52 S.E. 55 | N.C. | 1905
This was an action under section 1292 of The Code, to recover for support and maintenance of plaintiff and her minor child. Plaintiff alleged that plaintiff and defendant were man and wife; that defendant had unlawfully abandoned plaintiff, and failed to provide reasonable subsistence for plaintiff and her minor child, though fully able to do so.
Defendant answered, denying that he had wrongfully deserted plaintiff; charged the separation to plaintiff's own conduct, and further set up the record, proceedings and decrees of two courts — one in North Dakota, in which the present defendant was awarded an absolute divorce, and the second, a record and decree of Massachusetts in which the present plaintiff sued the present defendant for absolute divorce, and in which there was a decree that the divorce granted in the North Dakota court was valid and binding, and that plaintiff and defendant did not hold the relationship of man and wife, and set up these two records and decrees as an estoppel in bar of relief.
Plaintiff replied to the answer, and averred that the decree of divorce granted by the court in North Dakota was null and void, and should be so held, because at the time of the institution of said suit, and proceedings and decree therein, neither plaintiff nor defendant had anybona fide domicile in North Dakota, "but that defendant had gone to said State with no intent or purpose of becoming a resident, or acquiring a bona fide domicile therein, but with the sole purpose of obtaining, by fraud and secretly, a divorce from plaintiff." Further replying, plaintiff averred that the plaintiff was forced by stress of want and dire necessity, being penniless, friendless, homeless and in a strange land, either to accept such terms as the present defendant might dictate, or go hence in destitution for herself and infant child, and under and by virtue of this hard duress from a necessity from which there was no escape, she took the money he agreed to give her. (404)
There was evidence to the effect that the present plaintiff had appeared and answered in the suit in North Dakota; that the decree *326 of divorce was entered after investigation had; and the plaintiff in this suit had been awarded and paid $10,000 as a full and reasonable allowance for the care, education and maintennce [maintenance] of her minor child.
It further appeared that at the time of the institution of the suit in Massachusetts, by the present plaintiff, and pending the proceedings, therein the said plaintiff was a citizen, resident and domiciled in Massachusetts, and the defendant had appeared and answered to the libel filed in the cause.
The record of findings of fact and conclusions of law, in which the decree of absolute divorce was awarded in the North Dakota suit, are as follows:
1. That plaintiff now is, and at all times since more than ninety days preceding the commencement of this action, has been in good faith a resident of North Dakota, and that defendant is a resident of Springfield, Mass., but is now in this State.
2. That plaintiff is now about twenty-six years of age, and defendant is now about twenty-nine years of age.
3. That on 9 December, 1890, plaintiff and defendant were married, and that said marriage has never been annulled or dissolved.
4. That there are two children, living issue of said marriage between plaintiff and defendant herein, to wit: Mary Beulah, a girl four years of age, and Maud, a girl two years of age — the former of which is in the custody of the plaintiff, and the latter in the care and custody of the defendant.
5. That plaintiff and defendant lived together after their said marriage as husband and wife, until about the month of December, 1893, at which last mentioned time they separated and have lived separate and apart ever since.
(405) 6. That this is an action for divorce, and that this Court has full jurisdiction of both the parties thereto, and of the subject matter of the action.
7. That defendant, as appears from the proofs herein, has been, and is, guilty of willful desertion of the plaintiff, and that such desertion, as shown by the proofs herein, is cause for full and absolute divorce under the laws of this State.
8. That the true and best interests of the parties, and of the minor children of the parties all require that the custody of said minor child, Mary Beulah, be awarded to and confirmed in the plaintiff; and the custody of said minor child, Maud, be awarded to and confirmed in the defendant.
9. That from the proofs as they appear herein, the sum of ten thousand dollars is a fair, reasonable and just sum to be paid by the plaintiff *327 to the defendant for the support, care, custody, maintenance and education of said minor child, Maud, and that the decree herein should require plaintiff to pay said sum to defendant in that behalf. But, and the decree shall so provide, the payment of said ten thousand dollars shall be in full discharge of all obligations of the plaintiff to the defendant, including not only in behalf of said minor child Maud, but also in full discharge of all obligations from him to her, of or on account of alimony, support, money, rights of dower, if any, and any and all other obligations whatever, except there be reserved to the said defendant her right of dower, if any she have, in a certain farm in the State of North Carolina, called and known as the "Moore farm," near Franklin, in the county of Macon, in said State, formerly owned by plaintiff.
10. That justice to the parties require, and that the decree shall so provide, that each of the parties may visit the child in the care and custody of the other, at reasonable times and places; provided in that behalf, however, that when defendant desires to visit the said minor child, Mary Beulah, she shall not be required to do so at the home of the plaintiff's parents or relatives, but may do so at the house of some disinterested friend, and with such child in the then temporary (406) custody of such disinterested friend or of the plaintiff.
