Dunn v. Dunn

Supreme Court of Georgia

Dunn v. Dunn

277 S.E.2d 241, 247 Ga. 327, 1981 Ga. LEXIS 686

CourtSupreme Court of Georgia

DecidedFebruary 25, 1981

Docket37041

StatusPublished

This text of 277 S.E.2d 241 (Dunn v. Dunn) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dunn v. Dunn, 277 S.E.2d 241, 247 Ga. 327, 1981 Ga. LEXIS 686 (Ga. 1981).

Pincite

Opinion

Jordan, Chief Justice.

Appellant Josephine Dunn and appellee Bobby Dunn were ceremonially married in 1969 and divorced in 1973, custody of the child awarded to appellant. Appellant contends that they entered into a common law marriage in 1974 and lived together as man and wife until they separated in early 1975. Subsequent thereto on October 4,1975, appellee entered into a ceremonial marriage with his present wife and one child has been born to that marriage.

On August 20, 1979, appellant filed a petition for divorce, custody and alimony against the appellee based on the alleged common law marriage in 1974 and seeking return of certain real estate allegedly conveyed to appellee in 1976 under coercion.

Appellee answered denying the common law marriage and both parties filed affidavits and interrogatories. The appellee made a motion for summary judgment which the trial court granted on the basis that “because of the doctrine of laches the plaintiff is forever barred from asserting a common law marriage between the plaintiff and the defendant. . . .” and the appellant filed this appeal.

The appellee has made a motion to dismiss the appeal in this court for failure to file an application for appeal under the provisions of Code Ann. § 6-701.1. Appellant contends that while the issue of common law marriage and divorce are involved, these issues were never reached because of the application of the equitable doctrine of laches, and hence this is not an appeal from a “judgment or order granting or refusing a divorce” under the above stated Code Section.

Pretermitting the question of whether equitable estoppel is applicable to a claim of common law marriage (see Evans v. Marbut, 238 Ga. 583 (234 SE2d 506) (1977)) we hold that this is a “domestic relations” case and subject to the appeal procedure set forth in Code Ann. § 6-701.1. This Code Section has been broadly applied to cases involving divorce, alimony, and contempt based thereon. Horne v. Horne, 245 Ga. 300 (265 SE2d 3) (1980); Biggs v. Biggs, 246 Ga. 520 (273 SE2d 403) (1980); Waters v. Waters, 246 Ga. 547 (273 SE2d 404) (1980).

The motion to dismiss is granted.

AIL the Justices concur. P. Samuel Huff, for appellee.

Free access — add to your briefcase to read the full text and ask questions with AI

Jordan, Chief Justice.

Appellant Josephine Dunn and appellee Bobby Dunn were ceremonially married in 1969 and divorced in 1973, custody of the child awarded to appellant. Appellant contends that they entered into a common law marriage in 1974 and lived together as man and wife until they separated in early 1975. Subsequent thereto on October 4,1975, appellee entered into a ceremonial marriage with his present wife and one child has been born to that marriage.

On August 20, 1979, appellant filed a petition for divorce, custody and alimony against the appellee based on the alleged common law marriage in 1974 and seeking return of certain real estate allegedly conveyed to appellee in 1976 under coercion.

Appellee answered denying the common law marriage and both parties filed affidavits and interrogatories. The appellee made a motion for summary judgment which the trial court granted on the basis that “because of the doctrine of laches the plaintiff is forever barred from asserting a common law marriage between the plaintiff and the defendant. . . .” and the appellant filed this appeal.

The appellee has made a motion to dismiss the appeal in this court for failure to file an application for appeal under the provisions of Code Ann. § 6-701.1. Appellant contends that while the issue of common law marriage and divorce are involved, these issues were never reached because of the application of the equitable doctrine of laches, and hence this is not an appeal from a “judgment or order granting or refusing a divorce” under the above stated Code Section.

Pretermitting the question of whether equitable estoppel is applicable to a claim of common law marriage (see Evans v. Marbut, 238 Ga. 583 (234 SE2d 506) (1977)) we hold that this is a “domestic relations” case and subject to the appeal procedure set forth in Code Ann. § 6-701.1. This Code Section has been broadly applied to cases involving divorce, alimony, and contempt based thereon. Horne v. Horne, 245 Ga. 300 (265 SE2d 3) (1980); Biggs v. Biggs, 246 Ga. 520 (273 SE2d 403) (1980); Waters v. Waters, 246 Ga. 547 (273 SE2d 404) (1980).

The motion to dismiss is granted.

AIL the Justices concur. P. Samuel Huff, for appellee.

Cite This Page — Counsel Stack

Bluebook (online)

277 S.E.2d 241, 247 Ga. 327, 1981 Ga. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-v-dunn-ga-1981.

Opinion

Related

Cite This Page — Counsel Stack