Wagoner v. Wagoner
| Decision Date | 09 April 1921 |
| Citation | 229 S.W. 1064,287 Mo. 567 |
| Parties | LULU L. WAGONER, Appellant, v. GEORGE C. R. WAGONER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Vital W. Garesche Judge.
Reversed.
Wm. B and Ford W. Thompson and Randolph Laughlin for appellant.
(1) Past due installments of a judgment for future maintenance are within the protection of the full faith and credit clause of the Federal Constitution. Sistare v. Sistare, 218 U.S. 26. (2) The judgment in favor of Mrs. Wagoner operated to cause an indebtedness to arise in her favor as each installment of maintenance fell due, and the circuit court's power to modify could not operate retroactively on past due installments. Sistare v. Sistare, 218 U.S. 13; Barber v. Barber, 21 How. 582; Livingston v. Livingston, 173 N.Y. 377; Goodsell v. Goodsell, 82 A.D. 70; Cotter v. Cotter, 225 F. 475. (3) The maintenance judgment is an obligation of "the most binding force," and "for its payment no property of the husband is exempt." Pickel v Pickel, 243 Mo. 663. (4) Such obligation is a property right, and constitutes "property" within the meaning of the Fourteenth Amendment. Dorrance v Dorrance, 242 Mo. 625. (5) The Reno decree deprives appellant of her property, within the meaning of the Fourteenth Amendment. Dorrance v. Dorrance, 242 Mo 625. (6) Where, as in this case, the due process protection of the Fourteenth Amendment is invoked, the decisions of the U. S. Supreme Court are controlling. Atherton v. Atherton, 181 U.S. 170; Huntington v. Attrill, 146 U.S. 657. (7) And a constitutional question is involved, which confers jurisdiction on this court. Dorrance v. Dorrance, 242 Mo. 625. (8) The Reno decree is void for six separate reasons, viz.: (a) There was no matrimonial domicile in Nevada, and therefore the res -- the marriage status -- never was within the judicial power of the Nevada court. (b) Wagoner himself had no bona-fide domicile in Nevada. (c) Independent of the above, no jurisdiction was acquired under the Nevada law. (d) The Missouri decree is prior in time, and is therefore controlling. (e) The Reno decree was obtained by fraud, and was part of a scheme and purpose to defraud appellant of her marital rights. (f) The Federal court's decision that the Reno decree was void is res adjudicata of its invalidity. (9) "The courts of the state of the domicile of the parties doubtless have jurisdiction to decree a divorce in accordance with its laws, for any cause allowed by those laws, without regard to the place of the marriage, or to that of the commission of the offense for which the divorce is granted; and a divorce so obtained is valid everywhere." Cheely v. Clayton, 110 U.S. 705; Atherton v. Atherton, 181 U.S. 155; Haddock v. Haddock, 201 U.S. 562, 586, 587-604. (10) "If a wife is living apart from her husband without sufficient cause, his domicile is in law her domicile; and, in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the State of his domicile, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is valid, although she never in fact resided in that State." Cheely v. Clayton, 110 U.S. 705; Atherton v. Atherton, 181 U.S. 164; Gould v. Crow, 57 Mo. 200; Anthony v. Rice, 110 Mo. 223; Howard v. Strode, 242 Mo. 210; Blass v. Blass, 194 Mo.App. 624; Burlen v. Shannon, 115 Mass. 438; Hunt v. Hunt, 72 N.Y. 218. (11) But where a wife is living apart from her husband with sufficient cause, as where the matrimonial domicile is in a particular state, and "the husband abandons his wife and goes into another State in order to avoid his marital obligations, such other State to which the husband has wrongfully fled does not, in the nature of things, become a new domicile of matrimony, and therefore, is not to be treated as the actual or constructive domicile of the wife." Haddock v. Haddock, 201 U.S. 570; Barber v. Barber, 62 U.S. 594; Parker v. Parker, 222 F. 190. (12) In this case, the Reno court acquired no jurisdiction of the res -- the marriage status -- in that the parties never did live together as husband and wife in Nevada, and (a) The husband had wrongfully abandoned his wife before he went to Nevada, and had thereby lost his right to have the matrimonial domicile follow his own domicile. Barber v. Barber, 62 U.S. 594. (b) He never made any effort to exercise such right, if he had any, in that he never made any bona-fide (or other) attempt to induce his wife to follow him, or to translate the marriage status to Nevada soil. Parker v. Parker, 222 F. 191. (13) The matrimonial domicile, therefore, remained rooted in Missouri. It follows that the Nevada Court never had the res within the sweep of its judicial power, and the Reno decree is void for want of jurisdiction, and is therefore not "due process of law." Thompson v. Thompson, 226 U.S. 562; Haddock v. Haddock, 201 U.S. 576; Parker v. Parker, 222 