Davis v. Davis

9 Citing cases

  1. 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).

  2. 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

    e 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.

  3. Burnham v. Burnham

    108 S.E.2d 706 (Ga. 1959)   Cited 8 times

    Davis v. Mayor c. of Jasper, 119 Ga. 57 (1) ( 45 S.E. 724). It appearing that the court had jurisdiction of the parties and the cause of action, and the plaintiff in error having participated in the divorce and alimony proceeding, and having received the benefits of the decree by accepting a lump-sum settlement of her claim for alimony and by remarrying, she would be estopped from having the decree set aside on the ground of fraud in its procurement. Davis v. Davis, 191 Ga. 333 ( 11 S.E.2d 884). The plaintiff in error could derive no benefit by a reversal in this case, for the reason that, if she was able to obtain the ultimate relief sought, that is, the restoration of the marital relation with the defendant in error, it would be to her detriment and not to her benefit.

  4. Musgrove v. Musgrove

    100 S.E.2d 577 (Ga. 1957)   Cited 31 times
    In Musgrove v. Musgrove (213 Ga. 610, supra) the court held that a former wife failed to state a cause of action in equity against her ex-husband to vacate a decree of divorce procured against her in the wrong county pursuant to an agreement which was a fraud upon the court as to venue, and allegedly as to her, but to which agreement and divorce she had consented.

    " The petition seeking to set aside that divorce decree alleged that the husband had signed such acknowledgment at the special instance and request of the wife, who knew that he was not a resident of the county, and in an effort on her part to give jurisdiction of the case to the Superior Court of Fulton County, and that the acknowledgment of service was signed by the husband under the belief that said proceeding could be brought in said court, and that the court had jurisdiction thereof; that he did not read the allegation of the petition as to his residence, and did not intend by such acknowledgment to admit that such allegation was true. It was there held: "The husband could not, in a court of equity, have the verdicts and decree for divorce set aside on the ground that he did not reside in Fulton county when the petition of his wife for divorce was filed." See also, to the same effect, Fuller v. Curry, 162 Ga. 293 ( 133 S.E. 244); Davis v. Davis, 191 Ga. 333 ( 11 S.E.2d 884); Fender v. Crosby, 209 Ga. 896 ( 76 S.E.2d 769); Merritt v. Merritt, 210 Ga. 39, supra; Phillips v. Phillips, 211 Ga. 305, 309 ( 85 S.E.2d 427); Starling v. Green, 211 Ga. 369 ( 86 S.E.2d 100). ( a) What is here ruled is not in conflict with the following cases relied upon by counsel for the defendant in error: Watts v. Watts, 130 Ga. 683, supra; Jones v. Jones, 181 Ga. 747 ( 184 S.E. 271); Axtell v. Axtell, 181 Ga. 24 ( 181 S.E. 295); Young v. Young, 188 Ga. 29 ( 2 S.E.2d 622); Johnson v. Johnson, 188 Ga. 800 ( 4 S.E.2d 807); Haygood v. Haygood, 190 Ga. 445 ( 9 S.E.2d 834, 130 A.L.R. 87); Moody v. Moody, 195 Ga. 13, supra; Christopher v. Christopher, 198 Ga. 361 ( 31 S.E.2d 818); Cohen v. Cohen, 209 Ga. 459 ( 74 S.E.2d 95); Harmon v. Harmon, 209 Ga. 474 ( 74 S.E.2d 75). Each of those cases has been carefully examined, and each is distinguishable upon its facts.

  5. Murray v. Dukes

    52 S.E.2d 468 (Ga. 1949)   Cited 3 times
    In Murray v. Dukes, 204 Ga. 865 (2) (52 S.E.2d 468), which involved a petition for custody and control and for support of a minor child, this court held: "The superior court is without jurisdiction to render a judgment for permanent alimony before the appearance term; such jurisdiction can not be conferred by consent of the parties; and such a judgment, being void for lack of jurisdiction, can not be the basis of contempt proceedings against the defendant for failure to pay permanent alimony."

    It is then clearly demonstrated that the State is "vitally interested in every divorce action, although it is not an actual party to the case"; and finally it is there held that an attempt to waive the twenty days' service in a divorce action is "void as being against the public interest." The plaintiff in error contends that the wife is estopped from denying the validity of the divorce decree, and for this position relies upon Davis v. Davis, 191 Ga. 333 ( 11 S.E.2d 884). We do not think the Davis case authority for the position of the plaintiff in error.

  6. Crenshaw v. Crenshaw

    198 Ga. 536 (Ga. 1944)   Cited 14 times
    In Crenshaw v. Crenshaw (198 Ga. 536) the court, relying upon those cases which involved attacks upon divorce decrees based upon fraudulent misrepresentation of venue, held that even such a misrepresentation as to domicile which does not appear on the face of the record will not render the divorce decree "void", as that term is used in the Georgia statutes, so as to enable any party at any time to avoid the effects of a jurisdictionally void decree.