Let judgment be entered herein in conformity with the foregoing, by the clerk of the District Court, etc. (Signed by W. S. Lauder, judge, etc., 20 September, 1895).
And the proceeding and decree in the libel for divorce entered in Massachusetts are as follows:
Respectfully libels and represents Ella J. Bidwell, of Springfield, Mass., that she was lawfully married to Geo. H. Bidwell, now of Cullasaja, in North Carolina, at Walhalla, in South Carolina, on 9 December, 1890, and thereafterwards your libellant and the said Geo. H. Bidwell, lived together as husband wife in this Commonwealth, to wit: at Chester, in said county, and that your libellant has lived in this Commonwealth for five years last preceding the filing of this libel; that your libellant has always been faithful to her marriage vows and obligations, but the said Geo. H. Bidwell, being wholly regardless of the same, at Cullasaja, in North Carolina, on Friday, 1 December, 1893, or thereabout, without just cause, willfully and utterly deserted your libellant, which desertion has continued for three consecutive years, next prior to the filing of this libel: Wherefore your libellant prays that a divorce from the bonds of matrimony may be decreed between your libellant and the said Geo. H. Bidwell, and that the care and custody of Maud Bidwell and Beulah Bidwell, both minor children of *328 said libellant and libellee, be decreed to said libellant and such other relief as to your Honors shall seem meet and as justice may require. (Signed Ella J. Bidwell, 4 February, 1902).
The foregoing libel was entered in the court on 10 February, 1902, when the libellant appeared by her attorneys, Bates Armington, and the libellee appeared by his attorney, E. H. Lathrop; and on the back of said libel is the following acceptance of service: "I accept service of this precept, and appear for the libellee, reserving all rights." (407) (Signed E. H. Lathrop, attorney for libellee, 10 February, 1902). And on 19 March, 1902, the libellee filed his answer as follows: "The libellee denies each and every allegation in the libel except said marriage, and that he neither denies nor admits, but leaves the libellant to prove. If the libellant shall prove said alleged marriage, the libellee alleges that he was divorced from the libellant by the District Court of Cass County, State of North Dakota, a court of competent jurisdiction, and having jurisdiction of the cause and both parties thereto, prior to the beginning of this libel, to wit: 21 September, 1895, and which decree of divorce is in full force and effect, and was at the time of bringing this libel. The libellee further says that the libellant has brought two libels against him, prior to this one, in which said divorce has been pleaded, all of said proceedings being in this county, and of record here; that last proceeding was filed in this county, 12 April, 1897, and was dismissed 6 January, 1902; that said libellee therein pleaded said divorce granted to him as aforesaid in North Dakota, and your libellee says that the issue in this case has been adjudicated in this Court, and the libellant is barred from proceeding in this action thereby, and from being granted divorce as prayed for. (Signed by E. H. Lathrop, attorney for libellee.)"
On 25 March there was a full hearing of the evidence, and on 26 March the following decree was filed in the case in the Massachusetts court: "This case came on to be heard on Tuesday, 25 March, 1902, before Mr. Justice Maynard, both parties appearing by their respective counsel (naming them); now it appeared upon the hearing of said cause, that prior to the bringing of this libel, to wit: 20 September, 1895, the said libellee in the above entitled action, the said Geo. H. Bidwell, was divorced from the said libellant, the said Ella J. Bidwell, by the District Court, for the Third Judicial District of North Dakota, for a cause of divorce recognized in said North Dakota and in (408) this Commonwealth, said District Court having had jurisdiction of both cause and parties, both parties appearing therein personally, and by counsel, and the libellee having filed an answer to said libel; and it further appeared that neither before nor since the filing *329 of this libel was the said Geo. H. Bidwell an inhabitant of this Commonwealth: It is hereby decreed and determined that this libel is hereby dismissed, and that said decree of divorce, granted by said District Court of North Dakota, and pleaded herein, is a good and valid divorce in this Commonwealth, and that the parties are concluded thereby. We hereby assent to this decree." (Signed by counsel of both parties, and certified by the clerk of the court.)
