Anderson v. Anderson

• Decision Date: 24 September 1929
• Docket Number: Case Number: 19803
• Citation: 282 P. 335,140 Okla. 168,1929 OK 346
• Parties: ANDERSON et al. v. ANDERSON.
• Court: Oklahoma Supreme Court

1929 OK 346

282 P. 335

140 Okla. 168

ANDERSON et al. v. ANDERSON.

Case Number: 19803

Supreme Court of Oklahoma

Decided: September 24, 1929

Syllabus

¶0 Husband and Wife--Action for Alimony by Nonresident Wife against Nonresident Husband not Maintainable.

Where a wife, who is a citizen and resident of the state of California, is prosecuting a suit for divorce and alimony against her husband, who is a citizen and resident of California, in the courts of California, in which state the husband has property of the approximate value of $ 100,000, she cannot maintain an action for alimony without divorce in Oklahoma against her nonresident husband on constructive service where the husband has not entered an appearance in the Oklahoma court. The fact that the husband owns property within the state of Oklahoma does not authorize the Oklahoma court, in such action, to award alimony to a wife until the rights of the parties have been adjudicated in the forum of their residence, and then only in so far as is necessary to make the decree of the forum of their residence effective.

Error from District Court, Carter County Asa E. Walden, Judge.

Action by Elaine D. Anderson against Nettie H. Anderson and others. Judgment for plaintiff, and defendants appeal. Reversed, with instructions.

See, also, 131 Okla. 95, 267 P. 621.

George S. Ramsey, Potter & Potter, and Guy Sigler, for plaintiffs in error.

H. E. Ledbetter and Champion, Champion & Fischl, for defendant in error.

ANDREWS, J.

¶1 The defendant in error was the plaintiff in the trial court and will be referred to as plaintiff herein. The plaintiffs in error were defendants in the trial court and will be referred to as defendants herein. Hoxie Anderson, one of the defendants in the trial court, was served by publication, but did not appear in the trial court and is not a party to this appeal. He will be referred to herein as Hoxie Anderson.

¶2 At the time of the marriage in 1920 of plaintiff and Hoxie Anderson she was a resident of New York City and he of Ardmore, Okla. After their marriage they resided at Ardmore until 1925, when they moved to California, where they have both been citizens and residents at all times since, and where their separation occurred in 1926.

¶3 At the time of the marriage Hoxie Anderson had very little property, his entire possessions consisting of two pieces of property producing little income and of little value.

¶4 After the marriage the defendant C. L. Anderson, who is the father of Hoxie Anderson, and of the defendants Wilmer Anderson and Charles Anderson, and the husband of Nettie H. Anderson, conveyed to Hoxie Anderson the property involved in this action. The instruments of conveyance show this beyond dispute.

¶5 During the continuance of the marriage relation the plaintiff had some $ 16,000 in funds and securities, all of which had been expended prior to the separation except $ 3,200, which was in the possession of Hoxie Anderson at the time of the separation. The evidence shows that no part of this money was used for the purchase of any of the property involved in this action.

¶6 The trial court found:

"That all of the property owned by the plaintiff, Elaine D. Anderson, in the preceding paragraph was converted and misappropriated and dissipated by the defendant Hoxie Anderson, or the greater portion thereof, or was used by the said Hoxie Anderson for the maintenance and support of himself and his said wife."

¶7 It is unnecessary for this court to discuss the conduct of the parties. It is sufficient to state that the evidence is such that a divorce might be granted the plaintiff in California, if the grounds for divorce in California are the same as in Oklahoma, of which there is no evidence.

¶8 After the separation, the plaintiff sued Hoxie Anderson in California for alimony and separate maintenance, and while that suit was pending she filed the present suit in the district court of Carter county, Okla. She then dismissed the California suit. Thereafter Hoxie Anderson filed a suit against her in California for divorce, and this plaintiff filed a cross-petition therein asking for divorce and alimony, which suit, according to the evidence, is pending.

