Friedman v. Friedman

210 S.E.2d 754, 233 Ga. 254, 1974 Ga. LEXIS 735

• Court: Supreme Court of Georgia
• Decided: November 5, 1974
• Docket: 29215
• Status: Published

Opinions

Per curiam.

Debra S. Friedman filed a complaint against Julian R. Friedman for temporary and permanent alimony, child support, custody of their two children and title and possession of the house and furnishings. Temporary alimony and child support was awarded to the wife. The husband then filed a complaint for divorce on the ground that the marriage of the parties was irretrievably broken. Code Ann. § 30-102 (13) (Ga. L. 1973, p. 557). The actions were consolidated for the purpose of trial. The wife filed an answer and cross action to the husband’s complaint for divorce and alleged that she was entitled to a divorce on the ground that the marriage was irretrievably broken and on the ground of cruel treatment. She averred that the parties had lived in a bona fide state of separation since December, 1972. She sought custody of the children, temporary and permanent alimony, child support, title and possession of the house and furnishings and a jury trial. The husband admitted in his answer to the cross action that the marriage was irretrievably broken but denied the allegations of cruel treatment.

The husband moved for a judgment on the pleadings under Code Ann. § 81A-112 (c) (Ga. L. 1966, pp. 609, 622; 1967, pp. 226,231; 1968, pp. 1104,1106; 1972, pp. 689,692, 693). He attached an affidavit in which he asserted that the marriage was irretrievably broken and that the parties had lived in a bona fide state of separation since December 1972.

The trial court held that since the parties admitted in their pleadings that the marriage was irretrievably broken there was no genuine issue of fact to be decided by a jury. The court granted a divorce to both parties on that ground and held that the judgment awarding alimony and child support remained in full force and effect and was not affected by the judgment. The wife appeals to this court. Held:

1. The wife enumerates as error the granting of a divorce by the trial court without hearing oral evidence.

Since the wife in this case contended that she was entitled to a divorce on the ground that the marriage was irretrievably broken and the court granted a divorce on this ground, she can not now complain because "one cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” Henley v. Henley, 217 Ga. 612 (124 SE2d 86); Dodd v. Dodd, 224 Ga. 746 (164 SE2d 726); Imperial Massage &c. Studio v. Lee, 231 Ga. 482 (2) (202 SE2d 426).

Argued October 15, 1974 — Decided November 5, 1974 Rehearing denied November 26, 1974. Calhoun, Sims & Donaldson, John R. Calhoun, for appellant. Lewis & Javetz, Emanuel Lewis, for appellee.

Reynolds v. Reynolds, 217 Ga. 234 (123 SE2d 115) will not be followed because the public policy of this state has been changed with the adoption of the statute providing for divorce on the ground that the marriage is irretrievably broken. Code Ann.§ 30-102 (13) (Ga. L. 1973, p. 557).

2. The wife contends that the trial court erred in not complying with her demand for a jury trial since she had also demanded a divorce on the ground of cruel treatment and the husband had denied the allegations of cruel treatment.

Division one of this opinion holds that a divorce granted by the trial court on the ground that the marriage was irretrievably broken can not be attacked here by the wife. Therefore there is no issue of fact to be decided by a jury on the question of divorce on the ground of cruel treatment.

3. The trial court in its judgment held that the judgment awarding alimony and child support remained in full force and effect and was not affected by the divorce judgment. This ruling amounted to a reservation to determine the question of permanent alimony after the divorce became final. "Alimony may be granted after a decree of divorce, if the right to have it subsequently determined is reserved therein, provided application therefor is made before the action has become stale.” 27A CJS 1024, § 231; Zuber v. Zuber, 215 Ga. 314 (1) (110 SE2d 370).

Judgment affirmed.

All the Justices concur, except Nichols, P. J, Undercofler and Ingram, JJ, who dissent.