Motes v. Motes , 229 Ga. 429 ( 1972 )

Undercofler, Justice.

On January 13, 1972, Mary Anne Motes filed suit for divorce against Jessie James Motes in Cobb Superior Court. There was no special prayer seeking to place the defendant under disabilities. The defendant filed no defensive pleadings.

The divorce decree provided that the defendant did not have the right to remarry. The defendant appeals to this court. Held:

Submitted July 11, 1972 Decided September 7, 1972. Doyle C. Brown, for appellant. Alden C. Harrington, Michael H. Terry, for appellee.

Code Ann. § 30-122 provides: "Where a divorce shall be granted, the jury or the judge, as the case may be, shall determine the rights and disabilities of the parties: Provided, however, that no person shall be placed under disabilities unless there is in the pleadings a special prayer that he be placed under such disabilities.” Ga. L. 1946, pp. 90, 93; as amended, Ga. L. 1960, pp. 1024, 1025. In Duncan v. Duncan, 226 Ga. 605 (176 SE2d 88) this court held that it was error for the trial court to place the defendant under disability to remarry in the absence of a special prayer therefor. It follows that the portion of the judgment placing the defendant under disability is erroneous. It is directed that this portion of the judgment be stricken.

Judgment affirmed with direction.

All the Justices concur.