Johnson v. Johnson , 239 Ga. 714 ( 1977 )

239 Ga. 714 (1977) 238 S.E.2d 437

JOHNSON
v.
JOHNSON.

32651.

Supreme Court of Georgia.

Submitted August 12, 1977. Decided September 8, 1977. Rehearing Denied September 28, 1977.

G. Hughel Harrison, for appellant.

Glyndon Pruitt, for appellee.

JORDAN, Justice.

This appeal arises from a directed verdict granting appellee Sarah Johnson a divorce from the appellant Paden Johnson on the grounds that their marriage was irretrievably broken and a jury verdict awarding appellee alimony in the amount of one hundred dollars ($100) per month for a period of twelve months.

Each of appellant's enumerations of error rests on the issue of an alleged prior undissolved marriage of appellee which would prevent a valid marriage between these parties.

Where a party to a ceremonial marriage has been previously married and the validity of the second marriage is challenged, the presumption is that the second marriage is valid until evidence is established that the other spouse of the first marriage is living. When evidence is established that the other spouse of the first marriage is living, the burden shifts to the party contending the validity of the second marriage to go forth and show that the first marriage was dissolved by divorce. Zurich Ins. Co. v. Craft, 103 Ga. App. 889 (120 SE2d 922) (1961).

During the trial, evidence was introduced to show that appellant and appellee were married in October, 1975; that appellee had been previously married to a Loyd Barrett; and, that Barrett was still living at the time of the subsequent marriage of appellant and appellee. This evidence shifted the burden to appellee to show that her previous marriage to Barrett was dissolved by divorce.

Appellee testified that she had signed a document consenting to a divorce from Barrett and was divorced from him on May 17, 1967, in Pontiac, Michigan. On cross examination, appellee testified that she had seen the divorce papers but admitted that she had never read nor received a copy of the Michigan divorce. At the close of the evidence the trial court held that it was sufficiently established that appellee's prior marriage to Barrett had been terminated by divorce before her marriage to Johnson. On the basis of appellee's uncontradicted testimony, the court then directed a verdict granting a divorce between the parties on the ground that their marriage was irretrievably broken.

Under the facts of the case we find no error.

Judgment affirmed. All the Justices concur.