Manning v. Manning , 237 Ga. 746 ( 1976 )

Per curiam.

This appeal by the wife is from a summary judgment entered in Bibb Superior Court which granted a divorce at the request of the husband on the ground that the marriage was irretrievably broken. The wife opposed the grant of the divorce. She denied the marriage was irretrievably broken and denied that there were no prospects for a reconciliation. The wife sought to have the trial court deny a divorce and also sought a jury trial on this issue. We affirm the grant of the divorce by the trial judge as we find this case is controlled by Harwell v. Harwell, 233 Ga. 89 (209 SE2d 625) (1974), and McCoy v. McCoy, 236 Ga. 633 (225 SE2d 682) (1976).

The husband filed an affidavit in support of the motion for summary judgment seeking a divorce. In it, the husband swore, in pertinent part, as follows: "The separation between us is complete and permanent. I am unwilling to live with the defendant [wife] at the present time. I am unwilling, and I refuse, to live with her at any time in the future. There is no possibility whatever of a reconciliation ever taking place between us. The marriage ... is irretrievably broken.”

This affidavit by the husband which was submitted to the trial judge brought the case squarely within the language of McCoy that, "Just as it takes two consenting parties to make a contract, it takes two consenting parties to make a reconciliation. Just as one party cannot make a contract, one party cannot make a marriage or a reconciliation thereof.” We find no error, as there was no issue for a jury to decide on the question of the divorce.

Argued September 14, 1976 Decided October 5, 1976 Rehearing denied October 19,1976. Harris, Watkins, Taylor & Davis, T. Reese Watkins, G. McGregor Jordan, Jr., for appellant. Jones, Cork, Miller & Benton, H. Jerome Strickland, Frank C. Jones, for appellee.

Judgment affirmed.

All the Justices concur, except Gunter and Ingram, JJ., who concur specially, and Jordan and Hill, JJ., who dissent.