Blois v. Blois , 234 Ga. 475 ( 1975 )

Hill, Justice.

This is an appeal by the wife from a divorce judgment granted to her husband upon his complaint based on alleged cruel treatment. The jury awarded alimony of $60 a month to the wife but she steadfastly has opposed the divorce, alleging that he deserted her.

1. Appellant contends that the trial court erred in not granting her motion for a new trial on the general grounds. After examining the evidence, we find it sufficient to justify the jury’s verdict granting a divorce based on cruel treatment. Morehead v. Morehead, 227 Ga. 428 (181 SE2d 59).

2. Appellant enumerates as error the trial judge’s refusal to give two requests for charge in its instructions to the jury. One such request was: "Proceedings for a divorce and alimony in this State have always been regarded as equitable proceedings. (224 Ga. 662). As such, the complaining party must have clean hands in order to succeed.” While it is true that divorce in Georgia has historically been regarded as equitable in nature, Hendrix v. Hendrix, 224 Ga. 662 (163 SE2d 917), it does not follow that a party seeking a divorce "must have clean hands” in order to obtain a divorce. In some divorce proceedings the complaining party has been granted a divorce even though he admits to having committed adultery. Williford v. Williford, 230 Ga. 543 (198 SE2d 181). In fact, if the law were as this request to charge reads, fewer divorces would be authorized.

The other request to charge reads: "In this case, if you find that the plaintiff husband has legally deserted defendant wife for a period exceeding one year, you cannot award him a divorce. In other words, if both parties are guilty of committing acts which are grounds for divorce, a divorce cannot be granted.” Without considering the first sentence of this request, the second sentence clearly is not a correct statement of law.

There are numerous grounds for divorce. Code Ann. § 30-102. Code § 30-109 refers to four of those grounds, adultery, desertion, cruel treatment and intoxication (habitual), and provides that "if both parties have been guilty of like conduct... then no divorce shall be granted

Argued April 16, 1975 Decided May 6, 1975

We are urged by appellant to approve this request to charge and thus to hold that the cruel treatment charged to her and the desertion charged against her husband is "like conduct” within the meaning of Code § 30-109. If this were "like conduct” then all four enumerated grounds for divorce would be "like conduct” as to each other.

In Gholston v. Gholston, 31 Ga. 625, 635, the court approved jury instructions which stated that the cruel treatment of wife beating was "unlike” the cruel treatment of a wife’s abusive and insulting language to her husband.

In Schwartz v. Schwartz, 222 Ga. 460 (2) (150 SE2d 809), the court held that cruel treatment by the wife prior to separation vis-a-vis adultery of the husband after separation and an invalid Mexican divorce, are not "like conduct.”

We hold here that cruel treatment and desertion are not "like conduct” within the meaning of Code § 30-109 so as to prohibit the grant of a divorce.

Appellant’s requests to charge not being correct statements of law, this enumeration of error is without merit.

3. Appellant contends that the trial judge committed error in refusing to enforce a Florida judgment for temporary alimony against her husband. Code § 38-622 and Code Ann. § 38-627 provide the means for authentication or certification of foreign judgments. The Florida judgment was never proved and thus was not entitled to recognition or enforcement in this divorce proceeding.

Finally, defendant alleges the trial court erred in exercising jurisdiction because of the prior pending Florida action. Again, the defendant failed to prove the pendency of the Florida action. Code § 38-622, Code Ann. § 38-627.

Judgment affirmed.

All the Justices concur, except Ingram, J., who concurs specially. Rehearing denied May 27, 1975. Ruth G. Martin Blois, pro se.