BOONE v. TAYLOR

Supreme Court of Georgia1938-02-16No. No. 12019

185 Ga. 433

Summary · law.co

Holding. The lower court properly sustained the general demurrer because the petition, without alleging an alimony claim, an existing alimony judgment, or a pending alimony action, failed to state a cause of action for cancellation and injunction relief. The judgment was affirmed.

Jeanette Boone sought to cancel a deed her separated husband transferred to C. L. Taylor, alleging the transfer was made fraudulently to prevent her from collecting alimony. She also requested an injunction to stop Taylor from selling or encumbering the property. Boone was the mother of six minor children living on the property and faced potential eviction. Taylor challenged the lawsuit by filing a general demurrer, which the lower court sustained on the grounds that no divorce or alimony action was pending.

The court held that Boone's right to obtain cancellation and injunction relief depended entirely on her first establishing an entitlement to alimony. Because her petition neither asserted a claim for alimony, relied upon an existing alimony judgment, nor referenced any pending alimony action, she failed to state a valid cause of action. The court noted that while Boone might theoretically have pursued an alternative remedy to have property seized for alimony satisfaction despite her husband's absence from the state, her petition did not proceed on that theory or any other legally sufficient basis.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a spouse may seek cancellation of a fraudulent property transfer without an existing or pending alimony action
Prerequisite requirements for obtaining injunction and cancellation relief in marital property disputes
Sufficiency of pleading in a suit to set aside property transfers intended to defeat spousal support claims

Procedural posture

The defendant Taylor filed a general demurrer to Boone's petition in superior court, which the court sustained; Boone excepted and the case was appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Bell, Justice.

Mrs. Jeanette Boone filed a suit in the superior court of Chatham County against her husband G-. A. Boone and C. L. Taylor, residents of that county, to cancel a deed made by the former to the latter, -which purported to convey a described tract of land situated in the City of Savannah. The petition alleged that the plaintiff was married to Gr. A. Boone in 1911, and separated from him on July 15, 1935. The deed, which was executed December 30, 1935, was made with the express intent and purpose of defeating the plaintiff’s claim for alimony, and “of protecting said property from any alimony judgment of petitioner.” It was made fraudulently and without valuable consideration, and Boone, the grantor, has no other property out of which the plaintiff could realize a judgment for alimony. Boone is without the jurisdiction of this State, and service can not be made upon him for the purpose of filing a proceeding for alimony and support. The plaintiff is the mother of six minor children, “the issue of said marriage,” who are living with petitioner at the home located on the property in question. The defendant Taylor has given notice that he will evict the plaintiff unless she vacates the premises, and he is now preparing to institute proceedings for that purpose. The prayers were: (a) “That the sale or purported sale be cancelled and set aside;” (b) that the defendants be restrained and enjoined from selling or encumbering the property; (c) that the land be decreed to be the property of the defendant Boone; (d) and for process. Taylor, who alone was served, filed a general demurrer, which the court sustained upon the ground that no action for divorce or alimony was pending. The plaintiff excepted.

Properly construed, the petition shows upon its face that the plaintiff has not obtained a judgment for alimony, and that no separate action for alimony is pending; nor does the petition itself embrace an action therefor. The suit is for cancellation and injunction, and nothing more. The plaintiff’s right to injunction and cancellation, or either, is dependent upon her right to a judgment for alimony. Parker v. Parker, 148 Ga. 196 (4-a) (96 S. E. 211). Whether under the other facts of the case she might have sued to have the property seized and appropriated to the payment of alimony, despite the fact that the husband is without the jurisdiction of the court and can not be served (Forrester v. Forrester, 155 Ga. 722, 118 S. E. 373); Donalson v. Bridges, 162 Ga. 502, 134 S. E. 302; Wood v. Wood, 166 Ga. 519 (3), 143 S. E. 770), the petition does not proceed upon this theory. Nor does it otherwise state a cause of action, since it asserts no claim for alimony, is not based upon an existing judgment for such, and shows that no independent action therefor is pending. Upon the facts alleged, without more, the plaintiff was not entitled to the relief of cancellation or injunction, and the court did not err in sustaining the general demurrer. Gibbs v. Harrelson, 147 Ga. 404 (94 S. E. 235); Sorrells v. Sorrells, 162 Ga. 734 (134 S. E. 767); Arteaga v. Arteaga, 169 Ga. 595 (151 S. E. 5); and see especially Spinks v. LaGrange Banking & Trust Co., 160 Ga. 705, 711 (129 S. E. 31). Judgment affirmed.

All the Justices concur.