Harwell v. Harwell

Citations: 209 S.E.2d 625; 233 Ga. 89; 1974 Ga. LEXIS 687Docket: 29134

Court: Supreme Court of Georgia; October 8, 1974; Georgia; State Supreme Court

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On November 20, 1972, Jo Ann H. Harwell initiated a divorce complaint against Otis C. Harwell, citing cruel treatment. A jury verdict on October 16, 1973, denied the divorce. Subsequently, on November 27, 1973, the wife filed a new divorce claim, asserting the marriage was irretrievably broken. The husband demanded a jury trial, which resulted in the wife being granted a divorce along with property and child support. The husband appealed, arguing that the trial court improperly allowed evidence of events prior to the October verdict, claiming res judicata barred this evidence since the previous verdict established he was not guilty of cruel treatment. 

The court clarified that while res judicata prevents re-litigation of issues actually decided, the question of whether the marriage was irretrievably broken had not been litigated. The wife’s claim was based on a statute that became effective after the initial filing but prior to trial. The court ruled that proof of fault was not necessary to establish an irretrievably broken marriage; the focus was instead on the parties’ inability to reconcile rather than on specific misconduct. The court emphasized that evidence from the prior period was admissible to assess the current status of the marriage, and highlighted that the husband’s subsequent actions, including moving back into the home, could be relevant to the case. Thus, all evidence pertaining to the marriage was deemed admissible to determine if it was irretrievably broken.

The husband was intoxicated during a pivotal incident, prompting the wife and children to leave, which the court found sufficient grounds for the wife's new divorce suit citing the marriage as "irretrievably broken." The court allowed all evidence related to the marriage, dismissing objections to the evidence and a motion for a directed verdict. The appellant argued that the trial court incorrectly instructed the jury regarding alimony, claiming the wife had abandoned that claim during her testimony. However, under Georgia law, any objections to jury instructions must be made before the verdict, and since the appellant did not object to the alimony charge, he could not later contest it. The judgment was affirmed with all justices concurring except Justice Ingram, who dissented. Justice Ingram noted that the wife had previously sought a divorce on grounds of cruel treatment, which was denied by the jury. He argued that the additional ground of "irretrievably broken" was available at the first trial, and the wife should have utilized it rather than filing a new suit. Ingram contended that the evidence presented at the second trial, which led to the divorce, was the same as that which could have been used in the first trial, making it erroneous to allow this evidence in the second case.

Amendments to divorce petitions to add additional grounds are permissible, as established in several Georgia cases. Phinizy v. Phinizy allows for the addition of cruel treatment to a petition originally based on desertion. Newton v. Newton permits the inclusion of adultery prior to filing, while Rowell v. Rowell highlights the error of striking an amendment alleging adultery after separation. It is asserted that seeking a divorce on both cruel treatment and irretrievable breakdown grounds is not inconsistent. If both grounds were available in the first trial, a subsequent adverse verdict should be considered res judicata, preventing the same claims from being re-litigated unless based on different acts occurring after the first trial. A new trial should focus solely on evidence post-adjudication, as the jury's decision may have been influenced by prior evidence. The dissenting opinion emphasizes that a party cannot file a second complaint for divorce using the same facts after losing the initial case, arguing against the majority's decision that allows for a new action based on previously adjudicated facts.