Tatum v. Tatum , 203 Ga. 406 ( 1948 )

1. The defendant in a divorce case cannot waive the time for filing suit as fixed by law so as to confer jurisdiction upon the court to grant the divorce at a term of court which would not be the first or appearance term of such court, where the court would not have such jurisdiction in the absence of actual filing within the time prescribed by law.

2. Accordingly, in the instant case, where the husband's petition for divorce was not filed until September 12, 1947, during the April term, which began on the third Monday in April of that year, the court had no jurisdiction to grant the divorce during the same term and on the same day that the petition was filed, by reason of a purported waiver of the time of filing signed by the wife, and it was error to refuse the petition of the wife, filed within thirty days thereafter, and asking that the judgment be vacated and set aside on the ground that she could not waive a term of the court or the filing date as prescribed by law for such April term.

No. 16102. March 19, 1948. The exception is to a judgment refusing to set aside a decree of divorce. J. C. Tatum filed his petition for a divorce in the Superior Court of Tattnall County on September 12, 1947. On the same day, the court heard evidence and granted the divorce, to take effect after thirty days. Within that period the defendant, Mrs. Mattie H. Tatum, filed a petition in the same court to cancel and set aside the judgment on several alleged grounds. The judge granted a rule nisi, and, after hearing evidence at the time and place designated, passed an order allowing the judgment to stand, and Mrs. Tatum excepted.

Attached to the petition for divorce was a paper entitled, "Consent and agreement," which appears from the record to have been signed by Mrs. Tatum on August 20, 1947, and which reads in part as follows: "Due and legal service of the above and within stated libel for divorce is hereby acknowledged, copy received, and any and all other and further service and notice and process are hereby waived. Filing and time of filing are also waived. I hereby consent to the trial of said case at any time that the court may desire to call the same and waive trial by a jury and consent for the judge of said court to call the same at any time that may be convenient for him."

The plaintiff's petition alleged that he and the defendant were married on April 16, 1947, and that they lived together, as husband and wife until August 20, 1947, at which time petitioner separated himself from said defendant and they are now living in a state of separation.

In the petition of Mrs. Tatum to set aside the judgment granting the divorce, she averred, among other things, that the waivers she signed were not legal or binding, as she could not waive the term of the court or the filing date, as the last filing date for the April term, 1947, was the 1st day of April or twenty days before court. This is the only ground relied on by her in this court. The law provides for the holding of two terms of the Superior Court in Tattnall county each year, beginning respectively on the third Monday in April and the third Monday in October. Ga. L. 1922, p. 59. The time for the opening of the April term, 1947, thus fell on April 21 of that year. The petition for divorce in this case was not filed until September 12, which was nearly five months after the beginning of the April term. According to the plaintiff's allegations, he and the defendant married only five days before the term began, and they separated on August 20, about four months later. The alleged cause of action was therefore not even in existence at the convening of that term.

Rule 24 of the new rules of procedure applicable in trial courts expressly excepted divorce and alimony cases, while Rule 17 undertook affirmatively to preserve the then-existing law (Ga. L. 1935, p. 481) as to trial of divorce cases at the first or appearance term by consent of the parties entered upon the docket of the court. Ga. L. 1946, pp. 776, 779. The phrase, "this section," in paragraph 24 refers not merely to that paragraph, but to the entire "Report No. Two" as made to this court by the Bar Committee. Nor did the divorce act of 1946 purport to repeal or modify the act of 1935 as to trial at the first term instead of the second term, provided certain conditions are complied with. See Ga. L. 1946, p. 90; Evans v. Evans, 190 Ga. 364 (9 S.E.2d 254); Kantzipper v. Kantzipper, 179 Ga. 850 (177 S.E. 679).

The Code provides that an action for divorce shall be by petition and process, as in ordinary suits, filed and served as in other cases, unless the defendant shall be a nonresident of this State, when service shall be perfected as prescribed in causes in equity. Code, § 30-105. Neither was this section repealed by the new divorce act. As to repeal by implication, see McGregor v.Clark, 155 Ga. 377 (116 S.E. 823); Atlantic Log ExportCo. v. Central of Ga. Ry. Co., 171 Ga. 175 (1), 176 (155 S.E. 525); Sprayberry v. Wyatt, 203 Ga. 27 (45 S.E.2d 625).

It follows that, unless there can be a valid waiver, the petition in a divorce case must still be deposited in the clerk's office at least twenty days before the term to which it is returnable, in accordance with the law as it existed before adoption of the new rules of procedure and before the enactment of the new divorce law. Code, § 81-111. Compare Penn Mutual LifeIns. Co. v. Troup, 177 Ga. 456 (6) (170 S.E. 359).

It may be said also that, notwithstanding the new rules of procedure and passage of the new divorce act, there is still no law whatever that would authorize the grant of a divorce before the first or return term as these expressions have been heretofore understood and applied. Compare Kantzipper v.Kantzipper, 179 Ga. 850 (supra); Langston v. Nash,192 Ga. 427, 429 (1) (15 S.E.2d 481).

Nevertheless, it has been held several times by this court that a defendant when sued may acknowledge service and waive copy, process, and filing in office before the term of the court to which the case is returnable, and he will not afterwards, as against the plaintiff, be heard to object that the suit was not filed within 20 days before the term. Steadman v. Simmons,39 Ga. 591 (3); Weslow v. Peavy, 51 Ga. 210; AmericanGrocery Co. v. Kennedy, 100 Ga. 462 (28 S.E. 241);Ainsworth v. Mobile Fruit Trading Co., 102 Ga. 123 (2) (29 S.E. 142); Strickland v. Jones, 169 Ga. 220 (1) (149 S.E. 866). In each of these cases, however, it was recognized that such a waiver could not be binding so as to affect the interests of third persons.