    Nor was she entitled to set them aside except under rules applicable to such attacks generally. Leathers v. Leathers, 138 Ga. 740 ( 76 S.E. 44); Fuller v. Curry, supra; Drake v. Drake, 187 Ga. 423 (5) (1 S.E.2d 573); Young v. Young, 188 Ga. 29 ( 2 S.E.2d 622); Johnson v. Johnson, 188 Ga. 800 ( 4 S.E.2d 807); Davis v. Davis, 191 Ga. 333 ( 11 S.E.2d 884). Nothing to the contrary was held in Jones v. Jones, 181 Ga. 747 ( 184 S.E. 271), or Haygood, v. Haygood, 190 Ga. 445 ( 9 S.E.2d 834, 130 A.L.R. 87), both of which cases are distinguishable on their facts from the instant case. ( c) In the brief filed for the wife in this court, it is stated that all concerned have apparently treated the present proceeding as an equitable petition to set aside the verdicts and judgment, and in what has been ruled above this court has dealt with it upon that theory.

  7. Waldor v. Waldor

    123 S.E.2d 660 (Ga. 1962)   Cited 11 times

    In Phillips v. Phillips, 211 Ga. 305 ( 85 S.E.2d 427); Musgrove v. Musgrove, 213 Ga. 610 ( 100 S.E.2d 577), which was not a full-bench decision; McConnell v. McConnell, 135 Ga. 828 ( 70 S.E. 647); and Fuller v. Curry, 162 Ga. 293 ( 133 S.E. 244), the lack of jurisdiction of the court did not appear on the face of the record, and the defendant acknowledged service of the petition and recognized the jurisdiction of the court. In the other cases relied upon ( Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807; Davis v. Davis, 191 Ga. 333, 11 S.E.2d 884; Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177; and Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769), it not only does not appear on the face of the record that the court was without jurisdiction, but the issue of jurisdiction was litigated and the judgment entered determined the question. "While it is true that when both the parties in a divorce suit were residents of this State, a judgment granting a divorce is invalid unless the suit was brought in the county in which the defendant resided ( Watts v. Watts, 130 Ga. 683, 61 S.E. 593; Jones v. Jones, 181 Ga. 747, 184 S.E. 271), this does not mean that the question of venue can be made the subject of continued litigation, once it has been determined in a proper manner."

  8. Phillips v. Phillips

    211 Ga. 305 (Ga. 1955)   Cited 14 times
    In Phillips v. Phillips, 211 Ga. 305 (85 S.E.2d 427); Musgrove v. Musgrove, 213 Ga. 610 (100 S.E.2d 577), which was not a full-bench decision; McConnell v. McConnell, 135 Ga. 828 (70 S.E. 647); and Fuller v. Curry, 162 Ga. 293 (133 S.E. 244), the lack of jurisdiction of the court did not appear on the face of the record, and the defendant acknowledged service of the petition and recognized the jurisdiction of the court.

    This being so, we do not think that the petition shows any right in him to question the validity of the divorce decree which he attacks. Having obtained the decree, his father would have been conclusively estopped in law to assail its validity to the prejudice of innocent parties ( McConnell v. McConnell, 135 Ga. 828, 70 S.E. 647; Fuller v. Curry, 162 Ga. 293, 133 S.E. 244; Johnson v. Johnson, 188 Ga. 800, 4 S.E.2d 807; Davis v. Davis, 191 Ga. 333, 11 S.E.2d 884; Crenshaw v. Crenshaw, 198 Ga. 536, 32 S.E.2d 177; Fender v. Crosby, 209 Ga. 896, 76 S.E.2d 769); and it is an elementary principle of law that a privy, either in law, fact, or estate, has no greater right than the one with whom he is in privity. Accordingly, since the plaintiff's father would have been estopped in law to attack and thus question the validity of the divorce which he procured from the plaintiff's mother, it logically follows that the plaintiff himself is also estopped to do so.

  9. Phillips v. Phillips

    15 Misc. 2d 884 (N.Y. Sup. Ct. 1958)   Cited 15 times

    The rule established by a uniform line of Georgia precedents is that neither party who subjected himself to the personal jurisdiction of the court in the original action may assert at a later time that the original judgment is a nullity because the jurisdictional requirement of proper venue was absent in the divorce proceeding, where such defect does not appear on the face of the record. Petitions to set aside such prior divorce judgments were accordingly not permitted in McConnell v. McConnell ( 135 Ga. 828); Fuller v. Curry ( 162 Ga. 293), and in Davis v. Davis ( 191 Ga. 333). In Musgrove v. Musgrove ( 213 Ga. 610, supra) the court held that a former wife failed to state a cause of action in equity against her ex-husband to vacate a decree of divorce procured against her in the wrong county pursuant to an agreement which was a fraud upon the court as to venue, and allegedly as to her, but to which agreement and divorce she had consented.