Warren v. Warren
219 S.E.2d 161
Ga.
1975
Check Treatment

NATIONWIDE MUTUAL INSURANCE COMPANY v. ATKINSON et al.

Supreme Court of Georgia

September 23, 1975

234 Ga. 234

Argued September 8, 1975

Nationwide by Ben Atkinson or as Ben Atkinson, agent for Nationwide, is not in itself conclusive of whether Code Ann. § 13-2042 applies to this account. If the agent is proven to have had either the authority or inherent agency power to open the account, there would then remain the additional issue, under

and
, supra, whether the bank can rely on the statute‘s protection in this case.

We reverse that portion of the Court of Appeals judgment which reversed the denial of Nationwide‘s motion for summary judgment and remand the case to the trial court to determine the extent of the agent‘s authority or inherent agency power, and, if applicable, whether Trust Company is liable under Code Ann. § 13-2042,

and
, supra.

Judgment affirmed in part; reversed in part. All the Justices concur.

Argued September 8, 1975 — Decided September 23, 1975.

King & Spalding, William I. Izlar, Jr., William A. Clineburg, Jr., for appellant.

Hendon, Egerton, Harrison & Glean, E. T. Hendon, Jr., for appellee.

30198. WARREN v. WARREN.

Supreme Court of Georgia

September 23, 1975

234 Ga. 234

Argued September 3, 1975

Nichols, Chief Justice.

Prior to the filing of a divorce action, an agreement between the parties settling all matters of alimony, child support, child custody and division of property was entered into between the parties. After the divorce action was filed, the trial court made the agreement the judgment of the court for the purpose of awarding temporary alimony, pending final disposition of the case. James Warren, Jr., in response to the complaint for divorce, as one of his defenses, contended that the agreement signed prior to the institution of the divorce action was null and void. After hearing the trial court vacated the prior award of temporary alimony, declared the agreement to be null and void as against public policy citing

, where it was held that if one of the objects of the agreement or a part of its consideration, is the promotion of a dissolution of the marriage relation existing between the parties, or to facilitate the grant of a divorce between them, such agreement is contrary to public policy.

The court then ordered temporary alimony pending final disposition of the case. The appeal is from this judgment and the sole enumeration of error contends that the trial court erred in declaring the settlement agreement of the parties null and void for the reason that there was no sufficient competent evidence to support or warrant such finding.

While there is a fine line of distinction between a contract incident to divorce and a contract which has as one of its objectives the promotion of a dissolution of the marriage relation existing or to facilitate a divorce, yet, where as in the present case, the wife testified that in exchange for an uncontested divorce the husband agreed to pay a stipulated amount of alimony, it cannot be said that there was not evidence before the trial court to support the judgment declaring the contract null and void as being one entered into where one of its objects is the promotion of a dissolution of the marriage relation existing between the parties. Compare

.

Judgment affirmed. All the Justices concur, except Gunter, Hall and Hill, JJ., who dissent.

Argued September 3, 1975 — Decided September 23, 1975.

Keil, Riley & Davis, William H. Norton, for appellant.

Luis C. Garcia, for appellee.

WARREN v. WARREN

Hill, Justice, dissenting.

Hill, Justice, dissenting.

In 1973, the General Assembly amended Code § 30-102 so as to add as ground for divorce that “The marriage is irretrievably broken.” Ga. L. 1973, p. 557. In

, this court recognized that the public policy of this state was changed by the adoption of that statute. In
, the court stated that
, will no longer be followed. In
, it was stated that the policy of the state since the adoption of the Constitution of 1798 has been to hinder facility in the procurement of divorces.

In my view, this court‘s decision in

, can only mean that it is no longer state policy to hinder facility in the procurement of divorces. Therefore, in my view the public policy enunciated in
and
, relied upon by the majority, should no longer be followed and an agreement facilitating the grant of a divorce should no longer be declared void as against public policy.

I therefore respectfully dissent.

I am authorized to state that Justice Gunter and Justice Hall join in this dissent.

30206. HENDERSON v. HENDERSON.

Supreme Court of Georgia

234 Ga. 236

Undercofler, Presiding Justice.

Appellant complains that his wife was not entitled to a divorce on the ground that he was sentenced to over two years imprisonment for an offense involving moral turpitude. Code Ann. § 30-102. He was convicted on May 12, 1972, and sentenced on July 7, 1972. His wife continued to live with him until his incarceration on January 12, 1973. She filed suit for divorce on May 28, 1974. He argues that his wife condoned his conduct by continuing to cohabit with him between his conviction and sentence and his actual incarceration. We do not agree. With respect to this ground of divorce, condonation has no application between the date of the conviction and sentence and the actual incarceration. See

;
.

Judgment affirmed. All the Justices concur.