From what has been said, in order for the husband in this case to have obtained a divorce at the April term, 1947, his suit should in ordinary course have been instituted twenty days before that term, that is, not later than April 1, to say nothing of the other conditions prescribed by the act of 1935, supra, for the trial of such action at the first term. As indicated above, he and the defendant were not even married at that time. But could the defendant waive the time of filing, as she undertook to do by the paper signed by her on August 20, so as to vary the ordinary procedure? We think not. "Laws made for the preservation of public order or good morals can not be done away with or abrogated by any agreement; but a person may waive or renounce what the law has established in his favor, when he does not thereby injure others or affect the public interest." Code, § 102-106. Marriage and divorce are matters in which the public is deeply concerned, and the public policy of this State relating to marriage has been to foster and protect it, and to discourage separation. The State is thus vitally interested in every divorce action, although it is not an actual party to the case. InWatts v. Watts, 130 Ga. 683, 684, (61 S.E. 593), it was said: "A divorce suit affects not merely the formal parties before the court, but society at large. 9 Am. Eng. Enc. L. (2d ed.) 728-9 (4). On account of the peculiar interest of the public in the preservation of domestic relations, provisions have been made by the Constitution of this State, and by legislative enactment, which take divorce suits out of the rules that govern other actions, and place restrictions around them indicating a policy to hinder facility in the procurement of divorces. This has been true ever since the adoption of the Constitution of 1798." In Head v. Head, 2 Ga. 191, 194, it was said: "It must be apparent to the most careless reader that the Constitution of 1798 is in restraint of divorces; the wise framers of that instrument were careful to hinder facility in their procurement." See also, in this connection, Jones v.Jones, 181 Ga. 747 (2) (184 S.E. 271); Haygood v.Haygood, 190 Ga. 445, 448 (9 S.E.2d 834, 130 A.L.R. 87). While the policy of the law as to retarding procurement of divorces has been greatly relaxed in recent years, it has not as yet been entirely obliterated. Dugas v. Dugas, 201 Ga. 190 (39 S.E.2d 658); Thompson v. Thompson, 203 Ga. 128 (4b) (45 S.E.2d 632).

It is still true that no court can grant a divorce of any character to any person who has not been a bona fide resident of the State for twelve months before the filing of the application for divorce. Code, § 30-107. Nor can this provision be waived by the party sued. Moody v. Moody, 195 Ga. 13 (2a) (22 S.E.2d 836); Wade v. Wade, 195 Ga. 748 (2) (25 S.E. 683). It is still the rule that no verdict or judgment by default shall be taken in a divorce case. Code, § 30-113. And it also continues to be the law that such a verdict or judgment can not be obtained even at the first term except as provided by the act of 1935, supra. Nor can a defendant in a divorce suit waive venue, so as to give the court jurisdiction over his or her person, in a county other than that in which such defendant resides. Code, § 24-112; Watts v. Watts, supra; Constitution, Code (Ann. Supp.), § 2-4301, 2-4901. These are some of the restraints that are still imposed by law upon divorce actions. See also Code, § 30-129, as to the duty of the trial judge in such cases.

It has been held by the Court of Appeals that, where a promisory note contains an obligation to pay attorney's fees, the statutory notice which the plaintiff is required to give to the defendant as a condition precedent to recovery of attorney's fees, can not be waived in the note, and the attempt to waive it therein is unenforceable and of no effect. Miller v. Roberts,9 Ga. App. 511 (3) (71 S.E. 927); Miller v. Jackson,49 Ga. App. 309 (2b) (175 S.E. 409). It has also been held by that court that a debtor can not, by an independent contract, make his wages as a day laborer subject to garnishment. TradersInvestment Co. v. Macon Ry. Light Co., 3 Ga. App. 125 (59 S.E. 454); Walker v. Swift Fertilizer Works, 3 Ga. App. 283 (5) (59 S.E. 850).

If the waivers dealt with in the two classes of cases just mentioned were void as being against the public interest, there would seem to be even stronger reason for holding that the time for the filing of a divorce suit as prescribed by law can not be effectually waived by the defendant. Accordingly, we are of the opinion that such a waiver would be void as an undertaking to authorize a divorce before the time allowed by law, and the facts of the present case forcibly illustrate how far-reaching such a waiver might be in circumventing the law. As further illustration, the required residence for twelve months might not be accomplished before the return day for a given term, and yet if the time of filing suit could be waived, the plaintiff might still complete such a period of residence after the return day and obtain a divorce at such term. Also, the one-year period of desertion, as a ground for divorce, might by such means be virtually cut in half in counties having only two terms of superior court a year, as Tattnall. The time has not yet come under the law of Georgia when a married person may, with such a waiver, file suit in court on any day when it happens to be open, testify in support of his action, and then walk out of the courthouse on the very same day with a certificate of divorce in his pocket.

We are not here dealing with a waiver of process or service; nor are the views herein expressed in any way contrary to the decision in Don v. Don, 162 Ga. 240, 243 (133 S.E. 242).

The court erred in refusing the petition of the wife to set aside the decree of divorce, on the asserted ground that she, as defendant in the case, could not waive the term of court or the filing date as fixed by law for the April term, 1947, during which the divorce was granted.

Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.