Cooper v. Cooper

217 N.W.2d 584, 1974 Iowa Sup. LEXIS 1310
CourtSupreme Court of Iowa
DecidedApril 24, 1974
Docket55932
StatusPublished
Cited by6 cases

This text of 217 N.W.2d 584 (Cooper v. Cooper) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Cooper, 217 N.W.2d 584, 1974 Iowa Sup. LEXIS 1310 (iowa 1974).

Opinion

RAWLINGS, Justice.

By action in equity plaintiff Hazel M. Cooper (Hazel) seeks to void a Nevada divorce decree granted her former husband Raymond E. Cooper (Cooper) and his subsequent marriage to defendant Mary R. Cooper (Mary). Trial court held adverse to plaintiff and she appeals. We affirm.

December 21, 1935, Hazel and Cooper were married at Washington, Iowa.

December 8, 1958, Hazel obtained an Iowa decree of separate maintenance.

About October 7, 1969, Cooper moved from Keokuk to Reno, Nevada.

December 1, Cooper there filed an action for divorce.

December 5, notice thereof was personally served on Hazel in Iowa.

December 30, Hazel was adjudged to be in default for want of appearance and divorce accordingly granted Cooper.

January 9, 1970, Cooper returned to Iowa.

February 27, Cooper and Mary were married.

Sometime prior to July 1971 Cooper died.

January 5, 1972, Hazel commenced the instantly involved action.

In course of trial plaintiff testified she received separate maintenance payments from Cooper until date of his death and although notice was served upon her regarding the aforesaid Nevada divorce action she neither appeared nor contested same. Plaintiff also offered in evidence a letter from Cooper to his son, apparently written in August 1969, which stated, in part: “I’m way out in the golden west and I’m sure you must know why. After 13 yr. of harassment and uncertainty I’m applying for a divorce which I never could get in Iowa.” Also, “[I] might even stay here as it is a wonderful climate.”

Defendant, the only other witness, testi-monially stated: (1) Dr. Cooper, an Iowa anesthesiologist, moved to Reno October 7 or 9, 1969; (2) he was there granted a license to engage as a general practitioner but was unable to secure a permit in the field of anesthesiology; (3) while in Reno Dr. Cooper worked at Washoe Medical Center; (4) he lived at Caisson Apartments in Reno; (5) he had established a checking account in a Reno bank; (6) he secured a Nevada driver’s license but did *586 not obtain Nevada automobile license plates; (7) he kept his Keokuk office open but only for the collection of bills due, which, when received were deposited for payment of fire related repairs to the Keokuk office and apartment. On a few occasions Mary administered shots to some patients but only on orders from other doctors.

The question here posed is whether Dr. Cooper had established that domicile in Nevada essential to the jurisdictional power of a court to there grant him a divorce from this plaintiff.

I. Our review is de novo. See Iowa R.Civ.P. 334. Although weight is accorded trial court’s findings we are not bound by them. See Iowa R.Civ.P. 344(f) (7).

II. It is prefatorily understood, death of the party obtaining an allegedly invalid divorce does not preclude an action to set aside such decree for the purpose of establishing property rights. See In re Estate of Roedell, 253 Iowa 438, 442, 112 N.W.2d 842 (1962); Stitt v. Sunderman, 247 Iowa 1132, 1135-1136, 77 N.W.2d 629 (1956).

III. On the other hand a party seeking to collaterally invalidate a foreign divorce decree for lack of domiciliary jurisdiction assumes a heavy burden. See 24 Am.Jur.2d, Divorce and Separation, §§ 961-962; 27B C.J.S. Divorce § 421; Annot., 28 A.L.R.2d 1303, 1317.

To the same effect is this statement in the case of In re Estate of Roedell, 253 Iowa at 442-443, 112 N.W.2d at 845:

“The general rule is stated in 27B C.J.S. Divorce, § 420, page 950, as follows: ‘The decree is presumptively entitled to full faith and credit unless it is affirmatively demonstrated that the court did not have jurisdiction * * *. It follows from these presumptions that the burden of impeaching a foreign decree for want of jurisdiction rests on the party who asserts its invalidity, such as a lack of jurisdiction of the parties, or lack of service of process.’
“To warrant the setting aside of a judgment in a collateral proceeding for fraud, the evidence should clearly establish the fraud. Reimers v. McElree, 238 Iowa 791, 28 N.W.2d 569; Hulverson v. Hutchinson & Co., 39 Iowa 316.
“In cases involving allegations of fraud various words are used in stating the quality and quantum of proof required. An allegation of jurisdictional fraud attacking a judgment or decree of a sister state is a matter of concern. The evidence to sustain such an allegation should be clear, satisfactory and. convincing.”

IV. Another facet of this case which must be accorded recognition is Cooper’s February 27, 1970 marriage to defendant.

In that regard we have held: “ ‘Courts very properly manifest great reluctance in setting aside decrees of the divorce after a second marriage has taken place, and will not do so save upon the most satisfactory showing.’ ” Hobson v. Dempsey Constr. Co., 232 Iowa 1226, 1229, 7 N.W.2d 896, 899 (1943). See also 24 Am.Jur.2d, Divorce and Separation, §§ 357, 479 and 961— 962 ; 27B C.J.S. Divorce §§ 419-421.

It is, of course, understood Cooper’s post-divorce remarriage would not alone bar us from setting aside the Nevada decree. Rather it stands as a relevant factor to be considered in resolving the question now at hand. See Swift v. Swift, 239 Iowa 62, 69, 29 N.W.2d 535 (1947).

V. Since “domicile” is commonly deemed essential to divorce jurisdiction it is evident such is the determinative element in this case. See Williams v. State of North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577 (1945).

Mindful of the foregoing we turn now to Julson v. Julson, 255 Iowa 301, 305, 122 *587 N.W.2d 329, 331 (1963), where this court stated:

“The change of a person’s domicile is considered a serious matter. A domicile once acquired continues until a new one is perfected by the concurrence of three essential elements: (1) a definite abandonment of the former domicile; (2) actual removal to, and physical presence in, the new domicile; (3) a bona fide intention to change and to remain in the new domicile permanently or indefinitely. (Authorities cited).
“Domicile is largely a matter of intention, which must be freely and voluntarily exercised. 28 C.J.S. 18, Domicile § 11, p. 18. The intention to change one’s domicile must be a present and fixed intention and not dependent upon the happening of some future or contingent event. 28 C.J.S. Domicile § lle(4), p. 20. Because it is essentially a matter of intent, precedents are of slight assistance and the determination of the place of domicile depends upon all the facts and circumstances in each case.”

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Bluebook (online)
217 N.W.2d 584, 1974 Iowa Sup. LEXIS 1310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-cooper-iowa-1974.