Pickren v. Pickren

• Decision Date: 10 July 1940
• Docket Number: 13380.
• Citation: 10 S.E.2d 40,190 Ga. 609
• Parties: PICKREN v. PICKREN.
• Court: Georgia Supreme Court

10 S.E.2d 40

190 Ga. 609

PICKREN v. PICKREN.

No. 13380.

Supreme Court of Georgia

July 10, 1940

Rehearing Denied July 20, 1940.

Syllabus by the Court.

While the marriage ceremony entered into by the parties before the plaintiff had obtained a final decree in her divorce action against her husband by a prior marriage was an absolute nullity, yet the evidence on the instant application for temporary alimony was sufficient to authorize the judge to find that the parties, whose cohabitation was interrupted two or three days after the void ceremony, had effected a valid common-law marriage by resuming cohabitation after the plaintiff's disability had been removed and holding themselves out to the world as husband and wife. The judge did not err in awarding temporary alimony.

J B. Moore, of Baxley, for plaintiff in error.

H L. Williams, of Baxley, for defendant in error.

DUCKWORTH Justice.

Pending a suit for divorce the plaintiff applied to the presiding judge for an order granting to her temporary alimony for the support of herself and her infant child. The judge passed an order granting temporary alimony in the sum of $10 per month, and the defendant excepted.

The existence of a valid marriage is essential to a recovery of alimony. Foster v. Foster, 178 Ga. 791(2), 174 S.E. 532. The defendant contended that there was no valid marriage between him and the plaintiff; and the only question presented is whether the judge was authorized to find from the agreed statement of facts that a valid marriage existed. From the stipulated facts it appeared that on March 1, 1938, the plaintiff filed suit for divorce against her husband, Clyde Brooks, and on March 21 obtained her first verdict for divorce. On July 24, 1938, before the plaintiff had obtained her final decree, the plaintiff and the defendant entered into a marriage ceremony, and lived together for two or three days. As soon as the plaintiff's mother learned of the purported marriage, she forced the plaintiff and the defendant to separate, and would not allow them to live together until a final decree of divorce had been obtained by the daughter. At the time of the marriage ceremony both the plaintiff and the defendant knew that the divorce suit was pending and that only one verdict had been obtained; and both knew that two verdicts were required to make the divorce legal. The plaintiff obtained her final decree in the divorce suit in October, 1938. She then went to an attorney, and was advised that it was not legally necessary for her and the defendant to remarry. Thereafter she and the defendant went back together and lived together for four or five months, when they separated. While they lived together they held themselves out as husband and wife. About six months after the separation the plaintiff gave birth to a child.

The marriage ceremony entered into by the parties before the plaintiff had obtained a final decree in her divorce action against her husband by a prior marriage was an absolute nullity. Irving v. Irving, 152 Ga. 174, 108 S.E 540, 18 A.L.R. 88; Brown v. Parks, 169 Ga. 712(8), 151 S.E. 340, 71 A.L.R. 271; Atlantic Bitulithic Co. v. Maxwell, 40 Ga.App. 483, 150 S.E. 110. Their cohabitation in pursuance of this ceremony was illegal and illicit. The plaintiff in error contends that since the cohabitation was illicit in its inception, it continued to be so throughout the period of cohabitation. In Drawdy v. Hesters, 130 Ga. 161(4-6), 60 S.E. 451, 15 L.R.A.,N.S., 190, it was held: 'If cohabitation between a man and a woman is shown to have been illicit in its inception, in the absence of proof to the contrary, the illicit relation will be presumed to have continued throughout the period of...