Armstrong v. Armstrong

• Citation: 130 N.E.2d 710,99 Ohio App. 7,58 O.O. 79
• Parties: , 58 O.O. 79 ARMSTRONG, Appellee, v. ARMSTRONG, Appellant; General Motors Corporation et al., Appellees.
• Decision Date: 08 March 1954
• Court: United States Court of Appeals (Ohio)

Page 7

99 Ohio App. 7

130 N.E.2d 710, 58 O.O. 79

ARMSTRONG, Appellee, v. ARMSTRONG, Appellant General Motors Corporation et al., Appellees.

Court of Appeals of Ohio, Hamilton County.

March 8, 1954.

Syllabus by the Court

1. Under Section 3105.04, Revised Code, for the purpose of jurisdiction to entertain her action for divorce and alimony, a wife's right is not affected by the residence of her husband.

2. A divorce decree entered pro confesso by a forign court against a nonresident defendant on her failure to appear or answer, and which was entered on constructive service alone, is a final decree for divorce within the jurisdiction of the court granting it, to which full faith and credit, under Section 1, Article IV, of the Constitution of the United States, must be given so long as it remains unreversed, unmodified, and not vacated by the courts of the state in which it was awarded; and such foreign divorce decree is a bar to an action for divorce by such defendant elsewhere.

3. No court has jurisdiction to enjoin and punish for contempt in the absence of personal service upon the person enjoined, and a decree made by a foreign court in such divorce action enforcing mandatory and prohibitory injunctions barring a wife from all rights based on the marital relations, so far as it attempts to exercise such jurisdiction is null and void.

4. The denial of alimony in such divorce decree based solely on constructive service upon the wife by a court of the matrimonial domicile is not entitled to full faith and credit in another state in which the wife resides.

Gorman, Silversteen & Davis, Cincinnati, for appellant.

Walter K. Sibbald, Cincinnati, for appellee.

MATTHEWS, Presiding Judge.

The defendant Raymond C. Armstrong, in this appeal, challenges the validity of a judgment for alimony rendered in favor of the plaintiff. The plaintiff, by her crossappeal, challenges the validity of the court's judgment denying a divorce to her.

The trial took place on the plaintiff's amended petition and the defendant's answer.

In the amended petition, the plaintiff alleged that the defendant had been guilty of gross neglect of duty and extreme cruelty which forced her to separate from him in October 1950, and that in April 1951 he filed an action in the Circuit Court of the Eleventh Judicial District in and for Dade County, Florida, in which action he falsely charged that she was wholly without business training at and prior to their marriage; that during all their married life of 34 years she had never shared in any business activities with him; that she had contributed nothing to the enhancement of his material assets; that she had an ungovernable temper and had shot at him with a revolver; that as early as 1943 she began to plan leaving him; that she had wrongfully induced him to place bank accounts and safe deposit boxes in their joint names for the purpose of thereafter taking them into her exclusive possession and did on their separation on a later date take certain amounts of money and bonds and stocks into her exclusive possession and sought to convert them to her own use; that, upon a reconciliation in 1948, she had promised to return the money and other property to him, but had not done so, with the exception of about $7,000 which she returned to their joint bank account; that the reconciliation failed wholly because of her wrongdoing; and that in October 1950 she left their residence in Miami, Florida, and refused to disclose where she was living thereafter.

She alleged also that the defendant Armstrong made oath to the foregoing allegations knowing them to be false and that the prosecution of the action based thereon would perpetrate a fraud upon the court, and that nevertheless he appeared before a special master in said cause and testified falsely as aforesaid, and the special master reported to the court that he was entitled to a divorce after an agreement had been reached between the defendant Armstrong and the special master setting the amount of the special master's fee.

The plaintiff alleged also that, without service of summons upon her and without her appearance therein, the action came on for hearing upon the complaint of the plaintiff (defendant Armstrong herein) and the report of the special master, and that thereupon the court entered a decree on October 2, 1951, granting a divorce to Armstrong, the defendant herein.

