Kelly v. Kelly

Deen, Presiding Judge.

When this case was here before we held (Kelly v. Kelly, 144 Ga. App. 43 (240 SE2d 312) (1977)) that where the appellant Laura Kelly claimed to be the widow of the deceased by virtue of a ceremonial marriage, and the appellee Naomi Kelly, who filed for year’s support, claimed to be the widow of the deceased by virtue of a common law marriage, it was error to grant the motion of Naomi Kelly for summary judgment as against the caveat to year’s support petition of appellant. The reason stated was that, Laura Kelly having proved a ceremonial marriage to the deceased, the presumption of the validity of such marriage will prevail as against the contention she had contracted a prior marriage undissolved unless such contention is supported by evidence that the prior marriage has not been dissolved by death or divorce.

The result of this decision was a holding that under the evidence elicited on the first appeal Laura Kelly did have standing to caveat the year’s support petition of the appellee, and that under the facts there set out the presumption would obtain that Laura Kelly was in fact the legal widow of the deceased.

When this case was remanded to the trial court Laura Kelly moved for summary judgment based on the facts appearing in the record on the first appeal. The appellee might have, but did not, offer any evidence to controvert these facts; in particular, she offered no evidence which would have weakened or overcome the presumption that the first marriage of Laura Kelly had been dissolved and that her second and ceremonial marriage to the deceased had continued until his death.

This being so, it was error to deny the summary judgment motion of the appellant Laura Kelly. This ruling has been reviewed after grant of appellant’s petition for interlocutory review.

Judgment reversed.

Smith and Banke, JJ., concur. Greer, Klosik & Daugherty, M. Scott Barksdale, Robert H. McDonnell, Fred J. Stokes, for appellant. G. Hughel Harrison, for appellee.