55 P.2d 356 | Kan. | 1936
The opinion of the court was delivered by
This was an action for a divorce, and from a judgment in favor of plaintiff the defendant appeals.
The propositions advanced in argument require a somewhat detailed statement of facts. The parties were married in 1918 and lived until 1926 at various towns in Kansas. The husband was a physicist and had been teaching in Friends University at Wichita. In 1926 he obtained a federal appointment in the Bureau of Standards at Washington, D. C., to which city the family moved. There were two children, who on April 12, 1934; were about thirteen and fifteen years of age, respectively. On that date the wife commenced an action in the supreme court of the District of Columbia (hereafter called the D. C. court), for a divorce a mensa et thoro by filing a verified bill of complaint which alleged that both she and her husband were residents of the District of Columbia. Omitting certain allegations not here material, it was further alleged that during the entire period of their married life defendant had pursued a course of cruel treatment toward the plaintiff, threatening her with bodily harm, and on January 1, 1934, he had beat her, that his conduct toward the children was such as to have a tendency to lower their morals. At the time-the petition was filed, a motion for alimony pendente lite was filed. On April 30, 1934, the husband answered the bill of complaint and motion, admitting the marriage and residence in the district and denying, the acts of cruelty charged against him as well as that his conduct tended to debase the morals of the children. He pleaded fully with respect to his earnings and property. On the same day the court made its order allowing her alimony pendente lite and awarded her the custody of the children until further order of the court. On June 15, 1934, plaintiff filed a petition for permission to take the children to Kansas until September. The husband filed an answer in opposition, and on June 29 the court made its order denying the petition; • Notwithstanding the
On the day set the petition was heard and the prayer granted, and Mrs. Kirby was directed to turn over the children to the custody of her husband. After this order was made the husband came to Kansas and ultimately to Edwards county where, under the terms of the order, he demanded the children from the plaintiff. She refused, and on September 25, 1934, he filed an action in habeas corpus to recover their possession. This matter was set for hearing on September 26. On September 25 the instant action was filed, service being had on the defendant on September 26. At the time the petition was filed an order allowing the plaintiff temporary alimony, support for the minor children, and restraining defendant from interfering with the plaintiff’s custody of the children was made. Defendant appeared specially and moved to quash service of summons on the ground that he was exempt from service. This motion was overruled, and the overruling thereof is one of the errors complained of.
Thereafter, on February 18,1935, defendant filed an answer in the Kansas action setting out facts with reference to his residence, denying that he was a resident of the state of Kansas and raising again the question of his exemption from service of summons. He also alleged that the plaintiff at the time of the filing of the action had
“The court further finds that on April 12, 1934, plaintiff herein instituted an action in the supreme court of the District of Columbia, against the defendant, for legal separation, alimony and custody of minor children, in which action the defendant filed an answer and cross petition for the same relief; that thereafter and on April 17, 1935, the defendant, upon his answer and cross petition, procured a decree, in said action, for legal separation and custody of the minor children of said parties, but that said plaintiff was not present at said hearing, either in person or by authorized counsel, and was in no manner represented therein, and at the time of granting said decree to said defendant, plaintiff and said minor children had returned to their domicile in Kansas, and were residing at Kinsley, Edwards county, Kansas, and that this action was instituted by plaintiff in this court on September 25, 1934, and said defendant was personally served with summons herein.”
1. On the hearing of defendant’s motion to quash the service of process on him, he offered his affidavit setting out his claim as to being a resident of the District of Columbia, and that he came to Edwards county solely for the purpose of obtaining possession of the children by habeas corpus action if necessary, and actually instituted that action which was pending and to be heard on the day he was served. The plaintiff was called as a witness in opposition and her testimony raised an issue as to whether .the parties had ever abandoned their permanent residence in Kansas. It was the duty of the court to determine relinquishment or retention of an admitted previous residence in Kansas, and its denial of the motion to quash implies a finding -against the defendant. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 850, 22 P. 2d 965.) It is not the province of this court to retry the issue. The trial court having so found, and it appearing the plaintiff resided in Edwards county, under R. S. 1933 Supp. 60-1502, the suit was rightly brought in that county and the defendant could be served with summons there. Whatever may be the general rule with reference to exemption from service of summons in a county upon one who as a litigant is necessarily present within the county — and as to the rule we do not comment — it cannot be applied against the plain terms of a statute permitting the service of process to be made. It has not been made to appear the trial court erred in ruling on the motion to quash.
2. Owing to our final conclusion, we do not find it necessary to discuss fully the claim that the trial court erred in striking the answer from the files and in refusing to permit the defendant to take depositions, or in the exclusion of evidence further than to remark that the statutes with reference to temporary allowances for the wife and the children, and for expenses of the wife that she may make an efficient preparation of her case, are not subject to the
3. Did the trial court err in refusing to give full faith and credit to the decree of the supreme court of the District of Columbia? It appears that whether properly or not, the wife commenced an action in that court, alleged that she and her husband were residents of the District of Columbia, and under the action sought affirmative relief. She obtained custody of the children, and inferentially she received alimony pendente lite until she disobeyed an order of that court and brought her children to Kansas. Although shortly before that action was tried on its merits she filed a petition to dismiss her bill; prior thereto her husband had filed a cross bill. When that court on final hearing dismissed her bill of complaint it did not deprive itself of jurisdiction to try the cause on the defendant’s cross bill. Its final decree has been mentioned. The trial court in Kansas found that plaintiff was not present, either in .person or by counsel, when the D. C. court heard that case and rendered its decree, and that she and her children had returned to Kansas, where she instituted the present action in which personal service was had on the defendant. In effect, the trial court held that Mrs. Kirby could start an action for divorce in a court of competent jurisdiction ,in the District of Columbia, obtain some relief from it, then abandon that action and come to Kansas to start another action, and because she got personal service on her husband she was not bound by what the D. C. court did. Such a holding is not proper. Whether the plaintiff was honestly mistaken or not as to where her true residence was when she filed the first action, actually she and her husband were within the jurisdiction of that court. In her petition to that court she solemnly stated she was a resident of the District of Columbia'. On that petition, she asked for and received an order for custody
“She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court on the ground that it was without jurisdiction. The question 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. People who invoke the action of a court, and, through negligence or falsehood, mislead the court as to the existence of the facts upon which its jurisdiction depends, and obtain a judgment for relief, will not afterward be heard to deny the validity of such judgment. (16 Cyc. 795-800; Ogden v. Stokes, 25 Kan. 517.)” (p. 684.)
