Byrd v. Byrd

287 S.E.2d 194, 249 Ga. 23, 1982 Ga. LEXIS 738

• Court: Supreme Court of Georgia
• Decided: February 16, 1982
• Docket: 38051
• Status: Published

Opinion

Clarke, Justice.

The parties to this case were married in 1937. In September of 1980, the husband filed a suit for divorce in Chatham County, Georgia, while the parties were separated. In December of 1980, the husband returned to the marital home and the parties cohabited until February, 1981. During the course of the cohabitation, and without the knowledge of the wife, the husband proceeded to secure a judgment of divorce against the wife. In March of 1981, the wife filed an action seeking relief in the form of alimony and property division and also praying that the judgment and decree of February 3,1981, be voided and set aside.

The trial judge dismissed the wife’s new complaint. He found that if it were construed as an attack upon a judgment under Code Ann. § 81A-160 (d), such an attack could be maintained only if a defect appeared upon the face of the record or pleadings. The trial court found no such defect. He further held that the complaint could not be interpreted as a complaint in equity as provided in Code Ann. § 81 A-160 (e). Finally, the wife could not pursue a divorce in a new complaint until such time as she has been able to set aside the earlier divorce decree.

Decided February 16, 1982. John J. Sullivan, for appellant. Calhoun & Associates, Kran Riddle, for appellee.

Having reviewed the record in this case, we find no error in the trial court’s holding and, construing the order of dismissal in its entirety, we interpret it to be a dismissal without prejudice.

The record also indicates that the wife has now filed a complaint in equity praying that the February 3, 1981, divorce decree be set aside under Code Ann. § 81A-160 (e). The question of the validity of the earlier divorce decree must be determined in that action.

Judgment affirmed.

All the Justices concur.