Abney v. Abney

• Decision Date: 27 March 1978
• Docket Number: No. 2-1275A382,2-1275A382
• Citation: 374 N.E.2d 264,176 Ind.App. 22
• Parties: Dorothy Annette ABNEY, Appellant (Defendant Below), v. James Harold ABNEY, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 264

374 N.E.2d 264

176 Ind.App. 22

Dorothy Annette ABNEY, Appellant (Defendant Below), v. James Harold ABNEY, Appellee (Plaintiff Below).

No. 2-1275A382.

Court of Appeals of Indiana, Second District.

March 27, 1978.

John T. Neighbours, Cadick, Burns, Duck & Neighbours, Indianapolis, William P. Ortale, Ortale, Kelley, Herbert & Crawford, Nashville, Tenn., for appellant (defendant below)

Richard A. Rogers, Morton, Tumbove, Rogers & Ruble, Indianapolis, for appellee (plaintiff below).

SULLIVAN, Judge.

The marriage of James Abney and Dorothy Abney was dissolved on July 29, 1975. In our initial response to the wife's appeal, we felt compelled to affirm the judgment because her brief did not contain a verbatim statement of the dissolution decree which we deemed crucial to a resolution of the issues she raised. Our opinion is reported at Ind.App., 360 N.E.2d 1044.

Thereafter the Supreme Court, on the wife's petition to transfer, concluded that her error of omission was adequately cured by the presence of the verbatim judgment in appellee's brief. The Supreme Court's Order of July 29, 1977 remanded the case to this Court for review on the merits. ¹ We now proceed pursuant to that Order.

Dorothy Abney's appeal presents the following issues for review:

(1) whether two prior Tennessee decrees precluded the Indiana trial court from entertaining the husband's petition for dissolution;

(2) whether the trial court erred in not exercising its equitable discretion to deny dissolution, even though the marriage was irretrievably broken; and

(3) whether appellant was denied procedural due process.

We affirm.

I.

INDIANA TRIAL COURT DID NOT VIOLATE FULL FAITH AND CREDIT OR

COMITY PRINCIPLES IN ENTERTAINING HUSBAND'S

PETITION FOR DISSOLUTION

The Indiana decree dissolving this marriage represents the culmination of a rather James and Dorothy Abney were married on November 27, 1958. After a little more than five years, Dorothy Abney vacated the marital home in Florida and moved to Tennessee with their two children. The parties have lived apart ever since.

protracted history of litigation between these parties.

Dorothy Abney obtained a separate maintenance decree from the Probate Court of Davidson County, Tennessee (hereinafter referred to as the Tennessee court). The decree, dated May 25, 1964, ordered James Abney to pay support to his wife and two minor children. ²

In the period that followed, the Tennessee court entertained successive petitions from James Abney for divorce. His first petition was dismissed, a decision which on appeal was affirmed in part and reversed in part. Abney v. Abney (1968) 222 Tenn. 160, 433 S.W.2d 847. ³ On remand, his supplemental petition for divorce was also dismissed. ⁴ This Tennessee decree, dated July 21, 1969, incorporates by reference an earlier memorandum opinion which refers to a previous adjudication finding James Abney in contempt for his failure to pay $1,160 arrearage in support. The Tennessee court specifically dismissed the husband's divorce petition for the following reason, as stated in the decree:

"(James Abney's) contempt of Court bars him from asking this Court to grant an absolute divorce to his wife."

The case on appeal, affirming the dismissal, is reported at (1970) 61 Tenn.App. 506, 456 S.W.2d 364.

The record next discloses that James Abney filed the present dissolution of marriage petition in the Circuit Court of Marion County, Indiana, on October 8, 1974. Dorothy Abney responded with a Motion to Dismiss and an Answer, in essence requesting the Indiana trial court to defer to the Tennessee court because of the previous litigation in that state.

After the Indiana court refused to defer, Dorothy Abney obtained another order from the Tennessee court finding James Abney in further contempt and this time restraining him from pursuing a dissolution of marriage in any other jurisdiction, particularly Indiana. The Tennessee decree, dated April 16, 1975, issued a restraining order for the reason that,

"this court (has) continuing jurisdiction over this Defendant through a separate maintenance decree . . . (and) refused this Defendant such relief previously requested under T.C.A. 36-802 because of his being in contempt, and this contempt having never been purged."

Dorothy Abney argues that under the Full Faith and Credit Clause of the United States Constitution or, alternatively, as a matter of comity, the Tennessee decrees of July 21, 1969 and April 16, 1975 precluded the Indiana trial court from entertaining James Abney's petition for dissolution.

With regard to the decree of July 21, 1969, we find nothing in the Tennessee court's order which, standing alone, could be given Full Faith and Credit or be recognized as a matter of comity by the Indiana trial court. The Tennessee court made no The other Tennessee decree, dated April 16, 1975, presents a more difficult problem because this time the court went further and not only issued an additional contempt citation but specifically enjoined James Abney from obtaining dissolution of the marriage in Indiana. Having found no Indiana authority on the operative effect of such a foreign anti-suit injunction, we turn to case precedent from other jurisdictions for guidance.

pronouncement relating to Indiana. It did not decree that the contempt was a bar to a foreign dissolution or divorce, but merely that it chose not to grant the husband's petition because of his unpurged contempt.