It must be held that plaintiff, by reason of the institution of the action in the District of Columbia, and the allegations of her petition, could not be heard to say, on the trial in Edwards county, that the supreme court of the District of Columbia was without jurisdiction of the parties to the action and of the subject matter of the action.
In many cases where there has been controversy over the binding force of a decree of divorce, the crux of the controversy has been over the question of whether the service on the defendant was constructive or personal. Here we are not confronted with that difficulty. Mrs. Kirby invoked the jurisdiction of the supreme court of the District of Columbia. Even though she were a resident of Kansas, even though our statute did not recognize the binding force of a decree rendered on publication service, she could not collaterally attack the decree rendered. If it is to be set aside, it must be in a direct action in that court. It is not claimed there was any fraud on the part of the defendant in obtaining the decree
Neither is it of consequence that before the action in the supreme court of the District of Columbia was finally determined, an action in Kansas was filed for the same relief, in which personal service was obtained. The pendency of the first action was not a bar nor a cause for stay of the proceedings in this state, and had its judgment been rendered before judgment was rendered in the D. C. court, it would have been good. (Omer v. Omer, 108 Kan. 95, 193 Pac. 1064.) But the fact that an action was pending in Kansas at the time the judgment was rendered in the D. C. court did not prevent that judgment from being pleaded as res judicata in Kansas. (U. P. Rly. Co. v. Baker, 5 K. A. 253, 47 Pac. 563.) And the weight of authority in other jurisdictions is to the same effect. In 9 R. C. L. 374 (Divorce and Separation, §T64), it is said:
“A valid decree of divorce rendered in another jurisdiction than that in which the subsequent decree is sought is a bar to the subsequent proceedings. And the general rule applies also where the decree of divorce was rendered in proceedings instituted after the proceedings were commenced in which it is sought to be availed of as a defense. Such a case is simply one of concurrent jurisdiction in the courts of two states, and the judgment or decree first rendered dissolving the marriage relation concludes the question in the court of the other jurisdiction. The foreign decree of divorce must, however, have been a valid decree of divorce, entitled to full faith and credit in the jurisdiction in which the subsequent decree is sought.”
And in Keezer on Marriage and Divorce (2d ed.), p. 372, § 536, is the following:
“It is the rule that a decree by a court having jurisdiction of the parties and the subject matter is a complete bar to a subsequent suit between the same parties for the same relief. In other words, the courts will refuse to reexamine the same facts on the same charge in a subsequent case between the same parties. A former adjudication in another case between the parties, as to who was at fault for the separation, concludes the parties on this issue.”
It is true that our statutes do not in terms provide for a decree
“A limited divorce a mensa is as much entitled to full faith and credit under' the constitution or principles of international comity as an absolute one. A wife’s decree of separate maintenance in another state is conclusive as to every matter adjudicated by it, in harmony with the general rules as to what is adjudicated by such a decree and its effect in a subsequent suit for divorce. If it adjudicates that she was not guilty of cruelty, or that he was guilty of cruelty, it is res judicata of this issue. So if the decree was on the ground of abandonment by the husband, it is conclusive of this fact. If he consented to a decree on a stipulation that she was living separate from him for legal cause, this is conclusive against him in his subsequent suit for divorce in another state. A decree of divorce a mensa in favor of the husband is likewise entitled to the same effect elsewhere as it has where rendered. A decree denying relief in a suit for divorce a mensa is conclusive in a subsequent divorce suit of all the issues adjudicated. Thus a finding against a claim of cruelty is res judicata in the husband’s suit for desertion.”
And see Harding v. Harding, 198 U. S. 317, 25 S. Ct. 679, 49 L. Ed. 1066.
It thus appears that the decree of the supreme court of the District'of Columbia was entitled to full faith and credit and the failure to so recognize it was error. Giving it such recognition, it must be held that at the date of its rendition it settled all matters between the parties up to its date. Being a limited divorce, it would not bar an action for an absolute divorce on grounds arising after its rendition, although in some states, because of statutory provisions as to the kinds of divorce which may be granted, even that result would not necessarily follow. See the annotation on extraterritorial recognition and effect of a divorce a mensa et thoro, 4 A. L. R. 858.
We need not elaborate on the question of 'whether plaintiff was entitled to an absolute divorce for matters arising after the filing of her petition in the supreme court of the District of Columbia, for, from a careful examination of the record, which has been procured for that purpose, we find the last act of alleged cruelty testified to occurred on January 1, 1934, or some months prior to the filing of the first petition. While not couched in identical language, in the petition in each case plaintiff charged her husband with ex
- The judgment of the trial court is reversed, and the cause remanded'with instructions to render judgment for the defendant.
