Meeks v. Meeks
| Decision Date | 24 February 1953 |
| Docket Number | No. 18094,18094 |
| Citation | 74 S.E.2d 861,209 Ga. 588 |
| Parties | MEEKS v. MEEKS. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An objection to the introduction of evidence cannot be made for the first time in this court, but must be presented to and passed upon by the trial court.
2. The plaintiff in error was not estopped under the facts in the instant case to plead his Texas decree in this proceeding.
3. The divorce decree granted in a Texas court and presented in evidence in this case is entitled to full faith and credit under the Constitution of the United States.
4. The obligation to pay temporary alimony under an order of a court of this State ceases when a valid divorce is granted in the courts of a sister State.
Mrs. Mary Gladys Lord Meeks brought her petition seeking to have Julian T. Meeks adjudged in contempt of court for failure to pay to her temporary alimony, awarded in Washington Superior Court. The petition alleged that the petitioner had been granted $30 per month for the support of a minor child and $30 per month for her own support, and that the defendant had failed and refused to comply with said order. The defendant answered, admitting that the petitioner had been awarded temporary alimony as alleged, but denying that he had failed and refused to comply with said order.
For further answer, the defendant alleged that after the order granting temporary alimony, dated March 9, 1949, he moved to the State of Texas and became a citizen of that State, and in due course, on March 4, 1950, obtained a divorce from the petitioner. A copy of the divorce decree was attached to and made a part of the answer. The respondent further answered that when a divorce was granted between the parties, the order of the Washington Superior Court granting temporary alimony was superseded and became void, since temporary alimony can only be granted in Georgia prior to granting a divorce or permanent alimony, and that the Texas decree was entitled to full faith and credit under the Constitution of the United States.
The only evidence introduced at the trial was a copy of the divorce decree from the Texas court, introduced by the defendant. The court below found the defendant in contempt of court and ordered him committed to the common jail until he complied with the order granting temporary alimony. To this judgment the defendant excepted.
The judge of the court below recited in his order, in addition to the above, the following facts: On February 15, 1949, Julian T. Meeks, as plaintiff, filed a suit for divorce in Washington County, Georgia, against Mary Gladys Lord Meeks. On March 7, 1949, the defendant in that suit filed her answer and cross-bill praying for temporary and permanent alimony, and was granted temporary alimony as above stated. On August 21, 1950, the original petition was dismissed on motion of the plaintiff without prejudice to the answer and cross-bill filed by the defendant. On August 11, 1951, Mrs. Meeks amended her answer and prayed for a total divorce.
The order further recited that all parties admitted in open court that all alimony had been paid up to and including that date of the Texas decree, which was on March 5, 1950, and that none had been paid since that date.
J. D. Godfrey, Casey Thigpen, Sandersville, for plaintiff in error.
Irwin L. Evans, D. E. McMaster, Sandersville, for defendant in error.
1. The plaintiff in error in the instant case contends that he has a valid divorce from the defendant in error which was granted in Texas, and that this decree is entitled to full faith and credit in Georgia under the Constitution of the United States; and that, because of said decree, he is not and was not obligated to pay the defendant in error temporary alimony since the date of the decree. The defendant in error contended in the trial court and contends in this court that the copy of the divorce decree appearing in the record in this case is not a proper showing on the rule nisi to avoid attachment for contempt of court for failing and refusing to pay temporary alimony.
It is first contended by the defendant in error that the copy of the Texas decree is not a good defense in this proceeding, because it is not properly authenticated in accordance with Code, § 38-627. This contention is made for the first time in this court, no objection being made at the time said decree was admitted in evidence in the court below. An objection to the admission of evidence cannot be made for the first time in this court, but must be presented to and passed upon by the trial court. See Mosley v. Fears, 135 Ga. 71, 68 S.E. 804; Hamilton v. State, 169 Ga. 613, 151 S.E. 17. Evidence having probative value, though inadmissible if properly objected to, admitted without objection, must be considered by the courts of this State in reaching their decisions. Thomas v. Ellis, 25 Ga. 137; Hamilton v. State, supra. It follows, there is no merit in this contention.
2. It is next contended that the plaintiff in error is estopped to plead his Texas divorce as a bar in this proceeding. The contention is that, when the plaintiff in error on his own motion dismissed his divorce action on August 21, 1950, and allowed the order to be entered without prejudice to the answer and cross-bill, and made no objection thereto and did not plead his Texas divorce as a bar, he is now estopped to do so. There is no merit in this contention. Generally, a plaintiff can dismiss his suit at any time before judgment is rendered. Black v. Black, 165 Ga. 243, 140 S.E. 364. If, however, there is a cross-bill or if the defendant seeks other affirmative relief, the plaintiff may not dismiss so as to prejudice such a plea. Walden v. S. M. Whitney Co., 200 Ga. 6, 36 S.E.2d 157.
The order of dismissal of the divorce action between the parties to this action was in accord with the above rules of law. The plaintiff was allowed to dismiss his action, but the right of the defendant was preserved to pursue any rights she had under her answer and cross-bill. The plaintiff in the divorce action (plaintiff in error here) was not bound to present his Texas divorce and seek dismissal of the answer and cross-bill at that time, and it...
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