Phillips v. Phillips

• Decision Date: 08 January 1960
• Docket Number: No. 20687,20687
• Citation: 112 S.E.2d 594,215 Ga. 606
• Parties: Helen Gladys Beam PHILLIPS v. Andrew PHILLIPS
• Court: Georgia Supreme Court

Page 594

112 S.E.2d 594

215 Ga. 606

Helen Gladys Beam PHILLIPS v. Andrew PHILLIPS.

No. 20687.

Supreme Court of Georgia,

Jan. 8, 1960.

Syllabus by the Court.

1. The pleadings were sufficient to allege a cause of action for divorce on the ground of desertion.

2. The defendant could wiave her right to a motion for new trial, and except directly to the refusal of the court to grant a nonsuit. Since any error in denying a motion for nonsuit is cured if the defendant supplies the deficiency in the evidence, the evidence as a whole must be examined to determine whether any error in refusing the nonsuit was cured by the evidence of the defendant.

3. The evidence for the plaitiff completely failed to establish the allegations of his petition, and the evidence for the defendant did not supply the deficiency in the plaintiff's evidence.

On August 1, 1957, Andrew Phillips filed an action for divorce against Helen Gladys Beam Phillips, alleging that he had been a bona fide resident of the State of Georgia for over six months next preceding the filing of the petition, and that the defendaant is a resident of Union City, New Jersey. The trial judge passed an order to perfect service by publication. No pleadings were filed by the defendant, and on April 28, 1958, without the intervention of a jury, the judge entered a judgment granting a divorce between the parties.

On December 30, 1958, the defenant filed a motion to set aside the judgment on the grounds that she did not have notice of the pendency of the action until after the rendition of the judgment against her, and that the mandatory requirements of law with reference to service by publication had not been complied with. On January 15, 1959, the judge sustained the motion and vacated the judgment of divorce, and ordered that the proceeding be restored to a pending status and the defendant be allowed to file defensive pleadings.

On the same date the defendant filed general and special demurrers to the petition, and an answer. On July 23, 1959, the judge overruled the general demurrers, and the special demurrers, except the special demurrers to paragraphs 4 and 10 of the petition, which were sustained.

The case was tried on August 6, 1959, and prior to the introduction of any evidence, the defendant made an oral motion to dismiss the petition on the ground that it failed to state a cause of action. This motion was denied. The only evidence offered by the plaintiff was his own testimony. At the conclusion of this testimony, counsel for the defendant made a motion for a nonsuit, which was denied. The defendant then testified in her own behalf. The jury returned a verdict in favor of the plaintiff, and judgment was entered accordingly.

In her bill of exceptions the defendant excepts to the overruling of her general demurrers, and certain special demurrers; to the denial of her oral motion to dismiss; and to the refusal to grant her motion for a nonsuit. Error is assigned on the final judgment 'on the grounds that same is contrary to law, and being controlled by erroneous antecedent rulings of the court hereinbefore assigned as error.'

Paul J. Jones, Jr., Jones & Douglas, Dublin, for plaintiff in error.

No appearance for defendant in error.

HEARD, Justice.

1. The only ground of divorce recognized by our law which the pleadings in the present case might be legally sufficient to assert is that of 'wilful and continued desertion * * * for the term of one year.' Code, § 30-102, subd. 7, as amended Ga.L.1946, pp. 90, 91. Such ground is not set out with the utmost clarity. The petition alleges: That 'After they were married she refused to move into the premises provided for them as a home or to consummate their marriage by cohabitation or otherwise. That she consistently refused and still refuses to perform any of the duties devolving upon her as the wife of petitioner. That defendant has repeatedly told petitioner that she did not love him and had never intended to perform her duties as a wife. That she only married him in order to be entitled to a portion of the income that he receives as a disabled veteran. Although petitioner entered into said marriage in good faith and has repeatedly offered to provide for her and otherwise to perform all the duties incumbent upon him as her husband. That there having been no consummation of said marriage by cohabitation, there are no children as issue thereof.'

Cohabit means 'to dwell together.' Phinizy v. Phinizy, 154 Ga. 199, 215, 114 S.E. 185, 186; Paris v. Paris, 197 Ga. 162, 164, 28 S.E.2d 452. The natural inference to be drawn from the pleadings is that from the time of the marriage ceremony on July 2, 1956, until the...