Whitmire v. Whitmire, 30466
| Decision Date | 02 February 1976 |
| Docket Number | No. 30466,30466 |
| Citation | 223 S.E.2d 135,236 Ga. 153 |
| Parties | Bobby E. WHITMIRE v. Joyce Jackson WHITMIRE. |
| Court | Georgia Supreme Court |
Schuder & Brown, George W. Brown, Jr., Gainesville, for appellant.
Palmour, Palmour & Lawson, Robert W. Lawson, Jr., Gainesville, for appellee.
The question presented in this divorce case is: Where both parties seek a divorce on the ground that the marriage is irretrievably broken, does the trial court err in denying the divorce?
The trial court denied the divorce prayed for by both parties and the husband appeals. The husband filed his divorce petition alleging two grounds, cruel treatment by the wife and that the marriage was irretrievably broken. Code Ann. § 30-102(10, 13). The wife filed a counterclaim for divorce upon the same two grounds. Both parties waived trial by jury. After trial before the court, divorce was denied to both parties on both grounds. The trial court ruled that a divorce on the grounds of cruel treatment was not authorized due to a finding of like conduct citing Code Ann. § 30-109, Reynolds v. Reynolds, 217 Ga. 234, 268, 123 S.E.2d 115 (1961), and other cases. Regarding the 'irretrievably broken' ground, the court ruled that 'To authorize a divorce on this ground the evidence must show that both parties, acting in good faith, made every reasonable effort to provide a successful marriage, but through no fault of either the marriage became irretrievably broken.' The court found that 'The husband and wife have each proved overwhelmingly in this case that neither has in good faith made an effort to provide a successful marriage for a period of several months before this action was filed' and divorce was also denied on this ground.
That the marriage is irretrievably broken was added by the General Assembly as a ground for divorce in 1973, Ga.L.1973, p. 557. It has been referred to as a 'no fault' divorce. The trial court apparently interpreted this ground as meaning that the marriage became irretrievably broken through no fault of either party; i.e., that if either or both parties were at fault, a divorce could not be granted on the ground that the marriage was irretrievably broken.
The husband contends that in a divorce action where both parties assert that the marriage is irretrievably broken, there is no requirement that 'the evidence must show that both parties, acting in good faith, made every reasonable effort to provide a successful marriage' and that the marriage became irretrievably broken through no fault of either. The husband does not contend that the trial court erred regarding its findings that both parties were guilty of cruel treatment. The evidence shows that the parties had been quarreling, threatening, fighting, and even shooting. The effect of the trial court's order is to require these parties to reunite and make every reasonable effort to make a successful marriage, or remain separate and married.
In Harwell v....
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