Booker v. Booker

7 Citing cases

  1. Grissom v. Grissom

    282 Ga. 267 (Ga. 2007)   Cited 3 times
    Holding that a husband's transfer of separate property to himself and his wife jointly manifested an intent to transform the separate property into marital property

    ]" When referring to the decisions which must be overruled to reach the merits of this appeal, the plurality opinion simply mentions on p. 268 " Curtis [v. Curtis, 255 Ga. 288 ( 336 SE2d 770) (1985)] and other cases "In fact, over the nearly 100 years that separate the decision in Coley from the decision in Smith, this Court has repeatedly and consistently adhered to the rule that one, such as Wife, who accepts a benefit conferred by a divorce decree, cannot challenge the judgment in any respect unless and until those benefits have been returned. See White v. White, supra; Curtis v. Curtis, supra at 289; Guess v. Guess, 242 Ga. 786 ( 251 SE2d 528) (1979); Wilkinson v. Wilkinson, 241 Ga. 303, 304 ( 245 SE2d 278) (1978); Vickery v. Vickery, 237 Ga. 702 ( 229 SE2d 453) (1976); Sikes v. Sikes, 231 Ga. 105, 108 ( 200 SE2d 259) (1973); Booker v. Booker, 217 Ga. 342 ( 122 SE2d 86) (1961); Burnham v. Burnham, 215 Ga. 57, 58 ( 108 SE2d 706) (1959); Thompson v. Thompson, 203 Ga. 128(2) (a), (b) ( 45 SE2d 632) (1947); Davis v. Davis, 191 Ga. 333 (a) ( 11 SE2d 884) (1940). Thus, it is undisputed that adherence to the principle of stare decisis in this case would mandate a summary affirmance of the judgment on the ground that Wife, having accepted and retained benefits from the underlying divorce decree, cannot now attack it.

  2. White v. White

    274 Ga. 884 (Ga. 2002)   Cited 10 times
    Reviewing a motion to set aside as a valid post-judgment motion in a divorce case

    The law of this state is well-settled on this issue: one who has accepted benefits such as alimony under a divorce decree is estopped from seeking to set aside that decree without first returning the benefits. Vickery v. Vickery, 237 Ga. 702 ( 229 S.E.2d 453) (1976); Booker v. Booker, 217 Ga. 342 ( 122 S.E.2d 86) (1961); Thompson v. Thompson, 203 Ga. 128 (2b) ( 45 S.E.2d 632) (1947). However, "`[e]stoppels are not favored by the law, because the truth is excluded thereby.' [Cits.] Estoppel is governed by equitable principles, and the party claiming the benefit of an estoppel must be free from fraud in the transaction.

  3. Wilkinson v. Wilkinson

    245 S.E.2d 278 (Ga. 1978)   Cited 6 times

    She brings the complaint to set aside the divorce decree in her own name. In Booker v. Booker, 217 Ga. 342 ( 122 S.E.2d 86) (1961), it was held: "The primary purpose of this litigation is to set aside a decree which the plaintiff obtained in a court of competent jurisdiction against the defendant for divorce and alimony, and since it affirmatively appears from the allegations of her amended petition that she accepted and retained the property awarded to her as alimony by the decree, she will not be permitted while retaining it to further prosecute her amended petition to set aside the decree which she obtained; and this is especially true in the instant case where she personally instituted this litigation as a person mentally competent to do so." See also Thompson v. Thompson, 203 Ga. 128 (2-b) ( 45 S.E.2d 632) (1947); Sikes v. Sikes, 231 Ga. 105, 108 ( 200 S.E.2d 259) (1973); Vickery v. Vickery, 237 Ga. 702 ( 229 S.E.2d 453) (1976).

