Irons v. Irons

178 N.E.2d 156, 242 Ind. 504, 1961 Ind. LEXIS 256

• Court: Indiana Supreme Court
• Decided: November 22, 1961
• Docket: 29,894
• Status: Published

Opinions

Landis, C. J.

Appellee wife brought suit for divorce against appellant husband in June 1956 in the circuit court of Noble County, Indiana. A summons was issued but not served. On August 27, 1956, appellee obtained an order for publication as to appellant and on October 22, 1956, after publication appellee took a judgment for divorce and alimony by default. The judgment was set aside on appellee’s motion, after appellant had filed motion for new trial and praecipe for a transcript in order to appeal and also to prevent an execution sale under the default judgment.

Thereafter the action was venued to the Elkhart Circuit Court where the cause was tried upon the issues formed by appellee’s complaint and appellant’s answer which set up a decree of a court of the state of Nevada granting a divorce to appellant on September 21, 1956, to which appellee filed a reply alleging the Nevada decree was procured by fraud, that appellant was not in fact a bona fide resident of that state and it was not therefore entitled to full faith and credit.¹ The court below granted a divorce to appellee and held that the Nevada decree was void and not entitled to full faith and credit.² The court also awarded custody of the minor child to appellee, entered a support order, awarded to appellee certain real estate held by the parties as tenants by entireties and also certain personal property in, appellee’s possession and ordered appellant to pay $7,500 for attorneys’ fees of appellee.

Appellant assigns error in overruling his motion for new trial and contends on this appeal that. the court below erred in refusing to give full faith and credit³ to the Nevada decree of September 21, 1956, which had granted the divorce to appellant.⁴ Appellee was served by the Nevada court with nonresident summons but did not appear in the Nevada action.

Appellant cites the statement of Chief Justice Marshall in Hampton v. M’Connel (1818), 3 Wheat. 234, 235 L. Ed. 378, 379, that “. . . the judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States.”

Appellant also cites the U. S. Supreme Court decision in the first Williams case, Williams v. North Carolina (1942), 317 U. S. 287, 303, 63 S. Ct. 207, 215, 87 L. Ed. 279, 288, 143 A. L. R. 1273, 1283, which overruled Haddock v. Haddock (1906), 201 U. S. 562, 26 S. Ct. 525, 50 L. Ed. 867, and held that “. . . when a court of one state acting in accord with the requirements of procedural due process alters the marital status of one domiciled in that state by granting him a divorce from his absent spouse, we cannot say its decree should be excepted from the full faith and credit clause merely because its enforcement or recognition in another state would conflict with the policy of the latter. . . .”

Appellant further cites the opinion of said Court in the second Williams case, Williams v. North Carolina (1945), 325 U. S. 226, 232, 65 S. Ct. 1092, 1096, 89 L. Ed. 1577, 1583, 157 A. L. R. 1366, 1371, for the proposition that only the jurisdictional facts upon which a judgment was founded may be considered in determining whether full faith and credit must be extended to such judgment, the Court saying: “. . . the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicile is a jurisdictional fact. . . .”

Appellant contends upon the basis of this authority, the only issue subject to inquiry under the full faith and credit clause is whether the Nevada court had jurisdiction of the divorce proceeding before it, and that in turn involves in this case only an inquiry whether appellant was a bona fide domiciliary of Nevada at the time he brought his action there and obtained his Nevada divorce.

Appellee asserts however the Elkhart Circuit Court was entitled to take into consideration the fact that appellant failed to apprise the Nevada Court of the pendency of appellee’s suit in the state of Indiana in determining whether appellant practiced a fraud on the Nevada court.

We do not believe the Indiana case was pending in a legal sense against appellant at the time of the prosecution of the Nevada divorce action. An action is deemed commenced in this state by the filing of a complaint and the issuance of summons or the first publication of notice to a nonresident defendant. Burns’ Indiana Statutes §2-802, (1946 Repl.), being Acts 1881 (Spec. Sess.), ch. 38, §55, p. 240. Here there was no personal service and the first publication of the nonresident notice was on August 29, 1956, but the suit for divorce in the Nevada court had previously been instituted on August 24, 1956, and nonresident service by summons was had on appellee by reading it to her in Indiana on August 27, 1956.

It is therefore apparent that the Indiana suit was not pending at the time of the institution of the Nevada action for divorce (See Wood et al. v. Bissell (1886), 108 Ind. 229, 9 N. E. 425) and it cannot therefore be properly contended that such subsequent action should have been brought to the attention of the Nevada court.

