194 P.2d 621 | Mont. | 1948
In November 1939 Emelia Fadden came to Montana to live with her daughter. She had been married to one Walter Fadden since June 18, 1929. Emelia and Walter Fadden lived together for two years in California and then separated and they had lived apart for eight years when Emelia Fadden came to Montana. In May 1940 Emelia met Peter B. Anderson, a widower, living at Cut Bank, Montana. He proposed marriage but she informed him that she was already married. In June 1940 Emelia acquiesced to Anderson's proposal and at his suggestion prepared to get a divorce. She had resided in Montana for less than the year required by the Montana statutes, Rev. Codes 1935, sec. 5766, and therefore could not institute an action for divorce in this state. It was arranged that Emelia would go to Las Vegas, Nevada, take up her residence there and procure a divorce and then marry Anderson. Anderson drove her to Butte so that she could take the train to Las Vegas, paid her fare and advanced money to pay her expenses while she stayed in Las Vegas. Emelia arrived in Las Vegas, Nevada, on July 12, 1940, where she took a furnished room. She remained there continuously until September 2, 1940. She filed an action for divorce and then returned to Butte where Anderson met her and together they took a trip to Minnesota, visiting Mr. Anderson's relatives, and later returned to Browning, Montana. Then Anderson again drove her to Butte where she took the train to Las Vegas in order to procure her final decree of divorce. On November 13, 1940, she was granted a final decree of divorce from Walter Fadden.
Walter Fadden did not appear and service was had upon him by publication. The Nevada court found as a fact "that the plaintiff is now and was for more than six weeks immediately preceding the filing of her verified complaint in this action, an actual bona fide resident of Clark County, Nevada, and that during all of said time, Las Vegas, Clark County, Nevada, was the home and only home and sole place of residence of the plaintiff." *518
After a brief trip to Los Angeles, Emelia returned to Montana and she and Peter B. Anderson were married at Missoula, Montana, on February 3, 1941. They lived together as man and wife until September 2, 1943. On that date Peter B. Anderson instituted an action for divorce from Emelia Anderson and after hearing Peter B. Anderson was granted a divorce from Emelia Anderson by decree entered October 17, 1944. Thereafter an appeal from the judgment granting the decree of divorce was perfected by Emelia Anderson. On March 17, 1945, subsequent to the perfection of the appeal but before the hearing thereon, Peter B. Anderson died and his administrator was substituted as plaintiff.
The appeal was presented to this court as Cause No. 8578, Judson v. Anderson,
Thereafter on August 6, 1946, Peter B. Anderson, son of the deceased Peter B. Anderson, and Mildred Kittilson, daughter of the deceased, filed a petition for probate of the will of said deceased Peter B. Anderson. The will offered for probate was executed and attested on July 18, 1935.
Emelia Anderson objected to the probate of the will for the reason that she married Peter B. Anderson, deceased, after the execution of the will offered for probate and that by virtue of section 7001, Revised Codes of Montana 1935, this marriage *519 operated to revoke the will. The proponents of the will answered the objections by alleging that Emelia Anderson married Walter Fadden in California on June 18, 1929, that the marriage had never been legally dissolved and that the marriage of Emelia Anderson and Peter B. Anderson was void and therefore did not revoke the will.
In her reply Emelia Anderson alleged that she was lawfully divorced from Walter Fadden at Las Vegas, Nevada, on November 13, 1940, that she was lawfully married to Peter B. Anderson and consequently the will executed before their marriage was revoked.
After hearing evidence two questions were submitted to the jury for findings. The questions and the jury's findings thereon are:
"Finding No. 1. Question. Did the Objector, Emelia Anderson, when she went to the State of Nevada and at all times up to and including the time she filed her action for divorce against Walter E. Fadden intend to make the State of Nevada her permanent residence or her residence for an indefinite period of time? Answer. No.
"Finding No. 2. Question. Did the deceased, P.B. Anderson, prior to and during the time Emelia Anderson was taking steps to secure a divorce from Walter E. Fadden take part in and urge upon Emelia Anderson going to Nevada for the purpose of securing such divorce, including the payment of all, or a substantial part of the expenses of travel and the costs of the divorce action? Answer. Yes."
The court made additional findings of fact on noncontroversial matters and made the following conclusions of law:
"I. That proponents, Peter B. Anderson and Mildred Kittilson, as the heirs of and in privity with Peter B. Anderson, deceased, are barred and estopped from questioning the validity of the judgment and decree of the Nevada Court in the divorce action mentioned in said Finding No. 1 of the jury.
