Reed v. Reed
| Docket Number | 15830,15834. |
| Decision Date | 12 June 1947 |
| Citation | 43 S.E.2d 539,202 Ga. 508 |
| Parties | REED v. REED (two cases). |
| Court | Georgia Supreme Court |
Rehearing Denied July 11, 1947.
Syllabus by the Court.
1. Where a marriage has been regularly solemnized and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other facts necessary to render the marriage valid; and this presumption prevails until the contrary appears. Such presumption can be negatived only by disproving every reasonable possibility against the validity of the marriage. The evidence here was insufficient to overcome the presumption in favor of the validity of the marriage attacked.
2. An affirmance of the judgment on the main bill of exceptions will not require a dismissal of the cross bill when the effect of such affirmance will leave the main case for trial in the lower court.
3. Exceptions and assignments of error not argued in brief or otherwise, nor generally insisted on, will be treated as abandoned.
4. The record of a court in which a case is being tried may be proved by the production of the record itself, and a certified copy is not necessary.
5. A party to a marriage contract, duly shown, will not be estopped to deny the validity of such marriage by reason of the disqualification of one of the parties to enter into the marital contract because of a previous undissolved marriage unless it be shown that such disability to marry has been removed.
In this litigation between Edwina Gertrude Reed and Charles A Reed, the surname is spelled 'R-e-e-d.' The former litigation referred to in these cases was between Charles Albert Reid (the defendant in these cases) and Pauline Reid, his former wife.
Edwina Gertrude Reed brought an action against Charles A. Reed, seeking, by the petition as amended, a total divorce, temporary, and permanent alimony and counsel fees, and an injunction to prevent him from selling, encumbering or otherwise disposing of certain real and personal property. She alleged that they entered into a contract of marriage on May 31, 1942, and lived together as husband and wife until about January 1, 1947. The husband, by his positively verified answer, admitted that he and the plaintiff were husband and wife under the alleged contract of marriage, but denied all other material allegations of the petition as amended. On the interlocutory hearing, at the conclusion of the evidence, the husband requested and was granted a recess for the purpose of preparing an amendment to his answer. The amendment, which was allowed over the objections of the plaintiff, is as follows:
'Now comes the defendant, Charles A. Reed, in the above-stated matter and with leave of the court, amends his plea and answer this day filed in said matter by adding thereto the following:
'That the question of temporary alimony and counsel fees came on for a hearing before the court on this date, the defendant at the time of the hearing having entered his answer and giving counsel for the plaintiff a copy thereof; that during the trial of said matter certain testimony was given by the plaintiff with reference to the divorce of the defendant of a former marriage as well as a divorce proceeding with reference to plaintiff's marriage after the date of the ceremony between plaintiff and defendant; that upon this testimony being offered, plaintiff asked that the divorce proceedings between the defendant and his wife, Pauline Reid, by a former marriage, be submitted in evidence and upon obtaining the original papers in said matter from the office of the clerk of this court, same disclosed that the defendant had not obtained a total divorce from Pauline Reid, whom defendant had married prior to the ceremony between him and the plaintiff; that a copy of said divorce petition and all entries thereon is hereto attached showing that a first verdict was granted in this court on the 24th day of January, 1943, but that a second and final verdict as provided by law has never been granted; therefore, at the time of the ceremony between plaintiff and defendant in this case, this defendant had a living wife and she is now living and the alleged marriage ceremony between plaintiff and defendant was void; that no valid marital relationship has ever existed between them, thereby precluding plaintiff from any rights whatever for alimony, permanent or temporary, or attorney's fees.' The defendant further amended his answer by striking the admission that he and plaintiff were husband and wife, and by denying this allegation of plaintiff's petition. The amended answer, which was sworn to by the defendant as being true and correct, and the original record in the divorce proceeding between the defendant and Pauline Reid, were introduced in evidence over the objection of the plaintiff. The defendant introduced no further evidence. Evidence for the plaintiff included a certified copy of the marriage license and the certificate of marriage between the plaintiff and defendant showing that the marriage was consummated on May 31, 1942, in Aiken County, South Carolina; the defendant's original sworn answer in which he admitted his marriage to plaintiff; and oral testimony substantiating her pleadings. The defendant excepted to the judgment awarding temporary alimony and counsel fees on the ground that it was contrary to law and the evidence, because the plaintiff was not the wife of the defendant, he having a living wife at the time of the alleged marriage, which previous marriage had never been dissolved.
In a cross bill, error is assigned on the ruling of the court allowing the amended answer to be filed, and on the court's ruling admitting in evidence the original record in the proceeding for divorce filed by Charles Albert Reid against Pauline Reid on the ground that (a) no proof was offered to show the genuineness of the document, or that the plaintiff there was the same person as defendant in the present case; (b) that the defendant was estopped from attempting to plead or prove a former marriage; and (c) there was no sufficient pleadings or proof as to the existence of any former undissolved marriage of the defendant.
C. W. Killebrew and H. A. Woodward, both of Augusta, for plaintiff in error.
Paul T. Chance, of Augusta, for defendant in error.
CANDLER, Justice. (after stating the foregoing facts).
1. The assignment of error in the main bill of exceptions challenges the correctness of the judgment of the court awarding temporary alimony and counsel fees to the wife. Counsel for the plaintiff in error takes the position that such ruling was contrary to law and the evidence for the reason that at the time of the alleged marriage between the parties to the present suit the plaintiff in error had a living wife, who is now living, and that the former marriage had never been dissolved.
Code, § 30-201. The existence of a valid marriage is essential to the recovery of alimony. Pickren v. Pickren, 190 Ga. 609, 10 S.E.2d 40. While it was held in Chapman v. Chapman, 162 Ga. 358, 133 S.E. 875, that the trial court erred in refusing to award temporary alimony and counsel fees for the reason that such award is made for the purpose of affording the wife the means of contesting all of the issues between herself and husband, and that one issue is whether the marriage between them was valid or not, this court in the case of Barnett v. Barnett, 191 Ga. 501, 13 S.E.2d 19 declined to follow such ruling because it was in conflict with older and controlling decisions of this court. In Barnett v. Barnett, supra, and in Morgan v. Morgan, 148 Ga. 625, 97 S.E. 675, 4 A.L.R. 925, this court held that on an interlocutory hearing, where it appeared conclusively from the pleadings and the evidence that no valid marriage ever existed between the parties, either because of a previously undissolved marriage, as in the Barnett case, or because of the legal incapacity of one of the parties to enter into the marital contract, as in the Morgan case, that the trial court could not properly make an award of temporary alimony and counsel fees to the wife. And in Roseberry v. Roseberry, 17 Ga. 139, it was held that an inquiry into the validity of the marriage between the parties on a hearing for alimony was not a hearing of the case on its merits. This brings us to a consideration of the controlling question presented by the main bill of exceptions, and that is: Did the husband show conclusively, at the interlocutory hearing for temporary alimony and counsel fees that his alleged marriage to the defendant in error was invalid because at that time he had a living wife by a former marriage, which marriage had never been dissolved?
'When a marriage has been regularly solemnized, and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other facts necessary to render the marriage valid;...
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