¶9 Her petition in the case at bar alleged that she, her husband, Hoxie Anderson, his father, C. L. Anderson, his mother, Nettie H. Anderson, and his two brothers, Wilmer and Charles Anderson, are all residents of the state of California. The marriage and separation as hereinbefore set forth was alleged, acts of Hoxie Anderson during the married life and alleged to be the cause of the separation and grounds for divorce were set forth. It was therein alleged that plaintiff was without an income or means of support and by reason of her physical condition was unable to work and earn any money and is dependent upon the charity of her relatives; that Hoxie Anderson is not paying her anything for her support although able financially to support her; that she is in need of funds with which to purchase clothes and with which to live. There was a prayer for temporary alimony in the sum of $ 10,000, $ 2,000 attorney fees, $ 500 expense money, and permanent alimony to the extent of an undivided one-half interest in the property described in the petition or its equivalent in money, the appointment of a receiver, establishment of a trust and other relief.

¶10 The petition described certain real estate in detail in Carter, Love, Stephens, and Jefferson counties and alleged that Hoxie Anderson "acquired the title, possession, and recorded title of all of the foregoing property and became the owner thereof, after he married plaintiff" all of which he owned at the time of the separation.

¶11 Service was had by publication. A receiver was appointed for the land, orders for temporary alimony, suit money, attorney's fees, and costs were made and other proceedings had.

¶12 Hoxie Anderson did not answer or appear in the cause. Defendants filed their answer, in which they alleged that they were residents of California; that Hoxie Anderson was a resident of California; that at the time of the institution of this suit and the appointment of a receiver the plaintiff had instituted and was prosecuting a suit in California for alimony and separate maintenance. It further alleged that Nettie H. Anderson, Charles Anderson, and Wilmer Anderson are the sole owners of the property described in the petition and have been in the exclusive possession of the same since February, 1925; that all the interest Hoxie Anderson ever had therein was sold and conveyed to them for a valuable consideration with the full knowledge and consent of the plaintiff.

¶13 At the conclusion of the trial the court rendered a judgment giving to the plaintiff all of the property described in the petition and some that was not described in the petition, affidavit for publication or publication notice, and all other property Hoxie Anderson held in his name of record at the time of the separation, for her alimony, maintenance, and support, from which order and judgment, after motion for new trial overruled, defendants appealed to this court.

¶14 There are many errors alleged, but inasmuch as this court is of the opinion that the judgment in this case is coram non judice and void, only the assignments of error pertaining thereto will be considered.

¶15 Our divorce statutes were taken from Kansas and we adopted the construction placed thereon by Johnson v. Johnson, 57 Kan. 343, 46 P. 700, that case having been decided in 1896.

¶16 Plaintiff, in her brief on the former appeal, said:

"By the adoption of the Kansas statutes into the state of Oklahoma, this court is bound by the interpretation placed thereon"

--with which statement we agree. In that brief plaintiff contended that we are bound by the Kansas opinion in Wohlfort v. Wohlfort, 225 P. 746, but, inasmuch as this case was not decided until 1924, the rule stated does not apply. Nor are we bound by the opinion of Osman v. Osman (Kan.) 121 P. 327, which refuses to follow Johnson v. Johnson, supra.

¶17 Under section 199, C. O. S. 1921, the actions therein named must be brought in the county in which the subject of the action is situated. This section is referred to because of the use of the word "must" therein as contradistinguished from the use of the word "may" in section 206, Id., which section provides that an action for divorce may be brought in the county of which the plaintiff is an actual resident at the time of the filing of the petition. The use of the word "may" in this latter section is advisable, for not all proceedings for divorce are required to be brought in the county of which the applicant is an actual resident. Under section 502, C. O. S. 1921, the plaintiff in a divorce action must have been a resident in good faith of the state for one year next preceding the filing of the petition and must be a resident of the county in which the action is brought at the time of the filing of the petition therein. Pope v. Pope, 116 Okla. 188, 243 P. 962. But this provision as to residence does not apply to a defendant in a divorce action. It has been specifically held that the requirement of section 502, Id., as to residence does not apply to a defendant who prosecutes an action for divorce on cross-petition under section 504, Id. The defendant in a divorce action, by cross-petition, may procure a divorce in a county of which he is not a resident and in a state of which he is not a resident where the action was properly commenced under section 502, Id. Newman v. Newman, 27 Okla. 381, 112 Pac 1007. This is on the theory that the court, having acquired jurisdiction under section 502, Id., will retain jurisdiction to afford complete relief between the parties under section 504, Id.

¶18 But there is no decision holding that either the plaintiff or the defendant may procure a divorce in Oklahoma unless the jurisdictional requirement of section 502, Id., is met.

¶19 Since the time of Beach v. Beach, 4...