The crucial inquiry in determining whether full faith and credit must be given by the Indiana Court to the decree of the Nevada court leads to a consideration of whether appellant was a bona fide domiciliary of Nevada at the time he brought his action there and obtained his Nevada divorce.

The law is well settled that the burden of undermining the decree of a sister state rests heavily upon the assailant. Ulrey v. Ulrey (1952), 231 Ind. 63, 69, 106 N. E. 2d 793, 795; Williams v. North Carolina (1945), supra, 325 U. S. 226, 233, 65 S. Ct. 1092, 1097, 89 L. Ed. 1577, 1584, 157 A. L. R. 1366, 1371; Esenwein v. Commonwealth (Penn. 1945), 325 U. S. 279, 280, 65 S. Ct. 1118, 1119, 89 L. Ed. 1608, 1610, 157 A. L. R. 1396.

We do not believe it necessary or appropriate here to go behind this well established rule to examine the reasons for its existence except to say that to permit decrees of sister states to be overturned upon a small quantum of proof would be to emasculate the constitutional provision requiring each state to give full faith and credit to the judicial proceedings of every other state.

In the case before us, in order to determine whether there is substantial evidence to sustain the decision of the trial court upsetting the decree of the Nevada court, we must consider the undisputed evidence introduced in the trial court bearing on the question of domicile and in case of conflict that favorable to appellee.⁵

The parties were married in Acton, Marion County, Indiana, on March 28, 1934. They lived in, Kendallville, Indiana, for the last fifteen years immediately prior to their separation on May 28, 1955. Appellant husband at the date of trial was 54 years of age and there were three daughters born to the marriage, aged 22,19 and 11 years.

As early as 1948 appellant and appellee discussed moving away from Indiana because of appellant’s health and arthritic condition. A Ft. Wayne doctor advised him to move to Arizona and as a result his wife wrote numerous places in the west and southwest with reference to the weather and climate.

In the late winter and spring of 1954 appellant went from Indiana to Florida and his wife was with him part of the time. He wanted to build a house there but his wife objected. He did however buy a lot. Thereafter he went to Mexico, and again in the fall and early winter of 1954 he was in Mexico where appellee left him and came back to Indiana.

In March of 1955 appellant and appellee again went to Florida, appellee returning in April and appellant in May. The relations between the parties progressively deteriorated until May 28, 1955, when the final separation took place. There is no conflict in the evidence concerning the state of appellant’s health, the investigation of places to live in the west and southwest, the fact of the trips and the fact that appellant never again resided at the family home in Kendallville, Indiana, after the separation on May 28, 1955.

In the summer of 1955 after the separation, appellant informed his associates in the Indiana businesses he had started in 1952 that he was retiring from active management in the businesses because he would be gone from Indiana for health reasons and henceforth would only be available for consultation. However appellant remained an officer and resident agent of the corporations. In September 1955 appellant left Indiana and went to Lake Worth, Florida, where he rented an apartment. He procured a Florida driver’s license, and filed there a formal declaration of domicile and citizenship ; he obtained a library card at West Palm Beach, Florida, which he used, and he sought business opportunities in Florida in the gasoline business.

Appellant was physically present in Florida from September 1955 to January 1956 most of the time except for a short trip to New England. The evidence discloses efforts on appellant’s part to conceal his whereabouts from his family until appellee discovered in January he was at Lake Worth, Florida. Appellee introduced evidence he had been associating with another woman. Appellee wrote appellant a letter telling him she was instructing her Florida counsel to oppose any divorce, following which he returned to Indiana to confer with appellee. However, it appeared appellant had not consulted a Florida attorney regarding a divorce. Appellant became ill while in Indiana and returned to Florida in about three weeks. He came to Indiana again in May for his daughter’s high school graduation, returning to Florida for medical and psychiatric treatment. After being in and out of hospitals appellant left Florida June 13, 1956, because of his health and, according to his testimony, not intending to return to Florida to make his home. He testified the climate in the hurricane season and later in the winter which he had previously not experienced was too humid, and also he was unable to find business opportunities there.

At the time appellant left Florida he wrote his daughter in Indiana that he was going to travel in the west for the summer. Appellant flew to Chicago where he picked up his car, driven there according to instructions given his daughter, and then motored to the west and southwest, visiting various cities and investigating their climates and inquiring about business opportunities. Appellant visited Laguna Beach, California, on July 4, and San Francisco on July 9, where he found the climate chilly and foggy. Under date of July 9 appellant wrote a letter to one of his daughters mailed from San Francisco on August 10, stating that he was writing from San Francisco and that he would be leaving that city in a day or two and that he didn’t know just where he would go or pause next. On July 11, he drove to Reno, Nevada, ostensibly to see if that place had climate and surroundings favorable to his health so as to be a satisfactory place for him to make his home.

