299 N.W. 346 | Neb. | 1941
This case involves the modification or setting aside of a decree from bed and board on the ground that a decree of absolute divorce had been subsequently granted in the state of Nevada, and also that in probate proceedings in that state it had been held that the appellee was not the widow but had been legally divorced.
There is no dispute as to the facts. The appellee, Theresa Anglim, was married to James T. Anglim in Omaha, on
On August 7, 1937, the husband, James T. Anglim arrived in Reno, Nevada, where he has since resided, voted three times and transferred membership from the Omaha Camp to the Reno Camp of the United Spanish War Veterans. He stated that he came to Reno for his health and to make it his home. On November 12, 1937, in Nevada, James T. Anglim filed suit for absolute divorce from his wife, Theresa, on the grounds of extreme cruelty, desertion and because they had lived separate for more than five years. Personal service was had on the wife in Omaha on November 20, 1937, and on January 13, 1938, by default, the husband obtained an absolute divorce in Ormsby county, Nevada, on the grounds of extreme cruelty and having lived separate
The dispute comes over whether the Nebraska courts must accept, at full face, the decrees in the divorce and probate proceedings, under the full faith and credit clause of the federal Constitution or under the rule of comity between the states, or, briefly, whether Theresa Anglim is still the widow of the deceased in eyes of the courts of this state. That the parties were married in Omaha, which was the matrimonial domicile for nearly 30 years, and that the wife never lived in Nevada or made any appearance in the divorce proceedings there, and that the courts of this state had on several different occasions adjudged the husband to be the wrong-doer and the wife the innocent party, there likewise is no doubt.
Must Nebraska courts under such facts give full faith and credit to the Reno divorce? Has the Nevada court jurisdiction over the wife and her marital relationship, or do the proceedings there only operate over the status of the husband ?
The supreme court of the United States in Haddock v. Haddock, 201 U. S. 562, 26 S. Ct. 525, has laid down the principles which will either compel one state to recognize a divorce decree of another state or will justify its refusal to do so.
In the case above, the parties were married in New York. Subsequently, the husband went to Connecticut and there, upon constructive service, procured a divorce. Subsequently, the plaintiff wife brought suit against the defendant husband in New York for a decree of absolute divorce and personal service was had upon the defendant. The defendant interposed as a defense the Connecticut divorce decree, claiming that it was entitled to full faith and credit. The supreme court of the United States held that the decree having been procured by the wrong-doing spouse, in the state where the wife was not present, and which had not been the matrimonial domicile and to the jurisdiction of whose courts the plaintiff wife had not submitted, was not entitled to full faith and credit by the New York courts, and said: “Sixth. Where the domicile of matrimony was in a particular state, and the husband abandons his wife and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicile of matrimony, and, therefore, is not to be treated as thé actual or constructive domicile of the wife; hence, the place where the wife was domiciled when so abandoned constitutes her legal domicile until a new actual domicile be by her elsewhere acquired.”
Justice White goes on to say in this opinion: “Coming to apply these settled propositions to the case before us three things are beyond dispute: a. In view of the authority which government possesses over the marriage relation, no question can arise on this record concerning the right of the state of Connecticut within its borders to give effect to the decree of divorce rendered in favor of the husband by the
This Haddock decision has started numerous decisions which hold that a decree of divorce rendered by the court of the domicile of the wrong-doing spouse alone is not entitled to full faith and credit unless the spouse who is not domiciled there is either personally subject to the jurisdiction of the state which grants the divorce, or the state granting the divorce is the last state in which the spouses are domiciled together as husband and wife, or the absent spouse has consented to the decree being entered.
This decision has settled the proposition that no state is bound, under the full faith and credit clause of the federal Constitution, to recognize, as against its citizens, divorces obtained in other states upon constructive notice, at a place other than the matrimonial domicile. In other words, each state is left free to adopt such course respecting such foreign divorces as seems most likely to promote the happiness and welfare of its citizens, consistent with a due regard to comity and good morals. The marriage relation of the parties as such, under this decision, is divisible, and therefore the status of the wife remains in the state of the matrimoniál domicile, and never came within the jurisdiction of the Nevada court.
The Missouri court goes on to say, in Wagoner v. Wagoner:
“In this case the wife was residing in Missouri, under judicial decree obtained against her husband upon personal service. That decree fixed her matrimonial status separately from him.
