Manning v. Manning
| Decision Date | 05 October 1976 |
| Docket Number | No. 31440,31440 |
| Citation | 237 Ga. 746,229 S.E.2d 611 |
| Parties | Belle Smith MANNING v. William S. MANNING. |
| Court | Georgia Supreme Court |
This appeal by the wife is from a summary judgment entered in Bibb Superior Court which granted a divorce at the request of the husband on the ground that the marriage was irretrievably broken. The wife opposed the grant of the divorce. She denied the marriage was irretrievably broken and denied that there were no prospects for a reconciliation. The wife sought to have the trial court deny a divorce and also sought a jury trial on this issue. We affirm the grant of the divorce by the trial judge as we find this case is controlled by The husband filed an affidavit in support of the motion for summary judgment seeking a divorce. In it, the husband swore, in pertinent part, as follows:
Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974), and McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976).
This affidavit by the husband which was submitted to the trial judge brought the case squarely within the language of McCoy that, We find no error, as there was no issue for a jury to decide on the question of the divorce.
Judgment affirmed.
All the Justices concur, except GUNTER and INGRAM, JJ., who concur specially, and JORDAN and HILL, JJ., who dissent.
Appellant insists in a vigorous motion for rehearing that we have overlooked the provisions of Code Ann. § 30-109, and Williford v. Williford, 230 Ga. 543, 198 S.E.2d 181 (1973) which, if applied, would require a different judgment in this case. In Williford, the husband sought a divorce on the grounds of desertion and cruel treatment by the wife. The wife did not ask for a divorce and sought to have a divorce denied to the husband because of his alleged adultery and cruel treatment.
The majority of this court is of the opinion that the Code section and decision noted above have no application in this nofault divorce case. The rule urged by appellant and recognized by this court in fault ground divorce cases is that the court (or jury) is authorized to refuse a divorce to the party seeking the divorce when the evidence shows such party is guilty of adultery. Code Ann. § 30-109 allows the opposite party to show 'the conduct of the party suing' for divorce and Williford holds that such evidence authorizes, but does not require, the court (or jury) to refuse a divorce in these circumstances.
These authorities have no application to no-fault divorce cases which this court has held involve only whether 'either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation.' Harwell v. Harwell, 233 Ga. 89, 91, 209 S.E.2d 625, 627 (1974). In summary, a majority of this court thinks that the traditional rules which have been applied in fault ground divorce cases should not be applied when the divorce is granted on the no-fault ground.
Motion for rehearing denied.
In this case the husband filed a complaint for divorce against his wife; he alleged that their marriage was irretrievably broken; the wife filed responsive pleadings in which she denied the irretrievable brokenness of the marriage; she further affirmatively alleged: '. . . contrary to the allegations of the plaintiff in the complaint, the marriage between the plaintiff and defendant is not irretrievably broken, and further that there are reasonale prospects for a reconciliation between the parties'; by counterclaim the wife sought temporary and permanent alimony for her separate support and maintenance irrespective of whether a divorce was grandted; by counterclaim she also sought the vesting of fee simple title in her to the family residence and all furniture and furnishings situated therein; she alleged that she was entitled to be awarded temporary and permanent alimony for her support and maintenance because the parties were living separate and apart, and that the separation was caused by the misconduct of the husband in that he 'wilfully and without just cause abandoned defendant against her wishes'; and she further alleged that her entitlement to temporary and permanent alimony was based on the fact that her husband 'in the past wilfully and repeatedly inflicted and continues to inflict mental pain and anguish upon defendant such as reasonably justifies defendant's being apprehensive of danger to her life, limb and health.'
The husband filed a motion for summary judgment on the sole issue of the irretrievable brokenness of the marriage; he filed a supporting affidavit set forth in part in the court's opinion; the wife filed an opposing affidavit in which she testified that 'she personally knows that the marriage between herself and William S. Manning is not irretrievably broken inasmuch as a reconciliation may be possible between deponent and her said husband'; and she concluded her opposing affidavit by testifying that 'she desires and is willing to reconcile and continue the marriage between the plaintiff and herself.'
The husband contended that on the basis of the pleadings and affidavits he was entitled to a judgment in his favor as a matter of law on the issue of the irretrievable brokenness of the marriage. The wife contended that the issue of irretrievable brokenness was one of fact for determination by a jury, and that it could not be resolved on motion for summary judgment.
The trial judge granted the husband's motion for summary judgment on this sole issue, and he reserved for future determination the issues with respect to alimony and division of property. The wife has appealed, and her sole contention here is that the issue of irretrievable brokenness, a fact issue, was erroneously decided as a matter of law by the trial judge on a motion for summary judgment.
As I read the pleadings and affidavits in this case, there is no issue of fact as to the irretrievable brokenness of this marriage. In Harwell v. Harwell, 233 Ga. 89, 209 S.E.2d 625 (1974) this court said: '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.' P. 91, 209 S.E.2d p. 627.
In McCoy v. McCoy, 236 Ga. 633, 225 S.E.2d 682 (1976), this court said: 'In the case before us, we make explicit that which was implicit in Harwell, to wit: where one of the parties to a marriage refuses to cohabit with the other and testifies that the marriage is irretrievably broken, the fact that the other party maintains hope for a reconciliation will not support a finding under Harwell that there are 'prospects for a reconciliation.' Just as it takes two consenting parties to make a contract, it takes two consenting parties to make a reconciliation. Just as one party cannot make a contract, one party cannot make a marriage or a reconciliation thereof. If the General Assembly had intended that the thirteenth ground for divorce be consensual, it would have provided that 'The parties agree that the marriage is irretrievably broken. " P. 634, 225 S.E.2d p. 683.
Under the verified pleadings and the affidavits of record in this case by both parties, there are no real or practical prospects for a reconciliation. Stripped of all conclusions that project a mere glimmer of hope at reconciliation, this record eliminates any fact issue on the subject of irretrievable brokenness, and the trial judge correctly granted summary judgment on this issue.
I concur in the judgment not because I think it is right but because it is based on case...
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...or as evidence at a hearing, on a motion for summary judgment on the irretrievably broken ground (see e.g.: Manning v. Manning, 237 Ga. 746, 229 S.E.2d 611 (1976); McCoy v. McCoy,236 Ga. 633, 225 S.E.2d 682 (1976)), the primary finding is merely that the marriage is 'one where either or bot......
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Burger v. State, 31624
...situation-the so-called 'unwritten law' has been created by judges. In this day of no-fault, on-demand divorce (Manning v. Manning, 237 Ga. 746, 229 S.E.2d 611 (1976)) when adultery is merely a misdemeanor (Code Ann. § 26-2009), and when there is a debate ranging in the country about whethe......
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