F. 191; Pennoyer v. Neff, 95 U.S. 733; Taylor on Due Process of Law (1917) secs. 139, 142. (14) The husband himself had acquired no bona-fide domicile in Nevada. (a) Where the wife is a non-resident, and the husband has no bona-fide domicile in the State decreeing the divorce, the court is without jurisdiction, the divorce judgment is void, and the decree is entitled to no faith and credit in any State. In re Akin's Estate, 152 N.Y.S. 310; Streitwolf v. Streitwolf, 181 U.S. 179; Bell v. Bell, 181 U.S. 178; Dunham v. Dunham, 162 Ill. 589; Thelen v. Thelen, 75 Minn. 433; Van Fossen v. State, 37 Ohio St. 317; Litowitch v. Litowitch, 19 Kan. 451; Sewall v. Sewall, 122 Mass. 156; Gregory v. Gregory, 78 Me. 187; People v. Dowell, 25 Mich. 247; Leith v. Leith, 39 N.H. 20; Magowan v. Magowan, 57 N.J.Eq. 322; Winston v. Winston, 165 N.Y. 553, 189 U.S. 506; Andrews v. Andrews, 188 U.S. 41. (b) The recital in the proceedings in Nevada of the facts necessary to show jurisdiction may be contradicted on collateral attack. Bell v. Bell, 181 U.S. 178; Thompson v. Whitman, 18 Wall. 457; Parker v. Parker, 22 F. 191; Kunzi v. Hickman, 243 Mo. 103. (c) Said recitals have been contradicted in this case by evidence more cogent than that in any of the foregoing decisions, or in any other reported case. (d) The essential fact that raises change of abode to change of domicile is the absence of any intention to live elsewhere. Williamson v. Osenton, 232 U.S. 619. (15) "In order to make the divorce valid, either in the State in which it is granted or in another State, there must, unless the defendant appeared in the suit, have been such notice to her as the law of the first State requires." Cheely v. Clayton, 110 U.S. 705, 709; Atherton v. Atherton, 181 U.S. 164; Kunzi v. Hickman, 243 Mo. 113; Thompson v. Thompson, 226 U.S. 551; Grannis v. Ordean, 234 U.S. 393. (16) "In divorce proceedings, particularly where the State is a silent but interested party, constructive service is viewed strictly, and where there is no appearance every essential requisite of the statute for such service must affirmatively appear." Parker v. Parker, 222 F. 190; Kunzi v. Hickman, 243 Mo. 103; Galpin v. Page, 18 Wall. 350; Shrader v. Shrader, 36 Fla. 502. (17) Service upon the wife was not made strictly in accordance with the Nevada law in the following particulars, viz: (a) The writ of summons was fatally defective because it failed to state where or in what court, or when and on what day certain, the wife should appear and defend the cause. Kunzi v. Hickman, 243 Mo. 103. (b) The summons was published for only six weeks, instead of for three months. 2 Nevada Statutes 1912, sec. 5839, p. 104. (c) The Nevada statutes relative to service upon non-resident defendants in divorce actions are in pari materia with Sections 5026 and 5027, which provide for such service in civil actions other than divorce actions, and both will be permitted to stand as valid, the divorce sections as applicable exclusively to divorce actions, and the other sections as applicable exclusively to other civil actions. 2 Sutherland on Statutory Construction, secs. 443, 448, pp. 844, 854; also, sec. 367, p. 705. (d) So much of Section 5839 as undertakes to delegate to the court or judge in vacation any right or power or authority to order notice of the pendency of the suit "to be given in such manner and during such time as shall appear most likely to convey knowledge thereof to defendant" was and is null and void, in that it undertakes to delegate to a judicial department of the government a power which the Constitution of the State of Nevada reposes in the legislative department, and in that it undertakes to substitute the caprice of the individual as to the time and manner of notice for the certainty required by law. Constitution of Nevada, art. 4, sec. 1, sec. 21; Black's Constitutional Law, sec. 105, p. 279; State v. Young, 29 Minn. 474; Cooley on Constitutional Limitations, sec. 116. (e) The glory of American law consists in clearly defining not only the causes wherefore, but the times when, the manner how, and the means whereby, the personal and property rights of the citizen may be invaded or abridged. Any enactment which fails to measure up to this standard of certainty is not American law, and American courts frequently declare statutes void for uncertainty. State v. Ashbrook, 154 Mo. 378; State v. Railway Co., 146 Mo. 155. (f) Where discretion exists, uncertainty exists. Matthews v. Murphy, 23 Ky. Law Rep. 750, 63 S.W. 785; Railroad v. Commonwealth, 99 Ky. 132; Commonwealth v. Railroad, 20 Ky. Law Rep. 491; State v. Cummings, 36 Mo. 278. (g) The Reno decree is void under the Nevada law for the further reason that the judge usurped the constitutional functions of the jury. Nevada Constitution, sec. 3, art. 1, p. 105. (h) This...
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