HAGAN v. HAGAN

On September 20, 1948, Henry McArthur Hagan brought an action for divorce against Mrs. Erma Erwin Hagan in Bibb Superior Court, alleging that his wife is a resident of Bibb County, and that they were married on August 4, 1919, and lived together as husband and wife until April 29, 1944, when his wife abandoned him, and has since refused to cohabit with him.

On October 20, 1950, the wife filed an answer and cross-petition. She denied that she abandoned her husband, but asserted that he abandoned her on May 29, 1945. She alleged that, subsequently to her husband's petition for divorce, she and her husband perfected a reconciliation on May 20, 1950, and lived together as husband and wife until August 11, 1950, at which time they separated, and have ever since lived separate and apart. She charged that her husband drank intoxicating liquors excessively for a long number of years, and that, after the reconciliation, he drank intoxicating liquors constantly and regularly, made violent threats toward her, fussed, quarreled, and nagged with her constantly, causing an impairment of her health. She prayed that she be granted a total divorce, and be awarded temporary and permanent alimony and attorney's fees.

On February 13, 1951, the wife amended her petition, alleging that the husband is a resident of Glynn County, residing in Brunswick, Georgia. She asserted that she is destitute, and prayed that a rule nisi issue requiring the husband to show cause why he should not pay reasonable and adequate support to her, and her attorney's fees. Order was issued by the trial judge requiring the husband to show cause why the prayers of the petition should not be granted, and why the wife should not be granted temporary alimony and attorney's fees as prayed.

The husband filed a demurrer on March 9, 1951, without submitting to the jurisdiction of the court, asserting that the answer and cross-petition of the wife showed on its face that the venue of the action was improperly laid in Bibb County, and that the Superior Court of Bibb County had no jurisdiction in the premises. On the same date the husband filed his special plea in bar to the wife's answer and cross-petition, and alleged the following: Subsequently to the filing of his original petition for divorce, he and his wife effected a reconciliation wherein the wife's act of desertion was condoned by the husband, and they lived together as husband and wife until August 11, 1950, at which time they were again separated. Prior to the time the reconciliation was effected, but before the wife filed her answer and cross-petition, the husband moved to Glynn County, where he immediately established his residence and has ever since been residing there. He was not a resident of Bibb County at the time the wife filed her answer and cross-petition, and has not submitted to the jurisdiction of the Bibb County court. His original petition was void because of the reconciliation and condonation, and the venue of the wife's action is improperly laid the Bibb County court has no jurisdiction of him, and car render no valid and binding judgment affecting him. He prayed that the wife's petition be dismissed.

The wife filed a motion to dismiss and strike the plea to the jurisdiction and the demurrer filed by the husband, on the ground that the plea and demurrer were filed too late. On April 26, 1951, the trial judge signed an order denying the motion to strike filed by the wife.

On April 25, 1951, the wife amended her cross-action as follows: Subsequently to the filing of the divorce suit by her husband against her, and before she filed her cross-action, the parties were reconciled, the husband promising to discontinue his drinking and his mistreatment of her. After the reconciliation the husband again began to drink intoxicating liquors and to mistreat her, and she was forced to separate from him. The amendment was allowed, subject to demurrer. The jurisdictional grounds of the plea and demurrer of the husband were renewed after the amendment.

On April 26, 1951, the trial judge entered an order declaring that the Superior Court of Bibb County was without jurisdiction in the premises, and dismissing the cross-action of the wife. She excepted to this ruling and to the ruling on the motion to strike.

HEAD, Justice.

1. We recognize the well-established rule that condonation of cruel treatment or other grounds for divorce upon the condition that the acts complained of will not be repeated, will not prevent a divorce petition previously filed from proceeding to final judgment in favor of the complaining party, where the acts constituting grounds for divorce are repeated subsequently to the conditional condonation. Ozmore v. Ozmore, 41 Ga. 46; Harn v. Harn, 155 Ga. 502 ( 117 S.E. 383); Brewer v. Brewer, 205 Ga. 759 ( 55 S.E.2d 147). This rule, however, is not applicable in the present case.

The reconciliation and subsequent cohabitation of the parties terminated the husband's action for divorce based on the alleged wilful desertion of the husband by the wife. While desertion and cruel treatment may be joined as grounds for divorce ( Carawan v. Carawan, 203 Ga. 325, 46 S.E.2d 588), the husband's petition was based solely upon an alleged wilful desertion of the husband by the wife. Under the allegations of the wife's cross-action, the husband had established his legal residence, after filing his divorce petition, in another county. The husband's divorce action having been terminated by the reconciliation and cohabitation of the parties prior to the filing of the cross-action by the wife, the court did not again acquire jurisdiction of the husband by reason of the allegations in the wife's cross-action that the reconciliation was conditional on the husband not repeating acts of cruel treatment.

2. Whether or not the legal objections filed to the cross-petition of the wife were filed at the time or in the manner directed by law is not material. The pleadings presented a question involving the jurisdiction of the court. From the allegations of the cross-action it conclusively appears that the court was without jurisdiction, since the wife alleged that, subsequently to the filing of his petition for divorce, the husband had become a resident of Glynn County, Georgia, and that there had been a reconciliation and cohabitation by the parties prior to her cross-action for divorce and alimony.

The constitutional provisions fixing the jurisdiction of divorce actions are mandatory. A lack of jurisdiction will render the divorce decree null and void. Moody v. Moody, 195 Ga. 13, 14 ( 22 S.E.2d 836); Darbie v. Darbie, 195 Ga. 769 ( 25 S.E.2d 685); Gates v. Gates, 197 Ga. 11, 17 ( 28 S.E.2d 108).

The trial court properly dismissed the cross-action of the wife for divorce and alimony.

Judgment affirmed. All the Justices concur.