Shapray v. Shapray

223 S.E.2d 802, 236 Ga. 393, 1976 Ga. LEXIS 887

• Court: Supreme Court of Georgia
• Decided: February 11, 1976
• Docket: 30621
• Status: Published

Opinion

Hall, Justice.

This is an appeal from a divorce judgment in favor of the wife on the ground that the marriage was irretrievably broken. The husband had cross claimed for a divorce based upon cruel treatment. The jury found for the wife.

1. The husband contends that the judgment should be set aside because of his discovery after the verdict that he was in fact a resident of Cobb County whereas the suit for divorce was filed and heard in Fulton County. In answering the suit, responding in depositions, and filing a cross claim, he stated that he was a resident of Fulton County. Under the holding in Johnson v. Johnson, 230 Ga. 204 (196 SE2d 394) (1973), his contention is without any merit.

2. He also contends that the evidence does not support a finding that the marriage was irretrievably broken because her testimony showed that at the time of filing the complaint she would have agreed to a reconciliation, though she later changed her mind. Under Harwell v. Harwell, 233 Ga. 89, 91 (209 SE2d 625) (1974), where, either or both parties are unable or refuse to cohabit and there are no prospects for a reconciliation, the marriage is irretrievably broken. The husband admitted the marriage was irretrievably broken. The wife testified to the same effect. The transcript and record of many hundreds of pages demonstrate that the evidence supports the verdict.

Argued January 19, 1976 Decided February 11, 1976 Rehearing denied March 2, 1976. Haas, Holland, Levison & Gibert, Richard N. Hubert, for appellant. Levine & Roane, Irwin M. Levine, for appellee.

3. We have carefully considered the husband’s other enumerations of error and find them without merit.

Judgment affirmed.

All the Justices concur.