The jury having been empaneled and the above records presented, further proceedings were had as follows: "This cause coming on to be heard after the introduction of the exemplified copies of the records and decrees in the case of Geo. H. Bidwell against Ella Bidwell, rendered in the court of North Dakota, as alleged in the answer, and the records and decrees in the case of Ella J. Bidwell against Geo. H. Bidwell, rendered in the Superior Court of Hampden County, Massachusetts, the plaintiff offered testimony tending to prove that the defendant went to North Dakota, not intending to become a resident of that State, and testimony tending to prove the other matters alleged in the replication: Thereupon the court intimated to the counsel for plaintiff, that he would charge the jury that the plaintiff was estopped by the Massachusetts decree, notwithstanding the matters alleged in the replication touching the validity of the North Dakota decree, and in deference to that intimation the plaintiff submitted to a judgment of nonsuit, and appealed."
On the facts presented for (409) our consideration, the right of the plaintiff to the relief demanded, depends on whether the plaintiff and defendant are now husband and wife.Skittletharpe v. Skittletharpe,
It is accepted doctrine that so far as the subject matter of the controversy is concerned, actions for divorce deal with the status of the *330 parties, and that jurisdiction in such actions is dependent upon the domicile of the parties at the time the decrees are rendered. Where neither party has a domicile in the State of the forum, such court having no jurisdiction of the subject matter of the controversy, a decree of divorce is void, though both parties may have appeared, and voluntarily submitted themselves to the jurisdiction of the court.
Where the plaintiff only is domiciled in the State of the forum, and has obtained a decree of divorce for a cause recognized as valid in such State, after constructive service of process on the defendant, according to the course and practice of the court, there has heretofore been diversity of opinion as to the extent and binding force of such a decree in other jurisdictions. North Carolina has heretofore held against the validity of such a decree by the courts of other states, as affecting the status of her own citizens. The better doctrine, however, now seems to be that where the domicile of the plaintiff has been acquired in good faith, and not in fraud or violation of some law of a former domicile, a divorce of this kind should be recognized as binding everywhere — certainly within the jurisdiction of the United States or any one of them. (410) Atherton v. Atherton,
The case of Atherton v. Atherton does not establish the proposition here stated, on precisely similar facts to the case before us, or it would be controlling; but the general tenor of the decision would seem to favor this conclusion.
Where, however, the action is instituted and the decree obtained in the State of the plaintiff's domicile, and the defendant has been served with process within the jurisdiction of the forum, or has voluntarily appeared and answered, all the decisions are agreed that a decree in such case is valid both in rem and in personam, and will bind and conclude the parties everywhere. Jones v. Jones,
It is admitted or established that the plaintiff in that suit, as she is in this, was at the time, and still is, resident and domiciled in the State of Massachusetts. Her libel was for the purpose of obtaining an absolute divorce from the defendant. He appeared and answered, and set up the proceedings and decree of the North Dakota court in bar of the plaintiff's demand. The Massachusetts court, after full hearing, dismissed the libel on the ground that the North Dakota decree was valid, and that the status of the parties was not that of husband and wife. *331
There is no allegation or claim that the court which rendered this decree is without jurisdiction, or that the same was obtained by fraud. The investigation and decree necessarily passed upon and determined the very questions involved here. The court had jurisdiction both of the cause and the parties, and the conclusion is not open to further investigation.
True, the case on appeal states that the plaintiff was ready (411) to produce testimony that the defendant never had any domicile in North Dakota, and that such court was without jurisdiction, and that the decree of the Dakota court was obtained by fraud and duress. The answer is that the validity of the divorce has been established by a decree of a competent court, having full jurisdiction in the cause, where the very questions she now seeks to raise, had been, or could have been, passed upon and determined, and that the plaintiff is thereby estopped from further question concerning them. Jenkins v.Johnston,
It is suggested that the decree of the Massachusetts court is a consent decree, and for that reason is not binding or conclusive between the parties in actions of this character. The question, however, does not arise on this record, for we are clearly of opinion that this is not a decree by consent. The entire record discloses that the case was conducted throughout as an adversary proceeding, and judgment was entered after full and due inquiry into the facts. Our decision of the cause is in accord with the general equities of the case, as indicated by the course of events and the conduct and present status of the parties.
The plaintiff having appeared and answered, in the suit in North Dakota, received $10,000 awarded her in that case for the care and custody of her minor child. After a delay of six and a half years, she institutes her own suit for divorce in Massachusetts, which is determined against her, and in which she was awarded $2,000 by way of allowance. Again, after considerable delay, in apparent acquiescence, she brings this suit, seeking further allowance for support. The defendant, in the meanwhile, in reliance on the decrees of two courts — one of them certainly having full jurisdiction of both cause and parties — has married another woman, and had a child born to him by this (412) marriage.
Apart from the estoppel by record on the principal question, there is strong authority for holding that the plaintiff is estopped by conduct *332
in pair from asserting any further claim for pecuniary allowance against the defendant. Nichols v. Nichols,
No error.
Cited: Ellett v. Ellett,
S. v. Herron,