“The question here is whether he can put this separate matrimonial status adjudged to his wife into, his own pocket, and carry it to Nevada, and there use it to give jurisdiction to a court of that state to set aside the judgment of the Missouri court which fixes it. This absurd proposition is answered definitely by .the court which is the final arbiter in the matter, and we see nothing in the cases cited by respondent to the contrary. They all proceed upon the well-established theory that ordinarily the matrimonial domicile of the wife follows that of the husband. This is true, for there can be but one such domicile while it is her duty to live with him. They are matrimonially one person, and, as such, can have but one abiding place. When that unity is destroyed by a decree of court founded upon the misconduct of the husband, or is wrongfully repudiated by him, the law permits her to get bread and the shelter of a home without surrendering her matrimonial right.
“This doctrine covers completely the facts of this case and if any court has inadvertently disregarded it we need not follow it into the error. It follows that the Nevada court having no jurisdiction of the res — the subject-matter of this suit — its decree, whatever may be its effect on the rights and duties of the respondent, is void in all things relating to the matrimonial status of the appellant, inclusive of the*140 judgment of the St. Louis circuit court which established her innocence of wrong in the matrimonial relation and her desertion by respondent together with her right to be his wife wherever she might lawfully be. This is for her the situs matrimonii.”
In Parker v. Parker, 222 Fed. 186, the court say: “It seems well settled by federal authority that, when the wife is deserted by the husband without justification, the matrimonial domicile stays with her, the innocent party, and that she may in consequence acquire a new domicile, which may become, indeed, the matrimonial domicile, as was held in Barber v. Barber, 21 How. 582, 16 L. Ed. 226, and Haddock v. Haddock, 201 U. S. 570, text.”
The court in the case above further speak: “The decision impresses us with the belief that the reasoning of that decision gives the court of the domicile of the innocent party jurisdiction to render a judgment binding everywhere, and deprives the court of the domicile of the guilty party of jurisdiction to render a judgment binding save in the state where rendered.”
The court further goes on to say in this Parker case: “The obligatory recognition of such a decree beyond the limits of the state depends, however, upon whether there was jurisdiction of the matrimonial relation of the parties. That relation may not follow the domicile of the offending husband. If the adopted residence is intended to perpetuate a fraud on the innocent wife, or if the wife is without fault, and was deserted, the matrimonial domicile remains in the state of her residence.”
In Dean v. Dean, 241 N. Y. 240, 149 N. E. 844, the court, speaking through Justice Cardozo, said: “The wife domiciled in Canada and there abandoned by her husband, became by her marriage a party to a relation which the courts of Pennsylvania have attempted to destroy. They have done this, though there has been no submission to the jurisdiction by her, upon the basis of a domicile which the erring husband has wrongfully set up apart from her. We think the judgments ,of this court leave no escape from the con
In the case of Miller v. Miller, 200 Ia. 1193, 206 N. W. 262, the wife in Iowa obtained a decree for separate maintenance in 1912 on the grounds of cruelty and desertion as of 1911. The husband went into Missouri and in 1921 obtained a divorce. The wife sought to increase her alimony in the Iowa courts because the husband had inherited some property, while the husband sought to be relieved from further payments. The trial court recognized the Missouri divorce and treated the marriage as having been dissolved, but extended the alimony payments for a period of two years subsequent to the marriage dissolution by the Missouri court. The Iowa court in its opinion did not think the New York doctrine as laid down in the Haddock case very compelling and, though it stated the letter had released it, the spirit of the Constitution still bid them hold to the validity of foreign divorce decrees.
The Iowa court in Miller v. Miller, supra, say (206 N. W. 262) : “Where separate maintenance was awarded to wife, and thereafter husband acquired domicile in Missouri and obtained divorce there, in wife’s petition in nature of creditor’s bill, husband’s decree having been wholly in rem, trial court was not precluded from adjusting property rights of wife.”
In Smith v. Smith, 19 Neb. 706, 28 N. W. 296, where it was sought to have a divorce procured in Utah territory-recognized as valid, this court said: “In a divorce suit the-court, in granting a' decree, declares and fixes the status, of the parties to the suit. If but one of the parties is a resident of the state, and the other a nonresident, the court in a proper case may adjudge the status of the resident towards the nonresident, but it has no such power over residents of another state.”
In Barber v. Barber, 62 U. S. 582, the wife obtained a decree of divorce from bed and board in the state of New York where the parties had been married and had lived.
While the supreme court of Iowa, in Miller v. Miller, supra, said that the pronouncement of the Haddock case lifted from the various states the mandate of the federal Constitution, it would interpose no obstacle in the way of such state courts to recognize the validity of such foreign decrees as a matter of comity between states, and the reasoning in that opinion was very impressive.
