Opinion
19410.
ARGUED JULY 9, 1956.
DECIDED SEPTEMBER 7, 1956.
Divorce, etc. Before Judge Humphrey. Laurens Superior Court. March 31, 1956.
Joe W. Rowland, for plaintiff in error.
Carl K. Nelson, Nelson Nelson, contra.
The petition stated a cause of action for vacating and setting aside the divorce decree between the parties, and it was not error to overrule the general demurrers and the motion to dismiss in the nature of a general demurrer.
ARGUED JULY 9, 1956 — DECIDED SEPTEMBER 7, 1956.
"The petition of Waver L. Browning, as next friend for Mrs. LeMerle Browning Lowery, an incompetent, and as next friend for Johnnie Merle Lowery and LaFayette Louis Lowery, who are the minor children of the said Mrs. LeMerle Browning Lowery" alleged: The defendant, Johnnie L. Lowery, is a resident of the county. Mrs. LeMerle Browning Lowery and the defendant were lawfully married on December 25, 1941. There are two children of the marriage, a daughter, Johnnie, twelve years of age, and a son, LaFayette, ten years of age. On June 12, 1946, Mrs. Lowery was committed to the Milledgeville State Hospital as a lunatic, under a judgment of the court of ordinary adjudging her to be mentally incompetent. She was furloughed from the Milledgeville State Hospital on August 14, 1946, and subsequently discharged as a patient on August 14, 1947. Her civil rights were never restored by any court of competent jurisdiction. The defendant filed a suit for divorce on June 30, 1948, on the sole ground of cruel treatment. The defendant procured the signature of Mrs. Lowery to a purported agreement, providing for the custody and maintenance of the two children, the agreement being dated June 26, 1948, and attached to the petition for a divorce as an exhibit. Under the agreement the custody of the daughter was awarded to the mother, and the custody of the son to the father, with rights of visitation. Soon after the purported divorce the defendant married Mrs. Iris Tipton Warren, and they have had exclusive custody and control of the son. Mrs. Iris Tipton Lowery is not a fit and proper person to have custody and control of the son; she beats him unmercifully, has threatened to kill him, imposes unreasonable and unmerciful burdens upon him, and treats him with contempt. On January 21, 1950, Mrs. LeMerle Browning Lowery was recommitted to the State Hospital, and has been subject to its jurisdiction at all times thereafter, although she has been furloughed to the custody of the petitioner and his wife on several occasions. The defendant is liable for the maintenance of Mrs. LeMerle Browning Lowery, of the reasonable value of $50 per month, which has been expended by the petitioner for the past seven years and four months. The custody agreement is illegal and void. The divorce judgment is illegal, null, and void, because it was procured by fraud practiced upon the court by the defendant, in failing to disclose the mental condition of Mrs. Lowery at the time of the filing of the divorce suit, and because Mrs. Lowery was mentally incompetent.
The prayers were: for process; that the divorce decree between the parties be set aside as illegal, null, and void; that temporary and permanent custody of the two children "be awarded to your petitioner and his wife, as maternal grandparents of said children"; that the defendant be required to adequately support, maintain, and educate the two children, and adequately support and maintain Mrs. Lowery; that the petitioner recover of the defendant $4,400, or other large sums, heretofore expended for the support of Mrs. Lowery, and the sum of $4,400 heretofore expended for the support, maintenance, and education of Johnnie Lowery; that during the pendency of the suit and before final judgment the petitioner be awarded a sum of money for the support and maintenance of Mrs. LeMerle Browning Lowery; and for other relief.
The defendant filed general and special demurrers to the petition, and a written motion to dismiss.
An amendment was filed to the petition, to attach as an exhibit a copy of the lunacy proceedings wherein Mrs. Lowery was adjudicated a lunatic on June 12, 1946, and it was alleged that Mrs. Lowery was, as a matter of fact, incompetent, and did not have sufficient mental capacity to make a valid and binding contract at any time since June 12, 1946. (A copy of the lunacy proceedings in June, 1950, was attached as an exhibit.) The petitioner and his wife had Mrs. Lowery furloughed from the hospital on August 14, 1946, and kept her in their protective care until she was recommitted in January, 1950. Her recommittal was necessary because of the deterioration of her mental faculties, her condition becoming gradually worse to the extent that it was not safe for the petitioner and his wife to keep their daughter in their home.
