204 S.W.2d 113 | Tenn. Ct. App. | 1947
The case was heard by the chancellor upon the original bill, the answer of the Divorce Proctor, the pro confesso against the defendant, and the testimony of the witnesses examined in open court. The result was a decree granting the complainant an absolute divorce on the ground of cruel and inhuman treatment. From this decree the Divorce Proctor appealed, as he was authorized to do by the Acts of 1945, Chapter 109. The findings of the chancellor, incorporated in his decree, in substance are as follows:
1. That neither the complainant, Harold T. Hamm, nor the defendant, Sara Nell Hamm, was at any time a resident citizen of, or domiciled in, the State of Arkansas within the meaning of the divorce laws of that State, and that neither the complainant, Harold T. Hamm, nor the defendant, Sara Nell Hamm, was a resident citizen of, or domiciled in, Poinsett County, Arkansas, or any other county in Arkansas, within the meaning of divorce laws of that state at the time of the filing of the divorce suit therein by the said complainant, Harold T. Hamm, against the said defendant, Sara Nell Hamm, nor at the time of the entry of the decree of divorce therein favor of the complainant, Harold T. Hamm.
2. That the proceedings and decree of divorce in the case of Harold Hamm, complainant, v. Sara Nell Hamm, defendant, in the Chancery Court of Poinsett County, *129 Arkansas, are null and void, and the said Chancery Court of Poinsett County, Arkansas, did not have jurisdiction of either party to the litigation or the subject matter thereof, and the said parties were then bona fide resident citizens of, and domiciled in, Shelby County, and had been for several years prior thereto.
3. That the only relief sought by the said complainant, Harold Hamm, in his suit for divorce in Poinsett County, Arkansas, against the defendant, Sara Nell Hamm, was an absolute divorce from the said defendant, Sara Nell Hamm, and that the only relief which he seeks in this action in this court is an absolute divorce from the defendant, Sara Nell Hamm.
4. That the original bill for divorce filed in this cause by the complainant, Harold T. Hamm, is also in the nature of a bill to declare his marital status.
5. That the marital status of the parties remained unchanged by the entry of the decree of divorce in the chancery court of Poinsett County, Arkansas.
6. That the facts charged in the original bill in this cause are true and that the defendant, Sara Nell Hamm, is guilty of such cruel and inhuman treatment or conduct towards her husband, Harold T. Hamm, complainant, as renders cohabitation unsafe and improper.
It will be observed at once that we do not have here a case where the sole object of the bill is to set aside the decree of the court of another state. Nor is equitable relief from the judgment of another court the primary object. Upon the contrary, for present purposes, we may assume that, as insisted, the pleadings before us present a collateral attack on the decree of a sister state made as a necessary incident to the primary relief sought, namely an absolute divorce. *130
Among other contentions made by the Proctor is one that the chancery court of Shelby County "acquired no jurisdiction to inquire into the validity of the Arkansas decree for the reason that no facts were pleaded respecting this issue." There seem to be two answers to this contention. One is that the adjudication was proper and necessary in determining the question of whether the complainant and the defendant were husband and wife. This is an issue in every divorce case. The other is that the issue was raised by the answer filed by the Proctor. The applicable rule is that in determining whether an issue embraced within a decree is within the scope of the pleadings, not only the bill but the answer must be looked to. Gibson's Suits in Chancery, Secs. 140, 555 and 556.
It is next contended that since the decree setting aside the decree of the Arkansas court is a judgment in personam, the court was without power to render it because the defendant was not served with process. It is insisted that "the defendant neither being served with process nor entering an appearance cannot be bound by a decree of the court setting aside the Arkansas decree under which she had valuable personal rights." "A suit for a divorce," it is contended, "is a proceeding sui generis, founded on the violation of the duties which the law enjoins and almost sounds in tort, and is for the redress of private wrong. It is strictly a personal action".
