ARGUED SEPTEMBER 13, 1955.
DECIDED OCTOBER 10, 1955.
Divorce. Before Judge Boykin. Meriwether Superior Court. July 8, 1955.
George C. Kennedy, for plaintiff in error.
H. H. Revill, W. S. Allen, contra.
1. The wife's petition to vacate the divorce decree and reinstate the cause on the trial calendar is not based upon the provisions of Code § 30-101, as amended by section 1 of the act entitled "Revision of Divorce Laws" (Ga. L. 1946, pp. 90, 91), which requires that the motion to vacate shall be filed within thirty days from the date of the decree. The wife's petition is based upon fraud alleged to have been perpetrated upon the court and upon the wife by the husband.
2. A judgment obtained by fraud practiced on the defendant and on the court may be set aside and the original case reinstated in a court of law, with proper pleadings and with the parties at interest as parties to the motion, the motion being made at the term of court at which the judgment was entered, and the movant showing that he had a meritorious defense and is ready for an instant trial. Ford v. Clark, 129 Ga. 292 ( 58 S.E. 818). See also Mobley v. Mobley, 9 Ga. 247 (5); Union Compress Co. v. Leffler Son, 122 Ga. 640 ( 50 S.E. 483); Roberts v. Roberts 150 Ga. 757 ( 105 S.E. 448); Wright v. Martin, 153 Ga. 32, 35 ( 111 S.E. 190); Methodist Episcopal Church, South v. Decell, 187 Ga. 526 ( 1 S.E.2d 432); Ketchem v. Ketchem, 191 Ga. 140, 141 ( 11 S.E.2d 788); Moon v. Moon, 199 Ga. 808 ( 35 S.E.2d 439); Plunkett v. Neal, 201 Ga. 752 ( 41 S.E.2d 157). The wife's motion in the present case contained every essential allegation under the rule herein stated.
3. When there has been a "voluntary condonation and cohabitation subsequently to the acts complained of and with notice thereof," no divorce shall be granted. Code § 30-109; Odom v. Odom, 36 Ga. 286, 318; Phinizy v. Phinizy, 154 Ga. 199 (3) ( 114 S.E. 185); Lowry v. Lowry, 170 Ga. 349, 354 ( 153 S.E. 11, 70 A.L.R. 488); Brinson v. Brinson, 201 Ga. 540 ( 40 S.E.2d 535).
( a) "Sexual intercourse is not an essential element of condonation, although it is conclusive evidence thereof." Phinizy v. Phinizy, supra; Kendrick v. Kendrick, 173 Ga. 434 ( 160 S.E. 502); Duncan v. Duncan, 184 Ga. 602 ( 192 S.E. 215).
4. At the hearing upon the rule nisi, on the motion to vacate the decree and reinstate the cause, the wife testified that her husband assured her that the divorce case had been dismissed, and that in July, 1954, they went back together and lived together as husband and wife until the date of the divorce decree. The husband did not testify. The testimony of the wife demanded a finding that the decree in favor of the husband had been procured by fraud, since there could be no divorce between the parties under the uncontradicted testimony of the wife. Johnson v. Johnson, 210 Ga. 795 ( 82 S.E.2d 831).
5. The representations by the husband as to the status of the parties at a time prior to the divorce decree would be germane on the issue of fraud. Evidence of such representations was improperly excluded.
Judgment reversed. All the Justices concur.
ARGUED SEPTEMBER 13, 1955 — DECIDED OCTOBER 10, 1955.
On December 31, 1953, Albert Dixon filed a petition for divorce and alleged: The plaintiff is a resident of Meriwether County and has been all of his life, but he is now in the Army and stationed at Fort Jackson, South Carolina. The defendant, Annie Mae Dixon, is a resident of Meriwether County and has been for more than twelve months. He and Annie Mae Dixon were married on January 2, 1946. He enlisted in the Army in August, 1941, before he was married, and has been at home with his wife only for short periods. A male child, named Morris Dixon, was born to the parties on February 15, 1950, and is living with the wife. On July 27, 1950, the plaintiff was sent with the Army to Korea, where he was wounded and captured, and kept in captivity until August, 1953. While he was absent in Korea, and as a result of an adulterous intercourse, admitted by her, a female child, named Janice, was born to his wife on July 2, 1951. Upon his return home, and learning the true facts, he immediately separated from his wife, and has so continued, and brings this suit for divorce. His own child, Morris Dixon, is in the custody of the wife, and he is willing for the child to remain with her, with the right of visitation upon his part. If his wife should refuse custody during his absence in the Army, he asks that the court award custody to his mother, Sallie Dixon. He is willing to furnish support for his child until the child is of the age of maturity. He has given his wife no cause for her adulterous conduct. He prayed for a total divorce, that the court fix the amount he should pay for the support of his child, and for other relief.
On January 12, 1954, the wife filed her answer, denying that she had been guilty of misconduct as alleged in the petition. She alleged that, when her husband returned to her home from the Army, the normal relationship of marriage was resumed, and that they have lived together as man and wife since the petition for divorce was filed. She prayed that the petition be denied.
On May 16, 1955, and during the May term, 1955, of the Superior Court of Meriwether County, a decree of divorce was entered, granting a divorce to the plaintiff, Albert Dixon, denying the wife the right to remarry, and awarding custody of the child, Morris Dixon, to the mother of the plaintiff, with an order that he pay $50 a month for the support of the child.
Annie Mae Dixon filed a motion to vacate and set aside the judgment and decree of divorce, and it was alleged: She was served with a copy of the petition and process on January 2, 1954. She employed an attorney and filed an answer to the petition. Thereafter the parties resumed cohabitation as man and wife. On July 24, 1954, as husband and wife, they borrowed $370 from the Bank of Manchester. The husband assured her that the divorce petition had been dismissed, and after cohabitation between the parties, and as a further act to assure her that the divorce petition had been dismissed, he destroyed the copy of the petition and process served upon her. They lived together as husband and wife until May 16, 1955, at which time the husband was at home on leave from the Army. During 1954 and 1955 he was stationed at Fort Jackson, South Carolina, and was at home on leave and on weekend passes many times during such period. By his acts he has perpetrated a fraud upon her and upon the court in calling the divorce proceedings up for trial after misleading her with reference to the dismissal of the cause, and in inducing the court to try the cause without notice to her, which denied her the right to make a defense to the divorce proceedings. She has a meritorious defense to the divorce proceedings, and is now ready for a trial of the issues made by the pleadings in the case. She prayed that the judgment and decree be vacated and set aside and the cause be reinstated on the issue docket for trial in its regular order; and that a rule nisi issue, calling upon the husband to show cause why the decree should not be vacated and set aside.
The rule nisi was duly issued on July 4, 1955, calling upon the plaintiff to show cause, on July 8, at the courthouse in Greenville, why the prayers of the defendant should not be granted and the judgment of divorce previously entered be vacated and the cause reinstated.
At the hearing on the motion, Annie Mae Dixon was duly sworn and testified to every material allegation set forth in her motion to vacate and set aside. She offered the testimony of Mercer Buffington and A. J. Sauls for the purpose of showing that the parties went to the witnesses for the purpose of borrowing money, and that the husband at that time told the witnesses that the divorce action had been dismissed and that they were living together as husband and wife. The court refused to permit this testimony. The husband, Albert Dixon, was present in court and did not testify or offer any evidence.
At the conclusion of the hearing, the trial court denied the motion to vacate the divorce decree and to reinstate the cause on the trial calendar. The wife excepts to the denial of her motion to vacate and to reinstate the cause, and to the ruling excluding the evidence of the witnesses Buffington and Sauls.