183 Ga. 195 | Ga. | 1936
The petition was held good against demurrer, in Axtell v. Axtell, 181 Ga. 24 (181 S. E. 295). On a trial the jury found against it, and the petitioner has taken this writ of error, contending that the evidence required a finding that she had never been a resident of Georgia before suing for the attacked decree of divorce, and consequently required a verdict annulling it; and that the judge erred in instructing the jury that in order to obtain an annulment they must find both that fact and that a fraud was committed on her by a conspiracy between her husband and her attorney, as alleged in the petition. The allegations of the petition were summarized in our former opinion. They made the case that by fraud and collusion between her husband and her own attorney she had been duped into obtaining the divorce in order to get a promised settlement of her right to alimony and dower, and that the divorce when decreed had been used to defeat those rights. The petition concludes thus: “The decree having been obtained in the manner and for the fraudulent purposes aforesaid, the same is illegal, null and void, and should be so declared by this honorable court.” The evidence in the present record wholly fails to show any such fraudulent collusion, or that the petitioner was deceived or duped. It shows clearly that she and her husband while living in New York separated in 1923, and that during 1924, 1925, and 1926 they were litigating actively in that State, each seeking a divorce from the other on the ground of infidelity, which is the only one recognized there. Her pecuniary rights as wife also were in contest. In June, 1927, an elaborate written settlement was executed by both, by which they were to live separately; each was to expunge the charges of infidelitjr made against the other, and to dismiss their suits; Mrs. Axtell was to release all claims to support and maintenance and to execute all required releases of dower rights, and Mr. Axtell was to place in bank $5000, to be delivered $3500 to her and $1500 to her attorney, in full settlement of all claims when either he or she should obtain a divorce in any State. It was recited that she claimed to have established a residence in Georgia and was contemplating a suit for divorce there on the ground of desertion. She filed suit accordingly, in the superior court of Bichmond County, in July
Mrs. AxtelBs effort was to set aside, as a fraudulent contrivance to defeat her pecuniary and property rights, the divorce decree obtained in Georgia. She failed to prove that case. Under the facts proved, and assuming the truth of her present testimony concerning her residence, she either obtained the Georgia divorce on her own plan to get the $5000, or else in collusion with her husband in evasion of the New York and the Georgia divorce laws. In so far as her present appeal to equity is an effort to remove an obstacle to her pecuniary rights, she is an ordinary litigant and bound by the usual rule that she must come into equity Avith clean hands, without laches, and that she is estopped to complain of a judgment self-induced. In so far as her case seeks by annulling a divorce decree, regular on its face, to refix her marriage status and affect that of her former husband and his present wife and children, it is in rem, and for reasons of public policy perhaps not to be controlled by the equitable principles above referred to. But on the showing AA'hich she uoav makes, the res in question is not one to be dealt Avith in Georgia. The matrimonial domicile at separation Avas in NeAV York. Neither party to the marriage lives in Georgia
Judgment affirmed on the main hill of exceptions; cross-hill dismissed.