In support of these views, we are referred to Swan v. Harrison,
Contrary to the Proctor's contention, the view entertained by the weight of authority is that the marital status or relation is itself a res in the sense that a proceeding affecting it alone is a proceeding in rem or quasi in rem where substituted service by publication is sufficient to answer the requirement of due process. Williams v. North Carolina,
See also 3 Freeman on Judgments, Secs. 1429, 1436, 1437. The recent case of Williams v. North Carolina,
The decision abolished the legal fiction erected by the Haddock case, under which the domicile of the wife was identified with that of her husband where the separation was due to her fault, and held that in such event the wife carries the matrimonial res to her domicile just as the husband also carries it to his own; that "both are characterized by the marital status, which does not belong exclusively to either, and of which each may be said to be seized per tout et non per my, as in the case of real estate which they own as husband and wife under tenancy by the entirety". Forster v. Forster, 182 (Wis.) 382,
But the decision on the second appeal of the Williams case (Williams v. North Carolina,
So, other questions aside, there can be no doubt about the chancellor's authority to go behind the finding of the Arkansas court for the purpose of determining whether that tribunal had jurisdiction of the subject matter,1 and, in the absence of the evidence, his finding as to the determinative facts of that issue is conclusively presumed to be correct. Freeman on Judgments, 5th Ed., Vol. 1, Sec. 375a; Vol. 3, Secs. 1366, 1371, 1436, 1437; 34 C.J. 1142; 27 C.J.S., Divorce, Sec. 335, p. 1300; 50 C.J.S., Judgments, Sec. 893, p. 502; Keezer, Marriage and Divorce, Sec. 555; Hopkins v. Hopkins,
The principal question for decision is whether the complainant is estopped to challenge the validity of the Arkansas decree by reason of having procured it himself, and practiced a fraud on the court in doing so. This is an important and troublesome question, about which there is a diversity of opinion. The cases on the subject are numerous and conflicting. It would be a work of supererogation to undertake to examine them. They are collected in the annotations appearing in 109 A.L.R. 1018; 122 A.L.R. 1321; 140 A.L.R. 914; and 153 A.L.R. 941.
The general rule elsewhere is that a party at whose instance *134
a judgment is rendered is not entitled, in a collateral proceeding, to contend that the judgment is invalid. In a number of jurisdictions it is held that neither want of jurisdiction, defect of procedure nor any other ground of invalidity can be availed of collaterally by the party who is responsible for the existence of the judgment. The rule has been frequently applied in actions for divorce where the decree was obtained in one state and afterwards attacked in another. Freeman on Judgments, Sec. 320; Note, 3 A.L.R. 535, 540; 17 Am. Jur. 575. The courts who have taken this view, however, seem to recognize that the rule applied by them does not rest on the doctrine of estoppel as that term is ordinarily understood. Freeman on Judgments, Vol. 1, Sec. 320; Vol. 2, Secs. 626 and 676; Bledsoe v. Seaman,
Thus it is said that "the question of whether the court had jurisdiction, either of the subject matter of the action, or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated". Bledsoe v. Seaman, supra [
With respect to judgments generally, early decisions in this State make it at least doubtful if our courts have been inclined to go that far. This disinclination is based upon the implications of the doctrine that a judgment in the absence of the requisite jurisdiction is void and binds no one. Cf. Stump v. Sheppard,
Some of these cases are not precisely in point because they are not concerned alone with the rights of the party who obtained the judgment, but they all serve in varying degrees to indicate the ineffectiveness of a void judgment.
They are in accord with the forceful statement on the subject to be found in Freeman on Judgments, Vol. I, Section 332.
Notwithstanding imposing authority to the contrary, texts of distinction note a disinclination on the part of courts of high repute to hold that the absence of jurisdiction of the subject matter by reason of the lack of the required domicile by the plaintiff in the divorce forum can be supplied by estoppel. 3 Freeman on Judgments, 5th Ed., Sec. 1438.
Bishop, Marriage, Divorce and Separation, Sec. 187, says: "There cannot be a divorce jurisdiction by consent. And the principle upon which this proposition proceeds would seem to exclude estoppel, as either giving or taking away jurisdiction. The question has not been much considered by the courts; still we have some intimations, not all of which are quite beyond question, such as that a plaintiff who has accepted the benefit of a divorce decree *136
cannot deny the authority of the court by which it was rendered (citing cases). On the other hand, it has been held that one who has obtained such decree is not estopped to deny its validity (citing cases)." See Andrews v. Andrews,
The courts who decline to adopt and apply a rigid doc trine of estoppel have proceeded upon the theory that to do so would seriously interfere with the equally well established doctrine denying recognition to invalid foreign divorce decrees and circumvent some well established public policy.
Out of the conflict of decisions, particularly in the state of New York, there has emerged a distinction between actions involving matrimonial status alone and those involving the private or personal rights of the spouses. The cases recognizing this distinction hold the doctrine of estoppel or quasi estoppel inapplicable in the first class of cases and applicable in the second. The theory of this view is that in matrimonial actions, the state as well as the immediate parties has an interest in the outcome, and that public policy respecting the marital status outweighs any considerations which would deny to private litigants access to the court.
