Thompson v. Thompson

• Decision Date: 01 December 1947
• Docket Number: 15899,15900.
• Citation: 45 S.E.2d 632,203 Ga. 128
• Parties: THOMPSON v. THOMPSON (two cases).
• Court: Georgia Supreme Court

45 S.E.2d 632

203 Ga. 128

THOMPSON v. THOMPSON (two cases).

Nos. 15899, 15900.

Supreme Court of Georgia

December 1, 1947

For convenience, the parties to this case may be sometimes referred to in this statement as husband and wife notwithstanding a decree of divorce that is still in existence, and is a subject matter of the present controversy.

Mrs Merle Harp Thompson, against whom a divorce was granted on petition of her husband, sued out a writ of error upon a main bill of exceptions assigning error upon a judgment dismising on written motion her petition or motion to set aside such divorce judgment. The petition that was thus dismissed had been designated by her as Count I in a proceeding which she had brought in three counts after rendition of the divorce decree, in connection with which decree there was an award of alimony in th sum of $6,000, based upon a purported agreement between the parties. In Counts II and III of that proceeding whether called a petition or a motion, she prayed for reformation of the purported agreement for alimony cancellation of another agreement connected therewith, and modification of the divorce decree.

In such bill of exceptions, she also assigned error upon exceptions pendente lite which she had taken to a previous judgment sustaining demurrers and striking Counts II and III as above described.

Charles S. Thompson, husband, sued out a cross-bill of exceptions, assigning error upon exceptions pendente lite which he had taken to an order contained in the same judgment as last mentioned, overruling his demurrer to Count I as above described. The facts necessary to a consideration of both the main and the cross-bill of exceptions were substantially as follows:

On July 8, 1946, Charles S. Thompson filed a suit for divorce in the superior court of Fulton County against his wife, Mrs. Merle Harp Thompson, a resident of Amarillo, Texas. He alleged that he and the defendant were married in Abilene, Taylor County, Texas, November 20, 1943, and that immediately after the ceremony the defendant deserted petitioner and has wilfully and continuously lived separate from him since that time; that 'there is no issue of said marriage.'

The defendant was served by publication. On October 14, 1946, she filed an answer, alleging that she and the plaintiff were married November 24, 1943; that the fact she is a non-resident is not due to any change of residence on her part, but she claims the residence of her husband to be her residence, and says he abandoned her in Texas and has never offered to make a home for her anywhere. She denied the allegations as to her having deserted him, and as to there being no issue of said marriage. Further answering, she said the plaintiff is the father of a child born to defendant, which she named Charles S. Thompson III. She prayed that the plaintiff be denied a divorce, and that she be granted permanent and temporary alimony for the support of herself and the minor child, also for reasonable attorney's fees, and custody of the child.

On December 17, 1946, the plaintiff, by leave of the court, amended his petition for divorce by alleging that the parties had by contract settled all property rights, including alimony and attorneys' fees, copy of such alleged contract being attached to and made a part of the amendment, and a further prayer was added, asking that such contract be approved and made the judgment of the court. The exhibit attached to such amendment purported to be a contract signed by the parties as of December 14, 1946, he signing in Georgia and she in Texas. This contract recited, among other things, that 'the parties hereto married in Abilene, Taylor County, Texas, on November 24, 1943, and subsequent to this time no children were born as the issue of said marriage.' It also contained among others the following stipulations: '1. For and in consideration of the sum of Six Thousand Dollars ($6,000) in hand paid by party of the first part to party of the second part, the receipt and sufficiency of which is hereby acknowledged, party of the second part does hereby release and forever discharge party of the first part from any and all claims for alimony, attorneys' fees, support, dower or year's support and all other claims of every kind and character whatsoever.

'2. Upon the execution of this agreement, party of the second part does forever release and discharge party of the first part from any and all liability of every nature whatsoever that party of the second part may have against party of the first part for support, permanent alimony, temporary alimony, attorneys' fees, share in his estate, as her dower, year's support, or any and all other claims of any and every nature whatsoever.