This court believes, however, the better philosophy is to
The only remaining question in regard to the Nevada divorce decree is whether, as a matter of comity or state courtesy, or, to put it differently, our own interpretation of the conflict of laws, should we declare a public policy and recognize such a decree that we may feel free to refuse. If such a policy is repugnant to our sense of justice, or prejudicial to the interests of our citizens, under our laws and administration of justice, we should not hesitate to make the-proper decision and say it cannot apply. A state has the-right to apply certain principles of justice, even though opposed to its conception elsewhere, as to exact justice, not. only to the stranger, but to its own citizens. Comity gives a. certain degree of latitude in recognizing foreign decrees in. the absence of a positive obligation.
The district court of Washoe county, Nevada, in the probate proceedings, held that Theresa Anglim had ceased to be the wife of James T. Anglim since the divorce decree obtained in that state on January 13, 1938, is not now his. widow, and had no rights as such to elect not to take under his will or'to inherit from him as his widow, under the
This court in Mettler v. Warner, 98 Neb. 111, 152 N. W. 327, held that it was proper for the widow to file her election .in the sister state which was the domicile of her deceased husband, and that her election filing there, in effect, would operate on proceedings, later brought in this state, as affecting her status. The appellants contend that such a filing .constituted a general appearance, and therefore the wife is bound thereby and must accept the decision of the Nevada hourt as binding on her rights here. We think not. The 'filing did not ask the Nevada court to pass on her rights here, nor is such decision binding under the record made. The Nevada court was not asked whether or not she could make such a decision. If she had not filed such election, she .might have barred herself by the statute. She specifically Objected to. the jurisdiction of the Nevada court over her person or rights, and only filed and registered her election because required by the Nebraska statutes. Did this constitute a general appearance by the widow?
In the case of Hammond v. District Court of Eighth Judicial District, 30 N. M. 130, 228 Pac. 758, 39 A. L. R. 1490, where the question involved was whether the plaintiff had .made a general appearance, the plaintiff had filed objections .upon various legal grounds and it was contended that this constituted a general appearance and gave the court jurisdiction over the person of the defendant. The court said:
Even if the court of Nevada, in the probate proceedings, declares the wife is not the widow of the deceased, the courts of this state are not bound so to declare, especially if such is not a fact. The Nevada court does not have jurisdiction over the property here. Our courts and ours alone determine the procedure in probate matters affecting real property in this state. No matter what the Nevada court determined, under the evidence and record in this case, Nebraska courts have that right in regard to property here and to rights of its own citizens. The probate jurisdiction of the Nevada courts cannot determine this marital status when its divorce courts cannot.
The decree for separate maintenance was final so- far as the Nebraska courts were concerned. The decree for maintenance or alimony under section 42-319, Comp. St. 1929, became a lien. It was proper to revive it against the repre
In Nygren v. Nygren, 42 Neb. 408, 60 N. W. 885, it was held: “A decree for alimony is a lien upon real estate the same as a judgment at law, and is enforceable in the same manner.”
“Such a judgment is for a definite amount and is a lien, not only for the amount of the matured instalments and interest thereon, but also as security for the payment of those instalments yet to become due during the minority of the younger child.” Wharton v. Jackson, 107 Neb. 288, 185 N. W. 428.
This amount was to be paid to the wife as alimony and was not made contingent upon the age of the minor children, but only subject to modification by the decreeing court, which right the court retained at all times. The appellants contend that the support payments abated at the death of the husband and that, in any event, the judgment could only be revived for the difference between the Nebraska decree and the amount actually paid by the now deceased husband, or the sum of $120.
This court has indicated in In re Estate of Rusch, 89 Neb. 265, 131 N. W. 209, that support money payments do not abate upon death. The court there said: “As to maintenance the decree is subject to change. It may bind the father while he is living and his estate when he is dead. The obligation of a father to support his helpless offspring may survive both divorce and death. Miller v. Miller, 64 Me. 484; Seibly v. Person, 105 Mich. 584.”
Where a wife secured a decree for separate maintenance, upon personal service, and the husband subsequently in another jurisdiction, on constructive service, without bringing the former decree to the attention of the latter court, secured a divorce, and never paid the maintenance decree, said separate maintenance decree will continue in full force and effect until directly modified, especially where the former court retained such right, and where the husband dies before such modification, all instalments, due and unpaid, and other
We believe the judgment of the court below is right.
Affirmed.