A leading case illustrating the class denominated "matrimonial actions" is that of Stevens v. Stevens,
"This is not a case in which one spouse, after having secured a foreign divorce decree not binding in this State on the other, attempts thereafter to assert in our courts a private claim or demand arising out of their marriage. There are situations in which such a private suit will be barred by the fact of the foreign decree."
In the dissenting opinion in the case of Krause v. Krause, 282 N.Y. 355,
"All the cited cases divide themselves into two categories. Fisher v. Fisher [
"Starbuck v. Starbuck [
"Once you accept the rigor of our settled applicable rule of Conflict of Laws there is no disputing that the foregoing categories have a warrant that runs deep in the law `Marriage being a public institution of universal concern, and each individual marriage or its dissolution affecting the rights not only of the husband and wife but of all other persons, the court sitting in a divorce cause should regard the public as a party thereto, and so far protect its interests as not to suffer the decree for dissolution or suspension to pass contrary to the real *139
facts and justice of the case'. 2 Bishop on Marriage, Divorce and Separation, Sec. 480. For the same reason judgment in a matrimonial action may not go by default and (though the defendant be absent) a hearing must none the less be had therein that in essence is a trial. See Redfield v. Critchley,
Illustrative of the extent to which the New York courts have gone in disregarding the hardship to either of the parties in declaring the real fact of the relationship, is the case of Querze v. Querze,
We think the division of the actions into two categories — one consisting of cases involving matrimonial status alone, and the other of cases involving the private or personal rights of the spouses, — is sound. But in adopting this view we do not have to go as far as the New York court did in Querze v. Querze, supra, in holding that in the circumstances stated, any resulting hardship on the parties is to be disregarded entirely. We do not think it necessary, in order to sustain the public policy of this state, to lay that down as an inflexible rule. We can conceive of cases where to disregard the consequences to one or both of the parties, or others, would be itself to go counter to a public policy of equal dignity perhaps, with that which in general looks to the permanency of the marital relation. *140
From what has been said, it is apparent that if we accept the classification of the New York court, the present suit is strictly a matrimonial action.
On the question of estoppel, the Proctor particularly draws our attention to the cases of Blume v. Blume, Sup., 6 N.Y.S.2d 516; McIntyre v. McIntyre,
It is thus apparent, as has already been stated, that there is a decided conflict of authority on the question in hand. It has been truly said that no law can settle all of the vexatious problems arising out of divorce. Within the limits of its proper function, the most that a court can do is to adopt the view which will best promote the declared public policy of the state. This was indicated more than thirty years ago in the case of Toncray v. Toncray,
"The Supreme Court of the United States is the ultimate expounder of the federal Constitution, and, so long as Haddock v. Haddock stands, each of the states is entitled to give to such decrees as the one here under consideration just that degree of efficacy, within its borders *141 as to its citizens, which its courts may determine to be the state's proper policy.
"We think the policy of the chancellor's decree is the true one — the policy most consistent with justice, good morals and comity — and we adopt it as the course hence forth to be taken by the courts of this state."
The court was not there dealing with the question we have, but the foregoing observation, we think, is a guide to the choice which must be made between the conflicting views.
It has often been said that the State is a party to all actions brought to dissolve the marital relation,3 and, in the sense contemplated, this is undoubtedly true everywhere. It results from the interest every governmental entity has in this most fundamental status of its citizens. It is also said that the concern of the State is to uphold the permanency of the marital relation. As to this, we think it can be said unqualifiedly only of a State where there is no provision for divorce, or it is forbidden absolutely. Where, as here, the law provides for the dissolution of a marriage on certain specified grounds, it can hardly be true that the State, as a matter of public policy, is profoundly concerned in maintaining a marital relation where there can be no doubt about the existence of grounds for divorce, at least where there is little or *142
no possibility of forgiveness and reconciliation. Cf Lingner v. Lingner,
We think it perhaps more accurate to say, at least in this jurisdiction, that as a matter of public policy the State is interested in the marital status of its domiciliaries; in preserving that status where it can be done consistently with our divorce laws, and where that cannot be done, in releasing the parties from its restraints where the aggrieved and innocent spouse asserts his or her rights to some form of the relief provided by pertinent statutory provisions and furnishes the contemplated proof. Cf. Lingner v. Lingner, supra. Marriage of its citizens and propagation of the race within wedlock must ever be of vital interest to the sovereign. A point sometimes apparently overlooked is that whatever the view of some ecclesiastical authorities, the law places no stigma on a divorced person. It is still interested in his matrimonial status, actual and potential. Subject to any obligations remaining from the marital relation, it deprives him of no rights accorded a single person with the exception that a defendant in a divorce proceeding who has been guilty of adultery shall not marry the person with whom the act was committed during the lifetime of the former husband or wife. Save in that case no new restrictions are placed on the right to marry again. Upon the contrary, our statute affirmatively declares that right. Code, Sec. 8452. Indeed, it is not too much to say that society is concerned that he do so for the same reason that it was interested in his other venture or ventures in matrimony. If it does not actively promote that end, it does nothing to discourage it. Whatever may be thought elsewhere or by other authorities, the law in this jurisdiction recognizing the realities of human nature, believes this *143 policy promotes good morals and makes for the good of society. Cf. Lingner v. Lingner, supra.
