Opinion
21170.
ARGUED FEBRUARY 14, 1961.
DECIDED MARCH 9, 1961.
Equitable petition. Clarke Superior Court. Before Judge Cobb.
C. O. Baker, for plaintiff in error.
Joseph J. Gaines, James Barrow, contra.
For the reasons given in the opinion, the trial court did not err in overruling the demurrers to the answers of the defendant and in denying the plaintiff's amended motion for new trial.
ARGUED FEBRUARY 14, 1961 — DECIDED MARCH 9, 1961.
Ralph G. Hill filed a petition in Clarke Superior Court against Mrs. Lee H. Guest, individually and as executrix of the last will and testament of Larie Williams Hill, which, as amended, alleged in substance as follows: Larie Williams Hill was the wife of the plaintiff, and Mrs. Guest is the executrix of her estate. On July 19, 1957, the plaintiff and his wife entered into a property-settlement agreement in contemplation of separation and divorce, a copy of which is attached to the petition. On September 16, 1957, the plaintiff and his wife resumed living together until October 7, 1957, when they again separated. On December 3, 1957, the plaintiff filed suit for divorce against his wife, returnable to the January term, 1958, of Clarke Superior Court. His wife filed an answer thereto. Both the divorce petition and the answer are attached as exhibits to the instant petition. Larie Williams Hill, by will, devised all her estate to her sister, Mrs. Guest, and appointed Mrs. Guest as executrix of the estate. Mrs. Guest is in possession of the real property deeded to the plaintiff's wife under the agreement of July 19, 1957. By virtue of the reconciliation of the plaintiff and his wife, the property agreement of July 19, 1957, is null and void. It is alleged that the plaintiff's wife "by her solemn in judicio statement in her answer to the divorce petition repudiated any right of title in the property mentioned in the . . . contract of July 19, 1957." It further appears that a portion of the property given to the plaintiff's wife has been sold to a third party, the wife receiving a security deed for part of the purchase price, which said deed the wife's executrix now holds. The prayers are: that Mrs. Guest be enjoined from disposing or encumbering any of the real or personal property; that title to same be declared to be in the plaintiff; that Mrs. Guest be ordered to return the personal property; that one of the deeds made by the plaintiff to his wife be delivered up and canceled, and that the security deed mentioned above be transferred to him; that a receiver be appointed to take charge of the property and to receive payments on the security deed pending this action; that Mrs. Guest be required to account for profits or payments received from the property in question; that the maker of the security deed as aforesaid be made a party to the suit; and for other relief.
Mrs. Guest filed answers in her individual and in her representative capacity, in which it is alleged: that the executrix had had none of the deceased wife's personal property except a 1951 Pontiac automobile; that the property agreement of July 19, 1957, was not entered into solely because of contemplation of divorce, but was intended to adjust the equities of the parties in said property, which had been accumulated through their joint efforts; that the deceased wife's assent to said property agreement was procured by the plaintiff through fraud, in that he had represented to her that the property covered thereunder was all that he had, when actually he had hidden out $9,500 in cash in a South Carolina bank, and therefore the plaintiff does not come into court with clean hands; that the wife resumed cohabitation with the plaintiff on a "trial basis" when he expressed repentance for his past wrongful conduct, and on his representations to her that he would refrain from repeating his wrongful and immoral conduct; that, in disregard of his promises, the plaintiff continued to run around and have relations with another woman during said trial period of reconciliation; that the plaintiff did not enter into said reconciliation in good faith or with intent to live up to his promises; that, after the second separation, the plaintiff went with another woman to Raleigh, North Carolina, and lived in the same boarding house as said other woman; that, in the divorce suit filed by the plaintiff against his wife, he alleged that there had been a property settlement between the parties; that, because of his position taken in said divorce suit, that there had been a property settlement, and because of his fraud in procuring said agreement, the plaintiff is estopped to contend that said agreement is void; that said property agreement had been fully executed by the plaintiff with reference to the real estate and executed for the most part with reference to the personalty included therein.