"II. That by reason of the said marriage of Peter B. Anderson subsequent to the date of the execution of said will *520 offered for probate said will was and is revoked as a matter of law.
"III. That the objections of Emelia Anderson and the objections of H.C. Hall to the probate of said will should be and they are sustained."
The court entered judgment denying probate of the will. The proponents have appealed from this judgment.
The trial court based its decision on the jury's finding No. 2 that Peter B. Anderson, deceased, had taken, persuaded and induced Emelia Anderson to go to Nevada for the purpose of securing a divorce from Walter E. Fadden and had paid a substantial part of the expenses of travel and the costs of the divorce action incurred by Emelia Anderson, had supported her while she was living in Las Vegas and subsequently, with full knowledge of the circumstances, married her and they lived together as husband and wife for two and a half years.
The United States Supreme Court in the second case of Williams v. State of North Carolina,
The doctrine of estoppel has been invoked to prevent a collateral attack on a foreign judgment by the party procuring the divorce or where the defendant in the divorce action remarried in reliance thereon.
The Restatement of the Conflict of Laws, section 112, says:
"The validity of a divorce decree cannot be questioned in a proceeding concerning any right or other interest arising out of the marital relation, either by a spouse who has obtained such decree of divorce from a court which had no jurisdiction, *521 or by a spouse who takes advantage of such decree by remarrying."
The rule has been extended to apply to the spouse of the divorcee who was active in securing the divorce (17 Am. Jur., Divorce and Separation, sec. 760, Cum. Supp. 1947; Freeman, Judgments, sec. 320, note 3 A.L.R. 535, 540), or one who treated it as valid and changed his or her marital status in reliance thereon. The doctrine that a person instrumental in procuring a divorce was barred from attacking its validity has been variously founded upon quasi-estoppel (In re Davis' Estate,
Not all states have accepted the doctrine as applied by the Restatement of the Conflict of Laws or as extended above. In some cases such as Starbuck v. Starbuck,
Other states have insisted that inasmuch as both parties were cognizant of the essential facts, neither was misled. Therefore the doctrine of estoppel as we customarily regard it would not apply.
For example in Waddell v. School District,
Smith v. Smith,
But the estoppel applied here is not true estoppel in pais as analyzed in Waddell v. School District, supra, or Metcalf v. Barnard-Curtiss Co., supra, but is quasi-estoppel, or ratification or inconsistency of conduct. Whatever it is called, it is not based on the elements of misrepresentation of facts by one party followed by damage to the other. "But there are other forms of estoppel in which knowledge on the part of the person invoking the estoppel and reliance upon the fact and a change of situation based upon that reliance are not essential." 10 Cal. Jur. 645; In re Davis' Estate, supra; Poston v. Delfelder,
The decisions on this question are numerous and varied. They have been the subject of exhaustive annotation in 153 A.L.R. 941; 140 A.L.R. 922; 122 A.L.R. 1328; 109 A.L.R. 1026; 39 A.L.R. 677 and 3 A.L.R. 540. The question has also been extensively discussed by text writers and scholars in the law reviews. See the June 1935 issue of Law Contemporary Problems, devoted exclusively to the problem of migratory divorce and especially Harper, The Myth of the Void Divorce, page 335; also Powell, And Repent at Leisure, 58 Harvard Law Review 930, and Jacobs, Attack on Divorce Decrees, 34 Michigan Law Review, 749 and 959.
Probably the chief reason for the differences of opinion in the application of the foregoing rules of estoppel is the policy of the state toward divorce. In states like North Carolina, or New York, the courts have followed strong public policy as laid down by the legislature against citizens of those states attempting to evade the domestic divorce laws by migrating to other states.
The state of Montana has declared through the legislature that it will recognize divorce on the grounds enumerated in section 5736, Revised Codes of 1935, as amended. The grounds for divorce in Montana are almost the same as those in Nevada. Hillyer Comp. Codes, Nevada, 1931-1941 Supp. sec. 9460.
No public policy of the state of Montana is violated by[1] recognizing a Nevada divorce granted on the same grounds as the same divorce could have been granted in Montana.