The prayers of the petition were amended by striking the claim of Waver L. Browning for the sums expended for the support of Mrs. Lowery and Johnnie Lowery. It was alleged that Mrs. LeMerle Browning Lowery was entitled to recover for the support and maintenance of the daughter, Johnnie Lowery, and for her own support and maintenance since June 30, 1948, and it was prayed that she recover these sums by the petitioner as next friend.
The defendant's demurrers to the petition were renewed. A second amendment, wherein the wife and minor children were named as plaintiffs by next friend, and setting up certain exhibits, was thereafter allowed. The general and special demurrers to the petition, as amended, were overruled.
The defendant assigns as error the judgment overruling his general demurrers and his motion to dismiss.
"A general demurrer goes to the whole pleading to which it is addressed, and should be overruled if any part thereof is good in substance." Pierce v. Harrison, 199 Ga. 197, 198 (3a) ( 33 S.E.2d 680); Reardon v. Bland, 206 Ga. 633 (5) ( 58 S.E.2d 377). In the present case the motion to dismiss, in the nature of a general demurrer, and the general demurrers were properly overruled if the petition stated a cause of action for any of the relief prayed.
It has been held by this court that a wife who was incompetent at the time the divorce decree was granted might sue by next friend to vacate and set aside the decree. Chambers v. Chambers, 206 Ga. 796 ( 58 S.E.2d 814).
Despite an adjudication of insanity, if no guardian has been appointed, the validity of a contract depends upon sanity at the time of the execution of the contract. In such a case the law presumes a continuance of insanity, and one contracting with such person has the burden of proving sanity at the time the contract is executed. Akin v. Akin, 163 Ga. 18 (2) ( 135 S.E. 402); Martin v. Martin, 185 Ga. 349 ( 195 S.E. 159); Summer v. Boyd, 208 Ga. 207, 211 (3) ( 66 S.E.2d 51). In the present case, in so far as the divorce decree between the parties is concerned, and the contract entered into prior to the filing of the divorce petition, the burden would be upon the husband to establish the sanity of the wife at the time of the execution of the contract wherein she acknowledged service of the petition for divorce and otherwise contracted with the husband.
"A wife can not separate from her husband or live in a state of separation from him, take charge of the minor children, and maintain a suit against the husband for necessaries furnished them. If the husband had made no adequate provision for the support and maintenance of the children, and a stranger had furnished them the necessaries of life, he could maintain a suit against the delinquent father for the cost and value of the necessaries furnished; or a divorced wife, after dissolution of the bond of marriage between herself and husband, where no provision had been made for the support of her minor children, might, just as a stranger (for after divorce she would be a stranger), maintain an action against her former husband for necessary expenses incurred in maintaining and nourishing their minor children." Smith v. Smith, 136 Ga. 531, 533 ( 71 S.E. 869); Brown v. Brown, 132 Ga. 712 ( 64 S.E. 1092, 131 Am. St. R. 229); Garrett v. Garrett, 172 Ga. 812 ( 159 S.E. 255).
In the present case, if the divorce decree is void, as alleged, Mrs. LeMerle Browning Lowery has at all times been the wife of the defendant and could not, therefore, sue for necessaries furnished one of their minor children. On the other hand, if the divorce decree should be proved to be valid, she can maintain an action for necessaries furnished their minor child.
Counsel for the defendant strongly relies upon laches. There is no merit in the contention that the wife is barred by laches. Code § 3-801; Taylor v. Colley, 138 Ga. 41, 45 ( 74 S.E. 694); Brown v. Carmichael, 149 Ga. 548 ( 101 S.E. 124); Morris v. Mobley, 171 Ga. 224 ( 155 S.E. 8); Nelson v. Estill, 190 Ga. 235 ( 9 S.E.2d 73); Lewis v. Patterson, 191 Ga. 348 ( 12 S.E.2d 593); Mullins v. Barrett, 204 Ga. 11 ( 48 S.E.2d 842).
The petition stated a cause of action for relief only as herein indicated. The court did not err in overruling the general demurrers and the motion to dismiss.
Judgment affirmed. All the Justices concur.