loftis v. Loftis, 236 Ga. 637, 225 S.E.2d 685 (1976).

Under the same principles, a no fault divorce may be granted by summary judgment where the movant seeks a divorce on the irretrievably broken ground and pierces the opposing party's pleadings, which deny that the marriage is irretrievably broken. As in any summary judgment, this is accomplished by a supporting affidavit, made on personal knowledge, setting forth facts which would be admissible as evidence in the trial of the case, showing that there is no genuine issue on these facts. Code Ann. § 81A-156(e). "Ultimate or conclusory facts and conclusions of law, as well as statements made on belief or 'on information and belief', cannot be utilized on a summary judgment motion." 10 Wright and Miller, Federal Practice and Procedure, 695-696, § 2738 (1973). "Opinion testimony of the ultimate fact to be decided in a case is never sufficient to authorize a summary judgment." Life & Casualty Ins. Co. v. Moore, 125 Ga.App. 485, 486, 188 S.E.2d 118, 119 (1970). See also Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969) and Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969).

If the movant's affidavit sets forth evidentiary facts showing refusal to cohabit and the lack of any prospects for reconciliation, summary judgment will be granted unless there is an opposing affidavit showing that the movant has not refused to cohabit or has shown prospects for reconciliation. It should be noted that opinion evidence can be sufficient to preclude the grant of summary judgment. Harrison, supra, 213, 167 S.E.2d 395; Word v. Henderson, 220 Ga. 846, 142 S.E.2d 244 (1965). If respondent files an affidavit expressing respondent's opinion that the marriage is not irretrievably broken and that there are genuine prospects for reconciliation, then summary judgment should be denied.

Manning v. Manning, 237 Ga. 746, 229 S.E.2d 611 (1976), a plurality memorandum opinion involving summary judgment is disapproved and will not be followed in the future.

The decisions granting a no fault divorce on the pleadings or motion for summary judgment under the CPA are judicial determinations that the marriage is truly at an end. "The purpose of the Summary Judgment Act . . . is to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law." Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442 (1962). See also Crutcher v. Crawford Land Co., 220 Ga. 298, 138 S.E.2d 580 (1964). "A party against whom summary judgment has been granted is in the same position as if he suffered a verdict against him . . . (It) is an adjudication on the merits of the case." Summer-Minter Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173, 176 (1973).

The General Assembly has a right to specify the grounds on which a divorce may be granted, and there is no merit in the contention that the grant of a divorce to the wife without a jury trial violates the constitutional prohibition against the passage of laws impairing the obligations of contracts.

5. To the extent that Code § 30-102(13) is in irreconcilable conflict with other statutes, it must be held to amend those statutes by implication.

6. It is asserted that the trial court's action in the judgment appealed from was contrary to the intent of the General Assembly in the enactment of Code Ann. § 30-102 (13). This court has interpreted the intent of the General Assembly in the enactment of the thirteenth ground for obtaining a divorce, and the trial judge has followed that interpretation except as held in the following division.

7. The husband contends that the trial judge erred by awarding a divorce to the wife only, rather than to both the wife and the husband.

In Herring v. Herring, 237 Ga. 771, 772, 229 S.E.2d 756, 757 (1976) it was held: "Since a finding of irretrievable brokenness is one not requiring a showing of fault, it follows that a divorce granted on this ground should be granted to the parties equally." See also Anderson v. Anderson, 237 Ga. 886, 890, 230 S.E.2d 272; Anders v. Anders, 238 Ga. 79, 231 S.E.2d 64 (1976).

It was proper to grant the divorce, but the trial judge is directed to issue a new order in which the divorce is granted to both parties.

Judgment affirmed in part and reversed in part.

UNDERCOFLER, P. J., and JORDAN, HALL and HILL, JJ., concur.

NICHOLS, C. J., and INGRAM, J., concur specially.

NICHOLS, Chief Justice, concurring specially.

Prior to the addition of the so-called "no fault" ground to Code Section 30-102, and the decisions construing such statute, the divorce law of Georgia was well settled.

In the first decision of this court construing this amendment, it was held: "An 'irretrievably broken' marriage is one...