Tjaden v. Tjaden

294 So. 2d 846, 1974 La. App. LEXIS 3219
CourtLouisiana Court of Appeal
DecidedApril 23, 1974
DocketNo. 12279
StatusPublished
Cited by2 cases

This text of 294 So. 2d 846 (Tjaden v. Tjaden) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tjaden v. Tjaden, 294 So. 2d 846, 1974 La. App. LEXIS 3219 (La. Ct. App. 1974).

Opinion

HALL, Judge.

Plaintiff, Charlene F. Tjaden, a resident of Marshall, Texas, filed suit against defendant, Lawrence Owen Tjaden, a resident of Bossier Parish, Louisiana, seeking a settlement of community property, alimony for herself and child support for her two children. Plaintiff further sought a temporary restraining order and ultimately a preliminary and permanent injunction restraining defendant from encumbering or disposing of any community property. It is alleged in plaintiff’s petition that she and defendant were married in Kansas in 1959, and remained married until March 13, 1973, when plaintiff obtained a divorce in the State of Nevada. It is alleged that community property was acquired during the marriage and that two children were born of the marriage, both boys, ages eight and ten.

A rule issued directed to the defendant ordering him to show cause why a preliminary injunction should not be granted and why he should not be ordered to pay ali•mony pendente lite for the support of plaintiff during the pendency of the proceedings in the amount of $500 per month and child support for the support of the two minor children during the pendency of the proceedings in the amount of $400 per month.

Defendant filed an answer to the petition and rule alleging the divorce decree obtained by plaintiff in the State of Nevada is null and without force and effect because plaintiff was not a bona fide resident or domiciliary of the State of Nevada and the Nevada court was without jurisdiction. Alleging that the parties are still married, defendant prayed for rejection of all of the plaintiff’s demands. Defendant further alleged his inability to pay the alimony and child support sought by plaintiff and alleged his willingness to provide for his wife and children in his home.

At the trial of the rule, it was agreed that the issues to be tried were the validity of the Nevada divorce decree and the amount of child support pendente lite, all other issues to be reserved until trial on the merits. After trial, in a written opinion, the district court held defendant was entitled to collaterally attack the validity of the Nevada divorce decree, that under Nevada law residence in that state must be bona fide with the intention of remaining there permanently or at least indefinitely, that plaintiff’s action in leaving Nevada the day following rendition of the divorce decree in that state negates any intention on her part to remain there permanently or indefinitely, and that plaintiff’s demands should, therefore, be rejected. Judgment was rendered accordingly and plaintiff perfected a devolutive appeal.

The primary and threshold issue presented by this appeal is whether the Nevada divorce judgment must be or should be recognized and enforced in Louisiana. For reasons expressed in this opinion, we reverse the decision of the district court on this issue and hold the Nevada judgment is entitled to full faith and credit and to be enforced in this state. This holding necessitates a consideration of the issue of the amount of child support.

Based on the evidence, we find the pertinent facts to be as follows:

Prior to their separation in December, 1972, plaintiff and defendant and their two young sons were living in Bossier City, Louisiana, in a home recently constructed by them. Together they operated an Arthur Murray Dance Studio in Shreveport. Marriage problems developed and shortly before their separation plaintiff consulted [849]*849an attorney and the possibility of a Nevada divorce was discussed.

There was discussion between plaintiff and defendant about him moving out of their home which he refused to do. On December 18, plaintiff, with her two children and their personal belongings, left home and traveled by bus to Las Vegas, Nevada, where her mother and brother lived. She stayed with her brother for the first week and then moved into her mother’s home, where she remained continuously until March 14, 1973, the day after the Nevada divorce decree was rendered. She did not leave the State of Nevada during that time.

Plaintiff went to Las Vegas because of the problems she and her husband were having, to get away for awhile because of her health as she was emotionally upset, to rest, and to seek a divorce. She consulted an attorney in Nevada, who wrote to defendant on January 10. Suit for divorce on the grounds of incompatibility was filed in Nevada and defendant was served with a summons and a copy of the complaint on February 20. On March 13, a decree of divorce was rendered by the Nevada court.

On March 14, plaintiff, en route to Marshall, Texas, flew to Shreveport, the nearest airport, and was driven from the airport directly to Marshall, a city in East Texas about forty miles from Bossier City. She lived in a motel there for about a week until she rented an unfurnished house, where she and the children have lived since that time. She intends to move into a house in another neighborhood before school starts in September.

The principles of law applicable to the issue presented in this case were recently summarized by this court in Hampson v. Hampson, 271 So.2d 898 (La.App.2d Cir. 1973):

“Anyone at interest has the right to collaterally impeach a decree of divorce rendered in another state by proving that the court had no jurisdiction.1 [x An exception or limitation to this rule exists where the party against whom the divorce judgment was rendered made an appearance, executed a waiver or otherwise participated in the proceedings in the other state, thereby precluding a coh lateral attack on the judgment in the other state. Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552 (1951); Boudreaux v. Welch, 249 La. 983, 192 So.2d 356 (1966); Reeves v. Reeves, 209 So.2d 554 (La.App. 2d Cir. 1968). The exception has no application in the instant case as plaintiff did not participate in any manner in the Arkansas proceedings.] The judicial power to grant a divorce, that is, jurisdiction, strictly speaking, is founded on domicile. The only question which the courts of this state can consider with respect to a decree of the courts of another state is the jurisdictional requirement of domicile. Louisiana courts will give full faith and credit to divorce decrees rendered by courts of other states except where it has been conclusively shown by sufficient proof that the court rendering the decree did not have the jurisdictional requirement of domicile. The burden of undermining the decree of the other state rests heavily upon the assailant. Williams v. State of North Carolina, 325 U. S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945); Navarrette v. Laughlin, 209 La. 417, 24 So.2d 672 (1946); Juneau v. Juneau, 227 La. 921, 80 So.2d 864 (1955); Turpin v. Turpin, 175 So.2d 357 (La. App. 2d Cir. 1965).”

There is no dispute that defendant is entitled to collaterally attack the Nevada divorce decree as he did not make an appearance, execute a waiver, or otherwise participate in or acquiesce in the Nevada proceedings.

Both parties agree that the Nevada law relating to residence or domicile necessary to confer jurisdiction in divorce cases requires physical presence of the party in that state for the entire statutory period of [850]*850six weeks prior to and including the commencement of the action, accompanied by an intent to make Nevada the party’s home and to remain there permanently, or at least for an indefinite time.

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Related

Gennaro v. Gennaro
323 So. 2d 513 (Louisiana Court of Appeal, 1975)
Tjaden v. Tjaden
296 So. 2d 838 (Supreme Court of Louisiana, 1974)

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Bluebook (online)
294 So. 2d 846, 1974 La. App. LEXIS 3219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tjaden-v-tjaden-lactapp-1974.