A number of cases turn upon the fact that the position of the party assailing the divorce decree is inconsistent with his or her position in the proceeding wherein that decree was rendered. The rule denying the right of a litigant to assume inconsistent positions in the course of legal proceedings where no reasonable explanation of the inconsistency is offered, prevails in this jurisdiction, and this is true apart from what we know as estoppel by oath. It is regarded as essential to the orderly administration of justice. But here, apart from whether this rule would prevail over considerations involving public policy, the complainant takes no inconsistent position, at least in so far as the object of his suit is concerned. He seeks the same relief, basing his claim on the same grounds as he did in the Arkansas proceeding. This appears to have been regarded elsewhere as a consideration of some importance. See Shannon v. Shannon,
But of more significance in a determinative sense is the fact that so far as appears, no property rights are involved, and no one has altered his or her position on the strength of the Arkansas decree. If we look through the form to the substance, the truth seems to be that what the complainant seeks, is a clarification of his marital status. As already indicated, we think that is something in which the State is interested as a matter of public policy. An eminent authority has expressed it in this language: "It is essential to the peace of society that questions of this kind should not be left doubtful but that the domestic relations of every member of the community should be clearly defined and conclusively settled and at rest." 1 Greenleaf on Evidence, Sec. 525, Vol. I. *144
If we should hold the complainant estopped to prosecute the present action because it necessarily involves a challenge to the validity of the Arkansas decree, it would be to say not that that decree was a binding adjudication which dissolved his marital bonds, but only that (to put it in the strongest light) by reason of his participation in the fraud on the Arkansas court, he will not be allowed to prove against the recitals of the decree, the truth with respect to the jurisdictional prerequisites. Hence the parties would be set at large, in the midst of a grave uncertainty as to the most important status known to society. Neither would know whether he or she could safely remarry, for in such a case in addition to other obvious considerations of importance, any estoppel that would arise would not prevent a state's prosecuting for bigamy or for unlawful cohabitation the party obtaining the invalid divorce. Restatement, Conflict of Laws, Sec. 112, Comment B; Williams v. North Carolina,
Upon the facts found by the chancellor we are not convinced that to leave the complainant in that plight, to say nothing of the effect upon the situation of the other spouse, would be to promote good morals or any other interest of society.
Now, of course, fraud is odious and it is particularly so when it appears in the administration of justice. But the question here is, whether it is more important to penalize the guilty party by denying him access to the court to obtain relief formally recognized as legitimate by the public policy of the State, than it is to promote the interest which the State has in eliminating the doubt about his marital status. We think that under the facts of this case this question is to be answered in favor of the latter alternative. It is sometimes the case *145
that in the promotion of public policy a wrongdoer receives an incidental advantage which otherwise he would not be allowed. In such cases, since the sovereign, though a party in interest, is not actually a party of record, public welfare must be served through a private litigant even though in doing so there is bestowed upon the latter an unmerited benefit. Palmer Bros. v. Havens, Tenn. App.,
The rigid application of the doctrine invoked by the Proctor would menace public policy from another standpoint. There is no more important facet of our divorce laws than the prohibition against collusive proceedings. It seems to us that to adopt an inflexible doctrine of estoppel in a case of this kind would be to approve a principle which would facilitate the circumvention of this safeguard. Cf. Andrews v. Andrews,
Again, it is well established in this state that jurisdiction of the subject matter cannot be conferred by waiver or consent and that a judgment or decree rendered in the absence of such jurisdiction is not merely voidable but absolutely void.4
Sheffy v. Mitchell,
To hold that an estoppel arises under the facts of the present case, it seems to us would counter the principle of this salutary rule without adequate compensating advantage.
