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BARNETT v. BARNETT

Supreme Court of Georgia1941-01-17No. No. 13453
191 Ga. 501

Summary

Holding. A purported second marriage is void and alimony cannot be recovered when the marriage is entered into while the woman has a living husband, particularly where her prior out-of-state divorce decree is invalid due to non-compliance with that state's residency requirements and lack of defendant's appearance. The judgment awarding temporary alimony and attorney's fees was reversed.

A woman who was lawfully married to another man obtained a purported divorce decree in Tennessee. However, that divorce did not comply with Tennessee's residency requirement, as it was granted based solely on service by publication without the defendant's appearance or response. The woman then entered into a ceremonial marriage with the defendant in this case and sought temporary alimony and attorney's fees.

The court held that the Tennessee divorce decree was void because the plaintiff had not satisfied the residency requirements under Tennessee law. Since the divorce was invalid, the plaintiff remained married to her first husband at the time she underwent the ceremonial marriage with the defendant. Therefore, no valid marriage existed between the plaintiff and defendant, and she could not recover alimony from him. The court also clarified that a trial judge cannot award temporary support simply to give a party funds to contest disputed issues when the fundamental marital relationship does not exist as a matter of law.

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

Key issues

  • Validity of second marriage when prior divorce fails to meet residency requirements
  • Full faith and credit limitations on out-of-state divorce decrees obtained by publication without defendant appearance
  • Collateral attack on foreign divorce decrees based on fraud or failure to meet statutory conditions
  • Entitlement to temporary alimony when no valid marital relationship exists

Procedural posture

The plaintiff appealed from a trial court order awarding her temporary alimony and attorney's fees in an action against her alleged second husband.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Bell, Justice.

1. Where a woman having a living husband enters into a ceremonial marriage with another man, such purported second marriage is void, and the woman can not recover alimony from the man whom she claims as her husband in virtue thereof. Collins v. Collins, 165 Ga. 198 (140 S. E. 501).

2. Where a decree of divorce is obtained in another State on service by publication, and there is no appearance or response by the defendant, such decree is not binding on the courts of this State under the full-faith-and-eredit clause of the United States constitution. If such decree is based on false representation as to residence of the plaintiff in such State for the period of time required by the statutes thereof as a condition to the maintenance of the action, the decree or judgment is subject to collateral attack in the courts of this State, on the ground of fraud in its procurement. Joyner v. Joyner, 131 Ga. 211 (62 S. E. 182, 18 L. R. A. (N. S.) 647, 127 Am. St. R. 220); Matthews v. Matthews, 139 Ga. 123 (76 S. E. 855); Adams v. Adams, 191 Ga. 537 (13 S. E. 2d, 173).

3. On the hearing of the instant application for temporary alimony and attorney’s fees, it appeared conclusively and as a matter of law from the evidence that before the ceremonial marriage between the plaintiff and the defendant, the plaintiff had been lawfully married to another man, from whom she had obtained a purported decree of divorce in the State of Tennessee, but that under the law of that State the applicant for a divorce must have been a resident of the State for two years next preceding the filing of the suit; that this provision of the law of Tennessee was not complied with by the plaintiff; that such action for divorce was based on service by publication; and that there was no appearance or response by the defendant in such proceeding. Held, that in the circumstances the Tennessee decree of divorce appeared to be void, and that, because the plaintiff thus had a living husband at the time of her alleged marriage to the defendant, no valid marital relation arose between them, and alimony was not recoverable. See Durden v. Durden, 184 Ga. 421 (191 S. E. 455); Drake v. Drake, 187 Ga. 423, 429-432 (1 S. E. 2d, 573); Dyal v. Dyal, 187 Ga. 600 (1 S. E. 2d, 660); Jones v. Jones, 181 Ga. 747 (184 S. E. 271).

4. If Chapman v. Chapman, 162 Ga. 358 (133 S. E. 875), should be construed as holding that, although it might appear on such interlocutory hearing that the marriage relation did not exist between the parties, the judge should nevertheless grant to the applicant temporary alimony and attorney’s fees in order to afford her “the means of contesting all of the issues” made in the case, or even that he would be authorized to do so, the decision is in conflict with earlier unanimous decisions which must be followed in preference thereto as authority. Code, § 6-1611; Calhoun v. Cawley, 104 Ga. 335 (30 S. E. 773); Hall v. Hall, 141 Ga. 361 (80 S. E. 992); Morgan v. Morgan, 148 Ga. 625 (97 S. E. 675, 4 A. L. R. 925); Pennaman v. Pennaman, 153 Ga. 647 (112 S. E. 829). See Grant v. Grant, 184 Ga. 339 (191 S. E. 98).

5. Under the preceding rulings, as applied to the pleadings and the evidence, the judge erred in awarding to the plaintiff any sum as temporary alimony and attorney’s fees.

Judgment reversed.

All the Justices concur.