Armstrong v. Armstrong

• Decision Date: 15 December 1954
• Docket Number: No. 33956,33956
• Citation: 123 N.E.2d 267,162 Ohio St. 406
• Parties: , 55 O.O. 234 ARMSTRONG, Appellee and Cross-Appellant, v. ARMSTRONG, Appellant and Cross-Appellee et al.
• Court: Ohio Supreme Court

Page 406

162 Ohio St. 406

123 N.E.2d 267, 55 O.O. 234

ARMSTRONG, Appellee and Cross-Appellant, v. ARMSTRONG, Appellant and Cross-Appellee et al.

No. 33956.

Supreme Court of Ohio.

Dec. 15, 1954.

Syllabus by the Court.

1. A divorce decree obtained against a nonresident defendant solely upon service by publication, where such service is authorized in the state granting the divorce, is entitled, under Section I, Article IV of the Constitution of the United States, to full faith and credit elsewhere, providing such service meets the requirements of due process and the plaintiff at the time of instituting the divorce proceeding was legally domiciled in the state granting the divorce.

2. Such a divorce decree in favor of a husband, based solely on service by publication on the wife residing in another state, does not, as to a denial of alimony therein, operate extraterritorially and is not entitled to full faith and credit in such other state.

This cause is concerned with the subject of divorce and alimony and is here on an appeal as of right and on the allowance of a motion to require the Court of Appeals for Hamilton County to certify its record.

Raymond C. Armstrong, appellant, hereinafter referred to as Armstrong, secured a divorce, upon constructive service of summons, from Mary R. Armstrong, appellee, hereinafter called Mrs. Armstrong, by the decree of a court in Florida. Embodied in the decree was a denial of alimony to her. Subsequently, in February, 1952, she sued Armstrong for divorce and alimony in the Court of Common Pleas of Hamilton County, Ohio, claiming that Armstrong had procured his Florida divorce by fraud and misrepresentation. He entered his appearance by way of answer in which he denies many of the allegations of the petition. This was met by reply.

The cause was heard on considerable evidence and both the Armstrongs testified. Mrs. Armstrong was refused a divorce on the basis that Armstrong's Florida decree was conclusive, but she obtained an award of alimony. Such decree was affirmed on appeal by the Court of Appeals.

Mrs. Armstrong, in her cross-appeal, complains that she was erroneously denied a divorce in Ohio and the allowance of alimony pendente lite and expenses, whereas Armstrong contends that she was precluded from obtaining any alimony award in Ohio by reason of his Florida decree, which denies her the right to alimony.

It appears that both parties are natives of Ohio and were married in this state in 1917. They engaged in business here until the early 1920's when they sold the business and removed to Florida. Later, real property was bought on the Isle of Pines, and from 1925 to 1928 the Armstrongs occupied themselves in growing fruit and vegetables there. Then in 1928 they went to the city of Miami, Florida. Residence properties were purchased, into one of which they moved, and they became taxpayers and registered voters of that community.

However, they did not sever their ties with Ohio. Two farms, one in Indiana and one in this state, were purchased and the Armstrongs generally spent the summer months in Ohio looking after their property interests. The title to some of the property accumulated over the years was held jointly, while other property was held by Armstrong individually.

Matrimonial difficulties developed between the Armstrongs, and in the summer of 1948, while they were at their Clermont County, Ohio, farm, an altercation occurred and Mrs. Armstrong departed. She took from a jointly held safety deposit box certain securities owned by Armstrong which she could not negotiate but kept and withdrew the major portion of a sizeable money deposit in a joint bank account. A reconciliation took place in a matter of weeks, and on September 27, 1948, at Ashville, North Carolina, Armstrong signed a written statement in which he assumed some blame for their domestic troubles.

Friction again developed between the Armstrongs, and in October 1950 Mrs. Armstrong left their Miami, Florida, home and returned to Ohio, where she remained.

On April 16, 1951, Armstrong filed suit for divorce in the Circuit Court of Dade County, Florida. Service by publication only was made on Mrs. Armstrong, but she employed an Ohio attorney and actually knew about the proceeding. However, she did not return to Florida and made no appearance in the suit. Subsequently, as has been noted, a decree of divorce was granted Armstrong, wherein Mrs. Armstrong was denied alimony and the title to the Florida real estate was vested in Armstrong. What transpired afterwards has previously been narrated.

Headley, Sibbald & Taft, Cincinnati, for appellee and cross-appellant.

Gorman, Silversteen & Davis, Cincinnati, for appellant and cross-appellee.

ZIMMERMAN, Judge.

From Armstrong's standpoint 'the sole question in this case is whether the courts of Ohio, under Article IV of the Constitution of the United States, are compelled to give full faith and credit to the entire decree for divorce rendered in Florida, the matrimonial domicile of the parties, which decree denied alimony to the wife, or whether the courts of Ohio can recognize the decree for divorce to the husband, but still award alimony to the wife.'

Of course, Armstrong answers the first part of the question in the affirmative and the latter part in the negative.

In support of his position, Armstrong relies primarily on the case of Thompson v. Thompson, 226 U.S. 551, 33 S.Ct. 129, 131, 57 L.Ed. 347.

In that case it was held that a court in Virginia, the matrimonial domicile of the parties, had jurisdiction to render a decree of divorce in favor of the husband on constructive service of summons on the wife, and that such decree was entitled to 'full faith and credit' in the District of Columbia. It was further held that such decree foreclosed any right of the wife to sue for alimony in the District of Columbia for the reason that the holdings of the Virginia courts are that a wife who is the offender can not be allowed alimony on a divorce...