Phillips v. Phillips

• Decision Date: 12 January 1955
• Docket Number: No. 18786,18786
• Citation: 85 S.E.2d 427,211 Ga. 305
• Parties: Lawrence Therston PHILLIPS, by Next Friend, v. Marvell F. PHILLIPS, Administratrix et al.
• Court: Georgia Supreme Court

Page 427

85 S.E.2d 427

211 Ga. 305

Lawrence Therston PHILLIPS, by Next Friend, v. Marvell F. PHILLIPS, Administratrix et al.

No. 18786.

Supreme Court of Georgia.

Jan. 12, 1955.

Syllabus by the Court

1. When a husband, as in this case, fraudulently seeks and obtains a divorce from his wife in a court of his selection, he and his privies in law, in fact, or in estate, are thereafter conclusively estopped to assail the validity of the decree to the prejudice of innocent parties.

2. When a husband and his wife, while living separate and apart, enter into a written contract which fixes the allowance that she and her unborn child are to receive as alimony, and where the contract so made by them is afterwards approved by the court and incorporated in and made a part of the final decree in an action instituted by one of them for divorce, a petition, which only alleges that the contract and final decree are invalid because they are contrary to public policy, fails to state a cause of action either for cancelling the contract or for setting aside the final decree for alimony.

3. When, as here, a petition fails to state a cause of action for any of the relief sought, and is, for that reason, dismissed on general demurrer, it is unnecessary for this court to deal with another assignment of error complaining of an antecedent ruling which the trial judge had made in the case respecting practice and procedure.

J. D. Godfrey, Casey Thigpen, Sandersville, for plaintiff in error.

Irwin L. Evans, McMillan, Dukes & McMillan, Sandersville, for defendants in error.

CANDLER, Justice.

This case involves divorce, death, and dollars. During December, 1948, Walter C. Phillips filed a suit for divorce against his wife, Mary Frances Phillips, in the Superior Court of Washington County, on the ground of cruel treatment. Mrs. Phillips acknowledged service and consented in writing for the case to be tried at the appearance term. She was at that time pregnant, and she and her husband agreed in writing that he would pay her $50 as and for the expense of her confinement and $950 if her child should be born alive and live, the latter amount to be due and payable by installments of $10 per month and on the first day of each succeeding month after the birth of her child. The contract recites that the $1,000 which Phillips obligated himself to pay was a full and complete settlement of his liability for alimony, including support for their unborn child. The judge tried the case without a jury and granted the divorce which Phillips prayed for. He relieved Mrs. Phillips of her disabilities and specifically granted to each of the parties the right to contract marriage anew. He also approved the contract which Mr. and Mrs. Phillips had made for her alimony and for the support of their unborn child and made it a part of his final decree. Later Phillips married again, and a child was subsequently born to him and his second wife. He died intestate on December 21, 1952. This litigation was instituted on May 22, 1954, by Lawrence Therston Phillips, a minor four years of age, through a next friend, against Mrs. Marvell F. Phillips, as administratrix of the estate of Walter C. Phillips, and against Mrs. Mary Frances Phillips the plaintiff's mother. Briefly and in substance, the petition alleges that the marriage between Walter C. Phillips and Mary Frances Phillips, parents of the plaintiff, was never legally dissolved; that the pretended divorce which Walter C. Phillips obtained was void and therefore a nullity, because the defendant, Mary Frances Phillips, was not a resident of Washington County at the time his father's divorce suit was filed against her, but was then, and also when the divorce decree was rendered, a bona fide resident of McDuffie County, Georgia; that Walter C. Phillips' second marriage to Marvell F. Phillips was bigamous and therefore void; and that Mrs. Marvell F. Phillips and her child are not heirs at law of Walter C. Phillips. It was also alleged in the petition that the contract between the plaintiff's parents, which purports to provide for his support as a minor, is null and void since it violates public policy. There is a prayer for process; that the decree granting a divorce between the plaintiff's parents be set aside; that the contract and the decree, which purport to provide for the plaintiff's support as a minor child, be canceled and set aside; and that general relief be granted to the plaintiff. Neither of the two defendants filed any defensive pleadings within thirty days after they were served with a copy of the petition and process, and the case was adjudged to be in default. Before any final judgment was rendered in the cause, Mrs. Marvell F. Phillips, as administratrix, moved to open the default and her motion alleges a providential reason which prevented her from filing a plea within the time allowed by law. After she had paid the costs which had accrued, offered to plead instanter, announced ready to proceed with the trial, and introduced evidence in support of her motion, the trial judge opened the default and she filed a general demurrer, which attacked the sufficiency of the petition to state a cause of action for any of the relief sought. Her demurrer was sustained and the petition was dismissed. The plaintiff excepted both to the judgment opening the default and to the judgment dismissing her petition on general demurrer.

1. Where a petition sets forth no cause of action for any of the relief sought thereby, it is certain that the defendant may make the point either by demurrer before trial, by motion to dismiss at the trial term, by motion in arrest of judgment at the term at which the verdict is rendered, by direct writ of error within the time prescribed by law, or by motion to set aside the judgment at any time within three years from the rendition of the judgment. Kelly v. Strouse & Bros., 116 Ga. 872, 893, 43 S.E. 280. This being true, we will first deal with the judgment dismissing the petition on general demurrer; and we do so for the reason that the plaintiff could not have been injured by the other judgment excepted to if his petition failed to state a cause of action for any of the relief sought. Even error, if without injury, does not require a reviewing court to reverse a judgment. Rushing v. Akins, 210 Ga. 450, 452, 80 S.E.2d 813. That a minor child of a deceased father, who obtained a divorce from the child's mother, no right to have the divorce decree set aside for a fraud which his father practiced upon the court in its procurement, is the attack here made upon the sufficiency of the petition to state a cause of action for the relief sought. Respecting judgments, it is the general rule that none but the parties to a judgment valid on its face can move directly for its nullification, that is, that 'a third person, not a party to the record, can not go into a court and move to set aside a judgment which is not against him.' Merchants' & Manufacturers' Nat. Bank v. Haiman, 80 Ga. 624(2), 627...