Harwell v. Harwell
| Decision Date | 08 October 1974 |
| Docket Number | No. 29134,29134 |
| Citation | 209 S.E.2d 625,233 Ga. 89 |
| Parties | Otis Cleveland HARWELL v. Jo Ann HARWELL. |
| Court | Georgia Supreme Court |
Harrison & Garner, G. Hughel Harrison, Lawrenceville, for appellant.
Joseph E. Cheeley, Jr., Buford, for appellee.
Syllabus Opinion by the Court
On November 20, 1972, Jo Ann H. Harwell filed a complaint for divorce against Otis C. Harwell on the ground of cruel treatment. On October 16, 1973, the jury returned a verdict for the husband and denied the divorce. The wife filed a new claim for divorce on November 27, 1973, on the ground that the marriage was irretrievably broken. The husband answered the complaint and demanded a jury trial. The jury granted the wife a divorce, the home, certain other property, and child support payments. The husband appeals to this court. Held:
1. The appellant husband contends that the trial court erred in allowing evidence of acts and circumstances prior to the verdict of October 16, 1973, in proof that the marriage was 'irretrievably broken.' He argues that the principle of res judicata bars further litigation of these issues.
The doctrine of res judicata provides that a judgment of a court of competent jurisdiction is conclusive between the same parties as to all matters put in issue or which might have been put in issue. Code § 110-501. This is a rule of expediency and justice. It is designed to end litigation. However, it is frequently a nice question as to what is barred by the rule.
Here the verdict of October 16, 1973, established that the defendant-husband was not guilty of cruel treatment. The issue of whether the marriage was 'irretrievably broken' was not actually litigated. Presumably it was not made an issue because the statute establishing it as a ground for divorce became effective after the filing of the suit but before trial. Appellant contends nevertheless that under the principle of res judicata it could have been put in issue and therefore the verdict of October 16, 1973, establishes that the marriage was not 'irretrievably broken' at that time. He argues therefore that evidence of acts and circumstances prior to October 16, 1973, are not admissible in this subsequent suit.
Proof of fault is not required to show a marriage is 'irretrievably broken.' The parties do not specifically complain of the other's conduct. They merely state that their marital differences are insoluble and request a change of status. The only question is whether there are prospects for a reconciliation. It is a candid way of describing their problem. In the event they can agree upon financial matters and custody of children, they can avoid charging each other with specific misconduct.
A finding that a marriage is not 'irretrievably broken' is a finding that a reconciliation may be possible. The finding is prospective in the sense that 'all hope is not lost' and the parties may yet resolve their differences. It is not a finding that the parties must reconcile their differences. Obviously the denial of a divorce does not insure that the parties will even attempt to preserve the marriage and cohabit. Therefore new acts or a reasonable lapse of time after an adverse verdict authorizes a new suit. The subsequent suit being authorized all evidence of the marital relation is admissible for the purpose of showing it is 'irretrievably broken.' This is not a typical divorce suit where a party is charged with specific misconduct and the jury finds no misconduct. An 'irretrievably broken' marriage is one where either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation. Circumstances relating to this issue are cumulative. Therefore once a new action is found to be authorized all relevant evidence is admissible.
Here it is shown that the wife's original complaint was the husband's excessive drinking. After the first trial in which a divorce was denied the husband moved back into the home where the wife and children lived. The husband was drunk at the time and the wife and children left. In our opinion this conduct was sufficient to maintain this new suit for divorce on the ground that the marriage was 'irretrievably broken' and all evidence of the marriage relation was admissible. The objections to the evidence and motion for directed verdict were properly overruled.
2. The appellant contends that the trial court erred in charging the jury that they could award alimony to the wife because she had abandoned a claim therefor in her testimony.
Ga.L.1968, pp. 1072, 1078 provides: Code Ann. § 70-207.
The appellant was given the opportunity to object to the charge of the court. He did not object to the charge on alimony for the wife and therefore cannot now complain of the charge.
Judgment affirmed.
All the Justices concur, except INGRAM, J., who dissents.
I respectfully dissent to Division 1 of the court's opinion and to the judgment of affirmance in this case. The appellee was denied a divorce from appellant on the ground of cruel treatment by a jury verdict rendered October 16, 1973. Appellee's motion for a new trial was dismissed on November 26, 1973, and there was no appeal therefrom. Prior to the trial of that case in October, there became effective, on July 1, 1973, an additional ground of divorce (Code Ann. § 30-102(13)) that the marriage is irretrievably broken. Nevertheless, the appellee went to trial in October and asked the jury to grant a divorce only upon the ground of cruel treatment. She lost that case despite the evidence shown at that trial. Instead of...
To continue reading
Request your trial
-
Palermo v. Palermo
...and there are no prospects for a reconciliation.” McCoy v. McCoy, 281 Ga. 604, 642 S.E.2d 18 (Ga.2007), citing Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974) and OGCA § 19–5–3(13). The court in Harwell added the “no prospects for reconciliation” verbiage, even though it was not inclu......
-
Anderson v. Anderson
...insoluble and request a change of status. The only question is whether there are prospects for reconciliation.' Harwell v. Harwell, 233 Ga. 89, 90, 209 S.E.2d 625, 627 (1974). (emphasis supplied). Therefore, even when traditional fault allegations are put forth by affidavit, or as evidence ......
-
Dickson v. Dickson
...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 coha......
-
Manning v. Manning
...jury trial on this issue. We affirm the grant of the divorce by the trial judge as we find this case is controlled by Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974), and McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 The husband filed an affidavit in support of the motion for summary ju......