After looking around Reno for a day he testified he decided he wanted to settle down there, and four days later moved into an apartment, in the meantime staying at the Hotel El Cortez. When registering he gave his address as Lake Worth, Florida. He established a bank account in a Reno bank, and joined and became an officer in a Reno church. He registered with two employment agencies and obtained a Nevada driver’s license. After renting the apartment in Reno he first learned that appellee had on June 14, 1956, filed the instant divorce action in Indiana, and thereafter he consulted an attorney in Reno and determined upon the divorce action there.

The Nevada decree was obtained by appellant on September 21, 1956, and thereafter he became a member of the board of his church and a member of its finance committee. He secured a position as consultant to a trucking concern for a month in the fall of 1956. He applied for numerous other jobs in Reno but was unable to procure them because of his health. In January 1957 he registered as a voter in Reno, paid poll tax, his personal property tax and a license fee, and in May 1958 renewed his Nevada operator’s license.

In the summer of 1957 he flew to Hawaii for a vacation of two weeks, some months later developed angina pectoris, and about Christmas time went to Acapulco, Mexico, for four months. His Reno apartment was sublet and he rented an apartment in Mexico at the request of his daughter who stayed with him for a time.

The trial of the divorce action in the Elkhart Circuit Court commenced on June 4, 1958, and on July 3 was continued because of a coronary occlusion had by appellant while on the witness stand. He was hospitalized until July 14 in Goshen, Indiana, and was in Mexico in late October where he received further medical treatment. He returned to Reno in November 1958, where he remained following his coronary attack except for these trips and his being in Indiana on account of this divorce action.

Appellee introduced in evidence certain corporate and tax reports filed in Indiana on behalf of appellant negativing appellant’s intentions to establish a Nevada domicile.

Appellee’s exhibits 1 and 2 are the Annual Domestic Corporation Reports of 1955 and 1957 for Carateria, Inc., and listing appellant as a resident agent and a director and giving Kendallville, Indiana, as his address. Appellee’s exhibit 52 is a photostat of appellant’s Federal Income Tax Return for 1957 showing the tax to have been paid at the Director’s office at Indianapolis. Appellee’s exhibits 71 and 72 are Indiana Gross Income Tax Returns for 1956 and 1957 for appellant listing his address in 1956 as being U. S. Highway 6, West, Kendallville, Indiana, and his address for the 1957 return as being Reno, Nevada.

Mr. Schirmeyer, a certified public accountant, who prepared appellant’s income tax returns testified that during 1955 he had no specific knowledge as to appellant’s whereabouts or his address other than Kendallville, Indiana. He forwarded appellant’s mail to Mr. Norman Miller in Elkhart, and that situation continued from the latter part of 1955 to early 1956. In connection with one of the annual corporate reports for 1955 (exhibit 10) which showed appellant’s post office address as resident agent to be Kendall-ville, Indiana, Mr. Schirmeyer stated he didn’t know what appellant’s address was at that time and thought appellant was moving around so much that he (the accountant) was confused. He further testified that he knew some nine months before the filing of the corporate tax report (exhibit 2) in September 1957, that appellant’s residence was in Reno, Nevada, and not in Indiana, and he simply used an Indiana address where mail would be forwarded to appellant.

The accountant testified that although appellant informed him of his change of residence to Reno, he advised appellant to use an Indiana business address on his Federal Income Tax Return for 1957 (exhibit 52) under the provision permitting filing at the source of principal income because it would be more convenient for the accountant. The accountant further testified that at the time the Indiana Gross Income Tax Returns were prepared for 1956 and 1957 he knew of appellant’s change of residence.

We are unable to conclude upon the basis of the above evidence which is either without conflict or in case of conflict which is favorable to appellee, that there is substantial evidence in the record sufficient to sustain the decision of the trial court upsetting the determination by the Nevada court that appellant was a domiciliary of that state.

As stated in the second Williams case (Williams v. North Carolina, 1945, supra, 325 U. S. 226, 233, 65 S. Ct. 1092, 1097, 89 L. Ed. 1577, 1583, 157 A. L. R. 1366, 1371);

“ . . . The challenged judgment must, however, satisfy our scrutiny that the reciprocal duty of respect owed by the States to one another’s adjudications has been fairly discharged, and has not been evaded under the guise of finding an absence of domicile and therefore a want of power in the court rendering the judgment.