In her amended petition, the plaintiff alleged that in 1914 she and the defendant Armstrong started a business in which she furnished the greater part of the capital, which business was continued through their joint efforts before and after their marriage, resulting in the accumulation of property in their ownership, a part of which consisted of certificates of stock, specifically described, in six corporations issued in the name of defendant Armstrong, which certificates the plaintiff has in her possession in Hamilton County, Ohio, but which are unendorsed by the defendant Armstrong. She alleged also that the defendant corporations which issued the certificates will not cancel them and reissue them without the order of a court and, for that reason, they are made parties, so that the court may award to her such alimony as the court may deem reasonable and proper. Her prayer was for divorce and alimony.

The defendant Armstrong by answer denied that the allegations in his complaint and the testimony he gave in his action in the Eleventh Judicial Circuit in and for Dade County Florida, were false; denied that defendant therein was not served with summons; and alleged to the contrary that the defendant was duly served in accordance with the law of Florida, and that, by reason thereof, the Florida court had full jurisdiction over both the subject matter and the persons of the plaintiff and defendants.

The defendant Armstrong denied that he had been guilty of gross neglect of duty or extreme cruelty; denied that plaintiff had been a dutiful and faithful wife; denied that she had assisted in any way in the accumulation of property; but asserted that such property was accumulated by his own efforts; that much of the property had been placed in their joint names solely because of the plaintiff's insistence; and that in various ways from such properties in their joint names she has received and will receive substantial sums. He alleged also that the withdrawal by the plaintiff of his property from the safety deposit box constituted embezzlement under the laws of Florida, of which laws he asked the court to take judicial notice.

The defendant's answer contained a general denial of all plaintiff's amended petition of good conduct on her part and misconduct on his part and concluded with a prayer that her amended petition be dismissed and that she be required to deliver to him all the certificates of stock and jewelry in her possession, and that the court make an equitable division of the money withdrawn from their joint bank accounts.

A reply placed in issue all the affirmative allegations of the answer.

At the trial of these issues, evidence was introduced from which the conclusion could reasonably be deduced that the plaintiff in this action had been guilty of gross neglect of duty and extreme cruelty and that the Florida decree granting a divorce to the defendant herein was supported by sufficient evidence. On the other hand, evidence of equal cogency was introduced from which it could be deduced that he had been guilty of gross neglect of duty and extreme cruelty, and that the decree awarding a decree to the plaintiff herein outweighed the evidence of the defendant and would have justified a divorce in her favor. At any rate, this court would not be justified in reversing the decree in her favor on the ground that it was manifestly against the weight.

The complete record of the action in which the divorce was granted to the defendant herein by the Florida court was introduced at the trial in this case. This record includes the bill of complaint, the amendment to the bill, a complete transcript of the testimony taken before the special master, the special master's report, and the final decree. From this record, it is manifest that the plaintiff in that case sought to vest the court with jurisdiction not only over the marital status, so that it might be dissolved, but also endeavored to bring all the property and property rights, both real and personal, wherever located, within the court's jurisdiction, The decree that was entered was equally broad. By it, the plaintiff in that action (Raymond C. Armstrong) was granted a divorce on the ground of gross neglect of duty and extreme cruelty and was awarded title to all the real estate and personal property within the territorial jurisdiction of the court. The defendant (Mary R. Armstrong) was found to have forfeited all right to alimony, was ordered to return all property she had taken from the bank accounts and safety deposit vaults, and was enjoined from interfering with plaintiff's right to such property. The court recited that it took notice that some property was located in Ohio, and, for that reason, the Ohio courts would determine the rights in such property. In view of that situation, the court made a specific finding that both parties were and had been for many years citizens and residents of the state of Florida, that the matrimonial domicile was in the state of Florida, that the plaintiff herein left the matrimonial domicile without right in 1950 and had no right to establish a legal domicile elsewhere, and that in law and fact her domicile was still that of her husband in the state of Florida.

The record shows--and it is admitted--that this decree was entered upon constructive service alone. The defendant was not served with any process within the territorial jurisdiction of the court, and she did not enter her appearance in any way. The decree was entered pro confesso on her failure to appear or answer.

In...