The challenged judgment being not one of a domestic court of general jurisdiction, but a judgment of a court of a sister State, the fact that the lack of jurisdiction is not apparent from the face of the record proper but is made to appear only by the evidence, does not affect the principle. See 50 C.J.S., Judgments, Sec. 893, p. 502 et seq.
So, after much reflection we have come to the conclusion that under the particular facts of this case the rule urged upon us by able counsel for complainant is the one best calculated to promote the public policy of this jurisdiction. It is well stated in the case of Hollingshead v. Hollingshead,
The vice-chancellor then enumerates some of the facts and circumstances which should be regarded as material factors in determining whether the relief should be granted. We may add that in applying the rule in this jurisdiction we think the public policy of the State should always be considered.
The foregoing rule was apparently adopted and applied in the present case by the learned chancellor, and for his judgment we have much respect. Since the evidence was not preserved by a bill of exceptions, it must be conclusively presumed that there was nothing shown which would render it unconscionable to grant the relief sought. Under the state of facts alleged in the bill and found by the chancellor, we cannot believe that the declared public policy of this State would be served by keeping these parties bound by the bonds of matrimony for no purpose other than to penalize the complainant for his imposition, however reprehensible, on the Arkansas court. We think it more important to serve the interest of the State in the marital status of one of its domiciliaries, and under the facts found we think this is what the chancellor's decree does.
It may be well to take note of one other matter. We have discussed the principal question in this case largely from a standpoint of estoppel because that *149 is the way it has been presented in the briefs. However, as it arises upon the record, we think it could be very well argued that apart from any question of fraud, one aspect of the Proctor's position is based upon the allied doctrine of merger or former recovery. This is, in general, that no further action can be prosecuted between the same parties upon a matter already ripened into judgment. Though it may be examined to aid in interpreting the judgment, the cause of action can never again become the basis of a suit between the same parties.
But merger depends for its existence upon a valid judgment. A judgment which is wholly void is in legal effect no judgment at all and cannot operate as a merger, since it is subject to collateral impeachment at any time. Freeman on Judgments, Vol. 2, Section 556. Thus, the author of that distinguished text says that, "If, in support of a plea of judgment recovered, the defendant introduces the proceedings or record of a court from which it appears that the plaintiff has taken a judgment which is coram non judice, such judgment will be as unavailing as a defense for the defendant as it would be as a cause of action for the plaintiff". "In such a case", says the author, "it is obvious that the judgment produced is in fact no final determination of the rights of the parties, and that no obstacle has intervened to prevent them from seeking such determination." Id., Vol. 2, Sec. 555. This is also the view of our own court. McCadden v. Slauson,
It may be said also that with reference to the defense of res judicata set up by the Divorce Proctor that a judgment rendered without jurisdiction of subject matter being a nullity cannot operate as res judicata. Freeman on Judgments, Vol. 2, Sec. 642. *150
While the rule adopted will not solve all the problems arising from the divorce law, no more than will any rule, yet we believe its flexibility makes it the most practicable one by which to work out the public policy of this jurisdiction, in this most vexatious and important class of cases. In adopting it we have had in mind, of course, the limitations upon the functions of courts. As was said long ago by an eminent jurist: "Their general duty is not to change, but to work out, the principles already sanctioned by the practice of the past. No one supposes that a judge is at liberty to decide with sole reference even to his strongest convictions of policy and right. His duty in general is to develop the principles which he finds, with such consistency as he may be able to attain." Holmes, C.J., in Stack v. New York, etc., R. Co.,
Before concluding this opinion, we think it meet that we express our indebtedness to counsel for the able and exhaustive briefs furnished us. They have served no little to lighten our labors.
The result is that the decree is affirmed. The cost will be paid by the complainant.
But, as pointed out in Note 1, ante p. 133, judgments of a sister or foreign State are an exception to the general rule confining the inquiry upon collateral attack for lack of jurisdictional prerequisite to the judgment roll or record proper. Freeman on Judgments, Vol. 1, Sec. 375a; Vol. 3, Secs. 1366, 1371, 1436; 50 C.J.S., Judgments, Sec. 893, p. 502 et seq. *151