The plaintiff filed numerous demurrers to the answers of the defendant, Mrs. Guest, all of which the trial court overruled. The case was tried before a jury, who rendered a verdict for the defendant. The plaintiff's amended motion for new trial, on the general and seven special grounds, was denied. He excepts to that order and to the overruling of his demurrers to the defendant's answers.
1. In his brief counsel for the plaintiff argues only the general demurrers to both answers and the special demurrer to paragraph 21 of the answer filed by Mrs. Guest in her individual capacity. The remaining demurrers, which are all directed to specified paragraphs or portions of paragraphs of the answers, will be considered as abandoned.
The first sentence of said paragraph 21 of the answer reads as follows: "This defendant shows that petitioner is not entitled to any relief in a court of equity for the reason that he is asking this court to cancel and annul a contract and instruments executed pursuant thereto which he procured through fraudulent misrepresentations made by him to Larie Hill and which were made for the express purpose of deceiving her as to the value of their joint property." The plaintiff demurred to said sentence, as follows: "Petitioner demurs to the first sentence of paragraph twenty-one on ground that nowhere in the petition does petitioner seek an equitable cancellation of said contract, but asks only for a declaration of his right of title which was revested in him by operation of law upon the petitioner's reconciliation with Larie Hill."
While the plaintiff does not specifically pray for a cancellation of the property agreement of July 19, 1957, he does pray that one of the deeds executed pursuant to said agreement be delivered up and canceled. The demurrer was not directed to only the allegations respecting the property agreement, but was directed to the sentence as a whole, and since the sentence demurred to alleges that the plaintiff seeks to annul and cancel both the agreement and instruments executed pursuant thereto, it was not error to overrule this ground of demurrer. The plaintiff demurred to the remaining allegations of paragraph 21 on the ground that they were immaterial and highly prejudicial. Said allegations amplify by statements of fact the defendant's contentions respecting the fraud allegedly practiced on the deceased wife in obtaining the property agreement, and are material to such issue. It was not error to overrule the demurrer to paragraph 21 of the answer.
2. The defendant, by her answers, alleged in substance: that the property agreement was obtained by fraud, in that, at the time of its execution, the plaintiff falsely represented to his wife that it encompassed all of the plaintiff's property, when in fact the plaintiff had concealed a portion of his property from his wife; that the plaintiff, in his petition for divorce filed against his wife, admitted and relied upon the fact that the parties had entered into a property-settlement agreement, and, because of such admission in judicio, he is estopped to deny the validity of said agreement; and that the alleged reconciliation and cohabitation relied upon by the plaintiff as annulling the property agreement were not entered into in good faith by the plaintiff, and he had no intention of trying to save the marriage by said reconciliation.
While, under Code § 30-217, a voluntary cohabitation of the parties will annul a prior agreement for alimony, the reconciliation and cohabitation relied upon by the husband must have been entered into by him in good faith and not as a scheme merely to avoid payment of alimony. See Powell v. Powell, 196 Ga. 694, 700 ( 27 S.E.2d 393). The allegations of the answers state sufficient facts which, if proved, would authorize a jury to conclude that the alleged cohabitation relied upon by the plaintiff was not entered into in good faith and hence that the property agreement of July 19, 1957, was not annulled and set aside by such cohabitation. It was not error to overrule the general demurrers to the answers of the defendant.
3. Special ground 1 of the motion for new trial excepts to the admission of certain evidence elicited from the plaintiff on cross-examination, to the effect that he had been having dates with other women both while he and his wife were living together and after they separated. As the question of a fraudulent reconciliation was raised by the answers, this testimony was clearly relevant to that issue and was properly admitted. This special ground is without merit.
4. It was not error to overrule special ground 2 of the motion for new trial, objecting to the admission by the defendant of a bill charged to Mrs. Larie W. Hill from Athens General Hospital, covering expenses incurred while she was hospitalized from November 4, 1957, to November 16, 1957, undergoing an operation. There was evidence that the plaintiff never contacted his wife after leaving her on October 7, 1957, and that the bill in question and other expenses were paid out of the wife's funds. The evidence objected to was properly admitted for consideration by the jury on the question of whether the reconciliation was entered into in good faith by the plaintiff.