'3. This agreement shall be attached to said petition for divorce by way of amendment and a prayer added to said divorce petition praying that this contract be made the judgment of the court in said divorce suit hereinabove referred to.'

It appears in the record that the parties signed an agreement dated December 14, 1946, consenting for the case to be tried at the first or appearance term.

On December 18, 1946, a total divorce between the parties was granted, both being given the right to marry again, and the contract for alimony as attached to the amendment and marked Exhibit A was approved and made the judgment of the court. Thereafter, on January 16, 1947, Mrs. Thompson filed a petition which was entitled in the divorce suit, and in which she sought relief in three counts, as follows:

Count I. 1. The plaintiff in the above stated case filed a divorce petition against the defendant, now petitioner, in this court under the above stated number. The defendant filed a plea and answer praying that the prayers of the plaintiff for divorce be denied and that she be granted temporary and permanent alimony for the support of herself and their minor child, Charles S. Thompson III, that the custody of said minor child be awarded her and that the court award her a reasonable attorney's fee for her counsel.

2. On December 14, 1946, Attorney F. H. McGregor of Amarillo, Texas, without the knowledge or consent of defendant and contrary to her instructions, directed that her defenses in the case in Fulton Superior Court be dismissed and withdrawn. Purchant to Attorney McGregor's directions to the local lawyer in Atlanta, Georgia, associated with him in the case, the said local Atlanta attorney under date of December 16, 1946, notified the clerk of the Domestic Relations Division of Fulton Superior Court that Attorney McGregor, who had associated him in the defense of this case, had written him under date of December 14, 1946, to withdraw the defendant's answer, and therefore notified the clerk to give the court that direction. The said defenses of the defendant were accordingly dismissed and the plaintiff through his attorney obtained a decree of divorce under date of December 18, 1946, approving a contract attached to the petition by way of amendment and marked Exhibit A, making it the judgment of the court, fixing the property rights of the parties thereto. A copy of said decree is attached hereto as defendant's Exhibit A Count I, and of the contract as defendant's Exhibit B Count I.

3. Defendant did not know of the said decree of divorce of December 18, 1946, until two or three days thereafter, nor of the fact that Attorney McGregor had caused her defenses to be withdrawn contrary to her wishes and instructions.

4. Defendant instructed counsel to file her plea and answer in this case in good faith for the purpose of defending herself against the false charges contained in the plaintiff's petition against her and to protect her minor child by the plaintiff and for other relief sought in her said plea and answer. She has not had her day in court and has never had an opportunity to defend herself against the false charges made in plaintiff's petition against her and she desires an opportunity to have her plea and answer tried in accordance with the law of this State.

Wherefore, defendant prays as follows:

(a) That the decree of this court of December 18, 1946, be set aside and declared null and void for the reasons set forth above.

(b) That the defendant be granted a jury trial on the issues of fact formed by her plea and answer in the case which was dismissed as aforesaid.

(c) For rule nisi.

(d) That in the meantime the said decree of this court of December 18, 1946, be suspended pending final determination of the questions raised by this petition.

(e) That the dismissal of defendant's plea and answer be revoked and set aside for the reasons set forth above.

Attached to this count was a copy of the divorce decree, which in turn had attached to it a copy of the purported agreement of December 14, 1946, as to alimony.

Count II. 1. The plaintiff in the above stated case filed a divorce petition against the defendant, now petitioner, in this court under the above stated number. The defendant filed a plea and answer praying that the prayers of the plaintiff for a divorce be denied and that she be granted temporary and permanent alimony for the support of herself and their minor child, Charles S. Thompson III, that the custody of said minor child be awarded her and that the court award her a reasonable attorney's fee for her counsel.

2. While the plea and answer of the defendant was pending in said case and before it was reached for trial, to-wit December 14, 1946, the defendant's attorney Mr. F. H. McGregor at Amarillo, Texas, called defendant over the telephone at her parents' home to come to his office for a conference about the case the following day. Although she was sick and had been confined to her bed since December 5th with illness, unable to...