McCoy v. McCoy

Ingram, Justice,

dissenting.

The apparent effect of the majority opinion is that *636now one party to a marriage can dissolve it unilaterally by testimony (or merely by a sworn pleading, I presume) that the marriage is irretrievably broken. If so, the trial judge has very little, if any, responsibility or opportunity to explore the prospects for reconciliation but instead must grant a divorce. This case and Whitmire v. Whitmire, 236 Ga. 153 (1976) are the first cases, with which I am familiar, in which this court has held that the evidence demanded the grant of a divorce and reversed the trial court’s refusal of a divorce.

Perhaps the above conclusion by the majority is a part of the limitless change in the public policy of this state respecting marriages which this court has "discovered” through the adoption of the thirteenth ground for divorce (irretrievably broken marriage) by the legislature. If not, I cannot understand it because Code Ann. § 30-101 continues to read, "[tjotal divorces in proper cases may be granted by the superior court.” (Emphasis supplied.) The present decision has changed the word "may” to "shall” without any authorization from the General Assembly to do so. Code Ann. § 30-102, as amended, provides that: "[t]he following grounds shall be sufficient to authorize the granting of a total divorce: . . . 13. The marriage is irretrievably broken.” Apparently, it should be read to say that in any case where the thirteenth ground is involved, either by itself or with one of the other grounds, a divorce is not merely authorized, it is required.

The result in this case is aggravated by the majority opinion in Loftis v. Loftis, 236 Ga. 637. Under Loftis, one spouse can sue for'divorce on a fault ground and the other can counterclaim on the irretrievably broken ground and move for a judgment on the pleadings. The divorce must then be granted without a hearing on the evidence. This circumvents the requirement for a hearing on the fault ground and necessarily presupposes that there is no possibility of a reconciliation between the parties. Under Loftis and the majority opinion in the instant case, apparently a divorce will be demanded as a matter of law on the pleadings alone.

The addition of the no fault ground for divorce has been healthy because it has corrected some bad problems *637in our divorce law.1 However, it has created many other problems which are being compounded by piece-meal decisions in cases involving the fault grounds of divorce. I am inclined to agree with the trial judge in this case "that the trial and appellate courts have their work cut out for them with regard [to deciding cases] where you have other grounds for divorce that come in conflict with [the no fault ground] . . . [T]he courts [are] going to have to do better [than we have done] ... because we can’t leave the law in that status. Irretrievably broken has got to have a better meaning [than] we’ve been able to assign it.”

Cases such as Benefield v. Benefield, 224 Ga. 208 (160 SE2d 895) (1968); Schwartz v. Schwartz, 222 Ga. 460 (150 SE2d 809) (1966); and Brackett v. Brackett, 217 Ga. 84 (121 SE2d 146) (1961), together with many others not identified in the majority opinion, have been overruled sub silentio and this should be noted so they will not be relied upon in the future. With this explanation, I dissent, primarily to record one more time the need for legislative action to rewrite our divorce and alimony laws rather than continue to have it done on an ad hoc basis by this court.

E.g., before the no fault ground became available, cruel treatment was the ground most often used in divorce cases and if both parties are found guilty of cruel treatment the law requires the "happy” marriage to continue as no divorce can be granted. Code Ann. § 30-109.