5. Special ground 3, objecting to the admission of testimony set forth therein, is too vague and indefinite to raise any question for decision by this court, since it cannot be determined what evidence was objected to, and at least part of the evidence set out in this ground was clearly admissible. Ray v. Camp, 110 Ga. 818 (3) ( 36 S.E. 242).
6. Special ground 4 contends that there was no evidence that the plaintiff did not enter into a reconciliation with his wife in good faith, and this ground will be treated in passing upon the general grounds of the motion for new trial.
7. Special ground 5 excepts to the following charge of the court: "I charge you further that a husband who was guilty of associating with another woman induced his wife to return to him by promising that he would reform and would have nothing more to do with another woman, but he did not intend to and did not in fact live up to his promises, he committed a fraud on his wife, if you believe it to be true, and the reconciliation which he thus induced, if you so believe he did, would not annul a separation agreement executed before the reconciliation." The exception to the charge is that it was confusing and misleading to the jury and that there was no evidence that the plaintiff induced his wife to return to him by making any promises to her or that he did not intend to live with her again in good faith. There is evidence in the record showing that the plaintiff had been dating other women, and that he had told his wife he was sorry for the things he had done and that he was through with such things, and that on such a basis he and his wife were going back together. The charge excepted to was adjusted to the evidence, and was not error for any reasons assigned. This ground is without merit.
8. Special ground 6 excepts to the following charge: "A contract of separation is deemed annulled, avoided and rescinded, at least as to future or executory provisions, by a reconciliation and resumption of marital duties, even if such resumption is only for a brief time." The exception is that there were no pleadings or evidence as to future or executory provisions, and that the charge in effect instructed the jury that, if the conveyances of the real and personal property had been already performed, the plaintiff could not recover it even if he renewed cohabitation in good faith with his wife.
While there was no evidence as to executory promises respecting the property agreement, this ground fails to show that the charge as given was harmful to the plaintiff. The charge is not subject to the interpretation sought to be placed upon it in this special ground. The court elsewhere in its charge fully instructed the jury that, if they found there was a reconciliation in good faith by the husband and wife, the provisions previously made for permanent alimony in the separation agreement would be set aside; that the question for the jury to decide was whether or not the reconciliation and renewed cohabitation by the plaintiff and his deceased wife was done in good faith by the plaintiff; and that, if they found that the plaintiff went back to his wife in good faith, they should render a verdict for the plaintiff. This ground is without merit.
9. Special ground 7, complaining that the court "erred in not charging the jury concerning the law of estoppel," is too vague and indefinite to present any question for decision by this court. Daniel v. Ethridge, 198 Ga. 191 (12) ( 31 S.E.2d 181); Elliott v. Robinson, 198 Ga. 811 (5) ( 33 S.E.2d 95).
10. As to the general grounds, there is evidence that the plaintiff and his wife separated for several months; that, during the separation and prior thereto, the plaintiff had been dating other women, and one woman in particular; that he and his wife went back together about September 21, 1957, and stayed together until about October 7, 1957; that, in achieving the reconciliation, the plaintiff stated that he was sorry for what he had done and that he had been a fool and he was through with his past actions; that, a few days before leaving his wife permanently, the plaintiff drew out $9,000 from a bank in South Carolina where he had an account; that, when they separated, the plaintiff went to Raleigh, North Carolina, during October of 1957, where he began living in the same boarding house as the woman he had been dating before he and his wife had gone back together; that the plaintiff filed a divorce suit against his wife on December 3, 1957; that on December 23, 1957, he wrote a letter to his wife's brother-in-law, asking him to deliver a message to the plaintiff's wife to the effect that she should stop wasting her money fighting a divorce, and that he would get one any way and did not want to see her ever again; that the plaintiff's wife committed suicide on April 3, 1958; that, on April 26, 1958, he married the other woman he had been dating and knew at that time of his wife's death; and that the plaintiff's wife was devoted to him and did not want their marriage to be dissolved.
Based upon the evidence contained in the record, this court cannot hold as a matter of law that the verdict of the jury was not authorized. The general grounds of the motion for new trial are without merit.
Judgment affirmed. All the Justices concur.