The reported cases unanimously agree that in the absence of a controlling United States Supreme Court decision to the contrary, there is no constitutional compulsion to recognize anti-suit injunctions.

Various reasons have been advanced for denying Full Faith and Credit. It has been suggested that such injunctions do not adjudicate the merits of the ultimate controversy; they merely enjoin prosecution of the action in another state. ⁵ Union Pacific R. Co. v. Rule (1923) 155 Minn. 302, 193 N.W. 161. Other cases have reasoned that since an anti-suit injunction acts upon the parties rather than the court, the forum has the power to proceed notwithstanding the sister-state injunction. Dominick v. Dominick (1960) 26 Misc.2d 344, 205 N.Y.S.2d 503, citing Kleinschmidt v. Kleinschmidt (1951) 343 Ill.App. 539, 99 N.E.2d 623. The underlying rationale appears to be that each state has a legitimate interest in determining for itself the fairness or unfairness of any resort to its courts. See generally, Ehrenzweig, Treatise on the Conflict of Laws (1962), p. 183; Reese, "Full Faith and Credit to Foreign Equity Decrees," 42 Iowa L.Rev. 183 (1957). In the present context, moreover, the suggestion that a court must decline to hear a divorce action when confronted with a sister-state injunction is contrary to the United States Supreme Court's approval of migratory divorces and the requirement that Full Faith and Credit be given to such decrees. If a state has the power, i. e. the jurisdiction, to grant a divorce as against a non-resident party, certainly that power is not destroyed because an anti-suit injunction has been issued by a sister-state. See, e. g., Keck v. Keck (1972) 8 Ill.App.3d 277, 290 N.E.2d 385, rev'd on another ground (1974) 56 Ill.2d 508, 309 N.E.2d 217.

Thus in those instances where deference has been extended it has been based on comity rather than on the constitutional command of Full Faith and Credit. E. g., Strubinger v. Mid-Union Indemnity Co. (1961) Mo.App., 352 S.W.2d 397; Allen v. Chicago, Great Western R. Co. (1925) 239 Ill.App. 38; Fisher v. Pacific Mut. Life Ins. Co. (1916) 112 Miss. 30, 72 So. 846; Gilman v. Ketcham (1893) 84 Wis. 60, 54 N.W. 395. Contra, Frye v. Chicago, R. I. & P. Ry. Co. (1923) 157 Minn. 52, 195 N.W. 629, cert. denied 263 U.S. 723, 44 S.Ct. 231, 68 L.Ed. 525; State ex rel. Bossung v. District Court (1918) 140 Minn. 494, 168 N.W. 589. See generally, Annot., 74 A.L.R.2d 828.

However, the rules of comity do not require compulsory recognition of foreign anti-suit injunctions. See, e. g., Cunningham v. Cunningham (1964) 25 Conn.Sup. 221, 200 A.2d 734; James v. Grand Trunk W. R. Co. (1958) 14 Ill.2d 356, 152 N.E.2d 858, cert. denied 358 U.S. 915, 79 S.Ct. 288, 3 L.Ed.2d 239; Alford v. Wabash Ry. Co. (1934) 229 Mo.App. 102, 73 S.W.2d 277; Nichols & Shepard Co. v. Wheeler (1912) 150 Ky. 169, 150 S.W. 33. See generally, Annot., 74 A.L.R.2d 828.

The cases surveyed which have faced the issue, albeit not necessarily in connection with a pending dissolution of marriage action, are generally in agreement. Where a sister-state enjoins a litigant from proceeding with a previously instituted This is not to say that priority of jurisdiction will be the dispositive factor in every case. The equities involved and the other competing interests of the two jurisdictions should also be considered. See, e. g., Roggenkamp v. Roggenkamp (1975) 25 Md.App. 243, 333 A.2d 374.

action, the court in the forum state will usually refuse to recognize the injunction as a bar to disposition of the pending action. Recognition is thus made to depend on priority of jurisdiction, the controlling factor being not the issuance of the anti-suit injunction but whether the state issuing the injunction was the first to obtain jurisdiction of the cause. See, 42 Am.Jur.2d, Injunctions, § 227, p. 1009. This approach is based on the policy that after suits are commenced in one state, it is inconsistent with inter-state harmony to let the courts of another state control their prosecution. The court which first obtains jurisdiction of the case should ordinarily be permitted to retain it until the cause is finally adjudicated, without interference from the courts of other states. See, James v. Grand Trunk W. R. Co., supra, and the cases cited therein.

We find that our own cases which have had occasion to consider comity principles in related situations are in accord with this approach. Indiana recognizes comity not as a matter of right, but, out...