McIntyre v. . McIntyre

191 S.E. 507, 211 N.C. 698, 1937 N.C. LEXIS 183

• Court: Supreme Court of North Carolina
• Decided: June 9, 1937
• Status: Published

Opinion

Devin, J.

The single question presented by this appeal is this : May a resident of the State, who is the defendant in a suit for alimony, be permitted to set up as a defense thereto the invalidity of a divorce decree which he himself obtained in another state dissolving a previous marriage with a former wife? The answer is “No.”

While this precise question has never before been considered by this Court, it would not seem to be in accord with reason and justice that one who has voluntarily invoked the jurisdiction of another state for the purpose of obtaining a divorce from a former wife, and has thereby been enabled to enter into marital relations with another, should be heard to impeach the decree which he had obtained, or to question its jurisdiction, when new rights and interests have arisen as a result of his second marriage.

This is in accord with the decisions in other states where the question has been presented. Bledsoe v. Seaman, 77 Kan., 679; Starbuck v. Starbuck, 173 N. Y., 503; People ex rel. Shrady v. Shrady, 95 N. Y. Supp., 991; Kaufman v. Kaufman, 163 N. Y. Supp., 566; Guggenheim v. Wahl, 203 N. Y., 390; Re Ellis, 55 Minn., 401; Laird v. Texas, 79 Tex. Crim. Rep., 129; Asbury v. Powers (Ky.), 65 S. W., 605; 23 L. R. A., 287; 3 A. L. R., 522, and note; 39 A. L. R., 695, and note; 9 R. C. L., sec. 268; 19 C. J., 378; North Carolina Law Review, Vol. XV, No. 2, p. 136.

While the validity of the Nevada divorce might be successfully assailed by other parties and under other circumstances (Pridgen v. Pridgen, 203 N. C., 533), we conclude that on the facts of this case there was no error in the instructions to the jury given by the court below on the second issue.

Other exceptions noted at the trial were not brought forward by the appeal and need not be considered.

No error.