Summary
In Brewer v. Brewer, 205 Ga. 759 (1) (55 S.E.2d 147) (1949), this court held: "Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant.
Summary of this case from Kristensen v. KristensenOpinion
16747.
SEPTEMBER 14, 1949.
Alimony, etc. Before Judge Moore. Fulton Superior Court. April 11, 1949.
Dunaway, Riley Howard, for plaintiff in error.
Young H. Fraser and William S. Shelfer, contra.
1. Condonation and cohabitation after filing a suit for divorce, if conditioned upon the promise of the defendant not to again be guilty of the acts charged in the petition, will not prevent the plaintiff from proceeding with the original petition for divorce in the event of a breach of the condition and agreement on the part of the defendant. Ozmore v. Ozmore, 41 Ga. 46; Stanley v. Stanley, 178 Ga. 814 ( 174 S.E. 531).
2. In this case the trial judge was authorized to find from the evidence of the plaintiff that the agreement on the part of the defendant not to again be guilty of the acts of cruelty charged in the petition was made prior to any cohabitation or condonation after the suit was filed.
3. The Superior Court of Fulton County had jurisdiction of the parties and subject-matter at the time the suit was filed and served. The fact that the parties may have moved out of the State of Georgia after the suit was filed and served would not cause the Fulton Superior Court to lose jurisdiction of the case then pending in that court. "It could not be said that the suit had died. The suit was not abated nor in effect dismissed by the mere act of condonation." Harn v. Harn, 155 Ga. 502 ( 117 S.E. 383).
Judgment affirmed. All the Justices concur.
No. 16747. SEPTEMBER 14, 1949.
Mrs. Mary L. Brewer filed a suit for divorce and alimony against Samuel M. Brewer in Fulton Superior Court on May 31, 1948, on the ground of cruel treatment. The defendant was duly served, and at that time was a resident of Fulton County, Georgia. On February 17, 1949, the petition was amended, alleging among other things that the plaintiff on the ____ day of September, 1948, "did go back to live with him," (defendant) he being then and now a resident of the State of Florida, and he having promised "that he would never again be guilty of the acts of cruelty as set out in the petition." It was then alleged that he was again guilty of the acts of cruelty set out in the petition, and the parties again separated in January, 1949. The petition was again amended on April 11, 1949, one allegation of this amendment being: "Petitioner shows that the said promises were made by the defendant to the petitioner on or about August 15, 1948, in Atlanta, Georgia." The defendant demurred to the petition, one paragraph of the demurrer being: "Plaintiff's petition as amended shows on its face that this court does not have jurisdiction of the subject-matter or of the parties to said cause, and therefore the petition as amended fails to state a cause of action." This demurrer was overruled, and there is no exception to that judgment.
The question of temporary alimony was tried in Fulton Superior Court on May 10, 1949. On this hearing the evidence disclosed that the defendant moved to Florida a very short time, probably the next day, after the original suit for divorce was filed and served on him, and that ever since he has been a resident of Florida. The plaintiff went to renew her cohabitation with him in the State of Florida, and during the time they lived together after the suit was filed they lived in Florida. The plaintiff testified: "The matter with reference to living in Florida as husband and wife is the same thing covered by amendment to this case." A judgment for temporary alimony and attorneys' fees was rendered by the trial judge. The exception to this judgment is: "that the said order (1) was and is contrary to law, and (2) that the evidence shows without dispute, as contended by the defendant, that the court was without jurisdiction of the parties or of the cause, (a) since plaintiff had returned to the defendant several times since the filing of the suit and had resumed all of the marital relationships, and (b) since the filing of the suit, the defendant, Samuel M. Brewer, had left the State of Georgia and had established his legal residence in the State of Florida and that on at least two or three occasions the plaintiff had left the State of Georgia and had gone to the State of Florida, the then and present legal residence of the defendant, Samuel M. Brewer, and had resumed the full marital relationships with him in that State, for which reasons the court could not lawfully enter an order for alimony or attorney's fees in this case to the plaintiff at this time."