Levine v. Levine
| Decision Date | 11 October 1948 |
| Docket Number | 16327. |
| Citation | 49 S.E.2d 814,204 Ga. 313 |
| Parties | LEVINE v. LEVINE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where in a proceeding by a wife for divorce and alimony after both parties have announced ready and a jury has been empaneled for trial, the court, on motion of the defendant after hearing evidence enters an order requiring the petitioner to convey property, to which she holds legal title, to the defendant husband, and provides that until such conveyance is made the petitioner will not be allowed to prosecute the proceeding, such an order is final in nature and is reviewable in the Supreme Court, although there has been no trial on the main proceeding.
2. Where the wife's petition for divorce and alimony is based upon cruel treatment, and the acts of cruelty are described, and there is recited in the petition that something like a year before, there had been a separation because of the husband's striking the wife, followed by a reconciliation, and his answer alleges that he conveyed an undivided one-half interest in the home place to the wife as a consideration for the reconciliation, she is not required to reconvey to him the title in the home as a condition precedent to prosecuting her suit for divorce and alimony. This is true even if it is conceded that she received the property as a consideration for the reconciliation, and the court erred in ordering the action stayed until she reconveyed the home to the husband. The rule of law annulling deeds and decrees for permanent alimony by subsequent cohabitation is inapplicable. Nor is there any rescission involved which would require restitution.
3. In such a case there is no provision of law authorizing a trial judge to hear evidence on the question whether or not the wife by her petition is seeking to rescind a contract of reconciliation, and to find that she is doing so and order her to restore by reconveying the property deeded to her by the husband to induce a reconciliation, and prohibit her from prosecuting her divorce and alimony proceeding further until such restitution by reconveying the property has been made.
Mrs. Fannie S. Levine brought suit in Richmond Superior Court against her husband, Nathan Levine, for divorce and alimony, and against Citizens & Southern National Bank, seeking to enjoin it from permitting the defendant to remove anything from his safety deposit box at that bank. The petition alleged in substance the following: In 1946 the petitioner separated from the defendant because of his cruel treatment, and thereafter a reconciliation was had wherein the defendant promised not to again treat the petitioner cruelly, and she returned to live with him. Thereafter he renewed his cruel treatment in violation of his promise made at the reconciliation. No demurrer or special plea was filed, but the defendant filed a lengthy answer, which was later amended to allege that, in consideration of the reconciliation referred to in the petition, the defendant conveyed a one-half undivided interest in their home to the petitioner; that by her present suit she had elected to rescind the reconciliation contract; and that the deed should be cancelled.
After the parties had announced ready for trial and a jury had been stricken, counsel for the defendant stated to the court that the petition alleged cruel treatment, about which there had been an agreement of reconciliation, and stated that the petitioner was pursuing inconsistent remedies, in that she was claiming a rescission of the reconciliation contract based upon the alleged breach thereof by the defendant, and asserted that in such circumstances she should be required to reconvey to the defendant the property which he gave as a consideration for that agreement. Thereupon the court, without a jury, allowed counsel for the defendant to read from a transcript of testimony given by the petitioner on a hearing for temporary alimony, wherein she said, in answer to a question as to whether or not she insisted that one of the conditions of the reconciliation was that the defendant give her his entire piece of property, and upon further insistence upon the same question she answered, 'I think I said that.' She further testified that they finally agreed that her husband would deed her one-half of the property, and that certain bonds which really belonged to her would be turned over to her, and that it was under these conditions that they went back together.
In rebuttal, the petitioner testified in the present hearing that it was on September 6 when the defendant started fighting her in the house, which fighting brought on the separation. He told her to get to hell out of his house and to get the child outside the house, and that he was going to fight her every morning if she stayed there. Through the efforts of a cousin of hers and a cousin of his they went back together. She had asked for a part of the house as security, so he could not tell her to get to hell out of the house every time he felt like it. She simply could not live with him under those conditions, and he promised that he would not fight her any more, that he would treat her with kindness, and that he would give her a part of the house. That was in September, and they went back together, and nothing was said about the house until the following March, when he gave her a deed to one-half of the house, reciting a consideration of love and affection. She testified further that there was no such thing as a contract, no such thing that if they separated she would give the one-half of the house back to him. If there was any contract, he was the one that broke it. He broke all of his promises. He started mistreating her and cursing her. He told her he wanted a separation. He wanted a divorce, and they separated on August 17. She also testified that she did not require him to give her a deed before she went back to him. They went back together and were living together six months before she got the deed. She did not know how it had anything to do with the reconciliation. There was no such thing as a contract between them.
Thereupon the...
To continue reading
Request your trial
-
Millholland v. Oglesby
...collateral one, the grant or denial of which is a final, appealable judgment. Nor are we unaware of the rule in Levine v. Levine, 204 Ga. 313(1), 49 S.E.2d 814, 4 A.L.R.2d 1205, that the interrupting of a case on trial and entering an order directing one of the parties to convey to the othe......
-
Matter of Galbreath
...consideration for the deed." McQueen v. Fletcher, 77 Ga. 444; Lemon v. Lemon, 141 Ga. 448, 81 S.E. 118, Levine v. Levine, 204 Ga. 313, 317(2), 49 S.E.2d 814, 4 A.L.R.2d 1205. 128 S.E.2d at In Schichtel v. Schichtel,16 the Arkansas Court of Appeals stated: The law encourages the resumption o......
-
Reserve Life Ins. Co. v. Ayers, s. 39367 and 39368
...the decree would in fact have had the effect of nullifying the verdict instead of conforming to it. The motion in Levine v. Levine, 204 Ga. 313, 49 S.E.2d 814, 4 A.L.R.2d 1205 would have had the effect of halting the trial of the case through the introduction of new matter not set out in th......
-
Miller v. Miller
...court and her obedience would result in the absence of any later order from which to file a timely appeal. See Levine v. Levine, 204 Ga. 313, 317(1), 49 S.E.2d 814 (1948). After all, final divorce judgments are always subject to enforcement by the trial court. There are not any "substantive......