Friedman v. Friedman
| Decision Date | 05 November 1974 |
| Docket Number | No. 29215,29215 |
| Parties | Debra Shaw FRIEDMAN v. Julian R. FRIEDMAN. |
| Court | Georgia Supreme Court |
Calhoun, Sims & Donaldson, John R. Calhoun, Savannah, for appellant.
Lewis & Javetz, Emanuel Lewis, Savannah, for appellee.
Syllabus Opinion by the Court
Debra S. Friedman filed a complaint against Julian R. Friedman for temporary and permanent alimony, child support, custody of their two children and title and possession of the house and furnishings. Temporary alimony and child support was awarded to the wife. The husband then filed a complaint for divorce on the ground that the marriage of the parties was irretrievably broken. Code Ann. § 30-102(13) (Ga.L.1973, p. 557). The actions were consolidated for the purpose of trial. The wife filed an answer and cross action to the husband's complaint for divorce and alleged that she was entitled to a divorce on the ground that the marriage was irretrievably broken and on the ground of cruel treatment. She averred that the parties had lived in a bona fide state of separation since December, 1972. She sought custody of the children, temporary and permanent alimony, child support, title and possession of the house and furnishings and a jury trial. The husband admitted in his answer to the cross action that the marriage was irretrievably broken but denied the allegations of cruel treatment.
The husband moved for a judgment on the pleadings under Code Ann. § 81A-112(c) (). He attached an affidavit in which he asserted that the marriage was irretrievably broken and that the parties had lived in a bona fide state of separation since December 1972.
The trial court held that since the parties admitted in their pleadings that the marriage was irretrievably broken there was no genuine issue of fact to be decided by a jury. The court granted a divorce to both parties on that ground and held that the judgment awarding alimony and child support remained in full force and effect and was not affected by the judgment. The wife appeals to this court. Held:
1. The wife enumerates as error the granting of a divorce by the trial court without hearing oral evidence.
Since the wife in this case contended that she was entitled to a divorce on the ground that the marriage was irretrievably broken and the court granted a divorce on this ground, she can not now complain because '(o)ne cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.' Henley v. Henley, 217 Ga. 612, 124 S.E.2d 86; Dodd v. Dodd, 224 Ga. 746, 164 S.E.2d 726; Imperial Massage & Health Studio, Inc. v. Lee, 231 Ga. 482(2), 202 S.E.2d 426.
Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 will not be followed because the public policy of this state has been changed with the adoption of the statute providing for divorce on the ground that the marriage is irretrievably broken. Code Ann. § 30-102(13) (Ga.L.1973, p. 557).
2. The wife contends that the trial court erred in not complying with her demand for a jury trial since she had also demanded a divorce on the ground of cruel treatment and the husband had denied the allegations of cruel treatment.
Division one of this opinion holds that a divorce granted by the trial court on the ground that the marriage was irretrievably broken can not be attacked here by the wife. Therefore there is no issue of fact to be decided by a jury on the question of divorce on the ground of cruel treatment.
3. The trial court in its judgment held that the judgment awarding alimony and child support remained in full force and effect and was not affected by the divorce judgment. This ruling amounted to a reservation to determine the question of permanent alimony after the divorce became final. 'Alimony may be granted after a decree of divorce, if the right to have it subsequently determined is reserved therein, . . . provided application therefor is made before the action has become stale.' 27A C.J.S. Divorce § 231, p. 1024; Zuber v. Zuber, 215 Ga. 314(1), 110 S.E.2d 370.
Judgment affirmed.
All the Justices concur, except NICHOLS, P.J., and UNDERCOFLER and INGRAM, JJ., who dissent.
In my view there is no public policy which requires that a divorce be granted only upon the appearance and oral testimony of the complainant.
In the Reynolds case, 217 Ga. 234, 123 S.E.2d 115, supra, the writer, speaking for himself and the then Justice Mobley, on pages 276-277, 123 S.E.2d on page 145 expressed that view, which warrants restatement here.
'Regardless of what may be the practice in any other jurisdiction, such as the District of Columbia, I find no basis, either in statutes or decisions of the courts of this state for the holding made here. True, the law does and should hinder facility in the procurement of divorces. But it does not require any different method for presenting the evidence which authorizes the divorce. In fact, the legislature of this state has recently provided that 'The same rules of pleading and practice applicable to ordinary civil actions, including those laws relating to the appearance day and the trial or 'return' term of cases shall apply to actions for divorce . . .' (Ga.L.1958, p. 315; Code Ann. § 30-113). It is easy to contemplate situations where one party to a marriage, who has sued for divorce, is, due to providential cause, unable to attend the trial and thus cannot appear personally to establish a deserving case for divorce. Could it be soundly contended that under those circumstances his grounds could not be established by his written testimony read at the trial? If such were the rule, many miscarriages of justice would result, particularly where property rights are involved.
What was said some thirteen years ago still applies today. In this connection Code Ann. § 30-113, supra, has since been amended so as to provide in material part as follows: 'The same rules of pleading and practice applicable to ordinary civil actions shall apply to actions for divorce, alimony and custody of minor children . . .' (Ga.L.1967, pp. 226, 246).
I find no valid basis for the contention made here by the minority that the party seeking a divorce must be physically present and give oral testimony.
In my opinion the public policy requiring that divorces shall only be granted upon the appearance and oral testimony of the complainant has not been altered by the statute authorizing divorces on the ground that they are irretrievably broken.
As stated in Reynolds v. Reynolds, 217 Ga. 234, 249, 123 S.E.2d 115, 129: ...
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