  4. Sikes v. Sikes

    200 S.E.2d 259 (Ga. 1973)   Cited 6 times

    But the plaintiff seeks to repudiate or avoid the effect of the agreement of December 5, 1928, stating as an issue in her brief here that she "contends that the execution by her of the agreement of December 5, 1928 was induced by fraud, deception and duress and does not constitute a valid and binding settlement of her rights." The effect of this contention is to seek to avoid application of Code § 30-211, whereby a husband, having voluntarily separated from or abandoned his wife, may voluntarily by deed (as here used it includes a contract or separation agreement, Powell v. Powell, 196 Ga. 694, 699 ( 27 S.E.2d 393)), make adequate provision for support which shall bar the right to permanent alimony. It is clear that one who has accepted and retained alimony or property awarded by a judgment is estopped to prosecute an action to set aside the decree of divorce rendered in the same judgment. Booker v. Booker, 217 Ga. 342 ( 122 S.E.2d 86); Thompson v. Thompson, 203 Ga. 128 ( 45 S.E.2d 632). The same reasoning should apply where one accepts and retains property, alimony, or other benefits under a separation agreement. "In cases of fraud (except in the execution of a will) equity has concurrent jurisdiction with the law."

  5. J F Car Care Service v. Russell Corporation

    305 S.E.2d 504 (Ga. Ct. App. 1983)   Cited 16 times

    In Thompson v. Thompson, 203 Ga. 128 ( 45 S.E.2d 632), involving an ex-wife who had received alimony under a divorce decree, the Supreme Court held: "Having accepted the amount awarded by the judgment as alimony, she was estopped, while retaining it, from further prosecuting her petition to set aside the decree of divorce as contained in the same judgment." Accord, Booker v. Booker, 217 Ga. 342 ( 122 S.E.2d 86). See Wilkinson v. Wilkinson, 241 Ga. 303, 304 ( 245 S.E.2d 278). This comports with the majority rule of our sister states that: "A party who accepts an award or legal advantage under an order, judgment, or decree ordinarily waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted."

  6. Booker v. Booker

    130 S.E.2d 260 (Ga. Ct. App. 1963)   Cited 4 times

    In that case the defendant filed a general demurrer to plaintiff's petition and on April 9, 1961, the trial judge sustained same. Thereafter, on October 9, 1961, the Supreme Court affirmed the ruling of the lower court in sustaining the general demurrer. See Booker v. Booker, 217 Ga. 342 ( 122 S.E.2d 86). Following the unsuccessful attempt to have the divorce decree and the property settlement agreement set aside in Booker v. Booker, supra, plaintiff on May 28, 1962, filed the instant suit to recover damages against the same defendant upon the grounds of alleged fraud and deceit growing out of the same property settlement agreement and divorce action that plaintiff had sought to have set aside in the Booker case, supra.

  7. Thompson v. Thompson

    288 Ga. 4 (Ga. 2010)   Cited 4 times

    In fact, over the nearly 100 years that separate the decision in Coley from the decision in Smith, this Court has repeatedly and consistently adhered to the rule that one ... who accepts a benefit conferred by a divorce decree, cannot challenge the judgment in any respect unless and until those benefits have been returned. SeeWhite v. White,supra; Curtis v. Curtis,supra at 289, 336 S.E.2d 770; Guess v. Guess, 242 Ga. 786, 251 S.E.2d 528 (1979); Wilkinson v. Wilkinson, 241 Ga. 303, 304, 245 S.E.2d 278 (1978); Vickery v. Vickery, 237 Ga. 702, 229 S.E.2d 453 (1976); Sikes v. Sikes, 231 Ga. 105, 108, 200 S.E.2d 259 (1973); Booker v. Booker, 217 Ga. 342, 122 S.E.2d 86 (1961); Burnham v. Burnham, 215 Ga. 57, 58, 108 S.E.2d 706 (1959); Thompson v. Thompson, 203 Ga. 128(2)(a), (b), 45 S.E.2d 632 (1947); Davis v. Davis, 191 Ga. 333(a), 11 S.E.2d 884 (1940). Grissom,supra at 271, 647 S.E.2d 1 (Carley, J., dissenting).