Doke v. Doke, 37992

• Decision Date: 19 November 1981
• Docket Number: No. 37992,37992
• Parties: DOKE v. DOKE.
• Court: Georgia Supreme Court

Page 419

284 S.E.2d 419

248 Ga. 514

DOKE v. DOKE.

No. 37992.

Supreme Court of Georgia.

Nov. 19, 1981.

Monroe Ferguson, Ferguson & Todd, P.C., Jonesboro, for Shirley Prosser doke.

James B. Gurley, Atlanta, for Robert Ernest Doke.

MARSHALL, Justice.

This is a motion to set aside a divorce decree incorporating a settlement agreement. The motion was filed by the appellee former husband under the provisions of Code Ann. § 81A-160(d). The appellee argues that the divorce decree is void for lack of subject-matter jurisdiction, in that the parties' marriage was invalid due to a prior undissolved marriage on the part of the appellant former wife. The trial judge agreed with the appellee, and the divorce decree and settlement agreement were set aside. For reasons which follow, we reverse.

As found by the trial court, these are the facts: The appellant and appellee were married on June 17, 1972, and two children were born of this marriage. However, they subsequently learned that a divorce from the appellant's former husband had never been obtained. Therefore, they secured the services of an attorney; and on November 7, 1975, the appellant obtained a decree of the Fulton Superior Court dissolving her January 23, 1969, marriage to her former spouse.

However, on November 7, 1975, the parties separated. On November 18, 1975, the appellant filed a complaint in the Clayton Superior Court for divorce from the appellee, seeking child custody and support as well as other relief. The appellee was served in this suit, but he never filed defensive pleadings or entered an appearance. However, he did enter into an agreement with the appellant settling the issues of child custody, child support, and alimony. A final divorce decree was entered on December 23, 1975, incorporating the settlement agreement. The appellee subsequently filed a petition to modify the child-custody portions of the divorce decree, and the parties entered into a consent modification judgment.

On October 23, 1980, the appellant filed a garnishment against the appellee's employer to collect child-support arrearages. On December 8, 1980, the appellee initiated the present proceedings to set aside the parties' divorce decree.

The trial judge ruled that there was no evidence of a common-law marriage between the appellant and the appellee after her divorce from her former husband. On this basis, the trial judge ruled that the divorce decree and separation agreement incorporated therein should be set aside on the ground of lack of subject-matter jurisdiction.

1. "Jurisdiction over the subject matter in divorce and alimony cases requires a valid marriage and residence (domicile) within the state for six months prior to filing the action." Ga. Divorce, Alimony & Child Custody (2nd Ed., § 6-1, p. 63).

2. In Smith v. Smith, 243 Ga. 525, 255 S.E.2d 46 (1979), a husband had failed to enter an appearance in a divorce action filed against him by his wife. However, he did enter into a settlement agreement which was incorporated into their divorce decree. He later sought to avoid being held in contempt of the child-support provisions of the divorce decree by arguing that the decree was void for lack of subject-matter jurisdiction, in that his former wife had not been a domiciliary of the State of Georgia for six months preceding the filing of her complaint for divorce. This court affirmed the order of the trial court holding the husband in contempt, stating: "In an almost identical factual situation, this court held in Williams v. Pique, 234 Ga. 344, 345, 216 S.E.2d 100 (1975): 'Regardless of what the...