“ . . . The burden of undermining the verity which the Nevada decrees import rests heavily upon the assailant. ...”

The case before us is quite similar from a factual point of view to the cases of Brown v. Brown (1953), 28 N. J. Super. 165, 100 A. 2d 315, and Comm. ex rel. Lorusso v. Lorusso (1959), 189 Pa. Superior Ct. 403, 150 A. 2d 370.

In the Brown case the court found a valid domicile where the husband went to Nevada for reasons of health, to settle down and look for a small business, and to get a divorce. He took all his belongings with him, obtained a Nevada license for his automobile, opened a bank account, had a telephone installed, and engaged an agent to help find a small business. It is interesting to note that the divorce was held valid even though the husband moved to Florida, apparently because of his health, within several months after receiving his divorce.

In the Lorusso case the Nevada divorce was held valid where a physician moved from Pennsylvania to Nevada, obtained a divorce, passed the medical exam, obtained employment in a Nevada hospital, obtained a Nevada driver’s license, paid Nevada personal property and poll taxes, joined the Chamber of Commerce, and lived in Nevada for more than one year before the validity of the Nevada decree was contested.

The facts are clearly distinguishable from Ulrey v. Ulrey, supra, where the Indiana court held no bona fide domicile was established in Nevada. There appellant arrived in Reno, Nevada, on July 6, 1951, filed for divorce on August 20, 1951, received his decree on September 28, 1951, remarried on the same day, returned to Indiana on October 7, 1951. The appellant had taken a leave of absence, did not quit his job, rented his living quarters in Indiana before going* to Reno, kept his employer’s cash register key and indicated in a letter that he would be “home” by the middle of September.

In the case before us, the evidence as to the retention by appellant of several offices and positions in Indiana corporations and as to the filing of tax and corporation reports in Indiana was not substantial evidence to support the decision below setting aside the Nevada judgment. In fact, the failure of the record to support the lower court’s decision upsetting the Nevada decree is indicated by the lower court’s finding that while appellant was not a bona fide resident of Nevada at the time he filed and obtained his Nevada divorce, he nevertheless became such a resident (of Nevada) after said decree (see note 2). There was no substantial evidence to indicate a change of domicile after the Nevada decree which did not exist prior thereto.

We are constrained to hold in this case that the finding of the court below was not sustained by sufficient evidence and was contrary to law.

Judgment reversed with directions to grant appellant’s motion for new trial.

Jackson and Bobbitt, JJ., concur; Achor, J., concurs in result; Arterburn, J., dissents with opinion.

1 . See Art. 4, §1, of the Constitution of the United States providing that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. . . .”

It is also provided by statute in this state that “A divorce decreed in any other State by a court having jurisdiction thereof, shall have full effect in this State.” Acts 1873, ch. 43, §24, p. 107,112, being Burns’ Indiana Statutes §3-1229 (1946 Repl.).

2 . The court’s special finding No. 14 in this respect was “That the defendant herein was not a bona fide resident of Washoe County, State of Nevada when he filed his suit in the Second Judicial District Court of the State of Nevada on August 24, 1956 for divorce from the plaintiff herein, nor was he such a bona fide resident of said county and state on September 21, 1956 when a decree of divorce in his favor was entered by said Court, nor at any time prior thereto, but only became such a resident after said decree. . . .”

3 . Art. 4, §1, Constitution of the United States, supra.

4 . In view of conflicting statements in the briefs and in the transcript it is questionable what, if any, issues were before the trial court, and therefore before us on appeal, as to the divisibility of the Nevada decree, should it be deemed valid to adjudicate the status of the marriage of the parties. Recent eases dealing with various facets of divisible divorces, viz: support, alimony, custody and property rights are: Vanderbilt v.Vanderbilt (1957), 354 U. S. 416, 77 S. Ct. 1360, 1 L. Ed. 2d 1456; Estin v. Estin (1948), 334 U. S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1 A. L. R. 2d 1412; Weber v. Superior Court (1960), 53 Cal. 2d 403, 2 Cal. Rptr. 9, 348 P. 2d 572.

5 . Although a reviewing court, in reviewing the sufficiency of the evidence to sustain a finding or judgment, will not pass on fact questions or weigh conflicting evidence, it will determine if there is substantial evidence to sustain the finding or judgment. West’s I. L. E., Appeals, ch. 17, §571, p. 485.