Nor has there been an attempt at an evasion of the laws of[2] this state similar to that taking place where a citizen of the state, domiciled therein, establishes a fictitious domicile in another state for the purpose of obtaining a divorce. See In re Blum's Estate,
On the other hand the marriage between Emelia Anderson and[3] Peter Anderson took place in the state of Montana. The public interest of this state would be most concerned in validating the marriage relationship that was entered into in this jurisdiction. Welch v. All Persons,
But an equally compelling reason for refusing the proponents[4] of the will the right to collaterally attack the divorce decree of the Nevada court is the decent regard and respect we owe to the judgments of the courts of sister states. Even though the full faith and credit clause of the Federal Constitution does not prohibit a collateral attack on the Nevada decree, the rules of comity prevent such an attack.
Since the decision of the Supreme Court of the United States in Bank of Augusta v. Earle, 13 Pet. 519,
Unless the public policy of the state would prevent the[5, 6] recognition of the decree or such recognition would be injurious to the best interests of the state we must recognize the force and effect of the decrees of our sister states and enforce them in the same manner that they enforce the decrees *525
of courts of our state. We have concluded that there is no conflict with public policy to recognize this Nevada divorce. Gildersleeve v. Gildersleeve,
It is the policy of this state to enforce the sanctity of a[7-9] marriage relationship entered into in Montana, and it is our obligation to fix and determine the status of our citizens so that they will have the highest degree of certainty and stability possible. It is also our duty to give such faith and credit to foreign decrees as is consistent with the welfare of the state and public policy as enacted by our legislature. It is therefore our conclusion that the Nevada divorce decree was not subject to collateral attack.
For a comparable situation applying public policy as the test whether a judgment can be collaterally attacked for lack of jurisdiction over the subject matter, see Restatement Judgments, section 10, where the American Law Institute says: "Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction." See also, Hamm v. Hamm, Tenn. App.,
It is contended that even though Peter B. Anderson, deceased, were estopped to deny the validity of the Nevada divorce his heirs would not be so estopped. It was held in Hynes v. Title Guarantee Trust Co.,
A contrary case is In re Lindgren's Estate,
In holding above that the divorce decree of the Nevada court was not subject to collateral attack we have based our decision on more than estoppel. We have based it on the principles of comity and public policy. It follows, then, that not only would those in privity be prevented from attacking the foreign divorce but such a decree would be good against attack by strangers. In re Blum's Estate, supra.
The proponents have cited the general rule that estoppel to be[10] available to the objectors must be specially pleaded. Krueger v. Morris,
But the rule that an estoppel must be specially pleaded is, like many other legal rules, subject to exceptions. One of the exceptions is that if a party had no opportunity to plead the estoppel, he may introduce evidence just as if the estoppel had been specially pleaded. Middle States Oil Corporation v. Tanner-Jones Drilling Co.,
A will contest is a special proceeding governed by statute. 1[11] Bancroft's Probate Practice 296. The statute, sec. 10032, Rev. Codes of Montana 1935, expressly sets forth the *527
pleadings allowed in a contest of a will. The contestant must file "written grounds in opposition to the probate." The petitioner may demur on any of the grounds provided by sections 9131-9136 and if the demurrer is overruled or he elects to waive his demurrer the petitioner may answer. The pleadings are then ended and the issue is joined. 26 Cal. Jur., Wills, sec. 352, p. 1097. There is no provision in the statute or in the practice for any further pleading. Barney v. Hayes,
The question of the validity of the Nevada divorce of Emelia[12] Anderson from Walter Fadden arose as follows: Emelia Anderson as objector filed her written opposition to the petition for probate of the will of Peter B. Anderson. Her grounds for objection were that she had married Peter B. Anderson after the execution of the will sought to be probated. The petitioner answered, alleging that at the time Emelia Anderson married Peter B. Anderson she was already married to Walter Fadden who was still living, and that her marriage to Walter Fadden had never been dissolved by a court of competent jurisdiction. Thus was the issue joined. No further pleadings were permissible under the terms of section 10032, Revised Codes of 1935. Therefore there was never a legal opportunity to plead the estoppel relied upon and under the exception above noted evidence of such an estoppel was properly admissible at the trial of the cause. See In re Estate of Davis,
The trial court properly denied probate of the will of Peter B. Anderson. The judgment is affirmed.
Mr. Chief Justice Adair and Associate Justices Choate, Gibson and Angstman, concur.
Rehearing denied July 1, 1948. *528